Blocker v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CF-221
DENZEL BLOCKER, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(CF2-15164-17)
(Hon. Kimberly S. Knowles, Trial Judge)
(Argued February 7, 2020 Decided October 8, 2020)
Denise D. Green for appellant.
Ann M. Carroll, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, Elizabeth Trosman,
Chrisellen R. Kolb, and Ryan Norman, Assistant United States Attorneys, were on
the brief, for appellee.
Before GLICKMAN and EASTERLY, Associate Judges, and FERREN, Senior
Judge.
FERREN, Senior Judge: A jury found appellant Denzel Blocker guilty of
unlawful possession of a firearm by a convicted felon (crime of violence) (FIP), 1
1
D.C. Code §§ 22-4503(a)(1), (b)(1) (2012 Repl.).
2
and possession of an unregistered firearm, 2 ammunition, 3 and a large-capacity
ammunition-feeding device.4 On appeal, Blocker contends that the trial court erred
in relying on his prior robbery conviction to support the FIP charge; admitting the
firearm in evidence; and improperly instructing the jury in several ways. For the
reasons that follow, we affirm Blocker’s convictions, although we remand the
case for resentencing of the FIP conviction consistent with this opinion.
I. Background Facts and Trial Proceedings
According to the government’s evidence, on September 2, 2017,
Metropolitan Police Department (MPD) Officers Nico Scott, Ramon Moe, and
Lojocano,5 assigned to the Narcotics Special Investigation Division (NSID), were
working in the 4500 block of Quarles Street, Northeast. While in the area, Officer
Scott noticed a man later identified as Blocker “ducking” between cars as if to
avoid being seen. Blocker then got into a black Dodge Charger driven by a friend,
2
D.C. Code § 7-2502.01(a) (2018 Repl.).
3
D.C. Code § 7-2506.01(a)(3) (2018 Repl.).
4
D.C. Code § 7-2506.01(b) (2018 Repl.).
5
Officer Lojocano’s first name is not in the record.
3
Deandre Belt, and the car “sped off at a high rate of speed.”6 Approximately ten
minutes later, while scouting the area, Officer Scott spotted the Charger coming
toward him in the 2100 block of Benning Road, Northeast. Officer Scott then
made a U-turn onto the road in front of the oncoming Charger, in order to block it
as his co-workers, driving a marked police car, were pursuing the Charger from
behind, using lights and sirens. Blocked by Officer Scott’s vehicle, the Charger
came to a stop. Blocker jumped out of the front-passenger seat and ran up the hill
leading to the 2300 block of G Street, Northeast.
Officers Scott and Moe ran up the hill after Blocker while other officers
pursued the Charger after it sped off again. While the officers were chasing
Blocker, he ran into a parked car and fell down. As Blocker started to fall, both
officers saw Blocker reach with his right hand into the front of his pants, and
Officer Scott saw him “toss a hard object” away. The officers then heard the
sound of metal hitting and skidding on the pavement. Officers Scott and Moe both
testified that the sound was consistent with the sound of a gun hitting the
pavement. The officers caught up with Blocker, arrested him, and, while doing so,
6
Mr. Belt testified that he picked up Blocker from Blocker’s home to “run
some errands” with him, and that while Mr. Belt was driving, his Charger was
struck from behind by a police car, initiating the chase described below. Mr. Belt
was the only witness that testified to this version of events.
4
both observed a handgun on the pavement within two or three feet from Blocker.
Officer Moe secured the gun.
Trial began on December 12, 2017, and a jury found Blocker guilty on all
counts two days later. On appeal, Blocker seeks reversal of his FIP conviction
(and related charges) on the ground that: (1) the underlying predicate felony,
robbery — on appeal while Blocker was tried and convicted — was later reversed.
He also claims that the trial court erred in four other ways: (2) admitting the gun in
evidence, (3) instructing the jury that the government did not have to provide
forensic evidence to establish guilt, (4) providing other wrong instructions to the
jury, and (5) rejecting Blocker’s request to inform the jury of the defense theory of
the case.
II. Felon In Possession (FIP) Conviction
Blocker offers two arguments in contesting his FIP conviction. First, he
argues that he was entitled to reversal because, after his FIP conviction, we
overturned on appeal the felony (robbery) conviction on which his FIP conviction
had been predicated. Second, Blocker maintains that even if the FIP conviction is
affirmed, it should nonetheless be remanded for resentencing because enhancement
5
no longer was legally justified. Blocker, however, did not object at trial to use of
his robbery conviction to establish an essential element of FIP or as a predicate for
sentencing. Therefore, we review this conviction, including sentencing, for plain
error.7
A. The Conviction
The FIP statute prohibits any person from possessing a firearm if that person
“[h]as been convicted in any court of a crime punishable by imprisonment for a
term exceeding one year[.]”8 At the time of his arrest, Blocker had four felony
convictions: robbery, receiving stolen property (over $1000), unauthorized use of
a vehicle, and destruction of property (over $1000). Moreover, Blocker stipulated
at trial that he had “previously been convicted of a crime punishable by a term of
imprisonment exceeding one year.” Thereafter, Blocker was convicted of FIP and
7
Malloy v. United States, 186 A.3d 802, 814 (D.C. 2018) (permitting
reversal only if there is “[1] ‘error’ that is [2] ‘plain’ (meaning ‘clear’ or
‘obvious’), that [3] ‘affects substantial rights,’ and that, if not corrected, [4] would
result in a ‘miscarriage of justice’ (meaning conviction of an innocent defendant)
or otherwise would ‘seriously affect[ ] the fairness, integrity or public reputation of
judicial proceedings.’” (quoting Wooden v. United States, 6 A.3d 833, 834 n.5
(D.C. 2010) (brackets in original)).
8
§ 22-4503(a)(1).
6
received an enhanced forty-month sentence based on his prior robbery conviction9
then pending on appeal. Approximately six months after he was sentenced in this
case, we reversed his robbery conviction. 10
Blocker asks for reversal of his FIP conviction because the trial court used
his robbery conviction to enhance his sentence, despite the fact that his robbery
conviction, still pending appeal, was not final. The FIP statute, D.C. Code § 22-
4503(a)(1), prohibits a person from possessing a firearm if that individual “[h]as
been convicted in any court of a crime punishable by imprisonment for a term
exceeding one year”; 11 it does not require prior conviction of a crime of violence,
such as robbery. Putting aside his robbery conviction, we note that Blocker had
been convicted of three non-violent felonies, each of which could have been used
to meet the FIP requirement of a prior felony conviction. Moreover, the indictment
itself does not specify that Blocker had been convicted of a violent felony; it stated
9
See infra Section II.B.
10
Blocker, et. al. v. United States, No. 16-CF-388, Mem. Op. & J. (D.C.
Aug. 21, 2018).
11
§ 22-4503 (a)(1) (emphasis added).
7
only that he had been convicted of “a crime.”12 Finally, the jury did not know that
Blocker had been convicted of a robbery; it knew only that he had stipulated to
conviction of “a crime punishable by a term of imprisonment exceeding one year.”
Accordingly, because any of Blocker’s other three felonies would have satisfied
the FIP requirement, the fact that his robbery conviction was reversed does not
change the ultimate outcome; Blocker was not erroneously convicted of FIP —
given that his sentence had not otherwise been contested at trial.
B. The Sentence
Blocker argues that if his FIP conviction is affirmed, he is nonetheless
entitled to a remand for resentencing because his invalid robbery conviction had
been used to justify an “illegal” sentence.
The FIP statute states that a person who violates subsection (a)(1):
shall be sentenced to imprisonment for not more than 10
years and shall be sentenced to imprisonment for a
mandatory-minimum term of 1 year, unless she or he has
12
The indictment charges: “On or about September 2, 2017, . . . Denzel
Blocker, previously having been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year, owned, kept, and had within his
possession and control, a firearm.” Mistakenly, Blocker states in his reply brief
that “[t]he indictment and Information in this case reference a ‘crime of violence.’”
8
a prior conviction for a crime of violence other than
conspiracy, in which case she or he shall be sentenced to
imprisonment for not more than 15 years and shall be
sentenced to a mandatory-minimum term of 3 years.13
Following the jury’s guilty finding, the trial court used Blocker’s prior robbery
conviction to sentence Blocker to an enhanced forty months. At the time of
sentencing, this was not necessarily erroneous. We had not yet reversed his
robbery conviction; Blocker therefore still had “a prior conviction for a crime of
violence other than conspiracy,”14 and the trial court understandably considered
itself required (absent objection to the contrary) to sentence Blocker, at the very
least, to the mandatory minimum of three years.
Blocker claims, however, that even if we do “not reverse,” he is entitled to
resentencing because (1) “the underlying predicate felony, robbery, was reversed
on direct appeal,” and (2) “the sentencing court considered a prior invalid
conviction, robbery, that was unconstitutionally secured.”
13
§ 22-4503(b)(1) (emphasis added).
14
Id.
9
Blocker offers no convincing authority, and elaborates no further rationale,
establishing his ultimate argument that his FIP conviction had been
“unconstitutionally secured.”15 His lesser, more elaborate argument is a statutory
contention that, to justify an enhanced sentence based on a “prior conviction for a
crime of violence,” the FIP statute presupposes reliance on a prior “final”
conviction. According to Blocker, FIP “cannot be interpreted” to permit
enhancement of sentences for “persons whose predicate convictions have been
vacated or reversed on appeal” or — like Blocker’s robbery conviction — were
“pending direct review” when employed to enhance a sentence. The federal cases
on which Blocker relies, however, expressly requiring finality of a prior conviction
15
In making his constitutional claim, Blocker cites only one case: an
Illinois intermediate appellate court decision reversing a conviction predicated on a
sentence enhancement derived from a pending conviction later vacated as
unconstitutional. See People v. Cavette, 118 N.E.3d 699 (Ill. App. Ct. 2018). This
non-binding decision from Illinois is inapposite. The predicate felony in Cavette
was based on a statute that was declared “facially unconstitutional,” id. at 703-06,
and therefore the predicate felony conviction was void at the outset. Here,
however, Blocker’s robbery conviction was reversed because of misjoinder, not a
constitutional deficiency with the statute. Finally, in his reply brief, Blocker states
that the constitutional violations he has in mind are the Fifth Amendment right to
due process and the Sixth Amendment right to a fair trial. He offers no supportive
reasoning, however, and we perceive none.
10
under differently worded felon-in-possession statutes, provide no guidance as to
how our FIP statute must be read. 16
In any event, we need not resolve Blocker’s FIP contention because he
offers still another argument for resentencing that we find persuasive: the trial
court failed to follow a mandatory sentencing procedure. He stresses that, when
considering a sentence enhancement, the prosecutor must file an “information”
pursuant to D.C. Code § 23-111(a)(1) (2012 Repl.) stating “in writing the previous
convictions to be relied on,” and then must serve a copy on the defendant or
counsel. Thereafter, the trial court, “before pronouncement of sentence,” must also
satisfy two requirements pursuant to § 23-111(b): [1] ask the defendant “whether
he affirms or denies” the convictions “alleged in the information,” and [2] inform
the defendant that “any challenge to a previous conviction which is not made
before sentence is imposed may not thereafter be raised to attack the sentence.”
16
See, e.g., United States v. Lippner, 676 F.2d 456, 466-67 (11th Cir. 1982)
(interpreting enhancement provision of 21 U.S.C. § 841(b)(1)(A), mandating
additional penalties where the defendant commits a federal drug offense “after one
or more prior [federal drug law] convictions . . . have become final” and holding
that the words “have become final” requires exhaustion of “all avenues of direct
attack”) (emphasis added); United States v. Meraz, 998 F.2d 182, 184 (3d Cir.
1993) (same); Williams v. United States, 651 F.2d 648 (9th Cir. 1981) (same;
holding exhaustion of appellate remedies includes petitions for writ of certiorari);
United States v. Allen, 566 F.2d 1193, 1195 (3d Cir. 1977) (holding “final”
language in statute meant conviction was not subject to direct appellate review).
11
Blocker maintains that the court failed to satisfy these two requirements and that its
failure to do so entitles him “to have his case remanded for re-sentencing.”17
The government responds to Blocker’s resentencing demand by arguing that
Blocker had failed to “object to the use of his robbery conviction” for enhancement
of his sentence, had “not shown good cause for his failure” to do so, and thus has
“waived” the argument. The government premises waiver on an alleged
“stipulation at trial that satisfied the prior-conviction element” and, further, on an
“explicit agreement at sentencing that the enhanced mandatory-minimum term
applied.” The government does not elaborate its support for this vague waiver
argument beyond reliance on the court-initiated colloquy with counsel immediately
before sentencing: “Mr. Blocker has a prior crime of violence. So . . . his
guideline range is 30 to 72 months, but there is a 36 month mandatory minimum.
Do both counsel agree with those calculations?” Both counsel replied “yes.”
17
Blocker did not expressly make his § 23-111(b) argument until his reply
brief. However, by his citing § 23-111 generally in his opening brief, the
government’s response citing § 23-111 (a) and (c) in its brief, and the
government’s apparently basing its waiver argument on § 23-111(b), we are
satisfied that the government was fully aware of, and responded to, all applicable
provisions of § 23-111. Thus, we need not penalize Blocker for failing to raise
§ 23-111(b) in his opening brief. Cf. Stockard v. Moss, 706 A.2d 561, 566 (D.C.
1997) (“It is the longstanding policy of this court not to consider arguments raised
for the first time in a reply brief.”).
12
Whatever ground this colloquy was intended to cover — and we assume that
the government intended the colloquy to satisfy § 23-111(b) or to waive it — that
colloquy did not track the language of § 23-111(b). And in any event, even if the
colloquy could be interpreted to have covered the first requirement (asking Blocker
to affirm or deny a qualifying previous conviction), it stretches the discussion too
far to say that the court satisfied the second requirement: to inform Blocker that
any “challenge to a previous conviction” must be made “before sentence,”
otherwise an “attack” thereafter would be foreclosed. Contrary to the
government’s argument, therefore, we cannot say for sure that a “stipulation” or
“explicit agreement” at sentencing satisfied the trial court’s § 23-111(b) obligation.
When it comes to sentence enhancement, § 23-111(b) imposes an initial
burden on the trial court, not on the defendant, to announce and establish the
ground rules for a defense challenge. We emphasized this allocation of
responsibility in Sanders: “Because enhanced sentencing involves imprisonment
for extended periods of time, we have repeatedly mandated strict compliance with
the procedures set forth in the [D.C.] code.”18 We also stressed in Sanders that
“the ‘touchstone’ of judicial compliance with § 23-111 is notice to the
18
Sanders v. United States, 809 A.2d 584, 601 (D.C. 2002) (quoting
Boswell v. United States, 511 A.2d 29, 31 (D.C. 1986)).
13
defendant.”19 But we added that, even “when such notice is given,” harmless error,
precluding “remand for resentencing,” is limited to “technical violations.” 20 It may
be true here that both the court and the parties (represented by well informed
counsel) had in mind, as the government puts it, that Blocker stipulated away any
§ 23-111(b) argument. But it is equally possible, indeed more likely, that the
important purpose of that two-pronged provision was unfulfilled, especially the
required warning about the time limitation on any further “attack” on the enhanced
sentence. No mere technical violation is at issue here. We therefore must remand
the case for resentencing premised on reversal of the unlawful robbery conviction
that underlay Blocker’s enhanced sentence.
III. Admission of the Handgun in Evidence
Blocker next claims that the trial court erred by admitting the handgun in
evidence because “the government failed to prove beyond a reasonable doubt” that
it “was the same gun allegedly recovered from the crime scene[.]” The trial court
has broad discretion in determining the admissibility of physical evidence, which
19
Id.
20
Id. (quoting Logan v. United States, 591 A.2d 850, 852 (D.C. 1991)).
14
we review for abuse of discretion. 21 “[W]hen physical evidence is in the hands of
the government, the presumption arises that it has been handled properly.” 22
Moreover, any gaps in the chain of custody “normally go to the weight of the
evidence rather than its admissibility.”23 Furthermore, “once the government has
established an unbroken chain of custody as a matter of reasonable probability,
[the] defendant must present evidence that the police tampered with or otherwise
mishandled the evidence in order to succeed with his challenge.” 24
Here, the trial court did not abuse its discretion by admitting the handgun in
evidence; the government established an unbroken chain of custody. First, Officer
Scott testified that, as he was arresting Blocker on September 2, 2017, he
“observed in plain view a black handgun” on the pavement near Blocker. Officer
Moe, who arrived seconds after Officer Scott to help arrest Blocker, also testified
that he had seen the gun next to Blocker.
21
See Wonson v. United States, 144 A.3d 1, 3 (D.C. 2016); Brooks v.
United States, 993 A.2d 1090, 1094 (D.C. 2010).
22
Plummer v. United States, 43 A.3d 260, 272 (D.C. 2012) (internal
quotation marks and citation omitted).
23
Brooks, 993 A.2d at 1094 (quoting Melendez-Diaz v. Massachusetts, 557
U.S. 305, 311 n.1 (2009) (internal quotation marks omitted)).
24
Plummer, 43 A.3d at 272 (internal quotation marks and citation omitted).
15
Second, Officer Scott testified that the gun “was secured” and “taken back to
our branch where it was processed by the crime scene technician.” Officer Moe
expanded on this testimony, stating that he had taken a picture of the gun at the
scene of Blocker’s arrest and placed the gun in a paper bag to preserve the
evidence. Officer Moe then took the gun in the bag to the NSID25 at the 2850 New
York Avenue, Northeast station, where Officers Scott and Lojocano were present.
Moe believed that the gun was transferred over to “mobile crime,” which had
“responded to the scene” (meaning the station) “to recover the weapon.”
Third, Officer Johnson, a crime scene technician, testified that he was the
one who had gone to the “narcotics office” on September 2 to retrieve the handgun.
He further testified that Officer Lojocano had “brought out a 45 caliber weapon to
me and I recovered it from him.” Officer Johnson also testified that he had placed
the gun in an “evidence envelope” marked with his name, badge number, and the
location where the gun was originally recovered — in this case, the 2300 block of
G Street, Northeast. He then took the gun “back to [his] lab[,] . . . placed [the gun]
in a property envelope, seal[ed] it, and forward[ed] it to the firearms examination
section.” Finally, Officer Johnson confirmed in court that the gun the government
25
Narcotics Special Investigation Division.
16
offered in evidence was the gun he had retrieved from the NSID on September 2,
2017.
Taken together, the steps to which these three officers testified established a
reasonable probability26 that the gun found next to Blocker was the same gun
introduced in court. Indeed, there was eyewitness testimony confirming each of
the four steps specified above. Presumably, Officer Lojocano also could have been
called to testify that he had given the gun to Officer Johnson. But, in light of the
eyewitness testimony confirming Officer Lojocano’s actions, his testimony was
unnecessary to establishing the chain of custody. As we have said, “[t]o provide
sufficient proof, the government need not ‘call to the stand every witness who may
have handled a piece of evidence[.]’”27
In light of the forgoing testimony, and as Blocker has not shown credible
evidence that the gun was tampered with or otherwise mishandled, Blocker has not
26
See supra note 24 and accompanying text.
27
Wonson, 144 A.3d at 14 (Easterly, J., concurring) (quoting United States
v. Mejia, 597 F.3d 1329, 1335 n.4 (D.C. Cir. 2010)).
17
rebutted the presumption that the government properly handled the evidence. 28
There was no error in admission of the handgun.
IV. Jury Instructions
Blocker makes several arguments alleging trial court error when instructing
the jury. If the defense objects to a jury instruction at trial, we review the trial
court’s ruling for abuse of discretion.29 The “central question for this court is
whether [the instruction] is an adequate statement of the law, and whether it is
supported by evidence in the case.”30 Absent objection to the instruction, “a
conviction may be reversed only for plain error.”31
28
See Plummer, 43 A.3d at 272.
29
Koonce v. District of Columbia, 111 A.3d 1009, 1022 (D.C. 2015)
(internal quotation marks and citations omitted).
30
Graham v. United States, 12 A.3d 1159, 1166 (D.C. 2011) (internal
quotation marks and citations omitted).
31
McClain v United States, 871 A.2d 1185, 1192 (D.C. 2005) (internal
quotation marks and citations omitted); see also Super. Ct. Crim. R. 30; supra
notes 7 & 8.
18
A. The DNA Evidence Instruction
Blocker contends that the trial court erred when instructing the jury that the
government was not required to present scientific evidence, such as DNA or
fingerprints, in order to prove its case (the “no duty” instruction). During voir dire,
the trial court explained to the venire that the court would “be instructing the jury
that in a criminal trial there is no requirement that the [g]overnment present
forensic or scientific evidence such as DNA or fingerprints in order for them to
meet their burden. They still have the burden beyond a reasonable doubt.” Later,
the trial court read to the empaneled jury the final instructions before closing
arguments, again saying “[t]here is no requirement that the [g]overnment present
forensic or scientific evidence, such as DNA evidence or fingerprints[,] in order to
prove their case.” The court added that “[f]orensic evidence or the lack thereof is a
factor that the jury may consider in making its determination.” 32 Blocker
challenges both “no duty” instructions.
32
There is a dispute as to whether defense counsel preserved his objection
to the trial court’s “no duty” voir dire instruction. We need not decide whether
that objection was preserved, however, because we conclude that both of the trial
court’s “no duty” instructions were harmless error, as explained below.
19
We agree that the trial court erred when including the “no duty” instruction
during voir dire and in final instructions to the jury, because nothing the defense
had done triggered any legitimate need for those instructions favorable to the
government. The purpose of the “no duty” instruction is “to counter an inference,”
unfairly favorable to the defense, that scientific evidence which “could have been
— but was not — collected and presented to the jury” by the prosecution “would
have undermined the government's case or been favorable to the defense.”33 Thus,
for the corrective instruction to be relevant, “there must have been evidence that
the police failed to gather available [forensic] evidence or defense argument to that
effect.”34 Such evidence, unfavorable to the government, was not introduced here.
Officer Johnson testified that the handgun had been sent for forensic testing.
But instead of arguing that the police deliberately or negligently failed to test the
gun for fingerprints or DNA, counsel’s closing argument for Blocker used the mere
absence of fingerprint or DNA evidence to Blocker’s advantage. It focused the
jury’s attention on “a gun that [the government had] no DNA match from, no
fingerprint match, no other type of forensic evidence that puts the gun in Mr.
33
Wheeler v. United States, 930 A.2d 232, 238 (D.C. 2007).
34
Id. at 238; see also Brown v. United States, 881 A.2d 586, 594 (D.C.
2005).
20
Blocker's hand or against his skin.” Accordingly, without any claim of
government deficiency, “there was no need for an instruction to counter an
unfounded inference” of government neglect.35 Thus, by giving the “no duty”
instruction — that the government had “no requirement [to] present forensic or
scientific evidence” — the trial court ran the risk of confusing the jury by
undermining the ultimate, overall instruction that “reasonable doubt” can be found
“based upon the evidence or the lack of evidence in the case.”36 In doing so, the
trial court erred.
We conclude, however, that the error was harmless. Both while cross-
examining Officer Johnson and later during closing argument, Blocker emphasized
to the jury that the government did not produce forensic evidence tying Blocker to
the handgun. These tactics supported Blocker’s main argument that the gun was
not his. For that reason we are confident that the “no duty” instruction “did not
undermine the defense[,] because defense counsel was able to argue that the lack
of corroborative evidence weakened the government’s case.”37 Nor did the
government compound the error in closing; it did not remind the jury that the
35
Wheeler, 930 A.2d at 239.
36
Id. (internal quotation marks and citation omitted).
37
Brown, 881 A.2d at 595.
21
government had no duty to produce forensic evidence of Blocker’s guilt.38 Under
these circumstances, the “no duty” instructions were unlikely to have “substantially
swayed” the jury’s judgment of guilt.39 Therefore, the trial court’s error was
harmless.
B. The Proposed “Defense Theory” Instruction
Blocker next argues that the trial court erroneously denied his request to
include a defense theory of the case in the jury instructions. The court asked
Blocker if he wanted to include a defense theory in the instructions, to which
Blocker’s counsel replied: “Some judges don’t allow this, but the defense theory
would be that — the defense theory is that the Government has not proved their
case beyond a reasonable doubt.” The trial court responded: “I think I fall into the
category of those [judges] who don’t allow that. If it’s a factual thing, I think the
defense theory of the case is really supposed to be facts. But just that they haven’t
proven their case, that’s something obviously you can argue.”
38
See id.
39
Id.; see also McFerguson v. United States, 870 A.2d 1199, 1205 (D.C.
2005).
22
“[A] defendant is entitled to an instruction as to any recognized defense for
which there exists evidence sufficient for a reasonable jury to find in his favor.” 40
However, “a trial judge . . . retains discretion to decide the form and wording of the
instruction.”41 Moreover, “[a]s a general rule, the refusal to give an instruction
requested by a defendant is reversible error only if the instruction . . . was not
substantially covered in the charge actually delivered to the jury[.]” 42 Furthermore,
“[i]n determining whether an instruction is erroneous, we view the instructions
given to the jury as a whole.”43 Because Blocker did not object to the trial court’s
denial of his proposed defense-theory instruction, we review the claim for plain
error.44
Although the instruction was not expressly included, as such, in the trial
court’s final instructions to the jury, those instructions reminded the jury numerous
times that the government had to prove Blocker’s guilt beyond a reasonable doubt.
40
Holloway v. United States, 25 A.3d 898, 902 n.6 (D.C. 2011) (quoting
Mathews v. United States, 485 U.S. 58, 63 (1988)).
41
Id. at 903 (internal quotation marks and citations omitted).
42
Id.
43
Wheeler, 930 A.2d at 244 (internal citation omitted).
44
See supra notes 7 & 8 and accompanying text.
23
Because the substance of Blocker’s requested instruction was “substantially
covered in the charge actually delivered to the jury,” the trial court did not err in
denying Blocker’s request. 45
C. Closing Argument
Blocker alleges prosecutorial misconduct in the government’s closing
argument, when the prosecutor: (1) posited that defense counsel might suggest, in
closing, that the police had planted the gun, and then (2) proceeded to rebut that
theory. Blocker argues that the prosecutor “creat[ed] his own defense theory of the
case” with “no evidentiary basis,” and then refuted it, forcing defense counsel “to
rebut the prosecutor’s claim.” Whereupon, says Blocker, to his severe prejudice,
“the prosecutor challenged defense counsel’s integrity and proposed that defense
counsel was lying to the jury when defense counsel claimed his defense was not a
‘police plant.’” The question, then, is whether the prosecutor’s gun-planting
intimations amounted to misconduct.
45
Blades v. United States, 200 A.3d 230, 243 (D.C. 2019); see also Gray v.
United States, 549 A.2d 347, 351 (D.C. 1988) (“When we have rejected a claim
that a certain defense-requested instruction should have been given, we have done
so . . . because the instructions which the court actually gave adequately presented
the defense theory. . . .”).
24
“When evaluating a claim of improper prosecutorial argument, we first
determine whether or not the challenged argument was improper.”46 If the
argument was improper, “we then determine whether or not reversal is warranted,
considering: (1) the gravity of the improper comments; (2) their relationship to the
issue of guilt; (3) the effect of any corrective action by the trial judge; and (4) the
strength of the government's case.”47 As there was no objection at trial, we again
review Blocker’s contention for plain error. 48 We find none here.
In his own closing in response to the prosecutor, defense counsel denied he
was arguing that the gun had been planted; he argued instead that someone else
may have seen the police chasing Blocker and tossed the gun onto the ground.
Alternatively, he added:
So you’ve got this fairly heavy sharp edged object that
the police want you to believe he pulled from his pants
and threw to the ground. I’m not going to suggest that the
police officer planted that gun there but I’m going to say
to you when evaluating the credibility of the police just
remember they have a job to do. They’re looking for
guns.”
46
Blades, 200 A.3d at 243 (internal quotation marks and citation omitted).
47
Id.
48
See supra notes 7 & 8 and accompanying text.
25
Thereafter, in his rebuttal closing argument, the prosecutor responded to counsel’s
intimation of police culpability by taking the jury through the evidence to show
that no one else was in the vicinity of the police and Blocker. Referencing video
footage from the “body worn camera” on a police officer, the prosecutor
emphasized that there was “no one else around” when the police were chasing and
arresting Blocker, and that by process of elimination “the defense actually is saying
that the police planted that gun.”
A prosecutor is limited to making “reasonable comments on the evidence”
and to urging only “such inferences from the testimony as will support the theory
of the [government’s] case.”49 Arguably, therefore, the prosecutor may have
overreached in speculating before the jury that Blocker might be arguing that the
police had planted the gun at the scene of arrest — probably a speculation that
defense counsel could not reasonably have ignored in his rebuttal (“The police . . .
have a job to do. They’re looking for guns”), followed by the government’s
prejudicial response. On the other hand, there was no objection to the prosecutor’s
argument, and we cannot say there was plain error, if only because the
49
Turner v. United States, 26 A.3d 738, 743 (D.C. 2011) (internal quotation
marks and citations omitted).
26
government’s case undoubtedly was strong and the prosecutor’s argument was
nothing close to a grave impropriety on this record. 50
D. The Impeachment Instruction
Finally, Blocker contends that the trial court improperly delivered to the jury
the written instruction for impeachment by a prior criminal offense of a testifying
defendant (“impeachment by crime — defendant”) rather than the written
instruction for impeachment by a prior criminal offense of a testifying witness
(“impeachment by crime — witness”). The parties stipulated as to Blocker’s prior
conviction for purposes of the FIP statute, but Blocker argues that the erroneous,
written instruction allowed the jury to use this stipulation to evaluate his — the
“defendant[’s]” — credibility or to “improperly infer he was in possession of a
weapon.” The government deflects the argument by disputing that the instructions
included in the record on appeal were the actual instructions given to the jury.
Because Blocker acknowledges that he did not object at trial, we review for plain
error.51
50
See text accompanying supra note 47.
51
See supra notes 7 & 8 and accompanying text.
27
We need not decide whether the trial court erred by providing the wrong
instruction to the jury, for even if there was error it was not “plain error.” Before
jury deliberations began, the trial court correctly read to the jury the “impeachment
by crime — witness” instruction as it related to Blocker’s witness. During
deliberations, the jury never sent a note to the judge indicating confusion over the
instructions. Most importantly, Blocker never took the stand, a fact the trial court
reminded the jury of while reading the instructions. Indeed, if the written
“impeachment by crime — defendant” instruction was accidentally given to the
jury during deliberations, the very terms of that instruction precluded the jury from
considering it because the instruction would apply only in evaluating Blocker’s
“credibility as a witness” — which he was not. “We recognize, as we have
repeatedly said, that jurors are presumed to follow instructions.” 52 Accordingly,
we conclude that any potential trial court error attributable to inclusion of the
instruction was not “plainly” so, and in any event surely did not affect Blocker’s
“substantial rights.”53
52
Tann v. United States, 127 A.3d 400, 459 (D.C. 2015).
53
See Malloy 186 A.3d at 802.
28
*****
For the foregoing reasons, Blocker’s convictions are affirmed, although we
remand the case for resentencing of the FIP conviction consistent with this opinion.
So ordered.