Evans v. US, 02-CF-1034.

• Decision Date: 22 September 2005
• Docket Number: No. 02-CF-1034.,02-CF-1034.
• Citation: 883 A.2d 146
• Parties: Eric H. EVANS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

883 A.2d 146

Eric H. EVANS, Appellant, v. UNITED STATES, Appellee.

No. 02-CF-1034.

District of Columbia Court of Appeals.

Argued March 17, 2004.

Decided September 22, 2005.

Alexander J. Willscher, with whom Jeffrey T. Green, Washington, appointed by the court, was on the brief, for appellant.

Bernard J. Delia, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Elizabeth Trosman, Wanda Dixon, and Jelahn Stewart, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB and REID, Associate Judges, and KING, Senior Judge.

REID, Associate J.

Appellant Eric H. Evans was convicted of first-degree burglary, in violation of D.C.Code § 22-1801(a) (1996), recodified as D.C.Code § 22-801(a) (2001). He filed a timely notice of appeal. He challenges his conviction on the grounds that the trial court erred by (1) allowing the jury to use magnifying glasses; (2) coercing the jury's verdict against him; and (3) denying his motion for judgment of acquittal. We affirm.

FACTUAL SUMMARY

The record before us shows that in the early morning hours of September 18, 2001, around 4:00 a.m., a loud noise awakened two people, Mary Butler and Jonathan Schneider, who were sleeping in their two-level apartment, located in a converted row house in the 1300 block of Rhode Island Avenue in the Northeast quadrant of the District of Columbia. The noise came from the upper level of the apartment. Upon hearing the noise a second time, Ms. Butler and Mr. Schneider locked themselves in the bathroom and called the police.

As Officer Kevin Griffin of the Metropolitan Police Department ("MPD") arrived at the row house, in response to a radio assignment "[f]or a burglary in progress," he saw someone in the doorway leaving with "various electronic equipment ... in his arms." His view of the person was aided by hallway and street lighting. The person, who was about ten feet away from Officer Griffin, "looked [the officer] dead in the eye," and then "went back into the building and slammed the front door." The door locked. At Mr. Evans' trial, Officer Griffin identified the person he saw in the hallway as Mr. Evans.

Officer Griffin radioed for backup. Two officers responded, Officer Lance Kashinsky and Officer Alec James Corapinski. Officer Kashinsky accompanied Officer Griffin inside the building, and Officer Corapinski hastened to the back of the building. Once inside the building, Officer Griffin noticed a DVD player and a Game Boy in the hallway, and "a woman's purse lying on the stairs," as well as "a man's wallet" higher up the staircase. Officers Griffin and Kashinsky climbed to the roof of the building. They did not see anyone, but noticed a very close "separate building with a fire escape."

While the two officers were searching the building and the roof, Officer Corapinski heard a noise in the back of the building, which faced P Street. The noise sounded like "something contacting metal," in a "rhythmic" fashion and he "assume[d] it was feet." He noticed the fire escape. As he "got closer" he "observed [Mr. Evans whom he identified in court] run from a small alley into the sidewalk." When Mr. Evans saw Officer Corapinski, he "stopped running and turned [in] the opposite direction and started walking quickly away from [the officer]." Officer Corapinski used his radio to instruct a patrol unit to "stop the guy [who's] going to be crossing 14th Street." After Mr. Evans was stopped, Officer Corapinski thought he "appeared very nervous." Mr. Evans "was sweating profusely." When the officer conducted a frisk of Mr. Evans, he heard "[Mr. Evans'] heart ... pounding like real heavy and he was making spontaneous utterances like someone is nervous." The "spontaneous utterances" consisted of Mr. Evans saying rapidly: "[W]hat did I do, what did I do?" Officer Corapinski used his radio to ask Officer Griffin to determine whether anyone could identify "the suspect who was ... in the building stealing the property." Officer Griffin, who had given the description of "a black male with dreads," informed Officer Corapinski that he could identify the suspect. As Officer Corapinski was speaking with Officer Griffin, Mr. Evans said repeatedly: "that's not me, that's not me, I don't have dread locks. That's not me." Officer Griffin proceeded to 14th and P, looked at the suspect and identified him as the person he had seen earlier trying to leave the building in the 1300 block of Rhode Island Avenue. Officer Griffin was "a hundred percent positive" that Mr. Evans was that person. Mr. Evans' hair "was unkempt, messy and sticking out at various angles." Mr. Evans was arrested.

Following Mr. Evans' arrest, Officer Griffin called for a crime scene investigator. Officer John Spencer, a crime scene technician, arrived on the scene and lifted fingerprints. At Mr. Evans' trial, Diane Downing, a fingerprint specialist for the MPD for "almost eight years," who had examined "hundreds of thousands" of fingerprints, testified that she inspected the prints lifted from the crime scene — one from a key chain, and the other from the front door plate. Previously, she worked as a fingerprint specialist for the Federal Bureau of Investigation for twenty-one years. She described her methodology and referenced the guideline used in the industry to determine whether a lifted or latent useable print was identical to the subject's fingerprint. The prints are deemed identical if at least eight points or characteristics are "in the same position and location," that is "the same exact place." With respect to the print lifted from the key chain, Ms. Downing "found sixteen characteristics in the same relative position and location." And, regarding the latent print lifted from the front door plate, Ms. Downing detected "nine characteristics that were in the same position and location." Hence, she concluded that the lifted, latent prints were those of Mr. Evans.

ANALYSIS

Mr. Evans contends that "the trial court committed reversible constitutional error when it allowed the jurors to use magnifying glasses to make their own scientific assessments of whether the latent prints recovered from the crime scene matched [his]," and that he "was denied his constitutional right to a fair trial as guaranteed by the Fifth and Sixth Amendments of the United States Constitution." The government contends that the jury's use of magnifying glasses did not constitute "`extrinsic evidence' because the fingerprints had already been placed in evidence and the magnifying glasses merely amplified that which was already there." Mr. Evans also argues that his "conviction should be reversed because the trial court coerced the verdict when, having already given an instruction to the deadlocked jury pursuant to Winters v. United States, 317 A.2d 530 (D.C.1974) (en banc), and subsequently being informed that the jury was still deadlocked, the trial court sent the jury back to deliberate for another full day." The government maintains that Mr. Evans did not object to the course of action followed by the trial court in addressing three deadlock notes from the jury and specifically stated that he did not want to request a mistrial; therefore, the trial court did not commit plain error in handling the deadlock notes.

We first provide the factual context for our analysis. On Thursday, August 1, 2002, the jury sent four notes to the trial judge. The judge discussed the notes and proposed responses with counsel for the parties before addressing the jurors. The first noted stated: "What is the probability, the percentage of the fingerprints not belonging to the defendant?" The trial court told the jury: "I must say candidly to you that I am unable to answer this question. And also to say to you that you should make your decision in this case based upon the evidence that has been presented to you." The second question considered by the trial judge asked: "Is there any information on the fingerprinting process as a whole? Is there any information on the fingerprinting process that the Court can provide?" The trial court replied: "[T]he answer again is no, and you should not be researching the fingerprinting process. Again, you should make your decision in this case based upon the evidence that has been presented on the record, if you will, that is before you." The third question read: "Is there any information on the fingerprinting process that the Court can provide?" The trial court asserted: "[T]he answer is no. And again, I would say you need and you must make your decision in this case based upon the record that is before you, the evidence that is before you." The fourth question was: "Does the jury have to accept the fingerprint standard set forth by the Government?" The trial court answered, in part:

[Y]ou heard testimony from the expert witness Diane Downing as to the guideline that she used in making her determination....

You are not bound by an expert's opinion. If you find that the opinion is not based on sufficient education or experience, that the reasons supporting the opinion are not sound, or that the opinion is outweighed by other evidence, you may completely or partially disregard the opinion. In other words, you should give the opinion the weight you think it deserves after you consider it along with all of the other evidence.

Later, on the morning of August 1, 2002, the jury sent two more notes to the trial judge. One said, "Deadlocked!" The other asked: "Can we have a magnifying glass to examine the fingerprints?" With respect to the magnifying glass note, defense counsel initially declared: "I think I might object to that. I don't know that even the expert using a magnifying glass could make a determination." As the trial judge and counsel discussed the notes and the judge appeared ready to send magnifying glasses to the jury, defense counsel elaborated on his objection:

Your Honor,

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