Jones v. United States

• Decision Date: 18 November 2021
• Docket Number: No. 18-CF-610,18-CF-610
• Citation: 263 A.3d 445
• Parties: Wonell JONES, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

263 A.3d 445

Wonell JONES, Jr., Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-610

District of Columbia Court of Appeals.

Submitted November 13, 2019

Decided November 18, 2021

Sicilia C. Englert was on the brief for appellant.

Allessandra Stewart, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the briefs were filed, Elizabeth Trosman, Elizabeth H. Danello, and Jennifer Loeb, Assistant United States Attorneys, were on the brief, for appellee.

Before Beckwith and Easterly, Associate Judges, and Ruiz, Senior Judge.

Easterly, Associate Judge:

Four months before Wonell Jones's arrest for possessing a gun, members of the Metropolitan Police Department's Gun Recovery Unit, including three of the four who later testified at Mr. Jones's trial, gathered for a photograph in what appears to be an MPD warehouse. In the posed picture, reproduced below, the GRU members are dressed in plainclothes (mostly black and olive green), with the majority wearing bulletproof vests. They are standing behind a banner held by two officers who are flanked on each side by officers holding riot shields. The banner bears a printed emblem. At the center is a large skull with a bullet hole in its forehead and crossbones underneath. Two handguns are above the skull. Handcuffs are at either side. An outline of wings frames the image. The acronym "NSID" (for the Narcotics and Special Investigation Division, which oversees the GRU) and "Gun Recovery Unit" appear atop the emblem. At the bottom, there is an apparent motto, "Vest Up, One in the Chamber," and below that, "Washington D.C.":

The government implicitly acknowledged that the group photograph was both favorable and arguably material to the defense, see Vaughn v. United States , 93 A.3d 1237, 1244, 1262 n.29 (D.C. 2014), and disclosed it to the defense pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

At Mr. Jones's trial, defense counsel sought to use the group photograph with the skull-and-cross-bones-emblem-bearing banner to cross-examine the testifying GRU members about what counsel described as their "ends-justify-the-means mentality" to make arrests and get convictions. Counsel also sought to admit the group photograph as extrinsic evidence of bias. Sustaining the government's objection, the trial court prohibited the defense from doing either. The rationale for the court's ruling was twofold: (1) there was no "official finding" of misconduct in relation to the group photograph or the banner; and (2) because the jury might perceive the photograph as evidence of the GRU members’ racism, the prejudicial effect of the photograph outweighed its probative value.

We conclude that neither rationale supported a ruling disallowing the defense from asking the GRU officers about the group photograph or admitting it into evidence. Although the government proposes that we affirm based on our own assessment of the probative value versus prejudice of the group photograph, we are unable to do so because we cannot conclude as a matter of law that the probative value of the group photograph (or any questions about the photograph) was substantially outweighed by a danger of unfair prejudice. Nevertheless, because we conclude that the trial court's rulings were harmless in light of the other evidence in the case, we conclude reversal is not warranted on bias grounds.

We also determine that the trial court erred in admitting a recording of a police radio communication without resolving whether defense counsel had received the recording from the government prior to trial pursuant to his request for discovery under Super. Ct. Crim. R. 16 (" Rule 16"). But because the record reveals that the Rule 16 material was in fact turned over by the government, we conclude that this error was also harmless. Thus, we affirm Mr. Jones's convictions.

I. Facts and Procedural History

According to the government's opening statement at trial, the members of the GRU "did what they're trained to do when people run from [them] for no reason; they chased [Mr. Jones]." During their pursuit, the GRU members saw Mr. Jones discard what appeared to be a gun. They recovered the gun, apprehended Mr. Jones, and placed him under arrest.

Nine members of the GRU were involved in Mr. Jones's arrest. The government presented testimony from four: Officers Jose Jaquez, Brandon Joseph, John Wright, and Matthew Hiller. The officers testified that, on the evening of Mr. Jones's arrest, just before 10 p.m., they had been driving in a convoy of three cars. Officer Jaquez was driving one of them, Officer Joseph was driving another, and Officer Wright and Officer Hiller were in a third. Each vehicle contained multiple GRU officers. The cars were unmarked, Officer Hiller explained, "[j]ust to help give a little bit [of an] element of surprise."

When Officer Wright saw a group of men on the side of the street, he called out to them and pulled over. As all four GRU members in Officer Wright's vehicle exited the vehicle, everyone on the street began to move away from the police, but Mr. Jones "took off in a full sprint." Officers Wright and Hiller gave chase. Both officers saw Mr. Jones reaching and struggling with his right hand at his waistband. After Mr. Jones's right arm "c[ame] free from his waistband" and lifted up, Officer Hiller alone saw "the outline of a firearm ... come from him and land on the ground." Using the code word 1-800, he both called to Officer Wright and reported on the radio that he had seen a gun. Officer Hiller then stayed with the gun until it was collected as evidence.

Officer Wright continued running after Mr. Jones and was joined by Officer Joseph, who drove up parallel to Mr. Jones and exited his car to chase him. Mr. Jones was ultimately stopped when Officer Jaquez drove into his flight path and Mr. Jones collided with Officer Jaquez's vehicle. After Mr. Jones was apprehended, Officer Wright bagged the gun and brought it back to the station, where he processed it for fingerprints and DNA. He was unable to recover any prints, but he swabbed various parts of the gun for DNA and submitted the swabs for testing. According to a forensic analyst who testified at trial, one of the DNA profiles from the swabs (which contained a mixture of profiles) "matched" Mr. Jones's DNA.

The defense theory was that Mr. Jones had not dropped the gun that the GRU officers recovered and that they were somehow framing him. In addition to presenting testimony from two witnesses that Mr. Jones had not possessed a gun that day, defense counsel elicited testimony from the government's DNA analyst that DNA from one person can be transferred to an object by a second person without the first person ever touching the object.

Defense counsel also attacked the credibility of the GRU members. Specifically, counsel impeached their trial testimony that they were in the location of Mr. Jones's arrest because they had received a tip about a man with a gun with both the Gerstein affidavit (prepared immediately after the arrest) and their grand jury testimony in which the GRU members had made no mention of such a tip. The defense also elicited admissions (1) from Officer Wright that two Superior Court judges had questioned his credibility in other cases, (2) from Officer Jaquez that Internal Affairs at the MPD had conducted a use of force investigation into Mr. Jones's injuries as a result of his collision with Officer Jaquez's car, but concluded there were "insufficient facts" that Officer Jaquez had intentionally struck Mr. Jones with the car, and (3) from Officer Joseph that he had been investigated for stealing money from an individual he and another officer had encountered sitting in a car. Lastly, counsel elicited testimony from Officer Hiller that the MPD "publish[es] statistics about how many firearms [the GRU] recovers," including on "social media and stuff."

Having heard this evidence, the jury found Mr. Jones guilty of one count of unlawful possession of a firearm in violation of D.C. Code § 22-4503(a)(1), (b)(1) (2012 Repl. & 2021 Supp.), one count of carrying a pistol without a license in violation of D.C. Code § 22-4504(a)(2) (2012 Repl. & 2021 Supp.), and one count of possession of an unregistered firearm in violation of D.C. Code § 7-2502.01(a) (2018 Repl.).

II. The GRU Group Photograph with the Emblem-Bearing Banner

Defense counsel's cross-examination of the testifying GRU members was not as far-reaching as counsel wanted it to be. Three of the officers—Wright, Jaquez, and Joseph—appeared in the group photograph with the skull-and-cross-bones-emblem-bearing banner. But the defense was not permitted to question them about the group photograph or move the photograph into evidence.

Defense counsel was alerted to the existence of the photograph just before the first trial date when the case was before a different judge (Judge Epstein). The government informed counsel that as a result of a GRU member posting the photograph to social media, a civilian complaint had been filed, in turn prompting an MPD Internal Affairs investigation.¹ Defense counsel expressed an interest in cross-examining the officers about the photo and its contents at trial to explore two types of bias: the GRU officers’ "motivation to curry favor with the [g]overnment" as a result of having a case pending against them, and the bias inferable from the officers’ participation in the photograph with the emblem-bearing banner. Counsel explained that the banner is "a symbol of, to a certain extent, oppression, that it's also a symbol of authority, and that the skull and crossbones ... and the bullet hole in the head of the skull is a symbol that this is what happens to people who cross us." Because the court continued the trial to allow the defense to review the source material regarding the internal affairs investigation, the court did not rule on whether or how the defense could use the photograph at trial.

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