Williams v. United States
Williams v. United States
Opinion of the Court
Separate statement in concurrence by Senior Judge NEBEKER at page 746.
Easterly, Associate Judge:
Marlon Williams seeks rehearing of our initial decision in his case, Williams v. United States (Williams I ),
Since Williams I , this court has issued decisions regarding the admission of firearms and toolmark testimony, Gardner v. United States ,
I. Facts and Procedural History
As there were no eyewitnesses to the shooting death of Min Soo Kang, the government primarily relied on circumstantial evidence to prove Mr. Williams's guilt at trial.
Around the time OnStar remotely disabled Mr. Kang's SUV, Ebony Hood saw a man whose description was consistent with Mr. Williams get out of that vehicle, put the hood up, and then slam it down. He told Ms. Hood he was waiting for a jump, but his behavior seemed "strange"; she took note of the fact that, when she heard sirens, she saw the man walk away from the car and discard something small. After *737the sirens passed, he retrieved the object but subsequently threw it away again. The following day, as Mary Gaffney was walking in the 5200 block of Ames Street NE, a man approached her, told her he had found some car keys, and handed them to her. Ms. Gaffney gave the keys to her friend, Rena Ross, who turned them into the police. The keys belonged to Mr. Kang's SUV.
The MPD recovered a number of latent fingerprints from the SUV. A fingerprint examiner subsequently opined that six prints-recovered from the exterior of the SUV, including the hood, and from the interior of the SUV on both the passenger's side door and the driver's side door-were left by Mr. Williams. The MPD recovered additional evidence from Mr. Williams's apartment, which was less than a half mile from where Mr. Kang's body was found: a Hi-Point
Based on this evidence, a jury convicted Mr. Williams of first-degree felony murder while armed, attempt to commit robbery while armed, and other weapons-related offenses.
Thereafter, Mr. Williams filed a petition for Rehearing and Rehearing En Banc, staying the issuance of the mandate.
*738II. Analysis
As detailed in Williams I , the firearms and toolmark examiner called by the government testified on direct examination that when a bullet is fired from a particular gun, the gun leaves "unique" identifying marks, "similar to a fingerprint, basically."
Mr. Williams argues rehearing is warranted because, although defense counsel did not object to the examiner's opinion testimony, based on toolmark pattern matching, that the gun recovered from Mr. Williams's apartment was the murder weapon, it is now clear that admission of this testimony constitutes plain error
A. Was There Error?
There have been two significant developments in this court's jurisprudence since the publication of Williams I . First, in Gardner v. United States ,
*739In Gardner , this court reviewed a preserved challenge to "unqualified and certain expert opinion that the bullet recovered from the decedent's body came from a specified silver gun." Id. at 1177 (internal quotation marks omitted); see also id. at 1182 (noting that examiner testified that "the silver gun was the murder weapon").
The first report cited by Gardner , Ballistic Imaging , was written by a committee of scientists and statisticians at the behest and with the sponsorship of the Department of Justice. THE NATIONAL RESEARCH COUNCIL (NRC)
*740The second report cited by Gardner , Strengthening Forensic Science in the United States: A Path Forward , was commissioned directly by Congress and reviewed a range of forensic analyses. THE NATIONAL RESEARCH COUNCIL, COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD xv-xviii, xix (2009) [hereinafter Strengthening Forensic Science ]. Regarding toolmark evidence in particular, the report explained that "[i]ndividual patterns from manufacture or from wear might, in some cases, be distinctive enough to suggest one particular source." Id. at 154 (emphasis added). But a definitive "match" could not be declared "[b]ecause not enough is known about the variabilities among individual tools and guns" or "how many points of similarity are necessary for a given level of confidence in the result." Id.
This court in Gardner commented that, particularly after the issuance of the Strengthening Forensic Science report, "some jurisdictions began to limit the scope of a ballistics expert's testimony."
In a footnote, the court in Gardner stated that its holding was "limited in that it allows toolmark experts to offer an opinion that a bullet or shell casing was fired by a particular firearm, but it does not permit them to do so with absolute or 100% certainty."
We ultimately conclude that we need not resolve the ambiguity of *742Gardner's footnote 19 in this case where the firearms and toolmark examiner not only testified, like the examiner in Gardner , that a specific bullet could be matched to a specific gun, but also that he did not have "any doubt" about his conclusion. There is no question that it was error to admit this opinion testimony however the holding of Gardner is articulated.
But Gardner was decided while the test under Frye / Dyas governed the admission of expert testimony, and Frye / Dyas is no longer the law in this jurisdiction. With this court's subsequent en banc decision in Motorola ,
Our endorsement in Motorola of a test for the admission of expert testimony that focuses on reliability dovetails perfectly with the analysis in Gardner . Although decided when Frye / Dyas was still the law, Gardner scrutinized the firearms and toolmark examiner's opinion testimony through a reliability lens
Although, in the government's view, Motorola should have no effect on this appeal, it expresses concern that this court, applying our en banc decision, might hold that all firearms and toolmark evidence is inadmissible. We do not so hold, and we do not question the admissibility of the firearms and toolmark examiner's testimony generally. The only issue before us *743is whether it is error for an examiner to provide unqualified opinion testimony that purports to identify a specific bullet as having been fired by a specific gun via toolmark pattern matching.
B. Was the Error Plain?
Having determined that the admission of the examiner's opinion testimony in this case, unqualifiedly linking a specific bullet to a specific gun based on pattern matching, was error, we turn to the question of whether that error is "plain," i.e., "clear or obvious, rather than subject to reasonable dispute." In re Taylor , 73 A.3d at 96 (quoting Puckett v. United States ,
Although it acknowledges that this court's decision in Gardner should inform our plain error analysis in this case, the government argues that this court's subsequent en banc decision in Motorola should not. The government notes that the en banc court in Motorola did not decide whether its holding applied "to cases that have already been tried but are not yet final on direct appeal."
In the wake of Gardner and Motorola , it is plainly error to allow a firearms and toolmark examiner to unqualifiedly opine, based on pattern matching, that a specific bullet was fired by a specific gun.
C. Did the Error Affect Substantial Rights?
Under the test for plain error, we must next determine whether the error in question "affect[ed] [appellant's] substantial rights." Perry v. United States ,
Based on the record, we are unpersuaded there is more than a "mere possibility" that the examiner's testimony prejudiced Mr. Williams. Although the government's case against Mr. Williams was comprised almost entirely of circumstantial evidence, that evidence was powerful. Arguably the most powerful incriminating evidence was the presence of fingerprints-which Mr. Williams conceded were his-both on the inside and outside of Mr. Kang's car.
There was no evidence that the men knew each other. Mr. Kang lived in Dunn Loring, Virginia; Mr. Williams lived in Southeast D.C. Just two hours before he was found dead, Mr. Kang had gone to a convenience store in Virginia and purchased over $100 of Newport cigarettes. Because this was a brand he was not known to smoke but that Mr. Williams did, this purchase supports an inference that the men interacted before Mr. Kang died. Mr. Kang's body was left by the side of the road less than a half mile from Mr. *745Williams's home. Hours after Mr. Kang's death, just about the time the vehicle was remotely disabled by OnStar, Ms. Hood saw someone resembling Mr. Williams in and around Mr. Kang's SUV. The man was looking under the hood (a location where the police recovered Mr. Williams's prints), apparently trying to figure out why it had suddenly stopped working. Lastly, this man, whose movements in and outside of the car corresponded to the locations where Mr. Williams's fingerprints were recovered, seemed wary of encountering the police-walking away from the car at the sound of sirens and discarding a small object that appears to have been the car keys-but not at all troubled that the car was the obvious scene of a violent crime, with blood all over the front driver and passenger areas and bullets in the driver's backrest. As the government persuasively argued in closing, the condition of the interior of the car rendered it implausible that this man, who the government had strong evidence was Mr. Williams, was simply acting as a fence or an accessory after the fact:
I mean, you're not going to accept that car from somebody, ["]Hey, here is the keys to the Escalade.["] When you get in and you see those bullet holes, you're not going to be riding around [in] that. When you see blood in the back seat,[26 ] you're not going to be riding around in that. The only way you're riding around in that is if you took it from the beginning.
The government also presented evidence from a cooperating witness who testified that, while he and Mr. Williams shared a holding cell behind the courtroom, Mr. Williams made detailed incriminating statements to him that aligned with the physical evidence, including the uncontested presence of Mr. Williams's fingerprints on the SUV. Most notably, the witness testified that Mr. Williams said that he had "wiped his prints off the gun" with the result that only link the police had between him and the weapon was that "it was found in his room." The witness also testified that Mr. Williams said he had tried to "wipe[ ] his prints off the [stolen] vehicle," but that police "found [his] prints" on the inside of the passenger-side door. Finally, the witness testified that, just before Mr. Williams exited the holding cell to walk into the courtroom, Mr. Williams told the witness, "It's time to put my game face on" and then asked "[i]f you didn't know anything about my case, could you tell that ... I murdered somebody?"
Thus, even without the ballistics evidence, the government had a powerful circumstantial case. And though the government certainly mentioned the examiner's testimony identifying the gun recovered from Mr. Williams's apartment as the murder weapon, we must also acknowledge that even if this opinion testimony had been properly excluded under Gardner , the government still would have been able to present evidence that the police recovered a gun from Mr. Williams's home, and the firearms and toolmark examiner at a minimum would have been able to testify that Mr. Williams's gun was capable of *746firing bullets of the sort that killed Mr. Kang.
Reviewing the record as a whole, we conclude Mr. Williams cannot show there was a reasonable probability that the jury might have reached a different conclusion had the trial court properly excluded the firearms and toolmark examiner's opinion testimony unqualifiedly identifying the gun found in Mr. Williams's apartment as the murder weapon.
III. Conclusion
Because we conclude that Mr. Williams cannot satisfy our test for plain error, we affirm his convictions.
So ordered .
We highlight facts that bear on our analysis under the third prong of the test for plain error, an analysis we did not undertake in our initial opinion. The facts are derived from the evidence presented at Mr. Williams's second trial, which resulted in his conviction; Mr. Williams's first trial ended in a mistrial after the jury was unable to reach a verdict.
OnStar is a tracking system that can be installed in a vehicle. One service the OnStar corporation provides is "Stolen Vehicle Assistance," which includes a "Remote Ignition Blocking" feature that was employed in this case. See OnStar Stolen Vehicle Assistance, https://perma.cc/DEM3-DMAH (last visited June 21, 2019).
In the original panel opinion, we incorrectly referred to this firearms manufacturer as "High Point." Williams I ,
The exterior of the gun bore no fingerprints, but it was found next to a cloth bearing Mr. Williams's DNA.
The mandate prematurely issued in error and was recalled.
See In re Taylor ,
Unlike in Mr. Williams's case, in Gardner , the expert did not additionally, expressly state that he was without any doubt about his conclusion.
Gardner also cited to recent articles published in legal journals that documented the challenges courts face when trying to assess the scientific validity of various forensic disciplines, including ballistics matching, as well as the past failures of courts to adequately address these challenges. See
The NRC is a component of the congressionally-chartered National Academy of Science (NAS). Ballistic Imaging at iii.
In the absence of such data, the NRC Committee determined that, "as firearms identification is currently practiced, an examiner's assessment of the quality and quantity of resulting toolmarks and the decision of what does or does not constitute a match comes down to a subjective determination based on intuition and experience." Ballistic Imaging at 55. The NRC Committee expressed concern that examiners nonetheless "tend to cast their assessments in bold absolutes, commonly asserting that a match can be made 'to the exclusion of all other firearms in the world.' " Id. at 82. The NRC Committee criticized this sort of testimony, explaining that "[s]uch comments cloak an inherently subjective assessment of a match with an extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero." Id. "[S]topping short of commenting on whether firearms toolmark evidence should be admissible" in court, the NRC Committee declared that "[c ]onclusions drawn in firearms identification should not be made to imply the presence of a firm statistical basis when none has been demonstrated. " Id. (emphasis in original).
More generally, the Strengthening Forensic Science report made a number of recommendations "to improve the forensic science disciplines and to allow the forensic science community to serve society more effectively," id. at xix, including the recommendation that "[f]orensic reports, and any courtroom testimony stemming from them, ... include clear characterizations of the limitations of the analyses, including measures of uncertainty in reported results and associated estimated probabilities where possible," id. at 21-22.
United States v. Hicks ,
The government also cites an unpublished federal trial court decision, United States v. Cerna ,
The only federal appellate decision cited by the government, Hicks , predates these government reports. The federal trial court decisions cited by the government mention these reports only in passing.
The PCAST Report evaluated and deemed inadequate the studies that have thus far been done to support the proposition "that every gun produces 'unique' toolmarks," id. at 105, such that a gun can be matched to a fired bullet or vice versa. See id. at 104-106, 112 ("find[ing] that firearms analysis currently falls short of the criteria for foundational validity"); id. at 150 (same; urging empirical studies to develop error rates for any pattern-matching ballistics analysis); see also President's Council of Advisors on Science and Technology, An Addendum to the PCAST Report on Forensic Science in Criminal Courts 6, 9 (Jan. 6, 2017), available at https://perma.cc/LL52-GFJ3 (last visited June 21, 2019) (reiterating that most toolmark studies have used "flawed designs" and urging forensic practitioners "to embrace a new, empirical approach ... to transform subjective [pattern-matching] methods into objective methods"). More generally, the PCAST Report renewed the call to establish the foundational validity of a number of forensic pattern-matching disciplines. Id. at 4-5 (defining foundational validity as "the scientific concept we mean to correspond to the legal requirement in [Federal] Rule [of Evidence] 702(c), of reliable principles and methods" (internal quotation marks omitted)). It also affirmed the importance of ensuring "validity [of these disciplines] as applied," but it stressed,
neither experience, nor judgment, nor good professional practices (such as certification programs and accreditation programs, standardized protocols, proficiency testing, and codes of ethics) can substitute for actual evidence of foundational validity and reliability. The frequency with which a particular pattern or set of features will be observed in different samples, which is an essential element in drawing conclusions, is not a matter of "judgment." It is an empirical matter for which only empirical evidence is relevant. Similarly, an expert's expression of confidence based on personal professional experience or expressions of consensus among practitioners about the accuracy of their field is no substitute for error rates estimated from relevant studies. For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it.
Id. at 6; see also id. at 137-38 (explaining that, in all areas of forensic comparison, it is not enough to preclude analysts from making "sweeping claims that they can identify the source ... to the exclusion of all other possible sources"; analysts must also be able to tell the fact-finder how likely it is that they are wrong).
See, e.g. , (John ) Jones v. United States ,
Indeed, the court noted that "[t]he parties d[id] not make any explicit arguments based upon either Frye v. United States ,
The government acknowledges that its policy regarding permissible opinion testimony by firearms and toolmark examiners has already "evolved" and that prosecutors at the USAO are being trained that an "expert may not offer an opinion with absolute or 100% certainty, or to a reasonable degree of scientific (or forensic discipline) certainty."
We also do not limit firearms and toolmark examiners from making other observations about the ballistics evidence recovered in a particular case; such observations are not at issue in this case.
They were also issued after our initial opinion concluding that Mr. Williams failed to satisfy the test for plain error, but our appellate review is not final until the mandate of this court issues, which has not yet happened in Mr. Williams's case. See Part I supra .
We declined to reach this issue because it was not presented. Motorola ,
The government makes no argument that Motorola should be the subject of some sort of exception to the "firm rule of retroactivity" adopted in Davis ,
In closing, defense counsel told the jury, "we're not denying that my client's fingerprints were on that Cadillac."
The government appears to have misspoken. Blood was found on the front seats of the car, not the back.
Mr. Williams largely ignores the other evidence presented by the government; he addresses it only in one sentence in which he asserts that, apart from the firearms and toolmark examiner's opinion testimony, "the government had only the fingerprints of [Mr.] Williams on the SUV, left there at an unknown time; and a questionable statement of a compensated jailhouse informant, vague in details and contradicting some of the fingerprint evidence." As reflected above, this does not accurately reflect the record.
Although defense counsel did elicit an admission from the examiner that guns made by the same manufacturer may leave similar toolmarks on shell casings, we decline to say that defense counsel defused the examiner's pattern-matching opinion testimony through cross-examination. See United States v. Glynn ,
Concurring Opinion
As noted above, ante at 741, the majority opinion does not resolve what footnote 19 in Gardner means. After holding that (1) the trial court had "erred by allowing [the firearms and toolmark examiner] to give an unqualified opinion about the source of the bullet that killed [the decedent]," Gardner v. United States,
The government argues that this footnote limits Gardner 's holding to prohibiting express certainty statements and that it is still authorized, post Gardner , to present opinion testimony identifying a specific bullet as having been fired by a specific gun. I agree with our determination that "the government's interpretation of this footnote is difficult to square with the above-the-line holding that the trial court 'had erred' by admitting the examiner's 'unqualified opinion,' that the 'the silver gun was the murder weapon.' " Ante at 740 (citing
Nebeker, Senior Judge, separate statement in concurrence:
This is not a case in which to resolve the knotty question of to what degree of certainty, or not, an expert's opinion is admissible *747as to a particular fact. This is a direct appeal from convictions, which is confined to a harmless error judgment.
Reference
- Full Case Name
- Marlon WILLIAMS, Appellant, v. UNITED STATES, Appellee.
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- Published