Grimes v. United States

252 A.3d 901

Mark D. GRIMES, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-132

District of Columbia Court of Appeals.

Submitted May 6, 2020

Decided June 24, 2021

Anna B. Scanlon was on the briefs for appellant. Sean R. Day has since been appointed to represent him.

Jessie K. Liu, United States Attorney at the time the brief was filed, with whom Elizabeth Trosman, Chrisellen R. Kolb, Jeffrey N. Poulin, and Ethan L. Carroll, Assistant United States Attorneys, were on the brief, for appellee.

Before McLeese and Deahl, Associate Judges, and Washington, Senior Judge.

Deahl, Associate Judge:

Police recovered a handgun from the backseat of a car in which Mark Grimes was the front-seat passenger. Following the encounter, Grimes was charged with various weapons-related offenses. The focus at trial was whether the gun was his or, as he had posited, belonged to the driver, backseat passenger, or another individual who was not in the car but whose fingerprints—like Grimes's fingerprints—were found on the gun's magazine. The jury acquitted Grimes of charges related to possessing the gun and ammunition, but convicted him of possessing the high-capacity magazine that was found inside the gun.

Grimes appeals that conviction, raising three issues. First, he argues the government violated his Sixth Amendment right to confront the witnesses against him when it introduced a fingerprint card taken three years before this incident, in connection with an unrelated 2013 arrest. Grimes argues the fingerprint card's identification of him as the fingerprints’ source was testimonial hearsay. We disagree. While it is true that the fingerprint card contained hearsay—an out-of-court statement asserting the prints belonged to Grimes and introduced to establish that fact—that hearsay statement was not made with a "primary purpose ... to establish or prove past events potentially relevant to later criminal prosecution." Burns v. United States , 235 A.3d 758, 788 (D.C. 2020) (citation omitted). It is therefore not a testimonial statement subject to the Confrontation Clause's strictures. Second and relatedly, Grimes argues that even if the fingerprint card was not testimonial (as we conclude), it was nonetheless inadmissible hearsay because it did not satisfy the business records exception to the rule against hearsay. We disagree on this point as well and conclude that it satisfied that exception.

Finally, Grimes challenges the admission of the driver's statements inviting officers to "flip the car inside out" over his hearsay objections. We agree that was error. Contrary to the trial court's ruling that this was not an "assertion of fact" but a mere "authorization" to search, the statement was an implied assertion of innocence and that was the government's stated reason for admitting it. It was made in direct response to an inquiry whether there were "any guns or drugs in the car?", and it was introduced—in the government's words—"to show ... that [the driver] doesn't believe there's a gun in the car." That implied assertion, introduced to establish the truth of the implication that any contraband in the car did not belong to the driver, was inadmissible hearsay and it should have been precluded. Nonetheless, in light of the jury's verdict acquitting Grimes of the principal charges and the cumulative nature of this hearsay evidence, we find the error in admitting that statement harmless. We affirm.

I.

This case began with a traffic stop. Two officers saw an SUV which they believed to be speeding, so they pulled it over. Inside the vehicle were Marcus Wallace (driver), Mark Grimes (front-seat passenger), and Angelina Mitchell (backseat passenger, driver's side). After directing the occupants to roll down the car's heavily tinted windows, one of the officers asked Wallace if there were "any guns or drugs in the car?" Wallace said there were not and invited the officers to "flip this thing inside out" if they wanted to see for themselves. The officers took him up on the offer. While searching the back seat, officers located a black plastic bag containing men's clothing, CDs, and a .40 caliber handgun wrapped inside a shirt. The gun held a magazine containing fourteen rounds of ammunition. Following the search, the officers placed the car's three occupants under arrest.

A government forensic scientist, April Jones, checked the gun for prints. While she did not recover any from the gun itself, she lifted several from the gun's magazine. Another government employee, Laura Tierney, then compared those prints to a set of prints it had taken from Grimes in connection with an unrelated 2013 misdemeanor arrest.¹ She concluded Grimes was the source of one of the fingerprints on the firearm's magazine, while noting that an individual who was not in the car, Lamont Tucker, contributed another of the prints. Based on the investigation, charges against Wallace and Mitchell were dismissed and the government indicted Grimes on five counts: (1) unlawful possession of a firearm; (2) carrying a pistol without a license; (3) possession of an unregistered firearm; (4) unlawful possession of ammunition; and (5) possession of a large capacity ammunition feeding device.²

Before trial, the government moved to admit the 2013 fingerprint card under the business records exception to the rule against hearsay. The card included Grimes's photo, his unique personal identification number, the name of the officer who collected the prints, and the date the prints were taken. The government explained that Officer Karen Usher, who collected the prints in 2013, was no longer employed by MPD and that it had been unable to contact her. The defense objected to the admission of Officer Usher's out-of-court statements contained on the fingerprint card, asserting that it would violate Grimes's Sixth Amendment right to confront the witnesses against him. The trial court disagreed and admitted the card into evidence. At trial—as relevant to the fingerprint evidence—the government called (1) Jones who testified that she recovered fingerprints from the firearm's magazine; (2) a custodian of records who introduced the 2013 fingerprint card, explaining that he pulled it from MPD's Live Scan database; and (3) Tierney who testified that one of the fingerprints recovered from the gun's magazine matched Grimes's prints from the 2013 fingerprint card.

The jury found Grimes guilty of possessing the extended magazine while acquitting him of the remaining charges. The court sentenced him to 180 days of incarceration. Grimes now appeals his conviction.

II.

Grimes first argues that the 2013 fingerprint card was erroneously admitted for two reasons: (A) it violated his Sixth Amendment right to confront the witnesses against him, and (B) it was inadmissible hearsay that did not satisfy the "business records" exception. We disagree with both points, which we address in turn.

A.

We begin with the constitutional challenge to the fingerprint card's admission. The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant "to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause prohibits the government from introducing the "testimonial" hearsay of an absent declarant at a criminal trial, absent rare exceptions inapplicable here. Id. at 53-54, 124 S.Ct. 1354. Grimes argues the 2013 fingerprint card contained testimonial hearsay that was erroneously admitted without affording him an opportunity to confront its declarant, Officer Usher. In his view, the card contained out-of-court assertions that the fingerprints on the card "were taken from Mr. Grimes," and those assertions were testimonial. We agree with him on the first point. As the trial court acknowledged, the out-of-court notations on the fingerprint card were hearsay statements identifying Grimes—both by name and identification number—as the source of the prints on the card.³

The critical question is whether those statements were testimonial, an issue we review de novo. Young v. United States , 63 A.3d 1033, 1044 (D.C. 2013). "[T]o be testimonial, a statement must have been made, primarily, for an evidentiary purpose," id. at 1040 —that is, it must be a " ‘declaration or affirmation made for the purpose of establishing or proving some fact’ for use in the prosecution or investigation of a crime, or a statement made under ‘circumstances objectively indicating that’ the declarant's ‘primary purpose was to establish or prove past events potentially relevant to later criminal prosecution.’ " Id. at 1039-40 (first quoting Crawford , 541 U.S. at 51, 124 S.Ct. 1354 ; and then quoting Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ) (alterations omitted). "A statement made primarily for a different purpose, such as enlisting police assistance to ‘meet an ongoing emergency,’ is not testimonial." Id. at 1040 (quoting Davis , 547 U.S. at 822, 126 S.Ct. 2266 ).

Grimes contends that the primary purpose of Officer Usher's attestation on the 2013 fingerprint cards was to create a record of "quintessential forensic evidence" against Grimes "to establish or prove facts potentially relevant to a later prosecution." For support, he stresses the following MPD Special Order:

The positive identification of offenders is an essential component of the criminal justice system. Fingerprinting of persons arrested for minor charges can lead to the clearance of warrants and unresolved cases . Positive identification will also provide information that can assist Department and District decision-makers.

MPD Special Order SO-01-07 (Mar. 2, 2001) (emphasis added). According to Grimes, this Special Order demonstrates an awareness on the part of officers that their statements identifying an arrestee as the source of fingerprints might later be used in a criminal prosecution. The government...