Ronald L. Atkinson v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CF-8
RONALD L. ATKINSON, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-17195-12)
(Hon. Robert I. Richter, Trial Judge)
(Argued April 21, 2015 Decided July 30, 2015)
Judith L. Wheat, with whom Marlon C. Griffith was on the brief, for
appellant.
Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, and Suzanne Grealy Curt, Assistant United States Attorneys, were on the
brief, for appellee.
Before BECKWITH and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.
NEBEKER, Senior Judge: Following a jury trial, Ronald L. Atkinson appeals
his conviction of one count of stalking, in violation of D.C. Code § 22-3133 (a)(3)
(2012 Repl.), and six counts of Violating a Civil Protection Order (CPO), in
2
violation of D.C. Code §§ 16-1004 (d), -1005 (g) (2012 Repl.).1 Appellant
contends that the trial court erred in three respects, each requiring reversal of his
convictions: (1) the trial court committed reversible error when it failed to instruct
the jury on the statutory definition for the term “course of conduct”; (2) the trial
court issued instructions that merged alternative theories of liability with respect to
the stalking charge; (3) the trial court erred when it denied appellant’s request for a
mistrial. Having reviewed the record, we conclude that the trial court only
committed error when it issued an instruction that merged alternative theories of
liability under the stalking statute. However, given the substantial evidence put
forward by the government with respect to appellant’s objectively alarming
behavior, the error was harmless. Accordingly, we affirm appellant’s convictions.
I.
This case stems from actions taken by appellant after the demise of his
relationship with Ms. Halima Roebuck. Appellant and Roebuck first met in 1998,
and began a cordial friendship that became “intimate” after both individuals moved
1
Appellant was sentenced to twelve months of incarceration, six months
suspended for the felony stalking conviction, ninety days of incarceration for each
of the six CPO violations—to run concurrently with one another and consecutively
to the stalking charge—and two years’ post-incarceration supervised release.
3
to the District of Columbia in 2002. Sometime around 2003, the relationship
began “unraveling.” Roebuck last communicated with appellant at the end of
February 2004. From 2005 to 2011, appellant sent Roebuck numerous emails from
multiple email addresses in an attempt to reconcile their differences and re-
establish contact. Roebuck never responded.
At some point, appellant—for reasons not revealed in the record—believed
that he and Roebuck had a child together,2 and in December of 2011 escalated his
attempts to try to contact Roebuck. On the morning of December 23, 2011,
appellant called Roebuck and left a voicemail. Appellant then called her multiple
times throughout the evening, often “back-to-back.” The phone calls continued
into the early morning hours of December 24, 2011, when appellant called
Roebuck’s residence at 1:48 a.m. At some point, Roebuck’s fiancé3 answered the
phone and told appellant that he “need[ed] to stop calling.” Appellant told
2
Roebuck became aware of appellant’s belief that the two had a child
together in December 2011, but Roebuck had not spoken with appellant about the
matter. Appellant had told the police and members of Roebuck’s family that he
thought he had a child with Roebuck.
3
A review of the trial transcripts fails to establish this individual’s name.
He did not testify at trial, and is referred to as Roebuck’s “fiancé” throughout the
proceedings. Roebuck testified that the two were then married, but did not disclose
his name.
4
Roebuck’s fiancé to “put Halima on the phone, put Halima on the phone.”
Roebuck’s fiancé responded with “Halima doesn’t want to talk to you,” and that “I
don’t want you calling this house anymore.” Following appellant’s phone calls,
Roebuck unplugged her phone and eventually obtained an unlisted number.
After calling Roebuck’s residence a number of times unsuccessfully,
appellant attempted to contact members of Roebuck’s family—including her
mother and her father—and told each parent that he and Roebuck had a child
together. Roebuck’s mother refused to speak with appellant and called the police.
Roebuck’s father “specifically” told appellant not to “communicate with any of
[the Roebuck family]” because appellant’s behavior “was bordering on
harassment.” He also “told [appellant] that [Roebuck] does not have a child,” that
he was “not a grandfather,” and that appellant “should try to seek some sort of
treatment.”4 On December 27, 2011, appellant appeared at an apartment building
where Roebuck had previously lived.5 Appellant “stood outside for a couple of
minutes,” and then “came inside” and used the call box to dial the direct number to
4
Sometime thereafter, appellant filed a petition for custody in Montgomery
County Circuit Court, which was dismissed for want of foundation.
5
Roebuck’s aunt and uncle lived in the unit on the date that appellant
attempted to access the apartment building.
5
Roebuck’s old apartment. When appellant was approached by the security guard,
appellant told the guard that he was “family,” and asked if he could “go upstairs
and wait by the door.” Appellant was rebuffed in his attempts, and left. He
returned the following day. Roebuck, however, had obtained a Temporary
Protection Order (TPO)6 against him that had been disseminated to the apartment
building’s security staff. When appellant arrived, security informed him that he
was not permitted in the building. He was called into the property manager’s
office, and then the police were called. Appellant, however, left the building
before police arrived.
On May 6, 2012, appellant’s conduct toward Roebuck reached a head. At
1:30 a.m., Roebuck received “back-to-back” phone calls from a number that
registered as private on her caller I.D. Roebuck then began to receive calls on her
cell phone indicating that someone was ringing the call box outside of her
6
On December 28, 2011, Roebuck obtained a TPO against appellant that
prohibited appellant from contacting Roebuck, her fiancé, her parents, and other
members of her family, and from visiting each individual’s respective residence.
Appellant received a copy of the TPO. The TPO was extended, and a hearing was
set for February 10, 2012, in Superior Court. Following the hearing—which both
Roebuck and appellant attended—the TPO was converted into a one-year CPO.
The order prohibited appellant from assaulting, threatening, harassing, or stalking
Roebuck, and ordered him to stay at least one hundred feet away from Roebuck’s
person, home, place of work, and Roebuck’s family’s residences at all times.
6
apartment building. Roebuck thought it was appellant contacting her again
because of the “pattern” of his behavior, but could not be certain. Roebuck
eventually called the police. She testified that she was fearful because she was
alone in the apartment; her fiancé was out of town. At 3:00 a.m., she received
multiple phone calls from a “blocked number.” Later that morning, Roebuck took
“precautions,” and contacted JaBen Early, her “godbrother,”7 and told him that she
was “receiving nonstop calls” from a “private” number. Early did not know
whether Roebuck told him that the calls she had received were actually from
appellant, but Early suspected it was “in relationship to that.” Early agreed to stay
with Roebuck at her residence until her fiancé returned.
Early arrived at Roebuck’s apartment building at approximately 12:30 p.m.
on May 6th, and observed appellant standing outside of the building, glancing at
his cellphone and pacing back and forth.8 When Early saw appellant attempt to
follow several unaffiliated people into the building, Early confronted appellant and
7
Mr. Early described his relationship with Halima Roebuck as one in which
“she is like one of my God sisters. Her father and my father have been close over
the years but we never met till we were in college. So we didn't really have a
relationship until we were in college.”
8
When Early arrived, he called Roebuck and communicated to her
appellant’s location and his activities.
7
“told him not to go inside.”9 Appellant responded that he “just want[ed] to talk to
her” because “[s]he has my baby.” At this point, Metropolitan Police Department
(MPD) motorcycle officer Richard West arrived in response to a 9-1-1 call placed
by Roebuck. As Officer West approached both Early and appellant, Early told
Officer West that “there he is right there, Officer; that’s the one that has the CPO
order against him.” In response, appellant pointed at Early “and said no, he’s the
one who has the CPO order against him.” Early repeated that Officer West
“need[ed] to get him” because “[he]’s stalking my God sister.” To sort through the
conflicting stories, Officer West “engaged [appellant] in a conversation about their
relationship.” As appellant was conversing with Officer West, Officer Warren
Jones—West’s partner—arrived at the scene. Early again told the two officers that
“they needed to arrest [appellant] because [Roebuck] has a civil protection order
against him.” Appellant responded by telling the MPD officers “that he had a child
with [Roebuck].” He then glanced at Early “and then just ran away.”
Appellant fled from the officers down an adjacent alleyway and jumped a
fence, but did not have “anywhere to go.” The officers pursued him up to the
fence. Appellant told the officers that he “just want[ed] to see [his] daughter,” and
9
Early knew appellant because the two had attended the same college and
they shared mutual friends.
8
Officer Jones attempted to coax appellant into climbing back over the fence by
telling him that he could “see” his daughter. At that time, appellant fled from the
officers by scaling a second fence, used piping attached to the apartment building
to climb to the roof, and then began to run “from roof to roof” on top of the
buildings. The officers were unable to maintain pursuit.
Following the May 6 incident, appellant attempted to contact Roebuck a
number of times. Evidence presented showed that appellant called Roebuck at
least eight times on May 10, 2012. Appellant also called her on May 11 at 12:54
a.m., and Roebuck “continue[d] to receive numerous calls . . . in the subsequent
days.” Roebuck never responded.
Appellant was charged on April 9, 2013.10 At trial, the government and
appellant stipulated to the following: (1) that on February 10, 2012, in a separate
matter, Superior Court ordered appellant to stay away and have no contact with
Roebuck, and that appellant signed the order; (2) on February 10, 2012, appellant
10
The underlying events that formed the basis of this appeal related to
appellant’s actions toward Roebuck from May 6 to May 15, 2012. In a separate
criminal matter, not on appeal before this court, appellant pleaded guilty to one
count of stalking, which involved phone calls made by appellant to Roebuck on
December 23 and December 24, 2011. The separate criminal matter was presented
to the jury as a stipulation of certain facts.
9
admitted that by calling Roebuck numerous times on December 24, 2011, appellant
either intended to or should have known that his actions would cause Roebuck to
fear for her safety, feel seriously alarmed, or frightened, or suffer emotional
distress as a result. Following his conviction, appellant filed a timely appeal.
II.
Now, the merits. We first address appellant’s claim that the trial court
committed reversible error when it failed to include the jury instruction that
defined the term “course of conduct,”11 a term used in the statutory definition for
stalking. See D.C. Code § 22-3133 (a). We review for plain error, as appellant
failed to preserve the issue for appeal. At trial, “objections must be made with
reasonable specificity” and “the trial judge must be fairly apprised as to the
question on which he is being asked to rule.” Comford v. United States, 947 A.2d
1181, 1186 (D.C. 2008) (citation omitted). When jury instructions are at issue,
objection below must “be made with sufficient precision to indicate distinctly the
party’s thesis.” Williams v. United States, 858 A.2d 984, 990 (D.C. 2004) (quoting
11
“Course of conduct” is defined at D.C. Code § 22-3132 (8) (2012 Repl.).
10
Russell v. United States, 698 A.2d 1007, 1012 (D.C. 1997)); see also Super. Ct.
Crim. R. 30.
A review of the record establishes that the only instance in which appellant’s
counsel at trial mentioned the “course of conduct” definition was a brief request
made via email to the trial court on the morning in which jury instructions were to
be discussed.12 There is no evidence of record that counsel mentioned, noted,
inquired about, or requested the jury instruction that defines “course of conduct,”
or that he specifically objected to its exclusion. Counsel had ample opportunity to
object, as the trial court specifically asked him if “there [were] any other changes
to the instructions other than what you have sent us,” and then read off the two
changes that had been discussed, but failed to mention counsel’s request to add
“the means” by which appellant stalked Ms. Roebuck. The single written request,
briefly noted in an email to the trial court before jury instructions were discussed is
insufficient to preserve the issue for appeal. See Guishard v. United States, 669
A.2d 1306, 1315 (D.C. 1995) (overruled in part by Robinson v. United States, 100
A.3d 95, 107 (D.C. 2014)) (concluding plain error review applies when trial
12
The email requested two modifications to the proposed instructions. One
modification was to insert the means that appellant relied on to allegedly stalk Ms.
Roebuck. The second was to add language regarding appellant being on notice to
stay away from a residence and to define the word “contact.”
11
counsel submits a proposed instruction, the instructions are discussed by all
concerned, counsel failed to object and never asked to add the earlier requested
instruction).
Assuming without deciding that the trial court’s failure to instruct the jury
on the definition for the term “course of conduct” was error, and that such error
was plain, it nonetheless does not require reversal, as appellant has failed to
establish that his substantial rights were affected. As an initial matter, appellant
has proffered no persuasive reason to show that the jury misunderstood the term, or
could not properly apply the term to the facts. Similarly, the record contains no
indication that the jury was either misled, or experienced confusion as to the term
“course of conduct,” even though it engaged in lengthy deliberations without a
definition. See Zeledon v. United States, 770 A.2d 972, 976 (D.C. 2001) (note
from the jury requesting the definition of a term indicated confusion). Moreover,
the record contains very strong evidence that appellant “directly or indirectly . . . in
person or by any means, on two or more occasions . . . follow[ed], monitor[ed],
place[d] under surveillance, threaten[ed] or communicate[d] to . . . another
individual.” D.C. Code § 22-3132 (8)(A). See Owens v. United States, 90 A.3d
1118, 1124 (D.C. 2014) (concluding appellant failed to show that his substantial
rights were affected by an assumed “obvious error” due to “the overwhelming
12
proof against him”); see also Wilson v. United States, 785 A.2d 321, 328-29 (D.C.
2001) (appellant failed to show plain error because a reasonable juror would find
that the omitted requirement had been established); Guishard, supra, 669 A.2d at
1315 (concluding that no plain error occurred “because, in any event, the evidence
was sufficient to permit the jury reasonably to find [that appellant’s were guilty]”).
Thus, as the government presented strong and compelling evidence to the jury
concerning appellant’s behavior towards Roebuck and the record is bereft of
evidence that the jury would have found guilt based on something that did not rise
to the level of a course of conduct, the evidence is sufficient beyond a reasonable
doubt to support the jury’s finding of guilt, the assumed error, even if plain, did not
affect appellant’s substantial rights. Wilson, 785 A.2d at 326 (quoting Olano v.
United States, 507 U.S. 725, 736 (1993)). It follows that the trial court did not
plainly err.
III.
Appellant next contends that the trial court committed reversible error when
it instructed the jury concerning the charge of stalking. Appellant was charged
under D.C. Code § 22-3133 (a)(3), which requires the government to prove beyond
a reasonable doubt that appellant “purposefully engage[d] in a course of conduct
13
directed at a specific individual . . . [t]hat the person should have known would
cause a reasonable person in the individual’s circumstances to fear for his or her
safety or the safety of another person, feel seriously alarmed, disturbed, or
frightened, or suffer emotional distress.” At trial, the government requested that
the court alter the final instruction to add the language “Halima Roebuck or”
before “a reasonable person in Ms. Roebuck’s circumstances.” Over objection, the
trial court found that the government was entitled to the instruction. The final jury
instruction read that
[t]he elements of stalking . . . are that one that the
defendant purposely engaged in a course of conduct
directed at Halima Roebuck . . . [and] [w]hen he did so,
he knew or he should have known that his conduct would
cause Halima Roebuck or a reasonable person in Halima
Roebuck’s circumstances to either fear for her safety or
feel seriously alarmed, distributed, or frightened or to
suffer emotional distress.
Essentially, the trial court’s instruction merged § 22-3133 (a)(3) and § 22-
3133 (a)(2), but omitted language under (a)(2) that required the jury to conclude
that appellant’s actions would cause Ms. Roebuck “reasonably” to fear for her
safety, feel seriously alarmed/disturbed/frightened, or to suffer emotional distress.
The government concedes “that the trial court erred by merging the alternative
intent theories.” The “only issue before th[e] jury” was appellant’s state of mind,
14
and the merger of liability theories in the final instruction may have impermissibly
reduced the government’s burden to convict by allowing the jury to find appellant
guilty if he caused Ms. Roebuck to subjectively but unreasonably experience the
enumerated emotional harm. We therefore review for harmlessness under the
elevated constitutional standard, first articulated in Chapman v. California, 386
U.S. 18, 23 (1967). Reversal is required unless “the error was harmless beyond a
reasonable doubt.” Johnson v. United States, 980 A.2d 1174, 1181 (D.C. 2009).
Stated differently, we must determine whether the government proffered such
overwhelming evidence so as to preclude an “impartial juror” from “reasonably
conclude[ing]” that appellant did not engage in a course of conduct that would
cause a reasonable person in Halima Roebuck’s circumstances to fear for her
safety. Id. (quoting Wilson-Bey v. United States, 903 A.2d 818, 846 (D.C. 2006)).
“If there exists a reasonable possibility that the jury’s verdict on a given count was
affected by the instructional error,” then appellant is entitled to relief. Robinson,
supra, 100 A.3d at 108 (citation omitted).
Appellant’s principal argument is that the instructions permitted the jury to
convict appellant if it determined that he should have known that his actions would
cause Roebuck to be fearful, even though her fear was objectively unreasonable.
We find this argument unpersuasive for two reasons. First, appellant’s conduct
15
towards Roebuck was objectively frightening and alarming, regardless of context
or motive. Here, appellant’s behavior included repeated, unwanted calls at all
hours, including late at night; unsolicited visits to Roebuck’s past residence and her
parents’ residences; and attempts to gain unauthorized access to Roebuck’s
apartment building. The foregoing are all actions that an impartial juror could
easily find to be objectively frightening, alarming, or disturbing. That appellant
was attempting to locate a child he thought existed (and who was told that did not
exist) does not render such activity benign. The record demonstrates that there
were numerous instances in which appellant engaged in conduct that a reasonable,
impartial juror could find to be alarming.
Second, the jury was presented with substantial—almost overwhelming—
evidence of appellant’s objectively frightening behavior to support the conclusion
that the government proved beyond a reasonable doubt that appellant’s actions
would cause a reasonable person under the circumstances to be
frightened/alarmed/disturbed or to suffer emotional distress. Evidence established
that appellant sent numerous, unsolicited emails to Roebuck between 2005 and
2011, none of which were returned. On December 23 and 24, 2011, appellant
placed multiple phone calls to appellant, including a call at 1:48 a.m., leading
Roebuck to change her phone number. Appellant was told not to call back.
16
Appellant then personally contacted both of Roebuck’s parents, telling each that he
and Roebuck had a child together. Appellant was told that he was mistaken.
Appellant attempted to contact Roebuck by appearing at her old residence,
unannounced. Appellant returned a second time and the police were called.
Roebuck obtained a TPO, and then a one-year CPO against appellant. Appellant
was aware that the CPO was in place and that he should have known that his prior
conduct toward Roebuck would cause her to fear for her safety, feel seriously
alarmed, or frightened, or suffer emotional distress as a result. On May 6, a
blocked number called Roebuck multiple times in the middle of the night.
Appellant appeared at Roebuck’s residence later that day, still claiming that
Roebuck was hiding appellant’s child from him. Appellant attempted to gain
unauthorized access to the building, prompting Roebuck to call 9-1-1. Appellant
fled from the police, and subsequently called Roebuck numerous times between
May 10 and May 15, 2012.
Given the substantial evidence presented of appellant’s repeated conduct and
the objectively alarming nature of the conduct, there was no “reasonable possibility
that the jury’s verdict . . . was affected by the instructional error.” Robinson,
supra, 100 A.3d at 108 (citation omitted). Thus, a reasonable, impartial juror
would conclude beyond a reasonable doubt that appellant engaged in a course of
17
conduct that would cause a reasonable person in Halima Roebuck’s circumstances
to fear for her safety or feel seriously alarmed, disturbed, or frightened. Wilson,
supra, 785 A.2d at 329. The error was harmless.
IV.
We now turn to appellant’s final claim, where he contends that the trial court
erred when it denied appellant’s request for a mistrial. The factual background for
the issue is as follows. At trial, the government presented an eleven-minute audio
recording of Roebuck’s 9-1-1 call after appellant appeared at her residence on May
6, 2012. Two statements included in the call prompted appellant’s motion for a
mistrial. The first was a statement made by Roebuck to the 9-1-1 operator that
“during the ordeal my mom’s house burned down so [appellant] is very
dangerous.”13 The second was a statement made by the operator to Roebuck in
which she stated that “people with mental conditions are capable of anything so
you have to be careful.”
13
A redacted copy of the call that omitted the “house burning” comment
was provided before jury deliberations. No transcript of the 9-1-1 call was
provided.
18
Immediately after the recording ended, the trial court, sua sponte, told the
jury that “there was some reference in that call to a house burning down,” but
“[t]hat [it] has nothing whatsoever to do with this case. Please disregard it.” The
trial court found that the inclusion of the statements was “extraordinarily
negligent,” a “gross kind of mistake,” and “merely negligent,” but even then
denied appellant’s motion for a mistrial. The trial court reasoned that the
government did not engage in “deliberate misconduct,” and that it was “confident
that [the statements] w[ould] not affect the outcome of the case.” The trial court
did, however, offer to give “whatever additional instruction” appellant wanted, and
offered “to have a stipulation that there was absolutely no connection to [the]
house burning down.” The government concedes that the statement concerning
Roebuck’s mother was erroneously included in the audio recording.
It is well-established that a mistrial “is a severe remedy . . . to be avoided
whenever possible, and one to be taken only in circumstances manifesting a
necessity therefor.” Parker v. United States, 757 A.2d 1280, 1286 (D.C. 2000)
(citation omitted). The trial court exercises “broad discretion” with respect to the
motion, Gordon v. United States, 783 A.2d 575, 583 (D.C. 2001), and “[w]e will
reverse the trial court’s denial of a motion for a mistrial only if it appears irrational,
unreasonable, or so extreme that failure to reverse would result in a miscarriage of
19
justice.” Metts v. United States, 877 A.2d 113, 118 (D.C. 2005) (quoting (Ronald)
Coleman v. United States, 779 A.2d 297, 302 (D.C. 2001)).
When an errant comment or testimony creates the possibility of prejudice,
“an effectively worded curative instruction rendered in a timely manner may serve
to rectify the error.” Hazel v. United States, 319 A.2d 136, 138 (D.C. 1974). But
when “comments are particularly prejudic[ial]” to a defendant, “even a curative
instruction may not be relied upon to overcome the prejudice.” Lucas v. United
States, 102 A.3d 270, 282 (D.C. 2014) (noting that “timely limiting and curative
instructions can be an important consideration” in determining harmlessness). We
have little difficulty acknowledging that the first statement at issue—Roebuck’s
discussion of her mother’s house being burned down—prejudiced appellant to a
degree. However, we conclude that the trial court’s sua sponte curative instruction
was sufficient to remedy the prejudice.
When the trial judge’s instruction to the jury is “prompt, complete,
persuasive, and to the point,” Metts, supra, 877 A.2d at 119 (quoting Peyton v.
United States, 709 A.2d 65, 72 (D.C. 1998)), we “should not readily assume that
the jury could not or would not follow it.” Id. (quoting Peyton, supra, 709 A.2d at
72); see Plater v. United States, 745 A.2d 953, 959 (D.C. 2000) (citation omitted)
20
(recognizing the “almost invariable assumption of the law that jurors follow their
instructions”); see also McRoy v. United States, 106 A.3d 1051, 1061 (D.C. 2015)
(citation omitted) (noting that the trial court “issued a clear curative instruction,
which we presume the jury followed, absent evidence to the contrary”). The trial
court’s curative instruction was “succinct and unambiguous.” Metts, supra, 877
A.2d at 118. Accordingly, the prompt and “to the point” curative instruction
sufficiently neutralized prejudice inflicted upon appellant from the errant evidence.
Id. at 119 (concluding that the trial court’s prompt instruction that testimony “bears
absolutely no relationship” to the case following errant testimony was sufficient);
see also Bennett v. United States, 597 A.2d 24, 27 (D.C. 1991) (noting that
prejudice to appellant is diminished when, after a motion for a mistrial, the trial
court instructs the jury to ignore the prejudicial testimony).14 Moreover, the
government presented a substantial quantity of compelling evidence to support its
charges. Lucas, supra, 102 A.3d at 283 (considering the “strength of the
14
Appellant argues that the first statement constitutes “evidence of prior
crimes” that has reached the jury, where it is “most difficult, if not impossible, to
assume continued integrity of the presumption of innocence . . . .” Even assuming
Roebuck’s statement was evidence of “prior crimes,” we have held that “it is
necessary that the trial court give the jury an immediate instruction warning it . . .
not to consider that evidence as tending to show in any other way the defendant’s
guilt of the offenses for which he is on trial.” (Ronald) Coleman, supra, 779 A.2d
at 304 (emphasis in original) (citation omitted). The trial court did so here, issuing
an immediate curative instruction sua sponte.
21
government’s case” in concluding that an errant prosecutorial comment did not
substantially prejudice the defendant).
Turning to the second statement—the 9-1-1 operator’s comment concerning
the capability of people who are mentally unstable—we note that appellant did not
seek a curative instruction from the trial court. We have long “recognize[d] that
there are situations where, as a matter of strategy, defense counsel may decide that
it is more effective simply to let a potentially prejudicial remark pass, rather than
drawing attention to it further by requesting a curative instruction.” Clark v.
United States, 639 A.2d 76, 80 (D.C. 1993). Nonetheless, “where a defendant
asserts that certain testimony is so prejudicial as to require a mistrial, yet refuses
any curative instruction, we will still consider whether a curative instruction was
available that might have mitigated the alleged harm to the defendant’s case.” Id.
Here, the 9-1-1 operator made a single, off-hand comment during a nearly
eleven-minute exchange with Roebuck. The operator had absolutely no knowledge
of who appellant was, what he had done, his mental state, or his medical history.
The statement is tantamount to personal opinion and is “merely speculative
evidence” of appellant’s possible mental state supported by no evidence. Clark,
supra, 639 A.2d at 80. We do not think that the operator’s comment caused
22
appellant sufficient prejudice to warrant a mistrial. The comment was isolated,
fleeting, and speculative in nature. An available curative instruction15 from the
trial court would have “significantly minimized any possible prejudice to the
appellant.”16 Id. at 81. And again, we note that there was substantial evidence,
bordering on overwhelming, before the jury to establish appellant’s guilt.
From a review of the record, we cannot say that the trial court’s decision to
deny appellant’s motion for a mistrial was “irrational, unreasonable, or . . . a
miscarriage of justice,” and no abuse of discretion occurred. Bragdon v. United
States, 668 A.2d 403, 405 n.2 (D.C. 2005) (citation omitted).
*****
15
The trial court offered to do “more,” to address the statement, but didn’t
“think anyone [was] going to make anything out of that.”
16
We do not imply that appellant waived his right to relief by failing to ask
for a curative instruction. Under the circumstances, however, the trial court
offered further instruction regarding the 9-1-1 operator’s isolated and fleeting
comment. The availability of a proper instruction to limit any potential prejudice
supports our conclusion that under the circumstances of this case, a mistrial was
not warranted.
23
For the aforementioned reasons, we affirm appellant’s convictions.
Accordingly, the judgment is
Affirmed.