Marques An'Rico Johnson v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CF-929

MARQUES AN’RICO JOHNSON, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF3-22713-11)

(Hon. Heidi M. Pasichow, Trial Judge)

(Argued May 20, 2015 Decided June 18, 2015)

Richard S. Stolker for appellant.

John Cummings, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time, and Elizabeth Trosman, John P.
Mannarino, and Jonathan Kravis, Assistant United States Attorneys, were on the
brief, for appellee.

Before WASHINGTON, Chief Judge, and FISHER and THOMPSON, Associate
Judges.

FISHER, Associate Judge: A jury convicted appellant Marques Johnson of

one count of aggravated assault while armed, 1 two counts of assault with a

1
D.C. Code §§ 22-404.01 (a), -4502 (a) (2001).
 2

dangerous weapon, 2 two counts of possession of a firearm during a crime of

violence,3 and one count of carrying a dangerous weapon.4 He appeals, contending

that the trial court erred by (1) refusing to compel the government to allow his

expert to independently test a firearm, (2) preventing him from impeaching the

victim with juvenile adjudications, (3) giving an improper instruction for the crime

of aggravated assault, and (4) allowing the government’s expert witness on DNA

testing to present a misleading slide presentation to the jury. We affirm, but

remand to the trial court because three of appellant’s convictions merge.

I. Background

According to evidence at trial, on November 17, 2011, Timothy Conrad and

Danisha Keener went to an apartment building located at 1420 R Street in

Northwest Washington, D.C. A group of six men, including appellant, was in the

lobby when they arrived.

2
D.C. Code § 22-402 (2001).
3
D.C. Code § 22-4504 (b) (2001).
4
D.C. Code § 22-4504 (a) (2001).
 3

When Conrad and Keener left the building, the men followed them out.

Appellant then took out a gun and fired at Conrad multiple times in quick

succession. Conrad was taken to a hospital and treated for seven gunshot wounds.

Police recovered seven expended shell casings at the scene of the shooting, all of

which were labeled “WIN .380 auto.”

After shooting Conrad, appellant fled into the building to Paulette Miles’s

apartment and spent fifteen to twenty minutes alone in one of the bedrooms. Later

that day, police officers recovered a black, semi-automatic, 9-millimeter handgun

from that bedroom. The gun was loaded with ten bullets labeled “WIN .380 auto,”

and the safety was off. The day after the shooting, appellant told his girlfriend that

he had shot somebody on R Street seven or eight times.

At trial, the government called an expert witness on DNA analysis who

testified that there was a mix of DNA on the trigger of the 9-millimeter handgun,

but that the “major male DNA profile” of the mix matched appellant’s DNA. The

government also called an expert witness in firearms and toolmark identification,

Jonathan Pope. Pope testified that he could not determine whether the seven .380

cartridges found outside the apartment building on R Street had been fired from the

9-millimeter handgun, but that the gun was capable of firing .380 bullets and that
 4

he had successfully test-fired the weapon twice using such ammunition. Pope did

note that after he test-fired the first round of ammunition, the shell casing did not

eject from the gun, and he had to pull the slide back and then close it to eject the

spent shell casing and chamber the next round. Doing so took one second.

Appellant called his own expert witness on firearms and toolmark

examination, Dr. William Bruchey, who testified that it was “highly unlikely” that

a 9-millimeter handgun could shoot seven .380 bullets in rapid succession. He

opined that there were three potential outcomes of using .380 ammunition in a 9-

millimeter gun: (1) the gun would not fire; (2) the gun would fire one round but

would not eject the expended shell casing, preventing the next round of

ammunition from automatically loading; or (3) the shell casing would not fully

eject and the gun would jam.

II. Independent Testing of the Firearm

The government’s key witness testified that she saw appellant shoot Conrad

multiple times in quick succession. At trial, appellant argued that this could not

have happened with the handgun the police recovered because that weapon could

not have fired .380 ammunition several times in a row. He now contends that he
 5

was prevented from proving his theory because the government refused to allow

his expert to independently test-fire the handgun, in violation of Super. Ct. Crim.

R. 16.

On February 12, 2012, appellant served a general discovery request on the

prosecution for, among other things, the opportunity to inspect, copy, and test any

guns material to his defense. He did not follow up on that request until April 18,

2013, five days before the trial began. On that day, appellant’s trial counsel served

a formal Rule 16 request on the government, asking for access to the 9-millimeter

handgun so that his expert, Dr. William Bruchey, could test its ability to fire .380

ammunition several times in quick succession.

The parties appeared in court on April 18 to discuss pretrial matters,

including the government’s motion to exclude Dr. Bruchey’s testimony because

appellant had not disclosed the basis of his expert opinions. Dr. Bruchey was in

the District that day to look at two bullets and bullet casings expended during the

government’s test-firing of the weapon. He had already inspected the other

ballistics evidence. The government explained that he was barred from using the

laboratory’s equipment to examine the evidence, see D.C. Code § 5-1501.09 (2012

Repl.), but agreed to retrieve the evidence from the lab so that Dr. Bruchey could
 6

examine it at the courthouse. Appellant’s counsel said that looking at the evidence

in the courthouse might be problematic because Dr. Bruchey might need a

microscope for a proper examination, but that she would work out that issue with

him. The parties did not seriously discuss a plan for Dr. Bruchey to test-fire the

handgun.

On April 24, the day after jury selection, the parties informed the court that

on April 18 Dr. Bruchey had been unable to properly examine the bullets and

casings used in the government’s test-firing because he had not brought a

microscope. After discussing some options, including mailing the evidence to

Dr. Bruchey, the trial court asked defense counsel, “[D]o you want a continuance?

We can let the jury go. I haven’t sworn them in. But if you want to proceed today,

I’m going to swear them in and that’s going to be it. And you’re just going to have

to deal with the evidence.” Appellant’s counsel asked for the court’s indulgence,

had a discussion off the record, and then declined the offer of a continuance. She

then said she would work on getting Dr. Bruchey access to the evidence “within

the confines of the court.” She did not renew her request to test-fire the handgun.

On April 26, mid-trial, defense counsel reported to the court that

Dr. Bruchey could not bring his microscope from Maryland to the District of
 7

Columbia to examine the evidence. The trial judge said that she could do nothing

about that because they were now in the middle of trial. She suggested that

Dr. Bruchey rent a microscope to examine the evidence. Defense counsel again

did not renew her request for the opportunity to test-fire the handgun. Dr. Bruchey

did not view the evidence used in the government’s test-fire, nor did he test-fire the

weapon.

The correct interpretation and application of Rule 16 is a legal question we

review de novo. Jenkins v. United States, 75 A.3d 174, 195 (D.C. 2013). Section

(a)(1)(C) of that rule requires the government to allow a defendant, upon request,

to inspect any tangible object that is in the government’s possession if it is material

to the preparation of the defense. If a party fails to comply with the discovery

obligations of the rule, “the court may order such party to permit the discovery or

inspection [of the evidence], grant a continuance, or prohibit the party from

introducing evidence not disclosed, or it may enter such other orders as it deems

just under the circumstances.” Super. Ct. Crim. R. 16 (d)(2). The trial court’s

decision whether to sanction a party for a Rule 16 violation, and its choice of a

sanction, are reviewed for abuse of discretion. See Austin v. United States, 64 A.3d

413, 424 (D.C. 2013).
 8

Even assuming, on this tangled record, that appellant preserved the

discovery issue he raises on appeal, see Thorne v. United States, 582 A.2d 964, 965

(D.C. 1990) (“A party who neglects to seek a ruling on his motion fails to preserve

the issue for appeal.”), we conclude that there was no Rule 16 violation. The

government did not prevent Dr. Bruchey from examining the evidence. Once

appellant requested access, the prosecution took reasonable steps to retrieve the

evidence from the laboratory and make it available for viewing at the courthouse.

Dr. Bruchey was unable, for whatever reason, to bring his own microscope or rent

one, and was barred from using the government laboratory’s equipment by

D.C. Code § 5-1501.09. Moreover, the court offered to continue the trial so the

parties could develop a solution. Appellant’s counsel asked for the court’s

indulgence, had a discussion off the record, and then refused that offer. Assuming

for the sake of argument that the government did not fully comply with Rule 16,

the court, when faced with these circumstances, did not abuse its discretion by

failing to sanction the government.

III. Impeachment With Juvenile Adjudications

Timothy Conrad, the victim, was twenty-two when he testified at trial.

Appellant’s counsel used a prior adult conviction for possession of a controlled
 9

substance with the intent to distribute to impeach Conrad’s general credibility and

a pending charge for carrying a pistol without a license as evidence of his

motivation to curry favor with the prosecution. Appellant contends that the trial

court erred when preventing his trial counsel from using several juvenile

adjudications to further impeach Conrad on cross-examination.

When a defendant claims that his right to cross-examination was improperly

restricted, our standard of review depends on “‘whether the trial court has

permitted sufficient cross-examination to comport with the requirements of the

Sixth Amendment right to confrontation.’” Walls v. United States, 773 A.2d 424,

429 (D.C. 2001) (quoting Springer v. United States, 388 A.2d 846, 856 (D.C.

1978)). If the court “wholly deprived the defendant of any opportunity to cross-

examine a witness or present evidence concerning bias or a central issue in the

case, we may only affirm if we are convinced that the error was harmless beyond a

reasonable doubt . . . .” Clark v. United States, 639 A.2d 76, 81 (D.C. 1993).

In this case, appellant had ample opportunity to cross-examine Conrad and

present evidence suggesting his bias. Appellant’s trial counsel used Conrad’s prior

drug conviction to impeach his general credibility, and used his pending gun

charge as evidence of bias. The only cross-examination the trial court limited was
 10

appellant’s ability to use Conrad’s juvenile adjudications for impeachment.

However, “‘[t]he Sixth Amendment does not require the trial court to permit

impeachment with juvenile adjudications unless they can be used to establish bias,

not merely to challenge general credibility.’” Walls, 773 A.2d at 429-30 (quoting

Tabron v. United States, 410 A.2d 209, 212 (D.C. 1979)).

Conrad’s juvenile adjudications were not relevant to demonstrate a motive to

curry favor with the government because any supervision stemming from those

adjudications had ended before his testimony. When pressed by the court,

appellant’s trial counsel could not explain how the juvenile adjudications would

establish that Conrad was biased. Appellant has also failed to give any such

explanation on appeal. We therefore conclude that the trial court’s limitation of

Conrad’s cross-examination did not violate the Sixth Amendment and review only

for abuse of discretion. See Parker v. United States, 586 A.2d 720, 722 (D.C.

1991).

Appellant had ample opportunity to impeach Conrad’s general credibility

with his prior drug conviction. Even if it were allowed, 5 any impeachment of

5
Appellant has not challenged the continuing validity of our line of cases
outlining when the use of juvenile adjudications for impeachment must be allowed.
(continued…)
 11

general credibility with his juvenile adjudications would have been cumulative.

Moreover, Conrad’s testimony was not central to the government’s case—he

testified that he did not recognize anyone in the lobby of the apartment building

before the shooting and did not see who shot him. In some respects, Conrad’s

testimony was detrimental to the government’s case because it contradicted

portions of the testimony of Danisha Keener, the prosecution’s main witness to the

shooting. We therefore conclude that preventing appellant from using Conrad’s

juvenile adjudications to impeach him was not an abuse of discretion. See Parker,

586 A.2d at 723 (no abuse of discretion where judge allowed some cross-

examination on the witness’s bias and defendant made no proffer, when asked,

explaining how the questions that were excluded would have been probative of

bias).

IV. Jury Instructions for Aggravated Assault

Appellant next contends that the trial court gave incorrect instructions to the

jury on the mens rea component of aggravated assault. Because he did not object

(…continued)
See, e.g., Walls, 773 A.2d at 429-30; Tabron, 410 A.2d at 212-13; Smith v. United
States, 392 A.2d 990, 992-93 (D.C. 1978). Under the circumstances of this case,
there is no need to reconsider those decisions, even if we, as a panel of the court,
were free to do so. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
 12

on this ground at trial, we review only for plain error. Graham v. United States,

12 A.3d 1159, 1167-68 (D.C. 2011).6 Under this standard, “appellant first must

show (1) error, (2) that is plain, and (3) that affected appellant’s substantial rights.

Even if all three of these conditions are met, this court will not reverse unless

(4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Lowery v. United States, 3 A.3d 1169, 1173 (D.C. 2010) (internal

quotation marks omitted).

The statute describes alternative mental states for the crime: (1) “knowingly

or purposefully caus[ing] serious bodily injury to another person”; or (2) “[u]nder

circumstances manifesting extreme indifference to human life, . . . intentionally or

knowingly engag[ing] in conduct which creates a grave risk of serious bodily

injury to another person . . . .” D.C. Code § 22-404.01. The court instructed the

jury that the crime of aggravated assault required that appellant either, “A,

intended to cause serious bodily injury to Timothy Conrad, or B, knew that serious

bodily injury to Timothy Conrad would result from his conduct, or C, was aware

6
At trial, appellant did object to the aggravated-assault instruction,
contending that the court should only read the first portion of the instruction on
mens rea because the other two parts were “redundant and repetitive.” However,
that objection was not precise enough to preserve the specific issue that he now
raises on appeal. See Williams v. United States, 858 A.2d 984, 991-92
(D.C. 2004).
 13

that his conduct created an extreme risk of serious bodily injury to Timothy

Conrad, but engaged in that conduct nonetheless.” Appellant contends that the

jury instructions given in this case improperly left out the requirement that the

assault take place “under circumstances manifesting extreme indifference to human

life.” We are inclined to agree.

The government contends there was no error because the instruction given to

the jury follows the model jury instruction, which was revised in 2012 to reflect

this court’s reasoning in Perry v. United States, 36 A.3d 799 (D.C. 2011). See

Criminal Jury Instructions for the District of Columbia, No. 4.103 cmt. (5th ed.

rev. 2013). In Perry, Judge Ruiz, writing the lead opinion, said that subsection

(a)(1) of the aggravated-assault statute requires that the actor intend to cause

serious bodily injury, while subsection (a)(2) requires “a different type of mental

element—gross recklessness—as shown by ‘intentionally or knowingly’ engaging

in conduct that, in fact, ‘creates a grave risk of serious bodily injury’ . . . .”

36 A.3d at 816. Judge Farrell, in a concurring opinion, said that the mens rea

requirement in subsection (a)(2) “is substantively indistinguishable from the

minimum state of mind required for conviction of second-degree murder . . . .” Id.

at 823. Because “malice” is defined as a subjective awareness that one’s conduct

creates an extreme risk of death or serious bodily harm, see Comber v.
 14

United States, 584 A.2d 26, 39 (D.C. 1990), the committee revising D.C.’s model

jury instructions chose to remove the language “extreme indifference to human

life” from the previous pattern instruction and replace it with “was aware that

his/her conduct created an extreme risk of serious bodily injury . . . but engaged in

that conduct nonetheless.” Criminal Jury Instructions for the District of Columbia,

No. 4.103.

Careful attention to the statute and a close reading of the opinions in Perry

lead us to question the committee’s choice. The statutory provision relating to

“grave risk” clearly states that the person’s actions must be “[u]nder circumstances

manifesting extreme indifference to human life.” D.C. Code § 22-404.01 (a)(2)

(emphasis added). Creating an extreme risk of serious bodily injury does not

necessarily manifest “extreme indifference to human life.” Judge Ruiz’s opinion

in Perry duly noted that there must not only be “gross recklessness” as shown by

intentionally and knowingly engaging in conduct that creates a grave risk of

serious bodily injury, but also that the defendant must do so “under circumstances

manifesting extreme indifference to human life.” Perry, 36 A.3d at 817 (internal

quotation marks omitted). Judge Farrell also stated that subsection (a)(2) of the

statute requires that the defendant “‘intentionally or knowingly’ engaged in

conduct that in fact created ‘a grave risk of serious bodily injury,’ and he did so
 15

with ‘extreme indifference to human life.’” Id. at 823 (quoting D.C. Code § 22-

404.01 (a)(2)) (emphasis added).

However, assuming for the sake of this appeal that it was clear or obvious

that this portion of the instruction was erroneous, appellant has failed to show how

it affected his substantial rights. According to the evidence at trial, Timothy

Conrad was shot seven times at close range. The doctor who treated Conrad said

he lost forty to fifty percent of his circulating blood volume by the time he entered

the operating room, and would have died absent medical treatment. The

circumstances of the shooting powerfully demonstrate a violation of subsection

(a)(1)—a knowing or purposeful effort to cause serious bodily injury. “Gross

recklessness,” the mental state coupled with “extreme indifference to human life,”

did not come into play.

Moreover, appellant contended at trial that he was not the shooter. He did

not argue that the person who shot Conrad had not committed aggravated assault.

He has therefore failed to show that there was a reasonable probability that the

wording of the instruction materially impacted the jury’s verdict. See Kidd v.

United States, 940 A.2d 118, 128 (D.C. 2007) (on plain-error review, incorrect jury
 16

instruction was not reversible error because there was no reasonable probability

that it had a prejudicial impact on the outcome of the trial).

V. Expert Witness Slide Presentation on DNA

Appellant contends that the government’s expert should not have been

allowed to use a demonstrative aid (a slide show presentation) to help explain

DNA testing to the jury. A demonstrative aid can be used “if it is sufficiently

explanatory or illustrative of relevant testimony in the case to be of potential help

to the trier of fact,” but “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” Sheffield v. United States, 111

A.3d 611, 625 (D.C. 2015) (internal quotation marks omitted). “[W]e review a

trial court’s decision to admit or exclude demonstrative evidence for abuse of

discretion.” Lloyd v. United States, 64 A.3d 405, 409 (D.C. 2013).

The slide show contained information about the characteristics of DNA, how

it is collected and tested, and how test results are analyzed. Appellant contends

that it was misleading because it did not discuss false positives, failed to explain

that some people leave more DNA on objects than others, lacked sufficient
 17

information regarding error rates of DNA testing, and did not address why

appellant’s DNA was found on the handgun’s trigger but not the handgrip.

The trial court, however, found that the slide show would be helpful to the

jury and was not misleading. The court also noted that any issues with DNA

testing that were not addressed in the slide show could be brought up in cross-

examination, and appellant’s trial counsel focused on those topics when cross-

examining the government’s expert. The court also gave an instruction before the

slide show was displayed to the jury, as suggested by this court in Lloyd, see

64 A.3d at 410, explaining that the slide show was being used for demonstrative

purposes and stating, “[I]f there’s any discrepancy between the evidence that was

admitted and the demonstrative exhibits, . . . you should consider only the evidence

that’s been admitted in your deliberations.” Under these circumstances, the trial

court’s decision to allow the government to use the slide show was not an abuse of

discretion.

VI. Merger

Finally, appellant contends that three of his convictions merge. The

government concedes, and we agree, that appellant’s convictions for assault with a
 18

dangerous weapon (“ADW”) merge with his conviction for aggravated assault

while armed, and his two PFCV convictions merge into one because their predicate

offenses merge. See Robinson v. United States, 50 A.3d 508, 532-33 (D.C. 2012).

VII. Conclusion

We affirm the convictions, except that we remand for the trial court to

vacate appellant’s two convictions for ADW and the attendant conviction for

PFCV. Because the sentences for those convictions were to be served concurrently

with appellant’s remaining convictions, there is no need for re-sentencing. See

Carter v. United States, 531 A.2d 956, 964 (D.C. 1987), abrogated on other

grounds by McCrae v. United States, 980 A.2d 1082 (D.C. 2009).

It is so ordered.