Jones v. United States, 08–CF–716.

• Decision Date: 01 September 2011
• Docket Number: No. 08–CF–716.,08–CF–716.
• Parties: Ricardo JONES, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

27 A.3d 1130

Ricardo JONES, Appellant,

v.UNITED STATES, Appellee.

No. 08–CF–716.

District of Columbia Court of Appeals.

Argued Nov. 23, 2010.Decided Sept. 1, 2011.

Thomas T. Heslep, Washington, DC, appointed by the court, for appellant.Michael T. Ambrosino, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, John P. Mannarino, Matthew Cohen, and David Saybolt, Assistant United States Attorneys, were on the brief, for appellee.Before FISHER, Associate Judge, RUIZ,^* Associate Judge, Retired, and FARRELL, Senior Judge.FISHER, Associate Judge:

A jury convicted appellant Ricardo Jones of first-degree murder while armed and four weapons charges related to his shooting of David Valentine. He was also convicted of escape. Appellant primarily objects to the trial court's rulings admitting other crimes evidence and expert testimony on firearm and toolmark identification. He also argues that the trial court impermissibly restricted bias cross-examination of two government witnesses. Finding no reversible error on these or the other grounds raised, we affirm.

I. Factual Background

Around noon on July 6, 2005, Edward Davis and his friend David Valentine were walking in their neighborhood, on the 1200 block of Meigs Place, N.E., in the section of the city known as “Trinidad.” When they passed Joseph Leaks, a man Mr. Davis had seen in the area several times before, Davis said hello. Without warning, Mr. Leaks turned around and pulled out a handgun. Leaks apologized right away and explained that he “thought [they were] somebody else.” Davis and Valentine ignored the apology and continued up the street.

Shortly thereafter, Davis and Valentine walked back down the block. Davis noticed Leaks and appellant (whom Davis had never seen before) standing near Leaks's apartment building. Davis testified that, because Leaks had just brandished a pistol at him, he paid close attention to both men as he and Valentine neared them. According to Davis, Leaks was skinny, over six feet tall, had a shaved head, and wore glasses. On the other hand, Leaks's friend (appellant Jones) was approximately 5'8?, with a medium build, and a “strong face.”

When Davis and Valentine were about arm's reach away from Leaks and Jones, Leaks attempted to apologize again. Davis ignored Leaks's apology, but Valentine said he would not accept it and asserted, “that wasn't the last gun they made when you got yours.” Suddenly, Davis heard “something go bang.” Valentine grabbed his chest and said, “you going to shoot me[?] Your man pulled a pistol on me. You're going to shoot me?” Appellant Jones was the only person with a gun out and was “still pointing” it at Valentine as Valentine collapsed to the ground. Jones then stood over the victim and dared him to “say something else[.]” Davis later picked appellant's picture out of a photo array. He also identified appellant at trial.

Immediately after hearing the shot, Roderick Powell, who lived nearby, came outside. He saw a man in the street place a dark object into his waistband. Another man, whom Mr. Powell recognized as one of his neighbors (Leaks), then joined the person with the dark object, and they sped away in Leaks's gray station wagon.

After the shooting, Leaks and Jones went to North Carolina, and they often stayed with Amanda Ward in Reidsville, North Carolina. On August 5, 2005, Jones and Leaks robbed a Check Into Cash store in nearby Greensboro. They shot the security guard as soon as they entered the store, but the guard survived. Store manager Kim Geil testified that each robber carried a pistol and covered his face with black nylons and sunglasses. After collecting money, the men took the security guard's .38 caliber pistol and ran out of the store.

Police soon arrested appellant and Leaks. When Ms. Ward learned of the arrests, she checked her guest room and discovered a bag of live ammunition underneath the bed. Soon thereafter, she found in a vent two socks containing a .45–caliber pistol and a 9–millimeter pistol. (While searching Leaks's home on Meigs Place in July, police had recovered several 9–millimeter cartridges, but they found no .45 caliber ammunition.)

Appellant and Devone Hines occupied the same cell for several weeks. During that time, appellant told Mr. Hines that he had shot and killed a man with a .45–caliber pistol over the July 4th weekend in the District's Trinidad neighborhood. At trial, Hines recounted how appellant told him about the verbal exchange between Leaks and Valentine prior to the shooting and how appellant stood over the victim and said something to him afterwards. Appellant told Hines that he and Leaks later went to Greensboro, North Carolina, and robbed a check-cashing store. They shot the store's security guard and took his .38–caliber pistol. Appellant mentioned that he again used the .45–caliber pistol and Leaks was armed with a 9–millimeter pistol. Because Jones was not certain he had wiped his fingerprints from the guns, he asked Hines to retrieve them from a vent in North Carolina once Hines was released.

Instead of proceeding to trial, on April 3, 2007, Leaks pleaded guilty to a five-count criminal information that charged escape, obstruction of justice, accessory after the fact to an assault with intent to kill while armed, possession of a firearm during a crime of violence, and second-degree child sexual abuse (for his sexual relationship with a fourteen-year-old girl). Leaks did not testify at Jones's trial.

II. Firearms and Toolmark Identification Evidence

A. Background

When Mobile Crime Technician Gerald Wills arrived at the 1200 block of Meigs Place, N.E., paramedics had already rushed Valentine to the hospital, where he later died of the gunshot wound to his chest. Mr. Wills recovered a .45–caliber shell casing and a copper-jacketed bullet from the murder scene. Crime scene investigators in North Carolina recovered a .45–caliber shell casing and bullet as well as a 9–millimeter casing and bullet from the Check Into Cash store.

Using the traditional method of pattern matching, two firearms experts examined this evidence.¹ Neal Morin compared the bullets and shell casings recovered from the North Carolina crime scene to bullets and casings test-fired from the pistols found in Ms. Ward's spare room. Mr. Morin testified that the .45–caliber shell casing and bullet were fired from the .45–caliber pistol he test-fired. His “level of certainty with respect to that conclusion” was 100% or “to the exclusion of all other firearms[.]” Defense counsel did not object to these questions, nor did he move to strike the answers.

Examiner Michael Mulderig used the same methodology and testified that the .45–caliber shell casing and bullet from the District of Columbia crime scene were fired from the same .45–caliber pistol recovered from Ward's home. Like Morin, Mulderig answered “yes” when the prosecutor inquired whether his conclusion regarding the match was “to the exclusion of all other firearms?” When the prosecutor asked Mulderig about his “level of certainty with respect to” his conclusion, defense counsel interjected: “Objection. Foundation.” Judge Dixon overruled the objection and Mulderig stated he was 100% certain about the match.

Defense counsel retained a firearms expert, who independently examined the same evidence. That expert did not testify at trial.

B. The Request for a Frye Hearing

Just prior to trial, in January of 2008, appellant's counsel orally requested leave to adopt a motion which former co-defendant Leaks had filed in September of 2006 seeking a pretrial hearing on the admissibility of firearms identification evidence. Judge Dixon allowed the defense to adopt, summarize, and argue the motion. Appellant's counsel urged the court to conduct a Frye hearing,² asserting that pattern matching “is not generally accepted within the scientific community.” Judge Dixon advised, “I'm familiar with that type of testimony, because we have heard it in other cases. What is the novelty of this issue[?]” Counsel argued that there is: a lack of “objective criteria by which a firearms examiner makes his conclusions”; “no peer review of their work”; “no proficiency testing”; and “no calculation of error rates [.]” By contrast, the prosecutor argued that pattern matching is the “generally accepted practice and, therefore, presumptively reliable.” Judge Dixon agreed that the evidence was “an accepted type of analysis that has been admitted in courtroom after courtroom[,]” and he did not “find any need to conduct any type of pretrial hearing on [its] admissibility[.]” Jones contends that the trial court erred in denying this request for a Frye hearing. ³

1. The Frye Standard

In the District of Columbia, “before expert testimony about a new scientific principle [may] be admitted, the testing methodology must have become ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Williams v. District of Columbia, 558 A.2d 344, 346 (D.C.1989) (quoting Frye, 54 App.D.C. at 47, 293 F. at 1014). The “issue is consensus versus controversy over a particular technique, not its validity.” United States v. Jenkins, 887 A.2d 1013, 1022 (D.C.2005) (citing United States v. Porter, 618 A.2d 629, 633 (D.C.1992)). Moreover, general acceptance does not require unanimous approval. Porter, 618 A.2d at 634. Once a “technique has gained such general acceptance, we will accept it as presumptively reliable and thus generally admissible into evidence. The party opposing the evidence, of course, may challenge the weight the jury ought to give it.” Jones v. United States, 548 A.2d 35, 39 (D.C.1988). Although we do not doubt that a technique that has previously been recognized in court as generally accepted may lose that wide acceptance, we conclude that appellant has not shown that to be the case with respect to pattern matching as a way of identifying firearms.⁴

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