Benn v. U.S., No. 03-CF-946 (DC 9/3/2009)

• Decision Date: 03 September 2009
• Docket Number: No. 03-CF-946,03-CF-946
• Parties: RAYMOND L. BENN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

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RAYMOND L. BENN, Appellant, v. UNITED STATES, Appellee.

No. 03-CF-946

District of Columbia Court of Appeals.

Argued January 5, 2006.

Decided September 3, 2009.

Appeal from the Superior Court of the District of Columbia, (F-13098-92), (Hon. Geoffrey M. Alprin, Trial Judge).

Lee Richard Goebes, Public Defender Service, for appellant. James W. Klein, Sandra K. Levick, and Erin Murphy, Public Defender Service, were on the brief, for appellant.

Ann K. H. Simon, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Roy W. McLeese III and Colleen Covell, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and SCHWELB, Senior Judge.^*

Opinion for the court by Associate Judge RUIZ.

Opinion by Senior Judge SCHWELB, concurring in the judgment, at page 50.

RUIZ, Associate Judge:

Raymond Benn appeals his convictions, after a second jury trial, for the armed kidnapping of Charles "Sean" Williams on December 1, 1992. This appeal raises an issue we have grappled with before, the admission of expert testimony on the potential unreliability of eyewitnesses. For the first time, however, we do not affirm the trial court's exclusion of the proffered expert testimony. In excluding the expert testimony proffered by appellant, the trial court applied incorrect legal principles. It came dangerously close to employing a per se rule of exclusion and made a determination that contravened a holding of this court following the first trial. Moreover, the court did not follow the analysis established in Dyas v. United States,² which requires the trial court to consider three distinct factors in determining whether to admit expert testimony on the reliability of eyewitness identifications, and to do so in the context of the proffered expert testimony and evidence in the particular case. Because we cannot say that exclusion of the expert testimony proffered here was harmless, in a case that depended exclusively on the identification of eyewitnesses, we remand for further proceedings consistent with the analysis set forth in Dyas and this opinion.

We do not reverse appellant's convictions nor do we order a new trial. Rather, we remand and instruct the court to consider the credentials of appellant's proffered expert and the admissibility of his testimony in accordance with the three criteria established in Dyas. We note that while the trial court expressed the view that appellant's expert was qualified and the government generally did not contest his qualifications, the trial court has not ruled on the particular scientific studies that appellant's proffered expert, Professor Steven Penrod, planned to use or their application to the government's evidence in the case.³ Because such fact-intensive analysis is best conducted by the trial court, we leave the determination to its discretion in the first instance. We add that even if the trial judge decides, after considering all the relevant factors for admissibility, that the proffered expert witness is qualified and that his testimony should be admitted, the trial judge retains discretion to place reasonable limitations on the expert's testimony to avoid overwhelming the jury or unduly burdening the court, so long as these limitations are consistent with the requirements of the defense.⁴ In particular, the trial judge may prohibit "the introduction of ultimate conclusions by an expert witness as to the truthfulness of a witness . . . and the guilt of the defendant."⁵

I. Trial and Retrial

The trial in this case followed our remand for a new trial in Benn v. United States (Benn I).⁶ There, we directed the trial court to permit appellant to present evidence supporting his alibi defense, that appellant was at his mother's house celebrating her birthday on the evening of the murder.⁷ At the first trial, appellant had been convicted of felony murder while armed⁸ and of related kidnapping, assault, and weapons charges, in connection with the shooting death of Sean Williams. We reversed his convictions because the trial court had refused to allow appellant's mother to retake the stand after she had sat in on the trial during the testimony of her son in contravention of the trial judge's rule on witnesses. The defense proposed to call appellant's mother in order to rebut the suggestion of the prosecutor, while cross-examining appellant, that he and his mother had rehearsed his alibi. Appellant had proffered that the reason they had not talked about the case was because defense counsel had cautioned them not to do so, and he wished to assure that the jury would be informed of that fact.

At the second trial, however, appellant did not renew his alibi defense, and neither he nor his mother testified. Instead, appellant's defense centered on challenging the reliability of the identifications of the witnesses who testified that appellant was one of the men who kidnapped Sean Williams. Prior to trial, appellant sought permission to present expert testimony on the "unreliability [of] stranger-to-stranger eyewitness identifications" and certain other specific factors that, according to appellant's proffer, can affect the accuracy of an eyewitness's identification and recollection. Appellant proffered as his expert Professor Steven Penrod, a well-known scholar with many published articles in the area of eyewitness identifications. At the conclusion of the second trial, the jury, after deliberating for over a day, found appellant guilty of armed kidnapping and the related weapons offense.⁹ Unlike in the first trial, the second jury acquitted appellant of murder.¹⁰ The sole issue presented in this appeal is whether the trial court abused its discretion in rejecting the proffered expert testimony.

II. Facts

In the second trial, as in the first, the government's case relied exclusively on the testimony of five members of the Mahoney family, none of whom knew or had ever seen appellant before. Each of these witnesses selected appellant from a photo array and identified him in court as "the taller" of two unknown men who entered their Southeast Washington, D.C. home, on December 1, 1992, and forcibly abducted Sean Williams. The gist of the trial testimony concerning their identifications follows.

Marcelle Anthony Mahoney, then thirteen years of age, was returning home when he saw "a tall guy about — oh 6'3'', 6'5", dark-skinned, wearing glasses, standing in the middle of the street [outside a double-parked] car." This made Marcelle afraid, so he hurried inside. A few minutes later, that same tall man, and a shorter man who had a black gun, dragged Sean Williams into the apartment. Marcelle testified that he was "kind [of] frantic about seeing the gun."

The two intruders went to the bedroom of April Mahoney, who was Sean Williams's fiancée and the mother of his child. She noticed that although it was December, her fiancé was wearing only a T-Shirt, without a coat, and that he had blood all over his face and clothes. The shorter unknown man, who was wearing her child's panties on his head, ordered April to leave the room and to take her baby, along with Darren and Marcelle Mahoney, out of the bedroom. Darren Mahoney, who was twelve at the time, testified that he stayed at least long enough to see Williams "rambl[e]" around April's room as he kept asking, "April, where my stuff at?"

Willie Mae Mahoney, April's mother, testified that she was in her bedroom and became alarmed when April told her about the sudden appearance in the home of the two unknown men. When April was unable to explain why the men were there, Willie Mae "hollered" at them to not "disrespect [my] home." As the intruders walked out of April's room without responding, Willie Mae followed them and repeated her demand, leading the taller man to calmly explain that he would commit no violence toward, and intended no disrespect of, her home. When she tried to talk directly to Sean Williams, the tall man interrupted her, saying, "[Sean is] going to be all right. He . . . has to settle a debt," and the three men left. Willie Mae Mahoney testified that Sean Williams looked "scared" and "pitiful."

William "Butch" Mahoney, Willie Mae's son and April's older brother, testified that he was in the kitchen when the men entered the home. He followed the intruders as far as the front step, and from there he called out to Sean Williams, who tried to give an optimistic response, while the two men pulled him into a car and drove off.

The intrusion into the Mahoney home lasted about six minutes. That was the last time the Mahoneys saw Sean Williams alive. His bullet-ridden body was discovered nearby early the following morning on the grounds of an elementary school.¹¹

Approximately one week after Sean Williams's murder, the Mahoney family was shown a stack of nine photos from which each identified appellant as the taller of the two men who had entered their home.¹² Darren, Marcelle, and Willie Mae Mahoney made these identifications one after the other, while Butch viewed the photo array later the same evening, and April several days later. Detective Mayberry testified that prior to making their identifications, Darren, Marcelle, and Willie Mae were all placed in a back bedroom of the apartment. Each would then come individually to the dining room to view the photos, and then go to the living room. However, Willie Mae Mahoney testified that after her grandsons viewed the photographs, they returned to her, in the bedroom. Neither Darren nor Marcelle could remember the sequence in which they moved from one room to another.¹³

Following the identifications, April Mahoney testified, "we never discussed pictures, we just discussed what happened," but Butch Mahoney contradicted her, admitting that he discussed his identification...