Heath v. United States

*286 BLACKBURNE-RIGSBY, Associate Judge,

dissenting:

I fear that the majority opinion today takes us a step backward in terms of the value we place on expert testimony regarding the reliability of eyewitness testimony. Aside from my concerns regarding the majority’s harmlessness determination in light of Benn v. United States (Benn II), 978 A.2d 1257 (D.C.2009), and Russell v. United States, 17 A.3d 581 (D.C.2011), I have difficulty reconciling the new materiality test proposed by the majority with some of our other previous cases. For these reasons, I respectfully dissent from the decision of the court.

I.

In the present case, the government concedes that the trial court erred, because its ruling “does not satisfy Benn II’s procedural requirements, [thus] it does not reflect a proper exercise of discretion under current law.” Error conceded, the only issue before us is whether such conceded error was prejudicial, and therefore requiring of remand. The majority determines that appellant suffered no prejudice here because “the probative value to appellant’s defense of Dr. Van Wallendael’s proffered testimony was slight at best. We see no reasonable probability that its putatively erroneous exclusion contributed to the verdict against appellant.” Maj. op. at 285. The majority’s analysis here cannot be reconciled with the analysis we recently employed in Russell, supra, 17 A.3d at 583 , and Benn II, supra, 978 A.2d at 1261 . Both Russell and Benn II dealt with the erroneous exclusion of expert testimony proffered to discuss the reliability of eyewitness identifications. Both of these cases dealt with convictions based solely upon the eyewitness testimony of multiple witnesses. In both of these cases, we found prejudicial error and remanded for a Dyas hearing. In Benn II, we found that the error was a Kotteakos violation without conducting any Chapman constitutional error analysis. 928 A.2d at 1283. In Russell, we determined that the erroneous exclusion of Dr. Van Wallendael’s testimony — the very same expert excluded here — constituted prejudicial error under both Chapman and Kotteakos. 17 A.3d at 589 .

We have recognized that the modern developments in relevant scientific studies and case law regarding the reliability of eyewitness testimony mandate more than mere cursory scrutiny of proffered expert witness testimony. See Benn II, supra, 978 A.2d at 1277-78 . Much has changed since our decision in Dyas v. United States, 376 A.2d 827, 832 (D.C.1977). 1 Nearly thirty-four years ago, in Dyas, supra, 376 A.2d at 832 (citing United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir.1973)), we determined that expert testimony regarding the reliability of eyewitness testimony “was not beyond the ken of the average layman ... [and that such testimony] would not aid the jury in evaluating a witness’ testimony because the jury would be able to assess the witness’ credibility based on the ‘inconsistencies and deficiencies’ brought out on cross-examination.” Because of these recent developments in our case law, we will no longer abide a trial court’s per se exclusion of *287 expert testimony as being “beyond the ken of average lay persons.” Russell, supra, 17 A.3d at 586-87 . Instead, we now require that a trial court, “give individualized consideration to the defense’s proffer in the context of the facts in [the particular] case....” Id. at 588 (emphasis added). Where the trial court has failed to conduct a factually particularized inquiry, and the excluded testimony constitutes prejudicial error, we remand for such a specific hearing. See id.; Benn II, supra, at 1280 (“We remand the case so that the trial judge may properly consider the expert testimony proffered by the defense in the context of the facts of this case.”).

In order to find prejudicial error under • the lesser Kotteakos standard, we must be “unable to say ‘with fair assurance, after pondering all that happened, without stripping away the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ ” Andrews v. United States, 922 A.2d 449, 458 (D.C.2007) (quoting Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)). In other words, to conclude that an error is harmless under the Kot-teakos standard, we “must find it highly probable that [that] error did not contribute to the verdict.” Wilson-Bey v. United States, 903 A.2d 818, 844 (D.C.2006) (en banc) (internal quotation marks and citations omitted). Therefore, in order to discern prejudice, it is necessary to examine the specific evidence presented in this case.

Here, the government’s evidence of appellant’s guilt is weaker than the evidence presented in both Russell 2 and Bern II. 3 There was absolutely no physical evidence tying appellant to the shooting in this case. 4 Instead, the entirety of the government’s case rested on the testimony of three “eyewitnesses”: Courtnee Ervin, Danielle Carter, and Felicia Edwards. Referring to them as eyewitnesses is somewhat generous, considering that not a single one of them identified appellant as the shooter until eight months after the shooting. Moreover, the testimony of all three witnesses was fraught with credibility problems. Ms. Ervin, an admitted crack cocaine addict, testified on the government’s behalf pursuant to a cooperation agreement. 5 Eight months after the shooting, while in police custody for distribution of cocaine, Ms. Ervin identified ap *288 pellant as one of the individuals involved in the shooting. At trial, Ms. Ervin testified that she was sitting on a wall alongside the 1800 block of Corcoran Street, getting high on crack cocaine, when she heard gunshots and saw appellant shooting into the decedent’s car. Her trial testimony that she was sitting relatively close to the shooting flatly contradicted the testimony she had given a year earlier to the grand jury that she was over 120 yards away from the shooting. This was the only witness who identified appellant as the shooter prior to the grand jury hearing that occurred nearly a full year after the shooting.

Ms. Carter, the decedent’s sister, did not wait eight months to come forward. She spoke to police on the night of the shooting. She told them that, from the second floor of her mother’s house down the block, she saw a man run from her brother’s car after she heard gunshots. At the time, she did not identify the man as appellant. In November 2006, one year after the shooting and months after both Ms. Ervin and Ms. Edwards identified the appellant to police, Ms. Carter told the grand jury that despite knowing appellant from the neighborhood, she did not know if the man she saw was appellant because she had “never seen the person’s face.” Only at trial did Ms. Carter state that she believed the man she saw was appellant, despite conceding that numerous people in the neighborhood matched the physical description of the man she saw running from her brother’s car on the night of the shooting.

Therefore, considering the myriad issues with Ms. Ervin’s and Ms. Carter’s testimony, this case — and the centrality of Dr. Van Wallendael’s testimony — hinges largely on Ms. Edwards’ testimony. And, in fact, Ms. Edwards’ testimony shares many similarities with that of the victim in Russell. In Russell, as here, the victim originally saw the appellant approaching— seemingly innocently — from the safety of the victim’s car. See 17 A.3d at 583 . Yet, the majority’s reasoning here diverges sharply from the reasoning in our decision in Russell, where we determined that Dr. Van Wallendael’s proffered testimony remained “relevant and material” even though the victim originally saw the attacker’s face as he approached the car before the attack, at a time when the victim was at ease and not aware of any threat. Id. at 589 . The majority’s conclusion, seemingly unsupported by any psychological authority, that Dr. Van Wallen-dael’s proffered testimony would have been “beside the point” is particularly puzzling. Maj. op. at 283. The majority seems to suggest that the human brain works similarly to a digital camera — capturing perfect memories if not immediately threatened. This is not persuasive. To the contrary, it does not seem unlikely that enduring near-death trauma immediately subsequent to the imprint of a particular memory may affect the accuracy of that specific memory upon later recall. Regardless, this disagreement among members of this division as to the biological mechanisms of the human mind is one that is likely to be shared by members of the jury, and this is precisely why given the facts of this case Mr. Heath is deserving of a Dyas hearing. Dr. Van Wallendael, a proffered expert on the psychology of eyewitness identification, is better equipped to explain this phenomenon. At a minimum, she should have the opportunity in a Dyas hearing to explain why she is qualified to give an expert opinion on this issue.

Even more troubling is that the victim’s identification here is significantly weaker than the victim’s identification in Russell. There, the victim identified his assailant mere hours later at a show-up identification arranged by the police upon a description originally provided by the victim. *289 Russell, supra, at 583-84 . Here, Ms. Edwards based her identification of appellant upon a bizarre psychosomatic reaction. Ms. Edwards testified that, eight months after the shooting occurred, when appellant walked into the store where she worked she became physically ill. Ms. Edwards conceded that she had experienced similar physical reactions in the months after the shooting when she saw other tall men who, like appellant, wore dreadlocks. She asserted, however, that her physical reaction to appellant was more powerful and disturbing. Despite this reaction, Ms. Edwards still was unable to identify appellant as the man who shot her and Mr. Carter until months later when she testified in front of the grand jury. The majority voices its skepticism regarding the existence of the phenomenon of “Unconscious Transference,” to which Dr. Van Wallendael’s proffered testimony related, and yet affirms a case built upon an identification made by a witness’ physical and psychosomatic reaction. In such a case, Dr. Van Wallendael’s testimony was material and relevant to appellant’s defense. “Without expert testimony to provide a foundation for [her] arguments, defense counsel could only make unsupported assertions in closing argument.” Benn II, supra, 978 A.2d at 1283 . The evidence in this case is even weaker than the evidence in Russell and Benn II, and therefore provides less assurance that the judgment here was not substantially swayed by the trial court’s Dyas error. See id. (citing Kotteakos, supra, 328 U.S. at 764-65 , 66 S.Ct. 1239 ).

The majority attempts to distinguish this case from Russell and Benn II on the strength of two legal arguments: (1) “the exclusion of the identification expert’s testimony did not foreclose appellant from mounting a vigorous challenge to Ms. Edwards’s identification” due to appellant’s ability to cross-examine; and (2) Dr. Van Wallendael’s proffered testimony “would have been of scant relevance to the identifications of appellant by Ms. Ervin and Ms. Carter” in light of our decision in Hager v. United States, 856 A.2d 1143, 1148-49 (D.C.2004). Neither of these arguments are persuasive. This court previously rejected the majority’s cross-examination argument in Benn II and Russell. Specifically, in finding harm under both the Chapman and Kotteakos standards in Russell, we determined that “[w]e are not persuaded that the fact that appellant cross-examined vigorously the eyewitnesses and argued the shortcomings of the identifications to the jury to the extent that he could means that he had a meaningful opportunity to present his misidenti-fication defense.” 17 A.3d at 589 . That determination was built upon our conclusion that “[a]ppellant’s proffered scientific theories could not be developed on the cross examination of lay witnesses.” Id. (citing Benn II, supra, 978 A.2d at 1279 ). As we have noted in a prior case finding a Kotteakos violation, “[although it is true that [appellant’s] counsel was free to make [his] argument, however, the judge’s ruling deprived him of any evidence to back up his claim.... ” Andrews, supra, 922 A.2d at 461 n. 18. The majority does the same here.

As for the majority’s Hager argument, I think it misconstrues our analysis in that case. True, in Hager we found no abuse of discretion in the trial court’s refusal to allow the defendant to call an expert witness on the issue of the accuracy of eyewitness testimony. 6 856 A.2d at 1149 . It *290 is also true that we found that the proffered expert testimony had little probative value considering that most of the studies cited by the expert dealt with the accuracy of identifying strangers as opposed to previous acquaintances. Id. at 1148-49 . However, in Hager , we also thoroughly discussed the “corroboration” of the identification through other evidence, namely: (1) the appellant’s fingerprints on the murder weapon; (2) admissions by the appellant to two other witnesses that he killed someone on the street where the victim lived; and (3) a witness who testified that he saw appellant holding a gun identical to the murder weapon. Id. at 1149-50 . There is no similar corroborative evidence in this case — no corroborative physical evidence at all (despite the recovery of bullet shells and fingerprints at the scene) and no evidence of inculpatory statements. Ms. Ervin and Ms. Carter may have previously known appellant, but it is difficult to conceive that — considering all of the flaws in Ms. Ervin’s and Ms. Carter’s testimony— the majority would equate the strength of this evidence with the corroborating evidence in Hager . Indeed, the inherent weaknesses of Ms. Ervin’s and Ms. Carter’s testimony make the reliability of Ms. Edwards’ testimony even more crucial, and the proffered testimony of Dr. Van Wallendael even more material to the evidence of appellant’s guilt. Thus, this case falls within the orbit of Benn II and Russell.

The majority seems to suggest that Hager stands for the proposition that there is no error in excluding expert testimony regarding eyewitness reliability when the eyewitnesses know the assailant. This is an oversimplification of Hager and is inconsistent with our Kotteakos prejudice analysis. It puts the brakes on the forward progression of our case law in this area to simply state that, as a matter of law, identifications of known acquaintances are inherently stronger than identifications of strangers without looking at the other evidence in the particular case.

The majority warns that we must examine “the expert’s testimony not in a vacuum, but in the context of appellant’s trial,” and I agree. Maj. op. at 282. It is puzzling, then, that the majority disconnects the eyewitness testimony and maintains that “Dr. Van Wallendael’s testimony would not have undermined the central strength of the prosecution’s case: the fact that Ms. Ervin and Ms. Edwards independently identified appellant as one of the shooters without having communicated with each other and without having learned that appellant was a suspect....” Maj. op. at 283-84. That the majority maintains that the “central strength of the prosecution’s case” is the independent nature of the identifications made by Ervin and Edwards is surprising given concerns expressed by the author of the majority opinion to the government during oral argument:

[W]e have this hiatus of a few months and, inexplicably, there’s nothing in the record that explains this. Suddenly in November, [Edwards] walks into the Grand Jury and she’s now saying, “that person that I saw in that photo is, was the shooter.” “El was the shooter.” And this is bizarre to me, frankly. The *291 facts in this ease are rather bizarre in a number of respects. The question in my mind is: What is it that has happened that has led Ms. Edwards to go from ... identifying the photograph as the man who walked into the store, to identifying [the man in the photograph] as the shooter? How do we know it is independent? What is it the police have told her? [Was it], the mere fact that this photo happens to be in an array? You know, there’s this suggestivity inherent in this in some way, and I’m wondering about whether Edwards’ identification is really so independent of Ervin’s identification?

(Emphasis added). These questions are still quite troublesome to me and are, in my view, central to the harm caused to the appellant’s case by the trial court’s Benn II violation. Perhaps, if allowed to testify, Dr. Van Wallendael could have provided the jury with some answers. At the very least, appellant was entitled to the opportunity to have Dr. Van Wallendael testify at a Dyas hearing, which the trial court erroneously denied.

In assessing the Kotteakos prejudice that results from a Dyas violation, we look to the strength of the entirety of the evidence and if we are unable to say with fair assurance that the judgment was not substantially swayed by the error, we must remand for a Dyas hearing. See Benn II, supra, 978 A.2d at 1283 (citing Kotteakos, supra, 328 U.S. at 764-65 , 66 S.Ct. 1239 ). I have no such fair assurance here, and therefore would reverse and remand for a Dyas hearing in accordance with Benn II and Russell.

II.

Furthermore, I fear that the majority’s new test will effectively eliminate any practical distinction between Chapman and Kotteakos analysis. Under the majority’s new materiality test, a Kotteakos analysis is only conducted after a thorough Chapman-like analysis centered upon a determination of whether “there exists a reasonable probability that the omitted evidence, evaluated in the context of the entire record, would have led the jury to entertain a reasonable doubt that did not otherwise exist.” Maj. op. at 281. I think this method is somewhat problematic because it greatly differs from how we have addressed the issue of prejudicial error in recent cases. Generally, we address Kot-teakos first as the default standard of review for prejudicial error. See, e.g., Benn II, 978 A.2d at 1283 n. 112 (stating that, after a determination of Kotteakos error, “[w]e need not decide whether the more stringent standard for constitutional error applies”); Andrews, supra, 922 A.2d at 458 n. 14 (“Because we conclude that the error was prejudicial under Kotteakos , reversal would be required a fortiori if we were to apply the Chapman standard.”). Applying a thorough Kotteakos analysis first, when it is unclear whether to apply the Chapman or Kotteakos standard, seems more consistent with not only our case law, but also with the principles of Chapman and Kotteakos themselves. In a Kotteakos analysis, the government bears the burden of proving harmlessness. See Andrews, supra, 922 A.2d at 458 (determining that “the government has not satisfied the ‘reasonable assurance’ standard of Kotteakos .... ”). In a Chapman analysis determining the prejudice of constitutional error, it is the appellant who first must meet a “standard of materiality [that] impose[s] a higher burden on the [appellant]” than the Kotteakos harmless-error standard. United States v. Agurs, 427 U.S. 97, 112 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976); see also Kyles v. Whitley, 514 U.S. 419, 436 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995) (recognizing “reversible constitutional error only when the harm to the defendant [is] greater than the harm sufficient for reversal under Kotteakos ”). In adopting the ma *292 jority’s analysis, I am concerned that we run the risk of accidentally engaging in a sort of structural burden-shifting where, if the appellant cannot meet the heightened materiality standard, appellant does not receive a fair Kotteakos analysis.

I also question whether the majority’s proposed Chapman materiality test is consistent with our recent constructions of the Chapman standard. For example, in McCoy v. United States, 890 A.2d 204, 212 (D.C.2006) (quoting Hill v. United States, 858 A.2d 435, 447 (D.C.2004)), we reversed upon a finding of Chapman error that characterized the standard as “whether ‘overwhelming evidence’ existed to support the conviction, independent of the tainted [evidentiary ruling].” The majority’s proposed standard strikes me as stricter than our prior characterizations of the Chapman standard. It also seems that the majority’s standard differs somewhat from the Supreme Court’s own characterization of the standard as “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993).

For the foregoing reasons, I respectfully dissent.

. See Burgess v. United States, 953 A.2d 1055 , 1063 n. 12 (D.C.2008) ("[TJrial judges should be cognizant that the art of inquiry or the scientific methodology governing the psychological study of eyewitness identification, including cross-racial identification, and also pertinent case law in other jurisdictions, reflect new developments since our 1977 Dyas decision....").

. In Russell, the government presented evidence that the victim saw his assailant immediately prior to, and during, the time of the robbery. 17 A.3d at 583-84 . He then identified appellant as his assailant mere hours after the robbery. Id. at 584 . The victim’s identification was corroborated by the identification testimony of a police officer who chased appellant near the scene of the robbery. Id. at 583-584 . The victim did not previously know his assailant.

. The appellant in Bern II was convicted on the basis of identification testimony made by five members of the same family whose home was invaded by two intruders, one of whom all five witnesses identified as appellant. 978 A.2d at 1263 . None of the witnesses previously knew the appellant.

. That is not to say that there was no physical evidence in this case; there was. The police recovered twenty-three shell casings from the scene. None possessed latent fingerprints that were usable for comparison. The police recovered a piece of chewing gum at the scene as well, but they did not test it for the presence of DNA. The police also found three latent fingerprints on the decedent’s vehicle. None of the three fingerprints matched the appellant’s.

.At the time of the trial, Ms. Ervin was facing "thirty and a half" years of incarceration based on pending charges for felony distribution of cocaine and a misdemeanor violation of the Bail Reform Act. Ms. Ervin agreed to cooperate with the government and testify against appellant in exchange for the government allocuting favorably on her behalf at her sentencing.

. Our holding in Hager is unsurprising considering its place in the chronology of the development of our case law in the area of expert testimony about eyewitness identifications. We decided Hager nearly four years prior to our acknowledgment in Burgess, su *290 pra note 1, 953 A.2d at 1063 n. 12, that there had been new developments in the scientific methodology governing eyewitness identification, and five years prior to our historic holding in Benn II that, "[f]or the first time, however, we do not affirm the trial court’s exclusion of the proffered expert testimony” regarding the reliability of eyewitness testimony. Benn II, supra, 978 A.2d at 1261 . This is not to say that Benn II overruled Hager , but rather that the Hager court did not have the benefit of, and was not bound by, our analysis in Benn II.