Geter v. United States
| Docket Number | 19-CF-0504 |
| Decision Date | 21 December 2023 |
| Parties | Daniel Geter, Appellant, v. United States, Appellee. |
| Court | D.C. Court of Appeals |
Submitted January 21, 2022
Appeal from the Superior Court of the District of Columbia (2018-CF3-004743) (Hon. Robert Okun, Trial Judge)
Thomas D. Engle and Sharon L. Burka were on the brief for appellant.
Michael R. Sherwin, Acting United States Attorney at the time, and Elizabeth Trosman, Chrisellen R. Kolb, Puja Bhatia Andrea Duvall, and Michael E. McGovern, Assistant United States Attorneys, were on the brief for appellee.
Before EASTERLY and DEAHL, Associate Judges, and GLICKMAN [*] Senior Judge.
We consider once again in this case the admissibility of testimony of a firearms and toolmark examiner connecting specific shell casings to a specific gun. We also consider the admissibility of testimony from two Metropolitan Police Department detectives identifying appellant Daniel Geter in video surveillance footage even though the government had not established that they had any special ability to make such an identification. We hold that neither the examiner's testimony connecting specific shell casings to a specific gun nor the detectives' identification testimony should have been admitted. But in light of the additional evidence against Mr. Geter, we conclude these errors do not require reversal of his convictions of various assault and gun crimes in connection with the nonfatal shooting of Jessica Little.
The evidence at trial established that, on the evening of March 17, 2018, Ms. Little went to 1219 Simms Place, NE, with her friend Jalinda Counts, to celebrate Ms. Counts's birthday.[1] After they arrived, they stood out front with at least one other person. Ms. Little and Ms. Counts were both smoking marijuana, and Ms. Counts was drinking alcohol. Sometime later, Ms. Counts's boyfriend, Daniel Geter, arrived with his brother. Ms. Little had not met either man before. Mr. Geter asked about Ms. Counts's outfit. Ms. Little told Mr. Geter the outfit belonged to her and asked him what was wrong with it. Ms. Counts then walked Mr. Geter across the street both to cut off the conversation between Mr. Geter and Ms. Little and to ask him if they were still going out.
As they discussed their plans, Ms. Counts told Mr. Geter that Ms. Little would be riding in Ms. Counts's car. Mr. Geter "didn't take that too well," and responded, ; he then said, "[y]ou all can all go ahead," and, "I can give us a ride." Just after Mr. Geter and Ms. Counts walked back across the street toward Ms. Little, Ms. Little was shot three times in the legs. Ms. Little did not see who had fired the shots. Although Ms. Counts, who was still involved with Mr. Geter at the time of trial, denied seeing the gunman, she had told the grand jury, see supra n.1, that she saw Mr. Geter "raise his arm" before she heard gunshots and ran.[2] Ms. Counts testified that she returned to her friend and waited at the scene for an ambulance to arrive but did not see Mr. Geter in the area after the shooting.
Officer Robert Marsh was in the vicinity of 1219 Simms Place, NE, at the time of the shooting, and when he heard gunshots, he biked in their direction. He encountered some people walking away from Simms Placein the alley off that street. One of the men was wearing dark clothing. When this individual turned into a connecting alley, Officer Marsh followed; he then observed that this individual, who was standing near some trashcans, was now wearing a white t-shirt. The individual fled from Officer Marsh, but Officer Marsh ran after him. Officer Marsh stopped the individual, identified as Mr. Geter, in the 1100 block of Raum Street. Officer Marsh later returned to the location where the foot chase began. He found a black jacket with a water bottle inside of it near the trashcans where he had seen the man in a white t-shirt, and a gun "in th[e] backyard [of 1211 Simms Place, NE,] along the fence line . . . to the alleyway."
That same evening, Mr. Geter was interviewed by the police at the Fifth District building. He denied involvement in the shooting. One of the detectives who interviewed him, Detective Marlow, noted he was not wearing a coat, although it was "rather cold" that night. When asked if he had a coat, Mr. Geter said he had left his jacket in the car. The detective also took note of the fact that Mr. Geter was wearing (1) a "white t-shirt,"[3] (2) "dark colored pants," and (3) white "Nike Jordan's" with blue soles. A few days later, Mr. Geter was formally arrested and reinterviewed. He again denied involvement, but mid-interview requested to use the phone and made several calls in which he asked people to cash his checks and send him money, to ensure that "Linda" kept her story straight, and to delete his social media posts and text messages on his cell phone.
At trial, the government presented testimony from a DNA expert who had examined samples from the black jacket, the water bottle, and the gun, all recovered near the scene. The expert testified that she had found a four-person mixture of DNA on the jacket, including from at least one male contributor, and that obtaining that particular mixture was "815 sextillion times more likely if the DNA originated from Daniel Geter and three unknown individuals than if the DNA originated from four unknown, unrelated individuals."[4] The expert excluded Mr. Geter as a contributor to the sample from the water bottle. The expert also testified that the samples from the gun and the magazine contained an at-least-four-person mixture of DNA, including at least one male contributor, but the mixtures were not interpretable.
In addition to DNA evidence, the government presented expert testimony from a firearms and toolmark examiner linking the five cartridge casings recovered from the scene to the gun found at the scene, see infra II.A. The government also introduced video surveillance footage from four cameras at the scene. Three of the cameras depicted the events at Simms Place, including an individual-wearing some sort of jacket or sweatshirt with a hood, dark pants, and light-colored shoes with dark soles-firing a gun. Another camera depicted events in the alley behind Simms Place, including the same individual disposing of something by a trashcan (where a jacket, see supra, was subsequently found). Because of a combination of distance and darkness, no faces are discernable in this footage. The government called the two investigating detectives, Marlow and Catlett, to identify Mr. Geter in surveillance footage as both the gunman and the person who dropped something by the trashcan.
Lastly, the government introduced several types of evidence from Mr. Geter's phone: (1) photos of a gun and of Mr. Geter from the weeks prior to the shooting, which it argued depicted him with a jacket and sneakers that matched the evidence recovered and the clothing worn by the shooter in the video footage; (2) texts sent from Mr. Geter's phone the same day of the shooting, including one that read "I had to hurt a few people," which the government argued indicated his involvement in the events; and (3) Mr. Geter's internet search history from the days following the incident, which documented multiple inquiries for information about the Simms Place shooting.
On March 12, 2019, the jury convicted Mr. Geter on all charges[5] and this appeal timely followed.
Mr. Geter challenges the admission of the testimony of the government's firearms and toolmark examiner purporting to link the bullet casings found at the scene of the shooting to the gun found at the scene of the shooting, and the testimony of the investigating detectives, neither of whom were present at the shooting or knew Mr. Geter, identifying Mr. Geter in surveillance footage from the scene of the shooting. We consider both of these arguments, conclude both have merit, see infra II. A &B., and then assess the cumulative prejudice from these errors. See infra II.C. Lastly, we address Mr. Geter's argument that his two counts of PFCV merge with each other under the Fifth Amendment's prohibition on double jeopardy. See infra III.
The government called firearms and toolmark examiner, Gregory DiCostanzo, who had previously worked part-time for the D.C Department of Forensic Sciences, to testify at trial about his analysis of the cartridge casings found at the scene of Ms. Little's shooting. Mr. DiCostanzo explained that there are three "types of conclusions" that a firearms and tool mark expert may reach "when comparing either casings to one another or when comparing casings to a test-fire cartridge" (fired from a particular gun): (1) "'In,' meaning it matches"; (2) "'Out,' meaning that it doesn't match"; and (3) "Inconclusive," meaning "it's enough to say it could have came [sic] from the same gun but not enough to say that it definitely did." The government then asked for his conclusions with respect to the five casings found at the scene of Ms. Little's shooting and the test cartridges fired from the gun found at the scene. Mr. DiCostanzo told the jury that, by examining the "unique" markings which come from the "breech face, . . . the rear-most part of th[e] firearm that the cartridge casing sits up against . . . [and which] are transferred onto the back of th[e] cartridge casing" when a gun is fired, he could tell both that all five of the cartridges were "fired from the same gun, and they all matched the[] test-fires" conducted on the gun recovered from the scene. Mr. DiCostanzo thus...
To continue reading
Request your trial