Atkins v. United States ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-797
ALONZO JESSIE ATKINS, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
Appeal from the Superior Court of the
District of Columbia
(2017-CF2-000733)
(Hon. Steven N. Berk, Trial Judge)
(Argued September 30, 2021 Decided March 9, 2023)
Adrian Madsen for appellant.
Michael E. McGovern, Assistant United States Attorney, with whom Michael
R. Sherwin, Acting United States Attorney at the time the brief was filed, Elizabeth
Trosman, Suzanne Grealy Curt, and Emile C. Thompson, Assistant United States
Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and MCLEESE,
Associate Judges.
BLACKBURNE-RIGSBY, Chief Judge: In this case, Alonzo Jessie Atkins
appeals his convictions of unlawful possession of a firearm with a prior crime of
violence, D.C. Code § 22-4503(a)(1), (b)(1), and possession of an unregistered
firearm, D.C. Code § 7-2502.01(a). On appeal, he brings four claims. Appellant
2
contends that the jury instruction for unlawful possession of a firearm with a prior
crime of violence was required to include an element of mens rea, i.e., that appellant
knew of his prohibited status as a felon in possession at the time. He also argues
that the admission of out of court statements made by his girlfriend, Maurisha
Singletary — a non-testifying witness unavailable at trial because she could not be
located — was in violation of the Confrontation Clause. The crux of this argument
pertains to statements Ms. Singletary made to Metropolitan Police Department
(“MPD”) officers during the investigation of an alleged home intrusion where she
admitted there was no intruder and that appellant shot himself in the foot. 1 Appellant
also alleges that the prosecutor invited a government witness to comment on the
veracity of Ms. Singletary’s statements and made impermissible comments in
closing and rebuttal arguments. Finally, appellant argues that the sentence for
possession of an unregistered firearm conviction was improperly enhanced.
As an initial matter, appellant concedes that his mens rea, Confrontation
Clause, and prosecutorial impropriety arguments are subject to plain error review,
as they were not raised before the trial court. 2 Reviewing these issues under plain
1
Ms. Singletary was not present at trial. Her 911 call was admitted under the
excited utterance hearsay exception, and her statement to MPD officers that
appellant shot himself was admitted to impeach her 911 call.
2
Appellant did preserve one argument related to the prosecutor’s statements,
as discussed in Part IIC.
3
error and, for the reasons discussed, we affirm appellant’s convictions. However,
due to the government’s concession that it failed to file the appropriate sentencing
enhancement notice prior to trial, we remand for correction of the appellant’s
enhanced sentence for possession of an unregistered firearm.
I. Factual Background & Procedural History
On January 13, 2017, at 12:30 a.m., Ms. Singletary called 911 claiming there
was an intruder at her and appellant’s apartment (located at 1641 V Street SE), and
that the intruder shot appellant in the right foot. In her 911 call, Ms. Singletary
informs the dispatcher that the intruder did not have an opportunity to take anything
from the apartment. First responders arrived at the apartment, and appellant was
transported to the hospital for care, accompanied by MPD Detectives Sean Moore
and Robert Edelen. Ms. Singletary remained at the apartment.
After speaking with appellant at the hospital, Detectives Moore and Edelen
returned to the couple’s apartment to investigate. Upon returning, Detective Moore
confronted Ms. Singletary about the alleged burglary, admitting that he used
deceptive tactics on Ms. Singletary — telling her that appellant had confessed he
shot himself, when appellant made no such statement. Ms. Singletary then divulged
4
that there was no intruder, appellant shot himself, and that she hid the shotgun. Ms.
Singletary then led an MPD officer and Detective Edelen behind the apartment
complex to an alleyway with trash cans where a shotgun was hidden and recovered.
Detective Moore did not enter the alleyway but remained at the alley’s entrance.
Appellant was later arrested.
Appellant’s trial commenced on November 14, 2018. After jury selection, but
before witnesses were called, the parties challenged the admissibility of certain
statements, particularly the introduction of statements made by Ms. Singletary
because she could not be located to testify at trial. The parties disputed whether Ms.
Singletary’s 911 call and subsequent statement could be introduced under any
hearsay exceptions. The trial court concluded that the 911 call would be admitted
as an excited utterance. However, Ms. Singletary’s later statement to officers — that
there was no intruder, appellant accidentally shot himself, and that she hid the
shotgun — would only be admissible for impeachment purposes, if the 911 call was
introduced first. Appellant objected to the court’s ruling, asserting that the later
statement should be entirely excluded because its probative value was substantially
outweighed by its prejudicial effect.
5
Detectives Moore and Edelen both testified. On direct, Detective Moore only
testified about Ms. Singletary’s actions, specifically, her leading Detective Edelen
and an MPD officer to the hidden shotgun. The government did not elicit any
statements Ms. Singletary made to the officers during direct examination. However,
on cross-examination, defense counsel asked Detective Moore what Ms. Singletary
said in response to police questioning regarding the location of the gun. Detective
Moore responded that in his presence, along with Detective Edelen and Officer Peter
Molina, “she said she took it outside and placed it behind the trash cans behind the
apartment complex.”
On direct examination, Detective Edelen testified about body worn camera
footage of another officer. Detective Edelen stated that the video showed Ms.
Singletary leading him and Officer Molina to the firearm, which required climbing
over a fence. He also testified that when the shotgun was found, it was wrapped in
either a sweater or a sweatshirt with leaves piled on top. Appellant did not cross-
examine Detective Edelen.
MPD Officer Herbert Epstein, one of the first officers to respond, also testified
on behalf of the government. He indicated that upon arriving, Ms. Singletary opened
the door for Officer Epstein and Officer Molina. On cross, Officer Epstein testified
6
that he observed the state of the apartment, noting that cell phones, a stereo, a TV,
and a gaming system were in the first room after entering. He testified that based
upon his experience, of a little over a year, it did not appear that there was a burglary
because nothing appeared to be missing and there was no sign of forced entry.
Officer Epstein testified that the “story just was not adding up.” Appellant
interjected with an objection asserting speculation, but the trial court overruled the
objection.
In addition to officers’ testimony, the government presented testimony from
two forensic scientists. Kawye Mentore processed evidence at the apartment and
testified that he noticed a “defect” on the floor with “reddish-brown stains, possibly
blood” in the rear bedroom of the apartment. Mr. Mentore testified that he removed
a small metal fragment, which he opined “could possibly be a projectile from the
shotgun shell.” He also found a small piece of plastic, “consistent with a shotgun
shell wad,” near the area.
Jennifer Himrod, the forensic scientist who tested the firearm for DNA,
testified that she tested wet-dry swabs taken from the discovered firearm and
compared it to buccal swabs taken from appellant and Ms. Singletary. She testified
that there was a mixture of DNA present on the firearm, but that it was 6.25 trillion
7
times more likely that appellant’s DNA was present on the firearm, which she
considered a reliable result. The results were inconclusive as to whether Ms.
Singletary’s DNA was present on the firearm.
As part of appellant’s defense, Ms. Singletary’s 911 call was admitted and
played for the jury. In the recording, Ms. Singletary informed the 911 operator that
an ambulance was required and that someone broke in and attempted to rob her home
and shot appellant in the foot. With the introduction of the 911 call, the government
recalled Detective Moore on rebuttal to introduce additional statements made by Ms.
Singletary to impeach the 911 call.
On rebuttal, the government introduced audio from an MPD officer’s body
worn camera when Ms. Singletary was being confronted by detectives, and where
she told officers that there was no intruder, and that appellant shot himself. Over
appellant’s objection, Detective Moore testified that he “basically let her tell [him]
the truth about what happened.” Appellant objected, stating that the “tape speaks
for itself,” which the trial court sustained. Appellant did not immediately make a
request for a cautionary instruction relaying to the jury that the audio from the
footage could only be considered for impeachment purposes. Detective Moore
8
proceeded, testifying that Ms. Singletary led Detective Edelen and Officer Molina
through an alley behind the apartment complex where the gun was recovered.
During closing statements, the government recounted to the jury that:
[W]e heard what happened when [Detective Moore or
Detective Edelen] came back and talked to Miss
Singletary. He said he told Miss Singletary he knew what
happened, that the defendant shot himself in the foot. So
just tell me the truth. And what did Miss Singletary do?
She just opened up and told a completely different story
than what she said on the 911 call.
The government then reiterated to the jury that it had “just heard the instruction about
a prior inconsistent statement and that [it is] able to use that to determine the veracity
— the truth of [Ms. Singletary’s] earlier statement.” The government also stated,
that in order to prove possession,
Well, you take that prior inconsistent statement and you
compare it against this burglary story -- it just doesn't
make sense. There’s no sign of forced entry into the
apartment. There’s nothing missing from the apartment.
There’s a gunshot deep in the apartment . . . .
[T]he [g]overnment will submit the evidence [that] points
towards [the] fact that the second story that Ms. Singletary
gave on the scene to be more likely. They got into an
argument. The defendant had the gun, which is how his
DNA got on the gun. And he shot himself in the foot.
9
In its closing statements, the government went into greater detail regarding
Ms. Singletary’s 911 call, discussing her breathing, hypothesizing why she was out
of breath and not focused on answering the operator’s questions. The government
insinuated that while on the call Ms. Singletary was in the process of hiding the
firearm: “[m]aybe she’s walking outside hiding the gun while she’s on the phone
with the police.” The government then returned to discussing Ms. Singletary’s later
statement, asserting:
This whole idea of this burglary is completely debunked.
There’s no evidence to support it. And I’m not asking you
to believe this statement . . . just because the statement
was made. No. I’m asking you to believe it because of
the facts that support it and the facts that don’t support that
911 call.
The government concluded its closing statement with, “Miss Singletary said he had
the gun in his hand,” asserting that the later statement was “the truth,” not the story
told in the 911 call.
The trial judge instructed the jury in two parts with the parties giving closing
arguments in between. Relevant to Ms. Singletary’s statements, the trial judge gave
the following prior inconsistent statement instruction:
10
The law treats prior inconsistent statements differently
depending on the nature of the statements and the
circumstances in which they were made. I will now
explain how you should evaluate those statements. You
have heard evidence that Maurisha Singletary made a
statement on an earlier occasion and that this statement
may be inconsistent with her testimony here at trial —
well, may be inconsistent with what you were told about
her statements. It is for you to decide whether the witness
made such a statement and whether, in fact, it was
inconsistent with the assertions of her — of her position
here. If you find such an inconsistency, you may consider
the earlier statement in judging the credibility of the
witness. But you may not consider it as evidence that what
was in the earlier statement was true. 3
Following closing arguments, the trial judge provided the remainder of the
jury instructions; specifically, the elements of the charged offenses.
The elements of the offense of unlawful possession of a
firearm by a person previously convicted of a crime
punishable by imprisonment for a term exceeding one
year, each of which the [g]overnment must prove beyond
a reasonable doubt, are that:
3
Both parties agreed to the trial court’s proposed modification of the written
instructions to be provided to the jury. The written instruction, which differed
slightly, stated:
You’ve heard evidence that Maurisha Singletary made a
statement on an earlier occasion and that -- and that this
statement may be inconsistent with statements referred to
here at trial.
It is for you to decide whether the witness made such a
statement and whether, in fact, it was inconsistent with the
witness’s prior position[.]
11
One, Mr. Atkins possessed a firearm;
two, he did so voluntarily and on purpose and not
by mistake or accident; and,
three, at the time Mr. Atkins possessed the firearm,
he had been convicted of a crime punishable by
imprisonment for a term exceeding one year.
The jury found appellant guilty of both offenses, felon in possession of a
firearm and possession of an unregistered firearm. For appellant’s conviction of
possession of a firearm with a prior crime, he was sentenced to 84 months
incarceration, the execution to be suspended as to all but 36 months, and three years
of supervised release suspended for one year of probation. As to the conviction of
possession of an unregistered firearm, appellant was sentenced to 22 months’
incarceration, and the execution of sentence suspended as to all, with three years of
supervised release suspended for one year of probation. The trial court indicated
that the sentences were to run concurrently. This appeal followed.
II. Discussion
As an initial matter, all but one of appellant’s arguments are unpreserved, as
appellant concedes. Thus, we review largely for plain error. Wills v. United States,
147 A.3d 761, 767 (D.C. 2016). Under plain error review, appellant is required to
12
show that a trial court’s allowance of evidence was “(1) error, (2) that is plain, (3)
that affects substantial rights[.]” Otts v. United States, 952 A.2d 156, 161 (D.C.
2008). “If all three [mentioned] conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Portillo
v. United States, 62 A.3d 1243, 1258 n.17 (D.C. 2013) (quoting Thomas v. United
States, 914 A.2d 1, 8 (D.C. 2006)). Applying this test to appellant’s unpreserved
arguments, we conclude that none of appellant’s arguments warrant reversal.
A. Appellant’s Knowledge of Prohibited Status as Evidence of an Element
of Unlawful Possession of Firearm Charge
Because appellant asserts that we must reverse the unlawful possession of a
firearm conviction, we address that argument first. Appellant asserts that reversal is
required because the government failed to present evidence that appellant
“knowingly” possessed a firearm unlawfully, and the trial court failed to instruct the
jury as to a necessary mens rea element. As conceded by appellant, we review this
issue for plain error.
Appellant argues that in order to prove his guilt of the crime of felon in
possession of a firearm, D.C. Code § 22-4503(a)(1), the government had to prove
13
that he “had at a minimum, knowledge of his . . . prohibited status,” i.e., that he knew
that he was a felon, and that the jury should have been so instructed. Appellant relies
in part on the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191
(2019), which interpreted the concededly differently-worded federal felon in
possession statutes. Assuming without deciding the District’s statute plainly
requires such a showing and a corresponding instruction, however, appellant’s claim
fails under the third prong of the test for plain error.
Under the third prong, appellant must demonstrate that the error was clearly
prejudicial to his substantial rights and jeopardized the fairness and integrity of his
trial. Portillo, 62 A.3d at 1258 n.17. “[T]he Supreme Court has refused to apply a
rule of per se reversal in all cases of [jury] instructional error, even those affecting
core elements of the charged offense.” White v. United States, 613 A.2d 869, 877
(D.C. 1992) (en banc) (examining Yates v. Evatt, 500 U.S. 391 (1991), and Arizona
v. Fulminante, 499 U.S. 279 (1991)); see also Johnson v. United States, 520 U.S.
461, 464-65 (1997).
We find persuasive the Supreme Court’s holding in Greer v. United States,
141 S. Ct. 2090 (2021). In Greer, the Court held that in federal felon-in-possession
cases, the failure to instruct a jury as to the mens rea element is not structural error
14
warranting automatic reversal. Id. at 2099. The lack of instruction on the mens rea
element in such cases “does not deprive defendants of basic protections without
which a criminal proceeding cannot reliably serve its function as a vehicle for
determination of guilt or innocence[.]” Id. at 2100 (internal quotation marks
removed). Thus, even assuming a “Rehaif error” occurred, it is “not a basis for plain-
error relief unless the defendant first makes a sufficient argument or representation
on appeal that he would have presented evidence at trial that he did not in fact know
he was a felon.” Id. at 2100 (cleaned up). Otherwise, “the appellate court will have
no reason to believe that the defendant would have presented such evidence to a jury,
and thus no basis to conclude that there is a ‘reasonable probability’ that the outcome
would have been different absent the Rehaif error.” Id. at 2097.
Appellant does not sufficiently dispute his felony status and does not proffer
representations that would support his position that he was unaware of his felony
status at the time of the charged incident. At trial, appellant stipulated that he had
previously been convicted of a felony. Appellant also does not dispute that in 2005,
he was convicted and sentenced to 40 months imprisonment for armed robbery and
24 months imprisonment for assault with a dangerous weapon. His stipulation and
lack of argument support a reasonable inference that appellant had knowledge of his
prior felony conviction for the jury to utilize in reaching a conviction on the felon-
15
in-possession charge. There was no reasonable probability that the outcome would
have been different. Thus, appellant has not shown reversible error.
B. Confrontation Clause
We next address appellant’s argument that the admission of Ms. Singletary’s
out of court statements violated the Confrontation Clause. Appellant concedes that
his trial counsel did not raise a Confrontation Clause objection at trial, and so we
review for plain error.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. As such, the
Sixth Amendment bars “admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify and the defendant had had a
prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36,
53-54 (2004); see Young v. United States, 63 A.3d 1033, 1039 (D.C. 2013). The
Confrontation Clause “does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59
n.9; Williams v. Illinois, 567 U.S. 50, 70 (2012) (emphasizing how Crawford
reaffirmed the proposition that testimonial statements can be introduced without
16
violating the Confrontation Clause, so long as the statements are not used to establish
the truth of the statements).
After appellant introduced Ms. Singletary’s 911 call, in which she reported
that there was an intruder, the government was permitted to introduce Ms.
Singletary’s contradictory out of court statements through the testimony of Detective
Moore. Appellant contends that, functionally, this amounted to the admission of the
statements as substantive evidence because the trial court failed to sua sponte
immediately advise the jury that the statements were admissible only for
impeachment. Appellant asserts that the trial court’s inconsistent instruction to the
jury was unclear and failed to “eliminate confusion about which of Ms. Singletary’s
statements could be considered as substantive evidence and which could only be
considered for purposes of impeachment.” Appellant contends that the error was
further compounded by references to the statements in the government’s closing and
rebuttal arguments.
As we have explained, to receive relief under plain error review, appellant
must establish the error was not only plain but also affected his substantial rights.
Portillo, 62 A.3d at 1258 n.17. The error must be of such a character “that viewed
in the context of the trial, there is a reasonable probability that but for the error the
17
factfinder would have had a reasonable doubt respecting guilt.” Id. at 1259 (quoting
Wheeler v. United States, 930 A.2d 232, 245 (D.C. 2007)).
In this case, we cannot say that, even assuming there was an error, the error
was prejudicial to appellant’s substantial rights. Even with no immediate instruction
provided, the jury was ultimately provided with prior inconsistent statement
instructions specific to the statements attributed to Ms. Singletary, both orally and
in writing. 4 These instructions came before and after the government’s closing
arguments, therefore providing the jury with ample guidance. Where “the trial court
[has given] the jury a final charge which include[s] an instruction on the limited
purpose for which evidence of a prior inconsistent statement could be used,” any
prejudice resulting can be sufficiently removed by the final instruction to ensure a
fair trial. Johnson v. United States, 387 A.2d 1084, 1089 (D.C. 1978).
Additionally, there was other strong evidence that appellant possessed the
firearm. There was body camera footage of Ms. Singletary leading an officer to the
location of the firearm, which supports the absence of a burglary because Ms.
4
The trial court acknowledged some confusion in the first oral instruction
given, which erroneously referred to Ms. Singletary’s testimony at trial and mixed
up the timing of Ms. Singletary’s statements. The trial court proposed giving a
clarified written instruction, to which both parties agreed.
18
Singletary led officers to the location of the hidden shotgun that injured appellant.
The government also presented testimony from a forensic scientist who found a
“defect” on the floor, along with a piece of plastic “consistent with a shotgun shell
wad,” and “reddish-brown stains,” that were possibly blood. Furthermore, forensic
DNA testing connected appellant to the recovered shotgun. In light of the court’s
instructions and the other inculpating evidence, appellant cannot show a reasonable
probability that any error regarding the admission or use of Ms. Singletary’s
statements to Detective Moore as substantive evidence affected his substantial
rights.
C. Prosecutorial Impropriety
Appellant next argues that alleged prosecutorial impropriety warrants
reversal. Appellant alleges that (1) the government impermissibly invited Officer
Epstein to comment on the credibility of Ms. Singletary; and (2) the government, in
closing and rebuttal, impermissibly commented on the evidence and witness
veracity.
19
1. Officer Epstein’s Testimony
First, appellant argues that the prosecutor invited Officer Epstein to comment
on Ms. Singletary’s credibility when testifying about his observations of the scene
and asking Officer Epstein whether it looked like there was a burglary. In response,
Officer Epstein testified that “[t]he story just was not adding up.” The government
asserts that its question to Officer Epstein was not offered to solicit Officer Epstein’s
opinion regarding Ms. Singletary’s credibility, but rather his own opinion regarding
the scene when he arrived. Appellant preserved this argument.
“When comments by the prosecutor are allegedly improper, we review to
determine whether the trial court abused its discretion or committed legal error by
allowing them.” Johnson v. United States, 17 A.3d 621, 626 (D.C. 2011). We have
said that “a fact witness may express an opinion so long as it is based on the witness’
personal observation of events and is helpful to the jury in fulfilling its role as fact-
finder.” Robinson v. United States, 797 A.2d 698, 707 (D.C. 2002) (internal
quotation marks omitted). However, it is “improper for the prosecutor to ask one
witness to express a view or opinion on the ultimate credibility of another witness’s
testimony.” Poteat v. United States, 559 A.2d 334, 336 (D.C. 1989) (internal
quotation marks omitted).
20
Officer Epstein testified that he did not believe there was an attempted
burglary because there were no signs of forced entry and no items of value appeared
to be missing, even though a stereo, a TV, a gaming console, and cell phones were
all in the front room of the apartment. He further testified the he determined, based
on the scenario conveyed to him through the 911 call, that the scene did not
accurately represent that there was a burglary. When Officer Epstein began to say
that “[t]he story just was not adding up[,]” the trial court told the government to
“move on[.]”
Officer Epstein testified to events he actually observed and expressed an
opinion on those observed facts. He expressed no comment on witness veracity.
Therefore, the trial court did not abuse its discretion in permitting Officer Epstein to
testify regarding the scene and the 911 call.
21
2. The Government’s Closing and Rebuttal Statements
Appellant next argues that the prosecutor impermissibly made statements
about Ms. Singletary’s credibility and the evidence in closing and rebuttal
statements. Appellant did not object at trial, so we review for plain error.
“[I]n closing argument, counsel is permitted to make arguments and
commentary as long as it is in the general nature of argument, and not an outright
expression of opinion.” Bost v. United States, 178 A.3d 1156, 1190 (D.C. 2018)
(internal quotation marks omitted). “[C]losing arguments are seldom carefully
constructed in toto in advance, and improvisation often brings about imperfect
syntax and planning.” Shepherd v. United States, 144 A.3d 554, 564 (D.C. 2016)
(quoting Dixon v. United States, 565 A.2d 72, 79 (D.C. 1989)). A prosecutor is
“entitled to make reasonable comments on the evidence and [urge] such inferences
from the testimony as will support his theory of the case.” Irby v. United States, 464
A.2d 136, 140 (D.C. 1983) (quoting Tuckson v. United States, 364 A.2d 138, 142
(D.C. 1976)). Regardless of improvisation in closing and rebuttal, “counsel may not
express a personal opinion as to a witness’s credibility or veracity because it is for
the jury to decide whether a witness is truthful and an attorney may not inject
personal evaluations and opinions as to a witness’s veracity.” Andrade v. United
22
States, 88 A.3d 134, 140 (D.C. 2014) (internal quotation marks and brackets
omitted). “[I]mproper prosecutorial comments are looked upon with special
disfavor when they appear in the rebuttal because at that point defense counsel has
no opportunity to contest or clarify what the prosecutor has said.” Lee v. United
States, 668 A.2d 822, 830 (D.C. 1995) (quoting Coreas v. United States, 565 A.2d
594, 605 (D.C. 1989)).
In a plain error posture, we reserve reversal “to particularly egregious
situations,” Portillo, 62 A.3d at 1257 (internal quotation marks omitted), leaving us
to determine if a failure to cure allegedly improper comments “was ‘so clearly
prejudicial to substantial rights as to jeopardize the very fairness and integrity of the
trial.’” Andrade, 88 A.3d at 140 (quoting Ball v. United States, 26 A.3d 764, 772
(D.C. 2011)). “There is no substantial prejudice 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.” Id. (internal
quotation marks omitted).
Appellant claims that during closing statements the government presented
facts not in evidence. Appellant argues that the prosecutor expressed personal
opinions regarding Ms. Singletary’s credibility. Additionally, appellant contends
23
that the prosecution introduced new evidence by arguing that the presence of
appellant’s DNA on the gun connected appellant to the shotgun. Appellant
highlights the following statements the government made:
I want you to really evaluate [Ms. Singletary’s 911 call]
because I want you to notice a few things [] I noticed
when I was listening[.]
The only time she really gets panicked, ladies and
gentlemen, on that phone call, when you listen to it – I
wrote it down.
This whole idea of this burglary is completely
debunked.
Well, I’m telling you how the DNA got there. He had
the gun. Miss Singletary said he had the gun in his
hand . . . . And she told them the truth.
We conclude that the government’s statements, regardless of whether they
were permissible, did not substantially prejudice appellant. Importantly, the jury
was instructed, both orally and in writing, that it had the task of assessing Ms.
Singletary’s credibility:
You’ve heard evidence that Maurisha Singletary made a
statement on an earlier occasion and that -- and that this
statement may be inconsistent with statements referred to
here at trial. It is for you to decide whether the witness
24
made such a statement and whether, in fact, it was
inconsistent with the witness’s prior position[.] 5
This instruction was helpful as it, at a minimum, informed the jury that it was
tasked with assessing the credibility of Ms. Singletary’s multiple statements. “We
ordinarily presume that the jury understands and obeys the trial judge’s instructions.”
Holloway v. United States, 25 A.3d 898, 903 (D.C. 2011).
Moreover, unlike other cases where the government’s case turned largely on
the testimony and credibility of witnesses, the same is not true here. Compare
Moghalu v. United States, 263 A.3d 462, 476 (D.C. 2021) (evidence connecting
Moghalu to the shooting was based on the testimony of two individuals who engaged
in criminal activity, who were impeached with prior inconsistent statements, who
had a motive to work with the government, and who did not know Moghalu very
well); Anthony v. United States, 935 A.2d 275, 285 (D.C. 2007) (evidence that
Anthony possessed a handgun turned largely on credibility of an officer and defense
witness). In light of the video footage of Ms. Singletary leading officers to the
firearm, the prosecutor’s statements on her credibility did not likely weigh heavily
in convicting appellant. Detectives Moore and Edelen also testified that Ms.
5
The quoted instruction was given to the jury in writing. The jury was also
instructed orally. In the oral instruction, the jury was similarly directed that its role
was to judge “the credibility of [Ms. Singletary].”
25
Singletary led Detective Edelen and Officer Molina to the firearm, which further
bolstered the footage the jury saw.
Appellant’s DNA on the firearm was also strong evidence that there was no
burglary because it corroborated the inference that appellant touched the firearm. In
addition, there was testimony from Officer Epstein, which also supported the
inference that there was no burglary because there were no signs of forced entry and
no valuables from the front room were taken.
Therefore, with respect to these various issues pertaining to the prosecutor’s
statements, regardless of whether they were permissible, we can say with fair
assurance that “the judgment was not substantially swayed,” Andrade, 88 A.3d at
140 (internal quotation marks omitted), and conclude that appellant has not shown
that he was substantially prejudiced—whether viewing the statements in isolation or
cumulatively, Coreas, 565 A.2d at 605 (assessing “whether the totality of the several
instances of prosecutorial misconduct is prejudicial enough to warrant reversal”).
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D. Enhanced Sentence for Possession of an Unregistered Firearm
Finally, we address appellant’s argument that the sentence of 22 months of
incarceration imposed for possession of an unregistered firearm exceeded the
statutory maximum in the absence of the government filing enhancement papers
prior to trial, pursuant to D.C. Code § 23-111(a). The government agrees that
resentencing is appropriate because it did not file the necessary enhancement papers
prior to trial. It was error for the court to impose an enhanced penalty when the
government failed to comply with D.C. Code § 23-111. Robinson v. United States,
756 A.2d 448, 454 (D.C. 2000). Therefore, we remand for resentencing pursuant to
D.C. Code § 7-2507.06(a), which limits the sentence of possession of an unregistered
firearm to a maximum of one year of incarceration. Robinson, 756 A.2d at 454-55.
III. Conclusion
For the reasons stated above, we affirm appellant’s convictions. We remand
the case, however, for the limited purpose of correcting appellant’s sentence, in light
of the government’s failure to file the enhancement papers, pursuant to D.C. Code §
7-2507.06(a), which provides a maximum one-year incarceration period for
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appellant’s conviction of possession of an unregistered firearm, D.C. Code § 7-
2502.01.
So ordered.