James A. Corbin v. United States , 2015 D.C. App. LEXIS 287 ( 2015 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CF-410
JAMES A. CORBIN, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-10713-12)
(Hon. Stuart G. Nash, Trial Judge)
(Argued February 19, 2015 Decided July 23, 2015)
Daniel Gonen, Public Defender Service, with whom James Klein and Alice
Wang, Public Defender Service, were on the brief, for appellant.
Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Suzanne Grealy Curt, Erik Kenerson, and Peter Lallas, Assistant United
States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and BELSON,
Senior Judge.
BLACKBURNE-RIGSBY, Associate Judge: The central issue on appeal is one
of statutory construction, namely, whether the District of Columbia’s carjacking
statute, D.C. Code § 22-2803 (2001), encompasses attempted unarmed carjacking.
2
We conclude that it does not, and that the government must charge a suspect of
attempted unarmed carjacking under our general attempt statute, D.C. Code § 22-
1803 (2013 Supp.), separately from the completed offense.
Following a jury trial, appellant James Corbin was found guilty of four
counts resulting from two incidents that occurred on December 16, 2007. For the
first incident, involving Eva Kleederman, appellant was convicted of unarmed
carjacking and robbery of Ms. Kleederman’s keys. 1 For the second incident,
involving Christine Cannon, appellant was convicted of unarmed carjacking and
first degree theft of personal property in the car.2 Primarily, appellant challenges
the sufficiency of the evidence supporting the carjacking of Ms. Kleederman,
arguing that the evidence shows that he merely attempted to take Ms.
Kleederman’s car, and that the carjacking statute under which he was charged and
convicted does not proscribe attempted carjacking. We agree, and we vacate this
conviction and remand for resentencing for attempted carjacking in accordance
with our holding.
1
In violation of D.C. Code § 22-2803 (a)(1) and D.C. Code § 22-2801
(2001), respectively.
2
In violation of D.C. Code § 22-2803 (a)(1) and D.C. Code §§ 22-3211,
-3212 (a) (2001), respectively.
3
In addition to his sufficiency claim, appellant argues that the trial court
abused its discretion by: (1) permitting the government to comment, in closing
argument, on appellant’s right to independent DNA testing under Teoume-Lessane
v. United States, 931 A.2d 478 (D.C. 2007), when defense counsel did not open the
door to this argument, and (2) refusing to issue a proposed jury instruction on
scientific research suggesting that an eyewitness’s level of confidence does not
correlate to reliable identification. We affirm the trial court’s ruling on these
claims.3
3
Appellant also challenges the sufficiency of the evidence supporting his
robbery conviction, arguing that the evidence in the record merely shows that he
intended to permanently deprive Ms. Kleederman of the car’s ignition key during
an unsuccessful attempt to take the car, but does not show that he intended to
permanently deprive Ms. Kleederman of the keys that he actually took: those
attached to the ignition key. Accordingly, he contends that he should have been
convicted of attempted robbery, not completed robbery. See Lattimore v. United
States, 684 A.2d 357, 359-60 (D.C. 1996) (stating that a robbery conviction
requires the government to “prove larceny and assault” and larceny includes
“intent to permanently deprive”).
Viewing the evidence in the light most favorable to the government and
deferring to the jury’s responsibility to weigh evidence, make credibility
determinations, and draw reasonable inferences, see id. at 359, we conclude that
the jury was entitled to infer that appellant “intend[ed] the natural and probable
consequences of [his] acts knowingly done[,]” or in this case, to infer his intent to
steal the keys attached to the ignition key, as expressed through the act of grabbing
and pulling at them. See, e.g., Wilson-Bey v. United States, 903 A.2d 818, 839
n.38 (D.C. 2006) (en banc). Evidence supporting a guilty verdict need not “negate
every possible inference of innocence” in order for a jury to find that the elements
of a crime are proved beyond a reasonable doubt. In re D.P., 996 A.2d 1286, 1290
(D.C. 2010) (citation and internal quotation marks omitted). The jury was not
(continued . . .)
4
I. Factual Background
A. The Kleederman Carjacking
On the afternoon of December 16, 2007, Ms. Eva Kleederman drove her
five-year-old daughter from their home in Virginia to a violin recital at a venue on
Mississippi Avenue, Southeast, Washington, D.C. Ms. Kleederman testified at
trial that she was unfamiliar with the area and became lost while following printed
directions. Upon seeing a man — presumably appellant — walking nearby, Ms.
Kleederman rolled down her window and asked him for directions to Mississippi
Avenue. Ms. Kleederman described appellant as an African-American and a
“slight person,” about five feet and six or seven inches tall, “fifty-ish,” with “salt
and pepper-ish, grayish” hair and “rough . . . sandpapery . . . gravelly” skin on his
face, possibly due to “a bad shave or pocked skin,” wearing jeans and a mid-thigh
length dark green or black “parka-looking winter jacket.” When Ms. Kleederman
asked him for directions, appellant opened the passenger side door of her car “in
the blink of an eye” and sat in the passenger seat, stating that he lived near
(. . . continued)
compelled to infer from the evidence, as appellant argues, that he intended to steal
the ignition key alone and not the other keys. Accordingly, we hold that the
evidence in the record is sufficient to support appellant’s conviction for a
completed robbery.
5
Mississippi Avenue and would direct her. Ms. Kleederman was shocked and told
appellant that she does not take passengers, but he responded “that’s okay. I
understand. I’m an honest person.” Although she felt alarmed, Ms. Kleederman
“didn’t want to appear biased or racist just because [she] found [her]self in . . . a
part of town [she] knew to be largely black” and decided to drive on, “against [her]
better judgment.” Appellant directed Ms. Kleederman for about ten minutes and
avoided her attempts at conversation. During the drive, Ms. Kleederman noticed a
cut on appellant’s middle or index finger that was “oozing . . . gelatinous blood,”
and later found some of this blood on the door and dashboard of her car.
Upon entering a wooded street in Fort Dupont Park, identified at trial as Fort
Dupont Drive, Southeast, appellant instructed Ms. Kleederman to slow down,
saying “I live near here.” When Ms. Kleederman slowed down, appellant began to
push her toward the driver-side door, saying “get out of the car” while trying to
pull the key out of the ignition. At the same time, Ms. Kleederman began to push
on the car horn and scream for help. Appellant was unable to pull the key out of
the ignition, but managed to wrench away all of the other keys attached to it. He
then exited the car, walked around to the driver side door, and tried to pull Ms.
Kleederman out. At that moment, Mr. Amin Muslim and Mr. Stanley Daniels
were driving by and stopped their car to aid Ms. Kleederman, prompting appellant
6
to run off into a wooded area separating Fort Dupont Drive from Minnesota
Avenue, Southeast. Mr. Muslim gave chase into the woods while calling 911 on
his phone but eventually lost sight of appellant as appellant exited the woods
toward Minnesota Avenue.
Meanwhile, off-duty police officer Stephanie Poyner of the Metropolitan
Washington Airports Authority Police Department was visiting her mother at her
childhood home on G Street, Southeast, which intersects Minnesota Avenue just
opposite the wooded area into which appellant had fled. Drawn by the sound of a
woman screaming for help coming from the direction of Fort Dupont Park, Officer
Poyner walked to the intersection of G Street and Minnesota Avenue. Looking
towards the wooded area, she saw a man exit the wood line at a place where there
were no trails and where she had never before seen a person enter or exit. Officer
Poyner came within thirty-five feet of the man and described him as an African-
American of “average weight,” approximately five feet and seven inches tall, with
“mixed gray hair,” wearing blue pants and a black thigh-length jacket. The man
crossed Minnesota Avenue and entered another wooded area behind G Street.
Officer Poyner drove into Fort Dupont Park, found Ms. Kleederman, and reported
what she had seen to police officers on the scene. After the incident, the United
7
States Park Police swabbed several smears of blood in Ms. Kleederman’s car and
submitted the swabs to the Federal Bureau of Investigation (“FBI”).
B. The Cannon Carjacking
Before dark that same evening,4 Ms. Christine Cannon and her fiancé, Mr.
Ahmad Johnson, were driving home after a day of shopping, in which they had
filled Mr. Johnson’s car full of Christmas presents. Ms. Cannon, who was three or
four months pregnant at the time, asked Mr. Johnson to stop for a snack, so he
parked in front of the Dollar General store at a strip mall on Pennsylvania Avenue,
Southeast, and Minnesota Avenue. Ms. Cannon remained in the passenger seat of
the car with the car keys in the ignition. Shortly after Mr. Johnson left, Ms.
Cannon saw a man — whom she identified as appellant at trial — look into the car
“like [he was] scoping.” The car was unlocked and appellant swiftly entered and
sat in the driver’s seat and told Ms. Cannon to “get the f---[expletive] out of the
car.” Ms. Cannon said “no” and reached for the keys, but he hit her in her chest.
Ms. Cannon attempted to open her door and call out to Mr. Johnson, but appellant
pulled her door shut, saying “b----[expletive] you should have got out of the car.
4
Ms. Cannon testified that she could not remember the exact time, but that
“it was like evening” and not completely dark.
8
Now I’m going to kill you.” Appellant kept his left hand in his jacket throughout
the incident and, at some point, told her that he had a gun and would shoot her.
Appellant sped away with Ms. Cannon in the car, driving “like a maniac” on
both sides of the road. Ms. Cannon tried to look back and appellant hit her in the
jaw, saying “turn your a--[expletive] around.” Eventually, Ms. Cannon covertly
spilled some ginger ale on her dark jeans and told appellant that she was pregnant
and believed she was having a miscarriage because she was “bleeding.” The man
slowed down enough to shove Ms. Cannon out of the car and then pulled away.
Ms. Cannon stumbled but caught her fall, and found a ride back to the Dollar
General store.
Ms. Cannon described the man who had driven the car at trial as “brown
skinned,” and “not a big guy,” in his thirties to forties, with “salt and pepper hair”
and an unshaved face “like a goatee” or “a full beard” that he was “trying to grow
in.” He appeared to be wearing black or blue jeans, and a “black leather or black
sweatshirt with leather in it,” which Ms. Cannon later referred to as a “jacket.” In
identifying appellant at trial, Ms. Cannon stated that his most memorable attribute
were his eyes, which told her “not to play with him” during the events in question.
9
C. Connecting the Crimes
Shortly after Officer Poyner left the scene of the Kleederman carjacking, she
happened to be driving toward the intersection of Pennsylvania Avenue and
Minnesota Avenue where the Dollar General store was located. It was evening by
this time, but some daylight remained. 5 As she neared the intersection, Officer
Poyner noticed the man whom she had seen running from the wooded area across
Minnesota Avenue earlier in the afternoon. She testified at trial that she
recognized his “clothing” and his “physical appearance.” Circling around to
observe him, she saw him looking into cars at a Shell gas station next to the strip
mall where Ms. Cannon sat waiting in Mr. Johnson’s car. Officer Poyner saw him
approach and enter the driver seat of Mr. Johnson’s car while a woman sat in the
passenger seat. In “a matter of seconds,” the car sped off and Officer Poyner
followed in her personal vehicle while calling 911. The man drove erratically
down Pennsylvania Avenue, Southeast, toward the Maryland border, weaving in
and out of traffic and running traffic lights. Officer Poyner saw the passenger door
open a couple of times and saw the man strike the woman on her head. Unable to
5
Officer Poyner testified that she did not remember how much time elapsed
from when she witnessed appellant cross Minnesota Avenue until she left in her
car to drive toward the intersection of Minnesota Avenue and Pennsylvania
Avenue, but stated that “some daylight” remained.
10
keep up with the speeding car, Officer Poyner returned to the strip mall and spoke
with police officers.
D. The Investigation
The investigation moved slowly and was eventually suspended. Police
officers recovered Mr. Johnson’s car on January 4, 2008, in the possession of two
individuals who were quickly ruled out as suspects. Based on an address that these
individuals provided, police officers visited the residence of a suspect but were
unable to obtain any evidence tying him to the crimes at issue. Officers showed
photo arrays that included this suspect to Ms. Kleederman and Officer Poyner, but
neither was able to make a definitive identification. Appellant was not a suspect at
this time and was not included in the photo arrays. Then, in a report dated August
3, 2010, the FBI returned a positive match for appellant from swabs of the blood
recovered in Ms. Kleederman’s car, which provided cause to arrest appellant.6
6
The FBI explained at trial that the delay between 2008, when it received
the swabs, and 2010, when it returned a positive match, was due to a backlog in the
FBI laboratory and the low-priority of cases with no known suspect.
11
E. The Trial
The government relied on appellant’s DNA match to tie him to the
Kleederman carjacking. Neither Ms. Kleederman nor Officer Poyner was able to
identify appellant at trial, but Officer Poyner testified that she had no doubt that the
person she observed in both incidents was the same person. Ms. Cannon was able
to identify appellant, however, explaining during her testimony that appellant
“stands out to me like a sore thumb because of his eyes.” Ms. Cannon testified that
she did not notice any blood on appellant during the incident or on herself
afterward.
The trial court instructed the jury on the elements of the charged crimes,
explaining, with regard to the Kleederman incident, that the jury must find
carjacking is an “attempt[] to take a motor vehicle from the immediate actual
possession of [Ms. Kleederman] against [her] will.” Appellant was convicted and
sentenced to 180 months of incarceration, comprised of separate consecutive
ninety-month sentences for the carjackings of Ms. Kleederman and Ms. Cannon,
and concurrent sentences of ninety months for robbery and fifty-four months for
first degree theft. This appeal followed.
12
II. Discussion
A. The Statutory Construction Issue: Sufficiency of the Evidence in the
Kleederman Carjacking
Appellant posits that he merely attempted to take Ms. Kleederman’s car and,
consequently, that the evidence offered at trial was insufficient to convict him
under the plain language of the carjacking statute, D.C. Code § 22-2803 (a)(1). As
a result, appellant’s sentence of ninety months of incarceration, a sentence that is
commensurate with actually completing the crime of carjacking, was greater than
he should have received for an attempt, the sentence for which, under our general
attempt statute, is capped at five years, or sixty months. See D.C. Code § 22-1803.
There are two parts to this argument. The first is a sufficiency question:
whether a reasonable jury could conclude beyond a reasonable doubt that appellant
completed a carjacking under the statute. If he did not, we must answer a second
legal question: whether the carjacking statute, as written, encompasses both
attempted and completed offenses.
13
1. Whether appellant completed a carjacking
Appellant argues that “simply getting into someone’s car and giving bad
directions, even on purpose, is not a carjacking” in the District of Columbia, but
rather an attempted carjacking. Ms. Kleederman willfully followed his “bad
directions,” he argues, and the fact that she was nervous and did not use her best
judgment in doing so does not override her willful compliance. In any event,
appellant argues that he did not complete a carjacking because he was ultimately
unsuccessful in taking the car from Ms. Kleederman’s possession. We agree.
In order to establish that a defendant completed a carjacking under the
statute, the government must prove that the defendant, inter alia, took “immediate
actual possession” of another person’s motor vehicle. (John) Allen v. United
States, 697 A.2d 1, 2 (D.C. 1997). The carjacker may but need not physically
remove the vehicle from a victim’s presence in order to “take” under the statute.
Moorer v. United States, 868 A.2d 137, 141 (D.C. 2005) (“Carjacking simply
requires possession or control . . . of the car. Neither the [carjacking] statute nor
the case law requires the government to prove asportation . . . .”). Indeed, we have
held that a victim retains “immediate actual possession” as long as the car “is
within such a range that the victim could, if not deterred by violence or fear, retain
14
actual physical control over it.” Winstead v. United States, 809 A.2d 607, 610
(D.C. 2002) (citation and internal quotation marks omitted). A taking occurs as
soon as the carjacker, by force or violence, shifts possession and control from the
victim to himself or herself, which may occur “at any point during a continuous
course of assaultive conduct, not just at the starting point.” Id. at 611.
On the facts before us, appellant never took “immediate actual possession”
of Ms. Kleederman’s car, as necessary to complete a carjacking. Certainly,
appellant’s presence in the car made Ms. Kleederman nervous and fearful, but he
did not threaten Ms. Kleederman or brandish any kind of weapon, and Ms.
Kleederman willfully followed appellant’s instructions while “retain[ing] actual,
physical control” over her car throughout. Contra Winstead, supra, 809 A.2d at
611 (concluding that a defendant took immediate actual possession when he
ordered the victim at gunpoint to enter her nearby car and drive against her will).
Though appellant later tried to push and pull Ms. Kleederman out of her car, his
use of force and violence, in itself, is not sufficient to establish “immediate actual
possession” because Ms. Kleederman remained in the driver seat, retained
possession of her keys, and never relinquished her possession and control. See
Moorer, supra, 868 A.2d at 141. Appellant’s attempts were ultimately thwarted by
Mr. Muslim and Mr. Daniels, prompting appellant to give up and flee. Put simply,
15
we hold that the evidence in the record is insufficient to show that appellant
actually took the car, as required to support a conviction for completed carjacking
under D.C. Code § 22-2803 (a)(1), but rather supports an attempted carjacking.
We must now turn to the question of whether the carjacking statute under which
appellant was convicted encompasses attempted carjacking, such that appellant
may be sentenced under the guidelines for the completed offense.
2. Whether the carjacking statute encompasses attempted unarmed
carjacking
Appellant argues that the plain language of § 22-2803 (a)(1) does not
proscribe attempted unarmed carjacking and that nothing in the legislative history
of the statute demonstrates that the Council of the District of Columbia (“Council”)
intended to punish an attempted unarmed carjacking as harshly as a completed
7
unarmed carjacking. Rather, appellant suggests that attempted unarmed
7
Appellant further argues that the backdrop of well-established legal norms
undergirding the legislation drafted by the Council militates against punishing
attempted crimes equal to completed crimes. See, e.g., Solem v. Helm, 463 U.S.
277, 293 (1983) (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *15 (1769)) (“It
. . . is generally recognized that attempts are less serious than completed crimes.”)
16
carjacking falls under our general attempt statute, D.C. Code § 22-1803,8 and that
it was error to convict him under the carjacking statute.
As a preliminary matter, we have parsed the elements of the carjacking
statute in the context of merger analysis on several occasions and observed that the
definition of unarmed carjacking includes attempted carjacking.9 However, none
8
At the time of the events at issue, D.C. Code § 22-1803 provided:
Whoever shall attempt to commit any crime, which
attempt is not otherwise made punishable by chapter 19
of An Act to establish a code of law for the District of
Columbia, approved March 3, 1901 (31 Stat. 1321), shall
be punished by a fine not exceeding $1,000 or by
imprisonment for not more than 180 days, or both.
Except, whoever shall attempt to commit a crime of
violence as defined in § 23-1331 shall be punished by a
fine not exceeding $5,000 or by imprisonment for not
more than 5 years, or both.
9
See Pixley v. United States, 692 A.2d 438, 440 (D.C. 1997) (quoting the
full text of the unarmed carjacking statute to complete a merger analysis of
carjacking and robbery, stating: “we observe that carjacking by definition includes
an “attempt [ ]” to take property, while robbery does not”); Allen, supra, 697 A.2d
at 2 (quoting the full text of the unarmed carjacking statute to complete a merger
analysis of carjacking and unauthorized use of a motor vehicle, stating: “In order to
establish a violation of the carjacking statute, the prosecution must prove beyond a
reasonable doubt that the defendant 1) knowingly or recklessly; 2) by force or
violence; 3) took from another person; 4) immediate actual possession; 5) of a
person’s vehicle; or 6) attempted to do so”); see also Moorer, supra, 868 A.2d at
141 & n.9 (citing Pixley, supra, 692 A.2d at 440, and Allen, supra, 697 A.2d at 2)
(comparing the elements of carjacking and the offense of taking property without
right (“TPWR”) to conclude, after an analysis similar to merger analysis, that the
(continued . . .)
17
of these prior decisions have addressed the question of whether the language of the
carjacking statute proscribes attempted unarmed carjacking, and we conclude that,
in these prior decisions, “the judicial mind was not asked to focus upon, and the
opinion did not address, the point at issue[.]” Bishop v. United States, 983 A.2d
1029, 1038 (D.C. 2009) (citation and internal quotation marks omitted) (declining
to treat as binding a prior decision applying a particular standard because the prior
decision provided no reasoning or authority and the standard was not essential to
the prior decision). Accordingly, our prior decisions are not binding on this court
with regard to this question of statutory construction. Id. (quoting M.A.P. v. Ryan,
285 A.2d 310, 312 (D.C. 1971)).
“We review issues of statutory construction de novo[,]” recognizing that our
task is to “discern, and give effect to, the legislature’s intent.” Wynn v. United
States, 48 A.3d 181, 188 (D.C. 2012) (citations omitted). Our “primary and
(. . . continued)
latter is not a lesser included offense of the former, stating: “Carjacking simply
requires possession or control (or attempted possession or control) of the car” and
“carjacking by definition includes an attempt, whereas TPWR does not”); Sutton v.
United States, 988 A.2d 478, 482 (D.C. 2010) (quoting D.C. Code § 22-2803
(a)(1)) (stating that a carjacking occurs when one “[1] ‘knowingly or recklessly’
[2] uses ‘force or violence’ to [3] ‘take from another person immediate actual
possession of [4] a person’s motor vehicle,’ or when someone ‘attempts to do so’”
in the context of a sufficiency challenge in which the court interpreted the second
and third elements of carjacking, as listed) (brackets in original).
18
general rule of statutory construction is that the intent of the lawmaker is to be
found in the language that he [or she] has used.” Id. (quoting Peoples Drug Stores,
Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)). Yet we
will not “make a fetish out of plain meaning nor should we make a fortress out of
the dictionary.” Whitfield v. United States, 99 A.3d 650, 656 (D.C. 2014)
(citations, internal quotation marks, and brackets omitted). We recognize that each
word of a statute “may or may not extend to the outer limits of its definitional
possibilities[,]” and that “[t]he meaning — or ambiguity — of certain words or
phrases may only become evident when placed in context.” Wynn, supra, 48 A.3d
at 188 (citations and internal quotation marks omitted). We must, therefore, seek
to give these words a “sensible construction,” Clyburn v. United States, 48 A.3d
147, 151 (D.C. 2012) (citation omitted), and, in so doing, we may look beyond the
plain language of a statute “where there are persuasive reasons for doing so,” such
as to “reveal ambiguities that the court must resolve[,]” to avoid “absurd results,”
to avoid “obvious injustice[,]” or to “effectuate the legislative purpose[.]” Peoples
Drug Stores, Inc., supra, 470 A.2d at 754-55 (citations and internal quotation
marks omitted).
Where a criminal statute remains ambiguous after applying these Cannons of
statutory interpretation, however, “it is well-established that [such] statutes should
19
be strictly construed and that ambiguities should be resolved in favor of the
defendant (i.e., the Rule of Lenity).” Whitfield, supra, 99 A.3d at 656 (citation and
internal quotation marks omitted). “To be sure, the rule of lenity is a secondary
Cannon of construction, and is to be invoked only where the statutory language,
structure, purpose[,] and history leave the intent of the legislature in genuine
doubt.” Id. (citation omitted).
At the time of the events at issue, D.C. Code § 22-2803 (a)(1) proscribed
unarmed carjacking as follows:10
A person commits the offense of carjacking if, by any
means, that person knowingly or recklessly by force or
violence, whether against resistance or by sudden or
stealthy seizure or snatching, or by putting in fear, or
attempts to do so, shall take from another person
immediate actual possession of a person’s motor
vehicle.11
10
In the time since the events at issue, the language defining carjacking and
its armed variant has remained unchanged. The Council amended the statute’s
sentencing guidelines in subsections (a)(2) and (b)(2) in the statute’s present
version, enacted June 11, 2013.
11
The statute goes on to provide sentencing guidelines and define the
offense of armed carjacking:
(a)(2) A person convicted of carjacking shall be fined not
more than $5,000 and be imprisoned for a mandatory-
minimum term of not less than 7 years and a maximum
term of not more than 21 years, or both.
(continued . . .)
20
(emphasis added). Our analysis centers on the phrase “or attempts to do so.” A
straightforward, grammatically sound reading of this language suggests that the
Council intended the phrase to modify the preceding means of taking, rather than
the subsequent words, “shall take.” See Peoples Drug Stores, Inc., supra, 470
A.2d at 753 (citations and internal quotation marks omitted) (“[I]n examining the
(. . . continued)
(b)(1) A person commits the offense of armed carjacking
if that person, while armed with or having readily
available any pistol or other firearm (or imitation thereof)
or other dangerous or deadly weapon (including a sawed-
off shotgun, shotgun, machine gun, rifle, dirk, bowie
knife, butcher knife, switch-blade knife, razor, blackjack,
billy, or metallic or other false knuckles), commits or
attempts to commit the offense of carjacking.
(2) A person convicted of armed carjacking shall be
fined not more than $10,000 and be imprisoned for a
mandatory-minimum term of not less than 15 years
and a maximum term of not more than 40 years, or
both. However, the court may impose a prison
sentence in excess of 30 years only in accordance with
§ 24-403.01(b-2). For purposes of imprisonment
following revocation of release authorized by § 24-
403.01(b)(7), armed carjacking is a Class A felony.
(c) Notwithstanding any other provision of law, a person
convicted of carjacking shall not be released from prison
prior to the expiration of 7 years from the date of the
commencement of the sentence, and a person convicted
of armed carjacking shall not be released from prison
prior to the expiration of 15 years from the date of the
commencement of the sentence.
D.C. Code § 22-2803.
21
statutory language, it is axiomatic that [the] words of the statute should be
construed according to their ordinary sense and with the meaning commonly
attributed to them.”). Under this reading, which appellant endorses, the statute
would seem to proscribe attempts to use “force or violence,” attempts to act
“against resistance,” attempts to “sudden[ly] or stealthy seiz[e],” attempts to
“snatch[],” or attempts to “put[] in fear[,]” but not attempts to take. Yet our
decisions have also interpreted this phrase to refer to the subsequent language,
“shall take.” 12 Under this reading, which the government endorses, the statute
would seem to proscribe attempts to take.
The ambiguity mostly stems from the wording and position in the sentence
of the phrase “or attempts to do so.” As to its wording, the use of “or” suggests
that the phrase refers backward to modify the means of taking. As to its position in
the sentence, placing the phrase “or attempts to do so” before the verb “take” does
not obviously suggest that the phrase modifies the verb. What is more, even if we
switch the order of the phrase and the verb when reading the statute, the result is
grammatically incorrect: “A person commits the offense of carjacking if, by any
means, that person . . . [shall take] or attempts to do so[.]” A grammatically
correct phrase modifying the singular noun “person” would read “shall take or
12
See supra note 9.
22
attempt to do so.” We find this ambiguity particularly puzzling, given that the
Council, when drafting statutes that proscribe attempted and completed acts, seems
to follow a linguistic pattern of using the phrase “[act], or attempt/s to [act].”13 In
fact, the carjacking statute itself follows this linguistic pattern when proscribing
attempted and completed armed carjacking. See D.C. Code § 22-2803 (b)(1)
(“commits or attempts to commit”). In short, however one reads the statute, the
placement of the phrase “or attempts to do so” creates ambiguity as to whether the
statute refers to attempts to effectuate the means of carjacking that actually result
in a completed carjacking, or attempts to “take” that fail, and result in an attempted
carjacking.
The ambiguity remains when reading the unarmed carjacking subsection of
the statute together with the armed carjacking subsection. See D.C. Code § 22-
2803 (a)(1) (stating that a person commits unarmed carjacking “if, by any means,
that person . . . shall take from another person immediate actual possession of a
person’s motor vehicle”); D.C. Code § 22-2803 (b)(1) (stating that a person
13
Appellant points to ten statutes to suggest that the Council favors a
particular formulation when including “attempt” language in a statute that also
proscribes a completed act, including the arson statute, see D.C. Code § 22-301
(2013 Supp.) (“burn or attempt to burn”), the escape statute, see D.C. Code § 22-
2601 (2013 Supp.) (“escape or attempt to escape”), and the unauthorized use of
official insignia statute, see D.C. Code § 22-1409 (b) (2013 Supp.) (“makes or
attempts to make unauthorized use of”).
23
commits armed carjacking “if that person, while armed . . . commits or attempts to
commit the offense of carjacking.”). One might reasonably conclude that the
Council, in drafting these subsections as such, intended to treat unarmed and armed
carjacking differently — namely, by proscribing unarmed carjacking only when
completed, and proscribing armed carjacking whether attempted or completed. If
this were so, a person who commits an attempted unarmed carjacking could not be
convicted under the carjacking statute, but would instead fall within the ambit of
the general attempt statute, D.C. Code § 22-1803 (proscribing attempts to commit
any crime not otherwise punishable under the D.C. Code).14
On the other hand, a less obvious yet still reasonable reading of the same
subsections could lead one to conclude that the armed carjacking subsection’s
“commits or attempts to commit” language implies a similar interpretation for the
unarmed carjacking subsection, such that the carjacking statute proscribes
attempted and completed carjacking, whether unarmed or armed. Yet this
conclusion begs a question: if the Council intended this meaning, why use
different language? In the absence of statutory language that clearly conveys the
Council’s intent, we turn for guidance to the legislative history of the statute. See
Whitfield, supra, 99 A.3d at 656.
14
See supra note 8.
24
The Council introduced carjacking as a separate offense in the District of
Columbia as part of a bill entitled “Carjacking Prevention and Bail Reform
Amendment Act of 1992 Temporary Amendment Act of 1992,” seeking to address
a surge in carjackings in the District of Columbia. See D.C. Bill 9-629, § 2 (Sept.
18, 1992) (hereinafter “draft version”); see also Council of D.C., Comm. on the
Judiciary, Comm. Rep. on Bill 10-16, “Carjacking Prevention Amendment Act of
1993,” at 2 (Feb. 10, 1993) (hereinafter “committee report”). Noticeably absent
from the draft version of the statute is the “attempts to do so” language at issue
here. Noticeably present, however, are separate sentencing guidelines for
attempted carjacking. The draft version provided:
(a) A person commits the offense of carjacking if by any
means, that person knowingly or recklessly by force or
violence, whether against resistance or by sudden or
stealthy seizure or snatching, or by putting in fear, shall
take from the person immediate actual possession of a
person’s motor vehicle.
(b) A person convicted of carjacking shall be fined not
more than $10,000 or be imprisoned for a mandatory
minimum term of not less that [sic] 15 years or both.
(c) A person convicted of attempted carjacking shall be
fined not more than $1,000 or be imprisoned for not more
than 3 years, or both.
D.C. Bill 9-629, § 2 (Sept. 18, 1992).
25
The present language of the carjacking statute first appeared in an October 6,
1992, amendment to this draft version. See Amendment No. 6 to D.C. Bill 9-629,
Attachment 2 (October 6, 1992) (hereinafter “amendment”). This amendment
added, inter alia, the phrase “or attempts to do so” after the phrase “putting in fear”
and removed the separate three-year mandatory maximum sentence for attempted
carjacking in subsection (c). Id.15 The Council did not indicate why it amended
the draft bill in this way. On the one hand, we might conclude that the Council
removed the three-year mandatory maximum sentence for attempted carjacking in
subsection (c) in order to punish attempted carjacking under the general attempt
statute, which, at the time, set the mandatory maximum sentence for attempt at one
year. See D.C. Code § 22-1803 (1981). Decreasing the maximum sentence for
attempted carjacking from three years to one year would complement the Council’s
contemporaneous decision to reduce the mandatory minimum sentence for
unarmed carjacking from fifteen years to seven years. Compare D.C. Bill 9-629,
§ 2 (Sept. 18, 1992), with Amendment No. 6 to D.C. Bill 9-629, Attachment 2
(October 6, 1992). On the other hand, removing this separate sentencing guideline
for attempted carjacking from the draft bill may merely indicate that the Council
15
In the years since, the language of the carjacking statute has remained
unchanged, with the exception of modifications to the sentencing guideline
provisions in (a)(2) and (b)(2), and the addition of a new subsection (c), also
related to sentencing. See supra note 11.
26
considered punishing attempted carjacking less severely but ultimately decided not
to do so, and preserved this decision by adding the phrase “or attempts to do so” to
the final carjacking statute.
The committee report accompanying the final version of the carjacking
statute is silent on any intent to punish attempted carjacking and completed
carjacking equally, and the word “attempt” does not appear in the report. See
Council of D.C., Comm. on the Judiciary, Comm. Rep. on Bill 10-16, “Carjacking
Prevention Amendment Act of 1993” (Feb. 10, 1993).16 The report explains that
the Council created a separate offense of carjacking to increase the minimum
penalty for the crime, which was classified as robbery at the time and punishable
under the District’s since-modified robbery statute, D.C. Code 22-2901 (1981).17
16
The committee report explains that carjacking had become a “growth
industry” in 1992, and that a nationwide surge in carjacking prompted Congress to
make it a federal crime. See Council of D.C., Comm. on the Judiciary, Comm.
Rep. on Bill 10-16, “Carjacking Prevention Amendment Act of 1993,” at 2 (Feb.
10, 1993). In particular, the Council mentioned the gruesome carjacking-homicide
of Pamela Basu that drew national attention, and stated that the District was not
immune from this nationwide surge. Id. at 2-3. The Council also noted that
District residents were particularly impacted by the surge in carjackings because
the District is a “city of renters,” for whom a car is likely the most valuable
possession. Id. Thus, the Council thought it necessary to create the separate
offense of carjacking with an increased minimum penalty, up from the two year
minimum that a carjacker would have received under the robbery statute. Id. at 3.
17
The robbery statute, D.C. Code § 22-2901 (1981), provides:
(continued . . .)
27
Id. at 3. The Council did not indicate, however, whether it intended the District’s
carjacking statute to follow the model of its robbery statute, which does not
proscribe attempted robbery. Nor did the Council indicate that it intended the
District’s carjacking statute to follow the model of the federal carjacking statute,
which proscribes attempted and completed carjacking, but provides sentencing
guidelines based on the victim’s degree of injury or death, rather than whether the
suspect was armed or unarmed.18
(. . . continued)
Whoever by force or violence, whether against resistance
or by sudden or stealthy seizure or snatching, or by
putting in fear, shall take from the person or immediate
actual possession of another anything of value, is guilty
of robbery, and any person convicted thereof shall suffer
imprisonment for not less than 2 years nor more than 15
years.
18
The federal carjacking statute, 18 U.S.C. § 2119 (1996), enacted just
before the District’s statute as part of the Anti Car Theft Act of 1992, Pub. L. No.
102-519, 106 Stat 3384, and mentioned in the committee report, includes a similar
“or attempts to do so” phrase that, unlike the District’s statute, unambiguously
follows the verb “takes.” The federal carjacking statute provides:
Whoever, with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce
from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than
15 years, or both,
(continued . . .)
28
In the absence of any clear intent behind the Council’s amendments and
eventual choice of language, we cannot conclude whether it drafted the statute to
encompass or exclude attempted unarmed carjacking. We perceive no clear intent
with regard to attempted carjacking in the legislative history, nor can we identify
any well-founded support for the many inferences that the parties suggested in
their arguments. Granted, the legislative history seems to indicate that the Council
was not satisfied by proscribing only completed carjackings, yet the Council
expressed no legislative intent to punish attempted and completed carjacking
equally.19
We conclude that the subsection of the carjacking statute proscribing
unarmed carjacking, § 22-2803 (a)(1), is ambiguous as to whether it also
proscribes attempted unarmed carjacking. While it is plausible, with some effort,
(. . . continued)
(2) if serious bodily injury (as defined in section 1365 of
this title) results, be fined under this title or imprisoned
not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned
for any number of years up to life, or both, or sentenced
to death.
(emphasis added).
19
See supra note 16.
29
to construe the plain language of the statute as proscribing attempts to “take,” it is
at least equally plausible to construe this language as proscribing attempts to “put[]
in fear,” among other means of effectuating a completed carjacking. The actual
meaning intended by the Council is unclear. Because we are unable to a resolve
this evident ambiguity, “we construe [the statute] in conformance with the rule of
lenity[,]” and rule in appellant’s favor. Whitfield, supra, 99 A.3d at 664 (“We
apply the rule of lenity . . . where the language of the regulation is ambiguous and
two alternative interpretations are equally possible.”). The Council is, of course, at
liberty to revise the statute to punish attempted carjacking as a lesser or equal
offense to completed carjacking. In the interim, however, we hold that attempted
unarmed carjacking is punishable under our general attempt statute, § 22-1803,20
20
See supra note 8. In order to prove an attempt to commit any offense,
“the government must prove that the accused: (1) intended to commit that
particular crime; (2) did some act towards its commission; and (3) and failed to
consummate its commission.” Frye v. United States, 926 A.2d 1085, 1096 (D.C.
2005). We have adopted the “dangerous proximity” theory of attempt, whereby:
An attempt consists of an act which is done with the
intent to commit a particular crime and is reasonably
adapted to the accomplishment of that end. The act must
go beyond mere preparation and must carry the criminal
venture forward to within dangerous proximity of the
criminal end sought to be attained.
This “dangerous proximity” test, formulated by Justice
Holmes, does not require that appellants have
commenced the last act sufficient to produce the crime
(continued . . .)
30
and is not punishable under the carjacking statute, § 22-2803 (a)(1). Accordingly,
we vacate appellant’s conviction for the carjacking of Ms. Kleederman and remand
for resentencing for attempted carjacking in accordance with this holding.
B. Appellant’s Abuse of Discretion Arguments
1. The government’s statements regarding appellant’s right to
independent DNA testing under Teoume-Lessane
Appellant next argues that the trial judge abused his discretion and
impermissibly shifted the burden of proof to appellant by allowing the government
to mention at trial that appellant has the right to conduct independent DNA testing
under the Innocence Protection Act. 21 We have held that the government may
(. . . continued)
but focuses instead on the proximity of appellants’
behavior to the crime intended.
Jones v. United States, 386 A.2d 308, 312 (D.C. 1978) (footnote omitted). “[M]ere
preparation is not an attempt, but preparation may progress to the point of attempt.
Whether it has is a question of degree which can only be resolved on the basis of
the facts in each individual case.” Id. at 313 n.2. It is sufficient for the
government to prove that “except for some interference,” defendant’s “overt act
done with the intent to commit a crime . . . would have resulted in the commission
of the crime.” Evans v. United States, 779 A.2d 891, 894 (D.C. 2001).
21
D.C. Code §§ 22-4131 to -4135 (2012 Repl.)
31
inform the jury of a defendant’s right to independent DNA testing to rebut
defendant’s suggestion that the government’s procedures are biased. See Teoume-
Lessane, supra, 931 A.2d at 491 (“[T]he defense’s questions had attempted to
create the impression that the FBI’s testing had been selectively performed to skew
the results by focusing only on the items most damaging to appellant, while
ignoring items that could have helped to exculpate him.”). Appellant argues that
he did not make a bias argument at trial, but merely questioned the reliability of
DNA testing by challenging “the validity of the underlying methods and
assumptions,” an argument that does not open the same door as questions about
bias under Teoume-Lessane. Appellant argues that by allowing evidence of a
defendant’s right to independent DNA testing when there was no unfairly
prejudicial inference to counter, the trial court allowed the jury to infer that he had
failed to present independent DNA testing evidence because it would have
confirmed his guilt. We agree, yet we conclude that any error on the trial court’s
part was harmless.
At trial, the government relied on Teoume-Lessane to move in limine for
leave to elicit testimony from its DNA-testing expert regarding appellant’s right to
independent DNA testing because it anticipated that defense counsel would attack
“the specific methods or probabilities used or recommended by the expert in this
32
case.” In support of this motion, the government argued that Teoume-Lessane
permits it to point out a defendant’s right to independent DNA testing if the
defense “suggests that the government erred in its random match probability” or
attacks “a laboratory’s protocols, the analysis performed by the DNA expert, or the
type or extent of that analysis.” Defense counsel responded that Teoume-Lessane’s
holding is narrowly restricted to suggestions of bias, which were not part of
defense counsel’s strategy in this case. The trial judge ruled in the government’s
favor, stating that the “government has a right to respond” to an argument from
defense counsel “that the protocols used by this tester were likely to result in an
unreliable identification.” Disagreeing with defense counsel’s narrow reading of
Teoume-Lessane, the trial judge stated “[w]ell, I [may] have misread it. But that’s
my ruling. I’m not going to require the government to sit silent while the
reliability of their procedures is challenged.” Subsequently, during cross-
examination of the government’s DNA expert, the trial court concluded that
defense counsel opened the door under Teoume-Lessane. The parties agreed to
stipulate to a defendant’s right to conduct independent DNA testing, and the trial
judge read this stipulation to the jury, along with a reminder that the government
bears the burden of proof. Later, the government reminded the jury of the
defendant’s right to conduct independent DNA testing in rebuttal to defense
counsel’s cross-examination of its DNA expert. Upon defense counsel’s objection,
33
the trial judge issued a curative instruction reminding the jury that “this is a
sensitive area of the law” and “it is the Government’s burden to prove its case
beyond a reasonable doubt.”
We review a trial court’s decision to admit evidence, and its determination
that the evidence is more probative than prejudicial, for abuse of discretion. See id.
at 491 (citations omitted). In Teoume-Lessane, and later in Gee v. United States,
54 A.3d 1249, 1255-58 (D.C. 2012), this court narrowly held that the door opens to
an independent-DNA-testing rebuttal when defense counsel suggests that the
government used biased procedures or withheld evidence in order to obtain a
conviction. See Teoume-Lessane, supra, 931 A.2d at 491 (“[D]efense’s questions
had attempted to create the impression that the FBI’s testing had been selectively
performed to skew the results by focusing only on the items most damaging to
appellant, while ignoring items that could have helped to exculpate him.”); Gee,
supra, 54 A.3d at 1255-57 (applying Teoume-Lessane to conclude that defense
counsel unfairly suggested to the jury “that the Government was only testing that
which they found a positive test and ignored other[] [portions of a piece of
clothing] that presumably might have been tested and could have exculpated your
client[,]” thereby “creating the impression that the government had deliberately
ignored, and then had withheld from the defense, evidence that could have called
34
into question the government’s DNA-based case”). Thus, our inquiry must focus
on defense counsel’s statements at trial that the government contends amount to
accusations of bias, thereby opening the door under Teoume-Lessane.
The government does not point to a specific statement from defense counsel
that suggests biased procedures, nor did we find one in our review, but the
government instead suggests that defense counsel implied bias through a recurring
theme of “attack[ing] the priorities of the FBI examiners and their attentiveness to
their work” and suggesting “laziness and sloppiness.” Specifically, during the
government’s case, defense counsel cross-examined its DNA expert and seven lab
technicians and established that the DNA analysis took several years and that some
of the initial analysts had taken fewer notes to document their work than some of
the later analysts. Defense counsel also sought to establish that the FBI’s protocols
for determining the probability of a DNA match relied on too little DNA and too
small a population group to be reliable, citing a study conducted in Arizona. On
redirect, the government rehabilitated its DNA expert by eliciting an explanation of
the FBI’s testing approach. In closing argument, defense counsel characterized
“the basic science, the principles that DNA analysis is founded upon” as “flawed.”
Defense counsel also noted that the government’s DNA expert “told you that this
was a low priority case. But, that’s a reason to doubt. It is low priority for her.
35
But it’s not low priority for [appellant].” Finally, defense counsel used an analogy
of the pitfalls of failing to show work in an algebra class to suggest similar pitfalls
when FBI technicians “d[o] not document anything” and do not “show [their]
work.”
Here, the trial court, citing Teoume-Lessane, stated that “[t]he government
has a right to respond” with an independent-DNA-testing rebuttal when defense
counsel argues that “the protocols used by this tester were likely to result in an
unreliable identification of your client.” Teoume-Lessane is clear: suggestions of
bias open the door. See Teoume-Lessane, supra, 931 A.2d at 491. There is a
distinction between a bias attack and an attack on the competence of an expert or
the validity of protocols. Biased methods carry a degree of intentionality that
incompetence and unreliability do not. Defense counsel’s suggestion during
closing arguments that this was a “low priority” case and that technicians did not
“show their work” are charges of incompetence and unreliability, not bias. We
have not applied Teoume-Lessane to competence and reliability challenges, and we
decline to do so here.
Accordingly, the trial court erred by construing the holding of Teoume-
Lessane to permit the government to offer an independent-DNA-testing rebuttal
36
when defense counsel fervently challenged the competence of DNA testing
personnel and the reliability of testing methods. Contrary to the trial judge’s
statement, the government is not required to “sit silent” when facing this challenge,
but is permitted to –– and, in the present case, did –– rehabilitate its witness
through redirect examination or additional testimony on the competence of
personnel and the reliability of the challenged procedures.
Yet we also conclude that permitting the government to inform the jury of
appellant’s right to independent DNA testing in this case was harmless error. See
Kotteakos v. United States, 328 U.S. 750, 765 (1946). The trial court was careful
to explain that appellant’s right did not alter the government’s burden of proof, and
this instruction was sufficient to mitigate the harm on the facts before us, where
there was ample circumstantial evidence tying appellant to the Kleederman
carjacking. See (Claude) Allen v. United States, 603 A.2d 1219, 1224 (D.C. 1992
(en banc) (“[O]ne would presume that the jury applied the law as stated by the
judge, not by the prosecutor”). Given this DNA evidence, there is no indication
that, had the trial court not erred in permitting an independent-DNA-testing
rebuttal, defense counsel’s arguments regarding the FBI’s protocols would have
convinced the jury to find in appellant’s favor.
37
2. Jury instructions regarding scientific research on the reliability of
eyewitness identification
In appellant’s only claim on appeal related to the Cannon carjacking, he
argues that the trial court abused its discretion by rejecting a proposed jury
instruction incorporating recent scientific research regarding eyewitness
identification because the trial court “erroneously believed” that it “could not
instruct the jury based on scientific research.” Appellant argues that this research
was particularly relevant because Ms. Cannon’s in-court identification provided
the pivotal link between the two incidents.22
At trial, appellant’s defense counsel proposed jury instructions on
eyewitness reliability based on instructions that the state of New Jersey recently
adopted at the suggestion of the Supreme Court of New Jersey in State v.
Henderson, 27 A.3d 872, 884, 916-17, 919, 925-26 (N.J. 2011) (concluding, based
on expert testimony and a special master’s report examining scientific studies on
memory and eyewitness identification, that “science abundantly demonstrates the
many vagaries of memory encoding, storage, and retrieval; the malleability of
22
Appellant contends that the District of Columbia’s model jury
instructions for eyewitness identification rely on authority that is over forty years
old and “give[s] the jury no guidance on how to evaluate an eyewitness’s
confidence” in making an identification.
38
memory; the contaminating effects of extrinsic information; the influence of police
interview techniques and identification procedures; and the many other factors that
bear on the reliability of eyewitness identifications”). 23 The defense counsel’s
proposed instructions cited to Henderson and several other cases in footnotes
without any explanation or citation to the scientific studies cited in those cases.
Instead, the instructions referred generally to the results of those studies, using
phrases such as “research has shown that there are risks of making mistaken
identifications” and “research has revealed that human memory is not like a video
recording . . . .”
In rejecting defense counsel’s proposed instruction, the trial court explained
to the parties that “the problem with the instruction . . . is that it talks about the
research. There is no evidence of research that is before the jury. I don’t think that
it’s appropriate for me to be talking about what the research is on this issue.”
Defense counsel proceeded to explain that “the research exists” and is “well
23
The District of Columbia’s Jury Instructions Committee acknowledged
the Henderson decision and recent social science studies on eyewitness
identification in a comment to its 2013 revision. See Criminal Jury Instructions for
the District of Columbia (“Red Book”), No. 9.210 (5th ed. rev. 2013). It noted,
however, that “[t]he Committee is not in agreement over whether, and under what
circumstances, additional instruction is necessary that would warn a jury to take
care in appraising identification testimony.” Id. This comment was not included
in the 2012 revision that was available to the trial judge in the present case.
39
established,” and the trial court responded: “I’m comfortable with the Red Book
[i]nstruction. I believe that that sets forth the appropriate considerations for the
jury to take into account in assessing the strength and reliability of Ms. Cannon’s
identification.” Defense counsel noted her objection for the record, and the trial
judge elaborated:
Well I think that that area is an area that could come
before the jury in the form of evidence and it could be
rebutted by the government by contrary studies.24 But, I
don’t think that it’s appropriate to just instruct the jury as
to what the research has found in this evolving area of
law. It would be up to them to evaluate the research if it
was put before them. But, it does not appear that it will
be put before them in this case. So, I will stick with the
Red Book.
The trial judge issued the following jury instruction based on the model
instruction in the Red Book, Criminal Jury Instructions for the District of
Columbia, No. 9.210 (5th ed. rev. 2012):
24
Appellant contends that he did not offer an expert on eyewitness
identification at trial because defense counsel only learned that Ms. Cannon would
identify appellant in court the day before it happened, in an email from the
government. Prior to receiving the government’s email, appellant contends, hiring
an expert in the off-chance that a witness would end up identifying appellant would
have wasted public funds and, accordingly, “jury instructions were the only
practicable means of educating the jury.” However, defense counsel filed a
general motion to suppress any potential in-court identifications at the start of trial
and could have opted to acquire an expert.
40
A number of factors may affect the reliability of an
identification of the defendant by an alleged eyewitness
including the witness’ opportunity to observe the
criminal acts and the person committing them including
but not limited to the length of the encounter; the
distance between the various parties; the lighting
conditions at the time; the witness’ state of mind at the
time of the offense.
Secondly, any subsequent identification and the
circumstances surrounding that identification including
the length of time that elapsed between the crime and the
identification; the witness’ state of mind when making
the identification and any statements or actions by law
enforcement officers concerning the identification.
Third, any failure of a witness to make an identification
or a misidentification by the witness and any other
factors that may have been brought to your attention by
expert testimony and the remaining evidence that you
conclude bear upon the reliability of the witness’ in-
Court or out of Court identification of the defendant.
The trial court has “broad discretion in formulating jury instructions, and its
refusal to grant a request for a particular instruction is not a ground for reversal if
the court’s charge, considered as a whole, fairly and accurately states the
applicable law.” Fearwell v. United States, 886 A.2d 95, 101 (D.C. 2005) (citation
and internal quotation marks omitted). “[A] party is entitled to a requested
instruction only if there is evidence in the record to support the request.” Id.
(citation omitted). The trial court must make “an informed choice among
permissible alternatives . . . based upon and drawn from a firm factual
41
foundation[,]” and thus abuses its discretion by fashioning jury instructions that are
not so drawn. Nelson v. McCreary, 694 A.2d 897, 901 (D.C. 1997) (citation
omitted).
Appellant concedes that the trial court was not “required as a matter of law”
to adopt the proposed instruction. Indeed, the parties did not introduce any expert
testimony or scientific studies regarding eyewitness identification, and defense
counsel was not entitled to an instruction that the record could not support. See
Fearwell, supra, 886 A.2d at 101 (explaining that a party is “only” entitled to a
requested instruction if the record will support it). Yet appellant contends that the
trial court’s statements indicate that it premised its decision to reject defense
counsel’s proposed jury instructions on a legally erroneous belief that it could not
consider the proposed scientific research, rather than a discretionary decision that it
would not do so. See Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979)
(holding that reversal is required where the trial court fails to recognize its capacity
to exercise discretion). We disagree.
In our view, the trial court’s choice of language provides no indication that it
considered itself constrained to reject the scientific research outright. The trial
court did not say that it was “precluded” or “prohibited,” or that “case law clearly
42
requires exclusion” of such scientific research. Rather, after hearing defense
counsel’s arguments, the trial court concluded that it would not be “appropriate” to
instruct the jury about research on eyewitness identification that the parties had not
presented to the jury. In choosing to “stick with the Red Book” instructions, the
trial court recognized that the proposed instruction differed, in that it extensively
referenced research in an “evolving area of law” that was not before the jury, and
this difference provided reasonable cause for concern. See Johnson, supra, 398
A.2d at 364 (“[T]he determinations committed to the trial court’s discretion are
rational acts of decision-making. An informed choice among the alternatives
requires that the trial court’s determination be based upon and drawn from a firm
factual foundation.”). The trial court’s statement that this research “could come
before the jury in the form of evidence and it could be rebutted by the government
by contrary studies” expresses a clear discretionary preference for the adversary
process and constitutes a thoughtful exercise of discretion. This record does not
support appellant’s contention that the trial judge was under the legally erroneous
view that he was precluded from using the proposed instruction.25
25
Notably, the language that defense counsel adopted from the Henderson
decision was the result of just such an adversarial process. In that case, the
government, defense counsel, and amici curiae “collectively produced more than
360 exhibits, which included more than 200 published scientific studies on human
memory and eyewitness identification” and “testimony from seven expert
witnesses.” See Henderson, supra, 27 A.3d at 829. On the basis of this evidence,
(continued . . .)
43
III. Conclusion
Accordingly, we affirm appellant’s convictions with regard to all but the
carjacking of Ms. Kleederman because the evidence in the record is insufficient to
establish that appellant completed this carjacking. We therefore vacate this
conviction and remand for resentencing for attempted carjacking in accordance
with our holding.
So ordered.
(. . . continued)
the court stated that “the record proves that the possibility of mistaken
identification is real[,]” and accordingly proposed revised jury instructions. Id. at
878.
Appellant contends that the Henderson case and the studies cited therein are
legislative facts appropriate for judicial notice, citing Jones v. United States, 548
A.2d 35, 42, 45 (D.C. 1988), where we assessed the reliability of a drug testing
method. In Jones, we held that the trial court may, in the absence of expert
testimony in the record, take judicial notice of other court opinions and scientific
literature for the limited purpose of establishing “general acceptance of a scientific
technique[,]” and that, to this end, “[e]xpert testimony in other cases, subject to
cross-examination, can be probative[.]” Id. at 42, 45. The trial court exercised its
discretion to reject the jury instructions, and there is nothing in the record that
leads us to conclude that the trial court was unaware of or misinformed about our
case law.