Romero v. United States

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. 18-CF-999
CHRISTIAN ROMERO, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-10129-16)
(Hon. Juliet McKenna, Trial Judge)
(Submitted April 2, 2020 Decided January 6, 2022)
Gregory M. Lipper was on the brief, for appellant.
Bryan H. Han, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, and Elizabeth Trosman and
Christian Natiello, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.
GLICKMAN, Associate Judge: Christian Romero appeals his conviction by a
jury of second-degree murder while armed. 1 The charge arose from an incident,
1
D.C. Code §§ 22-2103, -4502 (2012 Repl. & 2021 Supp.).
2
captured in video camera footage shown at trial, in which Mr. Romero got into a
street fight with two strangers and stabbed one of them to death. Mr. Romero
contends his conviction must be reversed because the trial court allowed the
government to cross-examine him about facts underlying a prior assault conviction,
to the limited extent of eliciting that he had stabbed the victim in that case multiple
times with a knife. The trial court ruled that Mr. Romero opened the door to this
evidence by claiming, in his direct examination, that he “would never” intend to kill
someone, and the court instructed the jury to consider the prior stabbing only for the
proper purpose of assessing Mr. Romero’s credibility. We find no abuse of
discretion, uphold the court’s ruling, and affirm appellant’s conviction.
I.
The government sought to prove at trial that on the night of April 23, 2016,
appellant confronted Dimas Fuentes-Lazo and Mario Rosales after they saw him
break a side mirror on Rosales’s parked car in the 800 block of Kennedy Street, N.W.
The government charged that before Rosales could call the police, appellant lunged
at him with a knife and then turned on and fatally stabbed Fuentes-Lazo.
Prior to trial in this case, the government informed appellant’s counsel by
letter that it expected to have certified copies of his 2013 conviction for first-degree
3
assault in Maryland and the transcript of the hearing at which appellant pled guilty
to that offense. In that case, the letter stated, appellant stabbed a man nine times
with a knife, including three times in the neck and one time in the back, causing a
punctured lung and other serious injuries. The government advised the defense that
it did not intend to use appellant’s Maryland conviction or guilty plea in its case-in-
chief, but that it reserved the right to use that evidence “for purposes such as, but not
limited to, impeaching Defendant should he testify or to rebut any suggestion by the
defense (in its opening statement, questioning of witnesses, or otherwise) that
Defendant did not know (or should not have known) that stabbing someone could
cause an extreme risk of death or serious bodily harm.”
At trial, the government’s case-in-chief included the eyewitness testimony of
Mario Rosales and of a security worker from a nearby restaurant who witnessed the
killing; security camera footage from nearby businesses; and physical evidence
including DNA profiles obtained from a knife and a Coca-Cola bottle found at the
crime scene.
Mr. Rosales testified that he and Dimas Fuentes-Lazo, lifelong friends, drove
to Kennedy Street to go to a restaurant. Rosales parked his car in the 800 block and
the two friends got out and crossed the street. They stood on the sidewalk there
4
while Rosales took a phone call. He was still on the phone when he heard a noise,
turned toward the street, and saw appellant breaking the mirror of his car. Rosales
testified that he confronted appellant, saying, “Hey that is my car.”
Appellant responded with profanities, walked toward Rosales and Fuentes-
Lazo, and threw a Coca-Cola bottle at them. Appellant then asked if the men wanted
to fight. Rosales told appellant he was going to call the police. Accompanied by
Fuentes-Lazo, Rosales went back across the street to his car to make the call from
there. As he did this, he tried to push the car alarm button on his car key, and
accidentally opened his trunk instead. Appellant, wielding a knife, “launch[ed]
himself” at Rosales. Rosales kicked back at appellant, who bent over from the
impact. Appellant then straightened up, turned to attack Fuentes-Lazo, and stabbed
him several times before Rosales could come to his friend’s aid. Appellant then
dropped the knife and ran away.
Eduardo Videz, who was working as a “bouncer” at a restaurant in the 800
block of Kennedy Street, testified that he saw the fight. He did not know any of the
men involved in it. Mr. Videz testified that appellant was holding the knife in his
hand when he straightened up after Rosales kicked him. Video footage from store
security cameras in the vicinity also showed the fight from its inception to
5
appellant’s flight. The video footage was consistent with the witnesses’ accounts,
though it was not clear enough to show where the knife came from or whether
appellant was the first to arm himself in the fight. 2
Appellant testified that he acted in self-defense. He said he had gone to
Kennedy Street that night to meet someone, had gotten lost, and was walking down
the street looking for his destination when Rosales and Fuentes-Lazo called him over
and Rosales accused him of hitting his car. Appellant admitted he had been drinking
prior to the altercation and testified he “might have” damaged the car but did not
remember doing so. Appellant said he tried to calm the two men down, but when
Rosales opened the trunk of his car, appellant feared he was going to pull out a
weapon. Then, appellant testified, he saw Fuentes-Lazo holding a knife. The rest
of the incident, he said, “happened so quick” — he “got hit” by Rosales and knocked
to the ground; he simultaneously knocked the knife from Fuentes-Lazo’s hand; and
he picked the knife up and “just reacted” to save his own life by fighting with and
stabbing Fuentes-Lazo before fleeing.
2
DNA analysis of the knife and the Coca-Cola bottle recovered from the
scene by the police showed the following. Blood on the knife contained a complete,
single-source DNA profile that matched that of Fuentes-Lazo. Swabs of the knife
handle and blade also contained partial DNA profiles, from which appellant could
not be excluded. Swabs from the Coca-Cola bottle contained a complete, single-
source DNA profile that matched appellant.
6
In his direct examination, appellant acknowledged his prior assault conviction
in Maryland. Defense counsel then asked appellant a series of questions regarding
his intentions on the night of the stabbing, including:
Q: During this event, between the time when you were
at the trunk of the car until, as you say, you were on the
ground, did you ever form an intent, a plan in your mind
to hurt somebody?
A: No.
Q: Did you ever form an intent or plan in your mind to
kill somebody?
A: No, no, I would never do that.
This answer was followed by more questions of a similar nature, to each of which
appellant responded in the negative. 3
3
As follows:
Q: When you came into the District of Columbia that
night was it your intent to harm or kill anybody?
A: No.
Q: When you got involved in that fight when they first
called out to you, was it your intention to harm or kill
anybody?
A: No.
7
At the close of appellant’s direct examination, the prosecutor asked for a
bench conference, in which he asserted that appellant had “brought his character into
issue” by testifying he “would never do anything like that.” Therefore, the
prosecutor argued, appellant had “opened the door” for the government to “attack
that character” by impeaching appellant with the facts of his Maryland assault that
showed he actually had done “something like that.”
Defense counsel objected that “get[ting] into the details” of that conviction
would go “beyond the purpose” of impeachment with a prior conviction, and that
the government could sufficiently impeach appellant by re-eliciting the fact of his
prior conviction and that it was for a first-degree assault. The court agreed with the
government, however, explaining that:
the Government is seeking to impeach not just
[appellant’s] general character or credibility [with] a prior
conviction, but [also] the assertion he never would have
done something like that, namely stabbing another
individual intentionally with a knife.
Q: When you were standing at your [sic] trunk was it your
intention to harm or kill anybody?
A: No.
8
Because appellant’s Maryland first-degree assault conviction “in and of itself” did
not reveal that he used a knife, the court permitted the government to elicit that fact
from appellant but admonished the prosecutor not to “dwell” on it. The court limited
the cross-examination to “[j]ust simply the nature of the prior conviction and the fact
there was a knife involved.” Explaining that he would refrain from objecting during
the government’s cross-examination in order not to highlight it, defense counsel
reiterated his objection to the court’s ruling. The court agreed that the objection was
“noted for the record.”
The government then began its cross-examination:
Q: Mr. Romero, you mentioned on direct that you had
a prior conviction for first degree assault in Maryland from
2013, right?
A: Yes, that is correct.
Q: You also said that when you were asked the
question of would you ever, did you ever mean to harm
anyone here, your answer was no, I would never do that,
right?
A: Yes.
Q: That’s not true, is it? The 2013 case involved your
stabbing someone multiple times, didn’t it?
A: No, I don’t remember the question.
9
Q: Did the case involve you stabbing someone multiple
times or not? That’s the only question I have for you right
now.
A: Yes.
The cross-examination then turned to other matters.
Before closing arguments and the court’s final charge to the jury, the parties
and the court discussed whether the jury should receive a specific instruction to
consider the prior stabbing testimony only for impeachment purposes and not as
propensity evidence. Defense counsel preferred that the court give only the
“standard instruction” regarding impeachment by prior conviction, so as not to
“highlight” again the similarities between the two crimes. Acceding to appellant’s
wishes, the court instructed the jury that appellant’s
prior conviction is admitted into evidence solely for your
consideration in evaluating his credibility as a witness.
The evidence that he was convicted of a crime in the past
is not evidence that Christian Romero is guilty of the
offense charged in this case, and you must not draw such
an inference.
10
In addition, the court warned the prosecutor against referring to appellant’s prior
assault conviction and its nature in closing argument. 4 So warned, the prosecutor
did not mention the underlying facts of appellant’s conviction to the jury, but he did
tell the jury that “[w]hen deciding credibility of the defendant you can take into
account his prior conviction and only for that reason can you use that prior
conviction.”
The jury expressed a need for more guidance from the court on this subject,
however. On the morning of the first day of its deliberations, the jury sent a note to
the court asking, “May we consider the nature of Christian Romero’s prior
4
The court stated:
It [the prior stabbing] was directly impeaching of the
statement that he made, which is why I allowed the
Government to pose one limited question with respect to
that. But . . . I would be concerned about highlighting that
fact in your closing given the similar nature of the
convicted offense and the crime with which he’s currently
charged. . . . The Government’s whole closing argument
is going to be to the point that Mr. Romero was not acting
in self-defense, and so to make any reference to the prior
conviction and the nature of the prior conviction runs too
great of a risk that the jury would be considering that as
propensity evidence. . . . So you’re going to delete that
and not make reference to that.
The prosecutor agreed to adhere to the court’s directive.
11
conviction as establishing (or not) a pattern of behavior, or only to interpret his
credibility/testimony?” With the parties’ approval, the court sent the following
response to the jury:
Mr. Romero’s prior conviction is admitted into evidence
solely for your consideration in evaluating Mr. Romero’s
credibility as a witness. You may not consider the prior
conviction as establishing a pattern of behavior. The
evidence that he was convicted of a crime in the past is not
evidence that Christian Romero is guilty of the offense
charged in this case and you must not draw such an
inference.
The following morning, the jury convicted appellant of second-degree murder
while armed.
II.
Appellant contends the trial court abused its discretion in allowing the jury to
learn his Maryland assault conviction was for a stabbing. Appellant makes two main
points.
First, he denies he said anything on direct examination that justified his
impeachment with the facts underlying his prior assault conviction. Appellant
argues that the court and the government mischaracterized his statement that he
12
“would never do that.” This statement was a response to a specific question asking
whether he ever intended or planned to kill somebody. His denial that he would
ever do that was only an assertion that he would never intentionally kill someone; it
was not, he claims, equivalent to what the court and the prosecutor said it was,
namely a broad assertion that he would never intentionally stab or harm another
person. And because his Maryland conviction was for first-degree assault, not
attempted murder, appellant argues the prior stabbing did not contradict his
declaration that he would never intentionally kill someone. Appellant also argues
that the question to which he responded was one of a series of questions that
(otherwise) focused explicitly on his state of mind on the night he fought with
Rosales and Fuentes-Lazo. Appellant claims his response, properly understood in
that context, was only an assertion as to what he “would never” have done on that
specific night.
Second, appellant contends, even if his statement could be said to have opened
the door to impeachment with the fact that he stabbed the victim of his prior assault
multiple times, the court still should have precluded the prosecutor from eliciting
that fact on cross-examination because it was substantially more prejudicial than
probative. There was too great a risk, appellant argues, that the jury would use the
prior stabbing as proof of his propensity for violence — a risk confirmed by the
13
jury’s note inquiring whether it could consider the prior stabbing as evidence of a
“pattern of behavior.”
The government argues that appellant did not so “finely parse” his testimony,
and that its cross-examination was proper — under the doctrine of curative
admissibility — to correct the false and misleading impression appellant conveyed
that he was not the kind of person who could have committed the homicide for which
he was on trial. In addition, the government argues, appellant essentially conceded
at trial that he had opened the door to cross-examination regarding the nature of his
Maryland offense, and that we therefore should review his claim only for plain error.
We turn first to the question of our standard of review. We think appellant
did forfeit his claim that the trial court misconstrued his testimony that he “would
never do that.” At trial, appellant did not object at any point to the court’s expressed
understanding of his statement as denying he would ever intend to stab another
person with a knife (as opposed to a denial that he would intend to kill someone, or
an assertion limited to his mental state on one particular night). 5 Nor did appellant
5
When the court observed that, “the Government is seeking to impeach not
just [appellant’s] general character or credibility [with his] prior conviction, but the
assertion he never would have done something like that, namely stabbing another
14
argue for an alternative, narrower understanding of what he said. His claim that the
court misconstrued the import of his testimony is subject, therefore, to review only
for plain error. 6
“Under the established four-part test for plain error, an appellant must
demonstrate . . . that the error was . . . ‘so egregious and obvious as to make the trial
judge and prosecutor derelict in permitting it, despite the defendant’s failure to
object.’” 7 Appellant has not made that showing. His explanation of what he meant
by saying “I would never do that” is not implausible, in our view. The fact remains,
however, that none of the participants in appellant’s trial were privy to that
explanation, and their understanding also was plausible and was not disputed. The
individual intentionally with a knife,” appellant’s counsel responded, “They can do
that by eliciting the conviction.”
6
See (Marcel) Johnson v. United States, 26 A.3d 758, 762 (D.C. 2011) (“To
avoid the plain error standard on appeal, a trial court must be ‘fairly apprised as to
the questions on which she was being asked to rule.’” (alterations omitted) (quoting
Tindle v. United States, 778 A.2d 1077, 1082 (D.C. 2001))); Hunter v. United States,
606 A.2d 139, 144 (D.C. 1992) (“Objections must be made with reasonable
specificity; the judge must be fairly apprised as to the question on which he is being
asked to rule. ‘[P]oints not asserted with sufficient precision to indicate distinctly
the party’s thesis will normally be spurned on appeal.’” (quoting Miller v. Avirom,
384 F.2d 319, 321-22 (D.C. Cir. 1967))).
7
Comford v. United States, 947 A.2d 1181, 1189 (D.C. 2008) (quoting
Thomas v. United States, 914 A.2d 1, 20 (D.C. 2006)).
15
statement itself was categorical and not limited to his state of mind on a specific
occasion, and it came amidst a series of questions variously asking appellant whether
he intended to “hurt,” “harm,” or “kill” anyone. If the court did err in interpreting
what appellant said as denying he would ever intend to stab someone with a knife,
we cannot say the error was “obvious.”
Nonetheless, appellant preserved his objection to being cross-examined about
the facts underlying his Maryland assault conviction to contradict his testimony that
he “would never do that.” Defense counsel argued that “get[ting] into the details”
of his Maryland assault would go “beyond the purpose” of impeachment with a prior
conviction. In response to the argument that appellant’s testimony had opened the
door to cross-examination about those details, defense counsel contended that it
would be sufficient for the government just to re-elicit appellant’s conviction for
assault. He reiterated his objection after the court disagreed and allowed the
government to elicit from appellant the fact that his Maryland conviction arose from
a stabbing. We are satisfied that appellant fairly apprised the court that he disputed
the adequacy of the justification for invoking the doctrine of curative admissibility,
16
and the court clearly understood that was the issue before it. We therefore review
the trial court’s ruling for abuse of discretion. 8
Appellant’s first-degree assault conviction itself was admissible for the
limited purpose of impeaching his general credibility as a witness. 9 Evidence of
appellant’s criminal conduct underlying that conviction was presumptively
inadmissible, however. “It is fundamental that evidence of prior bad acts
independent of the crimes charged is inadmissible to show the defendant’s
disposition or propensity to commit the charged offenses, from which the jury
improperly could infer the defendant actually did commit them.” 10 Such evidence
“is excluded unless there is some ‘substantial, legitimate purpose’ for admitting it.” 11
The doctrine of curative admissibility may supply a valid justification for
admitting otherwise inadmissible evidence of a defendant’s unrelated criminal
8
Goines v. United States, 905 A.2d 795, 799 (D.C. 2006).
9
D.C. Code § 14-305(b)(1) (2012 Repl.).
10
Harrison v. United States, 30 A.3d 169, 176 (D.C. 2011).
11
Goines, 905 A.2d at 800 (quoting Drew v. United States, 331 F.2d 85, 90
(D.C. Cir. 1964)); see also, e.g., Pitt v. United States, 220 A.3d 951, 964 (D.C. 2019)
(explaining that “other crimes evidence is precluded when its relevance ‘depend[s]
wholly or primarily on the jury inferring’ that the defendant was ‘predisposed or had
a propensity to commit the charged crimes’” (quoting Harrison, 30 A.3d at 178)).
17
conduct. Under this doctrine, a defendant may “open the door” to the use of that
evidence for the non-propensity purpose of discrediting or rebutting testimony given
by the defendant on direct examination. There is, we have said, “a rule of evidential
parity: once the defendant opens the door to a specific issue, the government has the
right to respond with contrary evidence on the same issue. Thus, . . . if a defendant
introduces evidence of her own good character, the government can rebut with
evidence of her bad character.” 12
“[T]he evaluation and weighing of evidence for relevance and potential
prejudice is quintessentially a discretionary function of the trial court, and we owe a
12
Johns v. United States, 434 A.2d 463, 469 (D.C. 1981). This rebuttal may
include evidence of the defendant’s “specific acts.” Id. at 468. See, e.g., State v.
Taylor, 649 A.2d 375, 377 (N.H. 1994) (holding that trial court did not abuse its
discretion by allowing the prosecution to show that a defendant, who was charged
with sexual assault on a young girl, “was lying when he volunteered on direct
examination that he would never sexually abuse (and implicitly had never abused) a
child,” by admitting women’s testimony that the defendant had sexually assaulted
them as children). “The prosecutor may cross-examine not only about the facts
asserted by a defendant in testimony, but may also ask questions reasonably related
to the inferences to be drawn from the direct testimony.” Kinard v. United States,
635 A.2d 1297, 1306 (D.C. 1993). See, e.g., Flores v. United States, 769 A.2d 126,
131-32 (D.C. 2000) (in trial for possession with intent to distribute a controlled
substance, defendant’s claim that he was in an area known for drug dealing on an
errand opened the door to the government’s admission of the fact that the defendant
had tested positive for drugs after his arrest).
18
great degree of deference to its decision.” 13 Nonetheless, “judges are enjoined to
exercise caution and restraint before relying on the curative admissibility rationale”
as it is “‘dangerously prone to overuse,’ and the idea that the one side might ‘open
the door,’ is often oversimplified.” 14 Generally speaking, the “introduction of
otherwise inadmissible evidence under shield of this doctrine is permitted only to
the extent necessary to remove any unfair prejudice which might otherwise have
ensued from the original evidence.” 15 We have emphasized that “[o]pening the door
is one thing[,] [b]ut what comes through the door is another. Everything cannot
come through the door.” 16 Before allowing otherwise inadmissible evidence to be
heard under the curative admissibility doctrine, trial courts are “required to
determine if its probative value [is] substantially outweighed by the danger of unfair
13
(William) Johnson v. United States, 683 A.2d 1087, 1095 (D.C. 1996) (en
banc).
Furr v. United States, 157 A.3d 1245, 1252 (D.C. 2017) (quoting Mercer
14
v. United States, 724 A.2d 1176, 1192 (D.C. 1999)).
Id. (cleaned up); see, e.g., Lampkins v. United States, 515 A.2d 428, 431
15
(D.C. 1986) (explaining that the curative admissibility doctrine “operates to prevent
an accused from successfully gaining exclusion of inadmissible prosecution
evidence and then extracting selected pieces of this evidence for his own advantage,
without the Government’s being able to place them in their proper context” (quoting
United States v. Winston, 447 F.2d 1236, 1240-41 (D.C. Cir. 1971))).
16
Mercer, 724 A.2d at 1192 (quoting Winston, 447 F.2d at 1240).
19
prejudice” 17 and should “consider the availability of alternative methods or evidence
that can prove the same proposition in a manner that is less unfairly prejudicial to
the defendant.” 18 “More specifically,” in a case like this one, “exclusion is required
when anticipated prejudice to the defendant from the jury’s likely inference of
criminal propensity exceeds the probative value for reaching the truth through
impeachment of the defendant’s testimony with evidence of another crime
committed by that defendant.” 19
In the present case, appellant’s counsel asked him on direct examination, “Did
you ever form an intent or plan in your mind to kill somebody?” Appellant
answered, “No, no, I would never do that.” As we have discussed, this answer can
be construed more or less broadly. At a minimum, it was a declaration by appellant
17
Goines, 806 A.2d at 801 (internal quotation marks omitted); see generally
Johnson, 683 A.2d at 1099 (adopting Federal Rule of Evidence 403 and holding that
relevant evidence may be excluded if its probative value is substantially outweighed
by unfair prejudice). The term “unfair prejudice” means “an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” Mercer, 724 A.2d at 1184 (quoting Fed. R. Evid. 403 advisory
committee’s note); see also Old Chief v. United States, 519 U.S. 172, 180 (1997)
(“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of
some concededly relevant evidence to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged.”).
18
Mercer, 724 A.2d at 1185.
19
Pitt, 220 A.3d at 960.
20
that he had never intended and “would never” intend to kill another person. Whether
appellant realized it or not, this declaration put his character in issue in order to
bolster his self-defense claim. Appellant implicitly relied on the government’s
presumptive inability to rebut his assertion of good character with the otherwise
inadmissible evidence of his prior bad acts. Under our law, this was a prototypical
example of door-opening. The government had good reason not to want appellant’s
declaration to go unanswered.
Appellant makes no real argument to the contrary. His claim that the door
was not opened to evidence of his prior intentional stabbing is premised on the
proposition that the earlier stabbing did not counter his assertion that he would never
intend to kill somebody.
We disagree with that proposition. The fact the government elicited, that three
years earlier appellant had stabbed a person multiple times, gives rise to the inference
that, in that incident, he did intend to kill somebody. 20 The specifics of the assault
20
See McKnight v. United States, 102 A.3d 284, 287-88 (D.C. 2014) (mens
rea for second-degree murder may be “inferred from a defendant’s actions”); Wilson
v. United States, 711 A.2d 75, 76-77 (D.C. 1998) (evidence sufficient to affirm
conviction for second-degree murder where defendant stabbed victim multiple
times).
21
known to the trial court (and not disputed by appellant) amply supported its decision
to allow the cross-examination and enable the jury to fairly draw the inference of a
homicidal state of mind: appellant stabbed the victim nine times, including three
times in the neck and one time in the back, and punctured the victim’s lung.
We are satisfied that the court appropriately concluded that the probative
value of the limited inquiry it allowed was not substantially outweighed by the
danger of unfair prejudice, and that the court properly took measures to avoid unfair
prejudice to appellant.
The court considered and rejected appellant’s only proposed alternative,
which was simply that the government could highlight on cross-examination the bare
fact of his Maryland first-degree assault conviction (something the jury already
knew). The court concluded, and we agree, that this proposal would have done
nothing to undermine his testimony that he “would never” intend to kill; only the
facts underlying the conviction would have responded to that claim with adequate
concreteness. In a case that turned in large part on whether the jury believed
appellant’s claim of self-defense, we are persuaded that allowing some evidence that
was directly impeaching appellant’s truthfulness on this point “promised more than
22
enough of a contribution to the cause of truth to outweigh the attendant risk[]” 21 that
the jury would draw an improper propensity inference, a risk the trial court
significantly minimized in three ways. 22
First, the court curtailed the extent to which the government could cross-
examine appellant about the facts underlying his Maryland assault conviction. The
government was able to elicit only that appellant stabbed the victim in that assault
multiple times with a knife. 23 The jury did not hear the gruesome details of the
21
(Rudolph) Johnson v. United States, 373 A.2d 596, 599 (D.C. 1977).
22
Appellant now suggests that the trial court could have considered another
remedy in lieu of allowing the government to bring out the facts of his prior
conviction. He argues that striking his answer and directing the jury to disregard it
would have sufficed to eliminate any prejudice to the government and would have
caused him none. But appellant never proposed to the trial court that it strike his
testimony; nor did the government. Whether appellant would have agreed to or
opposed such a remedy had it been suggested is unknown.
23
By eliciting that appellant had stabbed the victim “multiple times,” the
prosecutor exceeded the literal limits the court imposed on cross-examination of
appellant about his Maryland conviction (“[j]ust simply the nature of the conviction
and the fact there was a knife involved”). Appellant did not object to that arguable
transgression in the trial court, and he has not made it part of his claim of error on
appeal. Nor did the trial court indicate a view that the prosecutor had gone beyond
what it had meant to allow. In this sensitive area, it would have been appropriate for
the prosecutor to have cleared the question about “multiple stabbings” with the court
before asking it. That said, we must acknowledge that, for the impeachment to
justify the inference that appellant had intended to kill the victim of his prior assault,
it was important that the jury appreciate that the assault involved multiple stabbings.
23
offense that were surely probative of appellant’s past intent to kill but also more
prejudicial to him. Second, the court precluded the government from discussing
appellant’s prior assault conviction in its closing arguments, recognizing that to
allow otherwise would “run[] too great of a risk that the jury would be considering
that as propensity evidence.” 24
Third, the court instructed and reinstructed the jury not to misuse the evidence
of appellant’s prior assault conviction. 25 We recognize that the jury’s note in this
case revealed uncertainty, on the part of at least one juror, about whether the prior
conviction could be used to draw an improper propensity inference. But the court
emphatically responded to that note by telling the jurors that the prior conviction
was “admitted into evidence solely for [their] consideration in evaluating Mr.
Romero’s credibility as a witness,” and that they “may not consider the prior
24
See Sanders v. United States, 809 A.2d 584, 591-92 (D.C. 2002) (upholding
admission of video evidence that showed defendant brandishing a firearm at his
girlfriend, in an incident unrelated to the charged crime, for the purpose of proving
his possession of a firearm, where the court mitigated the prejudicial impact of that
evidence with limiting instructions and by “restrain[ing]” the government’s reliance
on the evidence in closing argument).
25
See Pitt, 220 A.3d at 967-68 (“readily understood” instruction helped to
“reduce, if not entirely dissipate, the danger of unfair prejudice” of admission of
other crimes evidence (citing Thompson v. United States, 546 A.2d 414, 426 (D.C.
1988))).
24
conviction as establishing a pattern of behavior” and “must not draw . . . an
inference” that the conviction was evidence of appellant’s guilt. “In the absence of
any good reason to suppose otherwise, we presume the jury followed the court’s
direction.” 26
III.
We conclude that appellant opened the door to the admission of evidence of
facts underlying his prior assault conviction to impeach his testimony that he would
never intend to kill somebody. In light of the restrictions the trial court imposed on
the prosecution’s elicitation and use of those facts, and the court’s cautionary
instructions to the jury on its consideration of them, we hold the court did not abuse
its discretion by allowing the government to cross-examine appellant about his
having stabbed the victim of his prior assault multiple times. We affirm appellant’s
conviction for second-degree murder while armed.
26
Furr, 157 A.3d at 1252 (citation omitted).