Criminal Law Blog

Firearms Examiner May Not Testify That Bullet Was Fired From a Particular Gun With Absolute Certainty, Plus Some Other Errors, But No Harm

Eric Gardner v. United States 
(decided June 23, 2016)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Reid. Opinion by Judge Reid. Benjamin Brooks for Mr. Gardner. Trial judge: Robert I. Richter

Facts: A taxi driver was shot and killed.  Police canvassing the area went to a nearby motel, and received a report that a man, who turned out to be Mr. Gardner, had just recently returned to room 114.  Officers standing outside the room heard a male voice saying he "need[ed] to get this stuff off of me, I'm very amped up right now," a shower running, and what one officer claimed was the distinctive sound of a gun being racked. Another officer outside the motel saw Mr. Gardner climb out of a window.  When the officer approached, Mr. Gardner dropped his jacket and a black gun, and he ran. The jacket had a blood stain, and DNA analysis could not exclude the taxi driver as one of two different contributors of the DNA.   Police later found, in an alley where a witness had seen a man running from the taxi driver's cab, a silver and black gun.  A witness claimed Mr. Gardner had shown her a silver and black gun shortly before the shooting.  A firearms examiner testified that the silver and black gun found in the alley was the gun that fired the fatal shot. A jailhouse informant testified that Mr. Gardner had admitted that he tried to rob the taxi driver and shot him when he refused to give up his money.  

Mr. Gardner testified in his defense that he had been a passenger in the taxi and was about to pay his fare when a third person with a gun attempted a robbery of the taxi.  Mr. Gardner struggled with the robber, and the driver accelerated the car, and then a shot rang out.  The robber ran off, and the taxi continued driving some distance before it crashed.  Mr. Gardner then ran to the motel, admitting that he had gone through the alley in which the silver and black gun was found.

Issue 1:  May a ballistics expert testify that a bullet was fired from a specific gun with 100% certainty?

Holding 1: No.  The Court adopted Judge Easterly's position in her concurring opinion in Williams v. United States, 130 A.3d 343 (D.C. 2016), which we blogged about here, and held that "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."  The Court did not preclude firearms examiners from offering an opinion that a bullet or casing came from a gun, but they cannot opine that it did with absolute certainty.  The Court also expressed "doubts as to whether trial judges in this jurisdiction should permit toolmark experts to state their opinions 'with a reasonable degree of certainty.'"

However, the Court held the error was harmless, calling the remaining evidence "strong and compelling."

Issue 2:  Did the court err in allowing a government DNA expert to testify that DNA from the silver gun matched Mr. Gardner's DNA at only two of the thirteen loci that are typically analyzed?

Holding 2:  No.  Given the low bar for evidence to be relevant, the match at only two loci was relevant even if it was not uncommon for different people to match at those locations.  The evidence was also not more prejudicial than probative, given the analyst's testimony that there was insufficient DNA to obtain a profile, and it was common for different people to match at a single locus.

Issue 3:  Did the court err in preventing Mr. Gardner from testifying about his knowledge that the jailhouse informant had a reputation as a "snitch," allowing the defense to argue that Mr. Gardner would not have confessed to a known snitch?

Holding 3:  Assuming this was error, it was harmless.  The informant had admitted during cross-examination that he was a known snitch, and his credibility was otherwise substantially impeached.  Mr. Gardner's testimony that he know of the informant's reputation "would have been, at most, a small addition to the impeachment of [the witness], and not a significant contribution to enhancing Mr. Gardner’s own credibility."

Issue 4:  Did the court err in refusing to give a "plea agreement" instruction, cautioning the jury that testimony of a witness who has entered into a plea agreement should be considered with caution?

Holding 4:  No, because the informant did not have a plea agreement with the government.

Issue 5:  Did the court err in restricting the defense's cross-examination of a police officer about two investigations targeting the officer, one for harassment and the other for excessive force?

Holding 5:  Assuming this was error, it was harmless.  The officer was effectively cross-examined, and his testimony was a small piece of the government's evidence.

Issue 6:  Were Mr. Gardner's post-arrest statements to police voluntary?

Holding 6:  Yes.  Although he had been held for some time, he was sleeping for the first ten hours.  Although he was not immediately given food when he asked for it, he was not told that food be withheld unless he gave a statement.  Mr. Gardner initiated his conversation with police, and he signed a waiver form.  At one point during his statement when Mr. Gardner was shivering, officers "turned the vent off."  Mr. Gardner's will was not overborne in such a way as to render his statements the product of coercion.

Issue 7:  Did trial counsel provide ineffective assistance by failing to cross-examine the firearms examiner using a specific report; failing to object to post-arrest police statements to Mr. Gardner about multiple witnesses to the shooting, and failing proffer a basis for the admissibility of Mr. Gardner's testimony about his knowledge of the jailhouse informant's reputation as a snitch?

Holding 8:  Assuming trial counsel's performance was deficient, there was no prejudice.

Of Note:

  • Although the opinion's holding bars only testimony that an expert is absolutely certain a bullet or casing came from a particular gun,the opinion leaves the door open to further limitations on the testimony of firearms examiners.  Defense attorneys should continue to fight for limits on this testimony, using the reports and articles cited in the opinion as ammunition.
  • The court's harm analysis leaves much to be desired.  The defense presented a plausible account of the shooting that the jury might have credited, particularly given the government's apparent inability to explain why Mr. Gardner's jacket had blood from two different (and unknown) individuals, and the failure of police to preserve a bloodstain on the right rear passenger window -- evidence which could have corroborated Mr. Gardner's account of a third person's presence.  The fact that the apparent murder weapon was found on Mr. Gardner's flight path and the purported confession he made to the jailhouse informant were thus critical pieces of evidence.  Given that the errors went to those aspects of the government's evidence, the finding of harmlessness from the cumulative prejudice is dubious.  DG
Read full opinion here.