Wonson v. United States

144 A.3d 1, 2016 D.C. App. LEXIS 420, 2016 WL 4690634

• Court: District of Columbia Court of Appeals
• Decided: April 14, 2016
• Docket: No. 12-CF-1433
• Status: Published

Opinions

PER CURIAM:

Michael Wonson asks us to reverse his two murder convictions because the government failed to present evidence that it maintained custody over the ballistics evidence (multiple cartridge cases and one live round) admitted at trial. Although a crime-scene search technician testified that he collected these items at the scene, and a firearms and toolmark examiner testified that he examined these items, the government never explained how the items made their way from the former to the latter. Instead, the technician who collected the cartridge cases and the live round testified that he gave them to a supervisor who was later fired for mishandling and mislabeling evidence. And the firearms and toolmark examiner did not explain how or when he obtained the ballistics material he examined. In particular, he did not elaborate on a notation in his report indicating that this material had been “personally delivered” (to whom, the report did not specify) by a different crime scene technician who did not testify at trial.

We do not determine whether the proffered evidence should have been excluded because the admission of this evidence was harmless. The cartridge cases and the live round were only a peripheral part of the government’s case against Mr. Wonson. Unpersuaded by Mr. Wonson’s remaining arguments,¹ we affirm his convictions.

I. Background and Procedural History

A little before midnight on May 17,2000, two men in a black pickup truck drove up to Eastern Senior High School in Washington, D.C., where more than a dozen people were socializing. The men shot into the crowd, injuring Nakita Sweeney and killing both Charles Jackson and Ivory Harrison. A week later, Ronald Brisbon was arrested and gave a videotaped confession in which he admitted to participating in the shooting with another man, whom he identified by a nickname. After further investigation, including interviews with Dana Route, Mr. Brisbon’s former girlfriend, and with Michael Cobb, the man who sold Mr. Brisbon a black pickup truck one day before the shooting, the government- identified Michael Wonson as the second shooter.

The government charged both Ronald Brisbon and Michael Wonson with (1) two counts of first-degree murder while armed,² (2) one count of assault with intent to kill while armed,³ (3) three counts of possession of a firearm during a crime of violence,⁴ and (4) one count of felony destruction of property.⁵ After a joint trial in 2002, a jury convicted both men on all counts, but this court reversed Mr. Won-son’s convictions on appeal.⁶ See Brisbon v. United States, 957 A.2d 931, 940, 957, 959 (D.C.2008). The government reprosecuted Mr. Wonson in 2011 but that trial resulted in a hung jury. The government then prosecuted Mr. Wonson a third time in 2012.

At the 2012 trial, the government called Mr. Brisbon as a witness,⁷ and he gave a detailed account of Mr. Wonson’s motive for and participation- in the shooting. In particular, Mr. Brisbon recounted that Mr. Wonson’s gun had jammed and that, to clear the jam, Mr. Wonson had removed a live round of ammunition. Ms. Route and Mr. Cobb corroborated Mr. Brisbon’s testimony regarding Mr. Wonson’s actions prior and subsequent to the shooting.⁸ The government also presented testimony from several other witnesses, including Metropolitan Police Department crime-scene search technician Karl Turner⁹ and firearms examiner Michael Mulderig. Lastly, the government presented physical evidence to the jury: one live round of ammunition and forty-three empty cartridge cases, ‘

At the conclusion of trial, the jury convicted Mr.' Wonson on all counts, and the judge sentenced him to seventy years to life imprisonment, with a mandatory minimum of sixty -years imprisonment. This appeal followed. ■

II. Admission of the Ballistics Evidence

Mr. Wonson argues that the trial court erred by admitting the proffered ballistics material because the ■ government failed to establish an unbroken chain of custody. We review the trial court’s admission of physical evidence for abuse of discretion. See Plummer v. United States, 43 A.3d 260, 272 (D.C.2012). In order to reverse, however, we must conclude that any abuse of discretion was not harmless. See Travers v. United States, 124 A.3d 634, 638-41 (D.C.2015).

A. Facts

The ballistics material was admitted over repeated objection during Mr. Turner’s testimony. Mr. Turner testified that he responded to the scene shortly after the shooting with “lead technician” Ricky Hammett and another colleague. Their attention was directed to “shell casings ... that had been strewn throughout the street which needed to be recovered in reference to a shooting that had occurred at that location.” According to Mr. Turner, he and his colleagues remained at the scene collecting evidence for about eight or nine hours.

During Mr. Turner’s testimony, the government asked him to examine two bags marked as Exhibits 1 and 2.¹⁰ Mr. Turner identified the bags by the numbers written on them in magic marker, though .he noted that the writing on the first bag was “faded” and “not very legible.” He also confirmed that the material inside the bags¹¹ was “a fair and accurate representation” of what he “remembered to be collected ... from the scene,”

As soon as he did so, the government moved to admit these two exhibits into evidence; Defense counsel objected, however, noting that there was “a hole in the bag” marked as Exhibit 1. Without disagreement from the government, counsel represented that the hole was big enough for a bullet to fit through. She expressed concern about “the one round that they’re saying is the misfired bullet” because “there was a hole in the bag and they placed the piece of tape on top of it.”¹² The court sustained defense counsel’s objection to the admission of these exhibits, noting that the government had not yet presented sufficient information about “how these things are maintained over an 11-year period of time” and that it “need[ed] that necessarily in order .., to make the final determination.”

With some prompting, from the court,¹³ the government asked Mr. Turner to explain how he and his colleagues collected the ballistics material discovered at the scene.¹⁴ Mr. Turner explained that they placed the items they recovered in plastic bags numbered one through forty-four, and that he helped diagram the location of each item and held the bags as the other officers “picked the items up and placed them in the bag[s].” According to Mr. Turner, these bags were put in one larger bag. The bagged items were then “turned over to the lead technician,” Mr. Hammett, who, according to Mr. Turner, took them back to his “office,” i.e., the “mobile crime lab.”

Having presented this additional testimony, the government again requested admission of Exhibits 1 and 2, as well as Exhibits'3 through'44, over defense counsel’s objection. Otit of the presence of the jury, the court again refused to admit the evidence, observing, “I’m at the office [the mobile crime lab] now, I’ve got 11 years to [ac]count for. You’re trying to get the evidence in at trial today.”

The government then raised two issues related to defense counsél’s cross-examination of Mr. Turner. The firstissue was the hole' in the bag marked as Exhibit 1. The government sought to preclude cross-examination of Mr. Turner about the hole because he had “no self-knowledge of that particular item.”¹⁵ The court declined this request and Mr. Turner subsequently testified on cross-examination that he had “no idea how the hole got there;”

The second issue' was Mr. Hammett’s termination for mishandling and mislabeling evidence and the fact that the government had opted not to call him to testify.¹⁶ The government sought to limit cross-examination of Mr. Turner on this subject too. Again the court declined to grant the government’s request. The court observed that the government had “cho[ ]se[n] not to call [Mr. Hammett] because if [he] was here testifying,” defense counsel “could ask him questions about the fact that he had misappropriate^] — he had in essence mislabeled matters and had discipline for that.” The court rejected the government’s ^argument that Mr. Hammett’s misconduct was irrelevant, explaining that Mr. Hammett had not gotten in trouble for “drunk driving ...' or some other.' issue. This wit-néss got in trouble with regard to • the same issue here and that’s the preservation ... of evidence.”

■Returning to its examination of Mr. Turner, the government established that Mr. Turner’s personal knowledge of the custody and control of- the ballistics material ended‘when Mr. Hammett “took this evidence to the mobile crime lab from the ... crime' scene.” Mr. Turner explained that he was not “aware of what happened to the evidence” because he “wasn’t part of his— him [Mr. Hammett] processing the evidence.”

Nonetheless, the' government asked Mr. Turner to testify “as a general matter” about what happens to evidence brought to the mobile crime lab. Mr. Turner explained that it should be “tagged, marked, placed on a mobile crime property book[,] and it is determined where it heeds to go[,] if it needs to go to a lab or ... to the firearms examination section.” Logging evidence in the property book, Mr. Turner explained, is meant to “catalog the evidence that’s collected [at] the scene so it can be tracked at a later date if necessary.”

Mr. Turner also testified “as a general matter” about what happens after evidence “is processed,” explaining that “it’s sent to the property division,” where it is “stored until it’s recalled.” Because he did not work for the property division, Mr. Turner could not testify “intelligently” about “property storage” procedures; “all [he] kn[e]w” was that “we send it to them and they store it until it’s recalled ... at a later date.” He testified that the evidence in Mr. Wonson’s case had been transported from the property division to the courthouse, later qualifying, “[a]s far as my knowledge it was.” Finally he testified that there were no irregularities with the government’s Exhibits 1-44 “to [his] knowledge.”

At this point the trial court asked defense counsel to “put on [the] record [her] objections” to the admission of these exhibits. Defense counsel argued that Mr, Turner did not “have personal knowledge of the evidence and how it’s been stored in any way, shape or form from the time it was collected,” that he did not “have personal knowledge that the evidence that he has in that bag is the exact same evidence that was recovered from that scene,” and thus that the “[g]overnment hasn’t established in any way, shape or form [that] the chain of custody has been maintained.”

The court acknowledged that in order to admit these items, it had to determine that the proffered evidence “is what it is claimed to be,” i.e., bullets recovered from the crime scene.¹⁷ The court also acknowledged that it had to determine that this material was in “the same or substantially the same condition as it was at the time it was recovered from the [crime] scene.” Noting, however, that it could “take into consideration that the property was stored in a police property office,” and that “the presumption here” is that this office “preserve[s] the property,” the court concluded that Exhibits 1-44 “are what they purport to be, ballistics evidence recovered from the scene.” Thus, the court ruled that it would “permit those exhibits to come into evidence” over defense counsel’s objection.

After the court ruled, the government called Mr. Mulderig, who had examined the cartridge cases and live bullet admitted as Exhibits 1-44.¹⁸ Mr. Mulderig testified that when he conducted his examination, he engraved Exhibits 1-44 with his initials and a lab number. He then identified his engravings at trial. But Mr. Mul-derig could not say precisely when he conducted the examination; he only knew that it was “[approximately June of 2000.”¹⁹ And the government never asked him how or when he received the bullets. When defense counsel asked Mr. Mulderig whether he knew “where the evidence was in between the time of the incident and the time it arrived at your office,” he responded, “[n]o, I don’t.”²⁰ Lastly, Mr. Mulderig could not explain the origin of the hole in the bag containing the live cartridge. When defense counsel asked him to confirm that the bag did not have a hole at the time of his examination, he could'not do so. Instead he stated that he did not remember.

B. Analysis

Without deciding whether the trial court abused its discretion by admitting the ballistics material in this case, we conclude that Mr. Wonson is not entitled to reversal because the court’s ruling was harmless. When a trial court makes a non-constitutional error, we will nonetheless affirm the conviction if we can say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Robinson v. United States, 50 A.3d 508, 528 (D.C.2012) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We examine the error “in relation to all else that happened” at trial, Kotteakos, 328 U.S. at 764, 66 S.Ct. 1239, to discern “the likely impact of the ... error on the jury’s verdict,” Robinson, 50 A.3d at 528. If “the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.” Smith v. United States, 26 A.3d 248, 264 (D.C.2011) (quoting Kotteakos, 328 U.S. at 764, 66 S.Ct. 1239). In this case, we conclude that the jury’s consideration of the ballistics evidence did not “substantially sway[ ]” its verdict. See Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239.²¹

To begin, the ballistics material did not directly link Mr. Wonson to the shooting. Although the police found ammunition in Mr. Wonson’s truck, it was not the same brand of ammunition found at the scene. And although the police used an examination of toolmarks on the recovered casings to match them to a gun, the government presented no evidence to connect the gun to Mr. Wonson.²²

Instead, the ballistics material played a subtler and less central role at trial: the government used it to corroborate Mr. Brisbon’s account of the shooting as a two-man operation and his identification of Mr. Wonson as his accomplice. These items corroborated Mr. Brisbon’s testimony because they (1) consisted of two types of cartridge cases, suggesting that the shooting involved two guns and two shooters, as Mr. Brisbon testified; and (2) included one live cartridge, supporting Mr. Brisbon’s narrative that Mr. Wonson’s gun had jammed and that Mr. Wonson had removed and discarded a live round at the scene of the shooting.

Any benefit to the government from this corroboration was slight, however, given the other evidence presented to'the jury. First, Mr. Brisbon’s 2012 testimony that this was a two-man operation was corroborated by his own prior consistent statements. Indeed, as the jury heard, when the police arrested Mr. Brisbon a week after the shooting, he told them that he had committed the murders with a second man.²³ Moreover, two witnesses corroborated Mr.. Brisbon’s 2012 testimony that the second shooter was Mr. Wonson. Michael Cobb testified — consistent with his statement to the police in June 2000 — that a “short dude” with dreadlocks, whom Mr. Cobb later identified as Mr. Wonson, was present when Mr. Cobb sold the black truck- to Mr. Brisbon. And Dana Route testified — as she testified before the grand jury in June 2000 — that Mr. Brisbon and Mr. Wonson were together immediately before the murders and immediately afterward and that both were armed. This congruent testimony was powerful evidence against Mr. Wonson.²⁴ Tellingly, the government chose to highlight it in closing argument and did not mention that two types of cartridge casings were, found at the scene.

The admission of the live round likewise had minimal force when placed in the context of Mr. Wonson’s trial., Although it meshed with Mr. Brisbon’s narrative that Mr. Wonson’s gun had jammed, it was not the only evidence corroborating this detail; Ms. Route testified that “[wjhen Michael Wonson and Mr. Brisbon came back into the house with the two rifles, Mr. Brisbon said to Michael Wonson, ‘I can’t believe the gun jammed.’ ” Moreover, Mr. Turner specifically recalled collecting a live round from the scene of the shooting. Lastly, although the government mentioned in closing that a jammed gun might explain the live cartridge recovered from the scene, this was a peripheral observation. The government’s central focus was on the testimony from Mr. Brisbon, Ms. Route, and Mr. Cobb, not the ballistics material.

For all of these reasons and in the absence of any evidence indicating that the jury attached particular significance to the cartridge or cartridge cases as it deliberated, we conclude that admission of the ballistics material at Mr. Wonson’s trial does not require reversal.

III. Remaining Arguments

We are unpersuaded, by Mr. Wonson’s three remaining arguments. First, he argues that “a remand is necessary , for the government to provide the full OIA [Office of Internal Affairs] investigation report concerning Officer Hammett,” to determine if the government fulfilled its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But assuming that the government should have disclosed the full report (instead of a mere summary) to the defense prior to trial, Mr. Wonson has no Brady claim on appeal. Our conclusion, with the benefit of hindsight, that the admission of the bullet evidence was harmless, likewise compels a conclusion that this report would not have satisfied the materiality component of a successful Brady claim.²⁵

Second, Mr. Wonson argues that trial court violated the Sixth Amendment’s Confrontation Clause by admitting “evidence that [Ronald] Brisbon was convicted by another jury.” The trial court did not admit any written judgment of conviction or sentence; Mr. Wonson complains only that Mr. Brisbon “testified ... that he had been convicted by a jury.”²⁶ Mr. Wonson waived any Confrontation Clause claim by failing to object to the admission of Mr. Brisbon’s testimony on direct examination,²⁷ ánd then repeatedly eliciting testimony on cross-examination related to Mr. Brisbon’s conviction and sentence. See Sobin v. District of Columbia, 494 A.2d 1272, 1275 (D.C.1985) (“When a defendant fails to object to the admission of certain testimony, and then further develops that testimony on cross-examination, he will not be heard to argue on appeal that its admission constituted reversible error.”).²⁸ '

Finally, Mr. Wonson argues that the prosecutor’s closing argument was “inflammatory” and violated the Fifth Amendment’s Due Process Clause. In par-ticulár, he complains that the prosecutor “repeatedly mentioned] the length of time it had been between the time the victims were killed and.the 2012 trial,” and that the prosecutor “juxtaposed that argument with repeated comments that justice had come to Brisbon in 2002.” Because Mr. Wonson never objected to these comments, we review for plain error. Even assuming error that is plain, the prosecutor’s argument, while melodramatic, did not “so clearly prejudice!]” Mr. Wonson’s rights “as to jeopardize the fairness and integrity of his trial.” Burgess v. United States, 786 A.2d 561, 570 (D.C.2001) (quoting Irick v. United States, 565 A.2d 26, 32 (D.C.1989)).

IV. Conclusion

For the foregoing reasons, we affirm Mr. Wonson’s cQnvictions.

So ordered:,

1 . In addition to attacking the admissibility of this evidence, Mr. Wonson argues that reversal is required because the government failed to meet its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because his Sixth Amendment right to confrontation was violated, and because the government engaged in misconduct during its closing argument.

2 . D.C. Code - §§ 22-2401 (2000 Supp.), - 2404.1 (b)(6) (2000 Supp.), -3202 (1996 Repl.).

3 . D.C. Code §§ 22-501, -3202 (1996 Repl.).

4 . D.C. Code § 2-2-3204(b) (1996 Repl.).

6 . This court held that the trial court erred by admitting at a joint trial Mr. Brisbon's unre-dacted videotaped confession, which incriminated Mr. Wonson. See Brisbon v. United States, 957 A.2d 931, 953-57 (D.C.2008). We determined that this error was not harmless because the government’s remaining evidence against Mr. Wonson at the 2002 trial was “largely circumstantial.” Id. at 956.

7 . Mr. Brisbon had also testified for the government at the 2011 trial.

8 . Ms. Route and Mr. Cobb had both previously testified for the government at the 2002 and 2011 trials.

9 . Due to illness, Mr. Turner was deemed unavailable at the 2012 trial. His testimony from the 2011 trial was read aloud to the jury, and defense counsel’s objections from the 2011 proceeding were incorporated into the record.

10 . Even before this point, defense counsel had flagged the admissibility of the ballistics material as an issue. The trial court observed that it "need[ed] to hear the testimony about where it’s kept,, how it’s kept, all sorts of things in order to make that determination .... [T]hey need to make an attempt to get it in for me to make that determination. I don’t know anything now. ... I have to listen to evidence and say [whether] that’s satisfactory

11 . Mr, Turner testified that the bag marked as Exhibit 1 contained a live round but he was never asked to identify the contents of Exhibit 2,

12 . Counsel acknowledged that this exhibit had Been admitted “in the first trial,” when Mr, Wonson was represented by a different attorney, and that “there was no objection to it or ... concern about its foundation at that point.”

13 . In its questioning, the goyernment jumped from trying to establish that Mr. Turner could identify all the' items marked as exhibits as items he saw at the scene, to asking how these items were eventually stored, prompting the court to inquire, ”[I]s there a step before? How do you recover it? Shouldn’t that be the first step, counsel? .... Let’s get to that.”

14 . The government did not seem to think that it needed to present this testimony, protesting to the court that it had, in its view, already "established more than enough of a basis for [exhibit] number one to currently be admitted.” The court responded by informing the government that it could lay a proper foundation "or ... not” for the admission of its evidence, but it would “[p]roceed at [its] own risk.”

15 . The government proffered that, at an unspecified time, another individual, identified as Officer Slaughter, had placed the tape over the hole in the bag "so that the bullet wouldn’t fall out,” and that Mr. Turner "wasn’t there, didn’t do it.” But the government never called Officer Slaughter to testify.

16 . The government had notified defense counsel prior to the 2011 trial that Mr. Hammett had been terminated in 2005 "for neglect of duty,” According to the government, "[o]n several occasions between’ 2003 and 2004, Officer Hammett failed to comply with proper procedure's for labeling and hándling evidence, malting it impossible in some cases to determine wdiat evidence related to a particular investigation.” Although Mr. Hammett had since been "reinstated” by the MPD, the government hád informed counsel that it "d[id] not intend to call Officer Hammett as a witness at trial.”

17 . The only authority the trial court invoked was the federal rule on authenticity, Federal Rule of Evidence 901, but this court has not adopted that rule. See Stewart v. United States, 881 A.2d 1100, 1111 (D.C.2005).

18 . Mr. Mulderig was an MPD employee at the time he conducted his examination of the bullets; by the time of the 2012 trial, he had retired but was still “doing the same work” for the MPD as an independent contractor.

19 . Mr. Mulderig’s report, which was admitted into evidence, is dated June 9, 2000, a little more than three weeks after the shooting.

20 . Mr. Mulderig’s report provides a snippet of information: it contains a notation that what became Exhibits 1-44 "were personally delivered on May 18, 2000 by Technician Elizabeth Sharp-Hamlet.” The government did not ask Mr. Mulderig any questions about this notation.

21 . Mr. Wonson does not argue on appeal that Mr. Mulderig’s testimony should have been struck or that the admission of his testimony affected the verdict in any way, but even if he had done so, our harmlessness analysis would remain unchanged.

22 . In fact, the government stipulated that the gun had been used in another crime at a time when Mr. Wonson could not have had access to it.

23 .The government also introduced an August 2000 letter from Mr. Brisbon to Ms. Route’s mother in which Mr. Brisbon acknowledged that he had committed the shooting with another man, although he claimed that he had falsely implicated Mr. Wonson in his stdtement to thfe police, because he “could not tell on my mans,” i.e., his true accomplice: "that’s why I put myself and another dude [referring to Mr. Wonson] that didn't know shit about me or this situation in it."

24 . Indeed, as an apparent concession to its force, the defense tried to argue that Mr. Brisbon had directed Ms.- Route and Mr. Cobb to falsely implicate Mr. Wonson to protect Mr. Brisbon’s real accomplice. We need not assess the plausibility of this argument because the ballistics evidence did not impact it one way or another. Insofar as the ballistics evidence corroborated that this was a two-person operation, it was consistent with the defense theory.

25 . This conclusion has no bearing on the gov-ernmént's disclosure obligations pretrial.' See Vaughn v. United States, 93 A.3d 1237, 1262 n. 29 (D.C.2014) ("The materiality assessment this court conducts on appellate review is necessarily different from the materiality assessment the government’ can make pretrial when assessing its Brady obligations, and we reiterate that prior to trial, the government must disclose information that is ‘arguably’ material."); Boyd v. United States, 908 A.2d 39, 60 (D.C.2006) (explaining that a "broad” "duty of disclosure exists even when the items disclosed later prove not to be material”).

26 . When the prosecutor asked Mr. Brisbon what happened at his trial in January 2002, Mr. Brisbon responded, "I got found guilty.”

27 . Because, with the exception of admitting Mr. Turner’s testimony from the 2011 trial, the court made clear that the lawyers were trying the case anew, directing" counsel to “[p]retend I’m a new judge,” we do not consider any objections from Mr. Wonson’s mistrial in 2011. Compare United States v. Akers, 702, F.2d 1145, 1147-48 (D.C.Cir.1983) (‘‘When ... the previous trial is a nullity, the court in the new trial tries the case as if it were being tried for the first time, as if there had been no prior trial.”) (internal quotation marks omitted), with Williams v. United States, 858 A.2d 978, 981 n. 7 (D.C.2004) (explaining that, where ‘‘it was understood from the beginning of the new trial that the judge was adopting the evidentiary rulings made in the prior trial," ‘‘the trial, court's • general adoption of its prior rulings and [the defendant’s] prior notice to adopt the motions of his co-defendants was sufficient to preserve [the defendant’s] objection”).

As for the trial we are now reviewing on appeal, Mr. Wonson’s counsel never raised an objection under the Confrontation Clause. U.S. Const, amend. VI. Rather the record reflects only that the court and counsel discussed how to refer to Mr. Brisbon’s and Mr. Wonson’s joint 2002 trial in a way that would not reveal that Mr. Wonson had been ‘‘convicted at a prior occasion.”

28 .Because we conclude that Mr. Wonson waived his argument that admission of Mr. Brisbon’s testimony somehow violated the Confrontation Clause, we do not decide whether, as Mr. Wonson argues, “the trial court was required to give a proper cautionary instruction, sua sponte, to prevent substantial prejudice” arising from such a violation. . We note, however, that the court .specifically instructed the jury not to consider Mr; Brisbon’s convictions, as evidence of Mr. Wonson’s guilt. . ■ .