Gardner v. United States

• Decision Date: 23 June 2016
• Docket Number: No. 14–CO–832.,No. 11–CF–557 ,11–CF–557
• Citation: 140 A.3d 1172
• Parties: Eric GARDNER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

140 A.3d 1172

Eric GARDNER, Appellant

v.UNITED STATES, Appellee.

No. 11–CF–557

No. 14–CO–832.

District of Columbia Court of Appeals.

Argued Jan. 21, 2016.

Decided June 23, 2016.

Benjamin Brooks, Boston, MA, for appellant.

Nicholas P. Coleman, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Michelle D. Jackson, and Mary Ann Snow, Assistant United States Attorneys, were on the brief for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID, Senior Judge.

REID

, Senior Judge:

These appeals arise from the indictment of appellant, Eric Gardner, on several felony charges related to the shooting death of cab driver Andrew Kamara on November 12, 2004.¹ A jury convicted Mr. Gardner of some of the charges in November 2006, but this court reversed his convictions because of errors in the admission of DNA evidence. We remanded the case for a new trial. See Gardner v. United States, 999 A.2d 55, 63 (D.C.2010)

. The government retried Mr. Gardner in late March and early April 2011. At the conclusion of that trial, a jury again convicted Mr. Gardner of some of the charges.²

In these consolidated appeals (direct and collateral),³ Mr. Gardner argues that his convictions must be reversed and the case remanded for a new trial because the trial court: (1) committed prejudicial error in permitting the firearms examiner to give an “unqualified and certain” expert opinion that the bullet recovered from the decedent's body came from a specified silver gun, and the court further plainly erred by failing to exclude the firearms examiner's testimony that he “had a second examiner confirm [his findings]”; (2) abused its discretion in admitting DNA “demonstrative evidence” (DNA testing data results depicted on two charts) to illustrate the DNA analyst's testimony; (3) precluded Mr. Gardner from testifying about a government witness' reputation as a “jailhouse snitch,” and erred by refusing to give a requested instruction on “cooperating witnesses”; (4) committed prejudicial error in limiting cross-examination of Metropolitan Police Department (“MPD”) Officer Scott Craiger; (5) erred in concluding that Mr. Gardner's post-arrest statement to the police was voluntary and thus admissible to impeach his trial testimony; and (6) erred when it denied his D.C.Code § 23–110

motion—the motion alleged that defense trial counsel was constitutionally ineffective for failing to (a) effectively cross-examine the firearms examiner concerning his unqualified opinion about the identity of the murder weapon; (b) proffer a basis for admitting Mr. Gardner's knowledge of one of the government's cooperating witnesses' reputation as a snitch to bolster Mr. Gardner's testimony; (c) object to false hearsay statements made by detectives during their interrogation of Mr. Gardner. Mr. Gardner also argues that, even if no individual claim of error warrants reversal, the cumulative impact of the errors requires reversal of his convictions.

First, we hold that in this jurisdiction a firearms and toolmark expert may not give an unqualified opinion, or testify with absolute or 100% certainty, that based on ballistics pattern comparison matching a fatal shot was fired from one firearm, to the exclusion of all other firearms; we further hold that the error was harmless in this case. Second, we conclude that the trial court did not abuse its discretion in admitting the DNA expert's testimony and demonstrative charts. Third, we conclude that (a) even assuming that the trial court should have permitted Mr. Gardner to respond to proposed questions from his defense counsel about Mr. Gardner's knowledge of Mr. Cunningham's reputation as a snitch, Mr. Gardner suffered no prejudice; and (b) the trial court did not abuse its discretion by denying Mr. Gardner's request for the plea agreement instruction. Fourth, we conclude that even assuming the trial court erred by limiting the cross-examination of Officer Craiger, the error was harmless under the constitutional and non-constitutional harmless error standards.

Fifth, we hold that Mr. Gardner's statement to the police was not involuntary, and that during the police interrogation, Mr. Gardner's will was not overborne in such a way as to render his confession the product of coercion. Sixth, we conclude that Mr. Gardner has failed to satisfy the prejudice prong of an ineffective assistance of counsel claim. Sixth, we conclude that there were no cumulative errors requiring reversal of Mr. Gardner's convictions. Consequently, we affirm his conviction for first-degree felony murder while armed and the related PFCV and CPWL convictions, but remand this case so that the trial court may vacate as merged Mr. Gardner's conviction for attempted armed robbery and the related PFCV conviction.

FACTUAL SUMMARY

The government presented testimony showing that Tahisha Dean was with Mr. Gardner most of the day on November 11, 2004, and continuing until the early morning hours of November 12, 2004. Ms. Dean testified that she, Mr. Gardner, and his brother, Floyd Jackson, rented room 114 at the Motel 6 on Georgia Avenue and Aspen Street, in the Northwest quadrant of the District of Columbia.⁴ The prosecutor confronted Ms. Dean with her grand jury testimony where she stated, under oath, that Mr. Gardner showed her a “[s]ilver, chrome” gun with either a black handle or “a black strip on the front” that “[l]ooks like a .45 or something like that. Automatic....”⁵

Mr. Gardner and Mr. Jackson later left the motel room together, and Mr. Gardner returned alone at “[a]bout 2:00 o'clock” in the morning on November 12. He was acting “[n]ervous and in shock.”⁶

At the time of the shooting, Mary Ball lived across the street from the crime scene. In the early morning hours of November 12, 2004, Ms. Ball was asleep in her bedroom when she awoke to the sound of “a loud crash which sounded like a car hitting another car.” She went to her bedroom window, which gave her a view of 9th Street. She noticed that “a cab had run into the back of a parked car.” She “saw a young man running from the cab—from the direction of the cab.”⁷ She described him as “wearing a dark jacket with a fitted waist[,] maybe a[n] elasticized waist[,] [and] dark pants....”⁸ He “kept turning back and looking towards the cab [and] he was also running through the front lawns of the houses along 9th Street.” Just before he ran out her line of sight, Ms. Ball watched him run “towards [her] house” and “down the alley towards Georgia Avenue....”

When police responded to the scene, they found Mr. Kamara's lifeless body covered in blood.⁹ Police recovered a single expended cartridge casing from the inside of the cab. They were not able, however, to preserve a bloodstain that an officer observed on the right rear passenger window of the cab when she first arrived at the scene.

In the early morning hours of November 12, 2004, Daniel Arkorful, the front desk attendant at the Motel 6 on the night of the shooting, saw a young man “c [o]me in walking fast ... as if somebody was after him or something.” He asked the man to show ID, but the man simply “said Room 114” and “didn't stop, he didn't turn....” Although he did not see the young man's face clearly, Mr. Arkorful described him as a “black person” wearing “sneakers, he was in jeans, and he had a jacket on him....”

After the report of the traffic accident led to the discovery of Mr. Kamara's body, police canvassed the area. Former MPD Officer Scott Craiger began the canvass at the Motel 6 due to its proximity to the shooting, his familiarity with the area, and his knowledge that the motel was often used by criminals as a hiding place. He went into the motel lobby with other officers, one of whom asked Mr. Arkorful “if someone had come in, you know, like excited [,] in a hurry or anything like that,” to which Mr. Arkorful responded “that an individual wearing a black coat had come in, asked to be buzzed into Room 114.” The officers went to the door of room 114, but waited to knock and announce their presence, to confirm their suspicion that the suspect was in the room and to allow backup to arrive.

Officer Craiger testified that he heard several things when he was waiting at the door to Mr. Gardner's motel room prior to entering. He heard a male voice inside the room (which turned out to be Mr. Gardner) saying he “need[ed] to get this stuff off of me, I'm very amped up right now.” He heard “a shower running in the background” and just before entering the room, he “heard the distinct sound of a weapon—the slide of a weapon being racked like as if someone pulled it back and let it go like that.”¹⁰ When he entered the room, Officer Craiger saw a window that was open but he did not see any male person. Defense counsel extensively impeached Officer Craiger's testimony about what he heard at the motel room door.¹¹

Officer Eldred Boria, who had responded to the call for backup, was sitting in her police car when she saw Mr. Gardner climb out of a window on the side of the motel. She exited her car and approached him, and when he saw her approaching,¹² he dropped his jacket and a black gun¹³ and began running. She and her fellow officers were able to apprehend Mr. Gardner soon thereafter. At the time, Mr. Gardner was wearing “black jeans,” “a black T-shirt,” and a “silk black cap.” Another officer observed that on the sidewalk near the motel there was a black coat that “had what appeared to ... be blood on it.” An MPD evidence technician, Officer Richard Steven Griffin, collected the jacket as evidence and took swabs from it because he observed “some reddish stains that ... were consistent with bloodstains that were on the exterior of the jacket,” and he was concerned that rain would wash away the stains.¹⁴

Later on November 12, police canvassed the area for additional evidence. Brenda Maria Butuche, who at the time was in...