DC Superior Court Judge Jason Park allowed the prosecution to use a witness’ identification of a homicide defendant as evidence over objections from defense attorneys on Oct. 28.
Dion Lee, 24, is charged with first-degree premeditated murder while armed, assault with intent to kill while armed, three counts possession of a firearm during a crime of violence, and carrying a pistol without a license outside the home. The charges stem from his alleged involvement in the fatal shooting of Pamela Thomas, 54, on the 500 block of Division Avenue, NE on Feb. 9, 2022.
Rashod Dunbar, 26, is charged with accessory after the fact for allegedly providing Lee with a change of clothes near the 500 block of 50th Place shortly after the shooting.
Much of the hearing focused on whether prosecutors could admit into evidence a witness’ identification of a man prosecutors allege is Dunbar. The defense team for Dunbar and Lee objected on the grounds that an investigator had not properly interviewed the witness and that the identification was altogether unnecessary.
Prosecutors pushed back against notions that the detective assigned to the case had acted with any impropriety in his interactions with the witness. They cited quotations from the grand jury transcript of the witness testifying that she was treated well by the police and that she did not feel coerced.
Defense attorneys Carrie Weletz, for Dunbar, and Joseph Yarbough, for Lee, argued that the standard grand jury “catch all questions” would not indicate whether the detective had made any suggestive statements about the suspect’s identity in his interactions with the witness.
Prosecutors called in the detective who said he never suggested the suspect’s identity to the witness and that the witness had always “seemed normal” in his interactions with her, never upset or angry.
Yarbough questioned the objectivity of the witness identification pointing out that the detective had met with the witness to talk about her relation to Dunbar twice before he met with her to conduct a suspect identification.
During cross-examination, the detective also said that he had mentioned Dunbar to the witness before asking her to make a witness identification in his last meeting with her. Throughout his testimony, the detective indicated he had a difficult time recalling specific details from conversations from 2022.
Yarbough and Weletz argued that the evidence was faulty because the detective had talked about Dunbar with the witness before asking her to make an identification. Yarbough also argued that, suggestivity concerns aside, witnesses could make out the suspects’ identity for themselves based on surveillance videos of the suspect, who prosecutors allege is Dunbar.
Judge Park ultimately ruled in favor of prosecutors, saying that the witness’ identification was both legitimate and useful.
“It certainly is the case that just from my observation the image is pixelated,[distorted]” Judge Park said. “I do find that it [the witness identification] would be helpful to the fact finders.”
During the hearing, Judge Park also denied a motion from Lee’s other defense attorney, Patrick Nowak, to preclude evidence of location data from the co-defendants’ phones. Novak argued that the method for locating phones based on their interactions with cell towers, known as cell-site analysis, was not widely accepted by the scientific community and imprecise.
In his denial of the motion, Judge Park said that the information did not necessarily need to meet the criteria outlined by Nowak and that courts had consistently allowed the use of cell-site analysis evidence.
“Cell site analysis has been widely accepted,” Judge Park said.
Parties were not able to resolve two issues about the qualifications of witnesses prosecutors hope to call to testify during the trial. Yarbough objected to the proposed testimony of a ballistics expert on the grounds that he did not have enough training in the evidence prosecutors hoped he would testify about.
Prosecutors said that they were working to add 20 hours to his contract for additional training and familiarization with the materials in this case and that they would inform the court of his status at the next hearing.
Yarbough also objected to specialized information witnesses testifying about information from the ballistics detection system known as ShotSpotter that prosecutors claim captured audio of five gunshots at the time of the homicide.
Yarbough’s arguments centered on the fact that the prosecutor’s proposed witness did not have the technical knowledge to answer questions about the mechanisms and reliability of ShotSpotter devices.
Judge Park said he would reserve his ruling on ShotSpotter until a later hearing.
Parties are slated to reconvene Dec. 15.
