Jeremiah Gray v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 10-CF-1466

JEREMIAH GRAY, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF3-4556-10)

(Hon. Ann O‟Regan Keary, Trial Judge)

(Argued May 15, 2013 Decided November 7, 2013)

Shilpa S. Satoskar, Public Defender Service, with whom James Klein and

Samia Fam, Public Defender Service, were on the brief, for appellant.

John P. Gidez, Assistant United States Attorney, with whom Ronald C.

Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello,

and Emily Miller, Assistant United States Attorneys, were on the brief, for

appellee.

Before FISHER and THOMPSON, Associate Judges, and WAGNER, Senior

Judge.

Opinion for the court by Associate Judge THOMPSON.

Opinion by Senior Judge WAGNER, concurring in part and dissenting in part,

at page 34.

2

THOMPSON, Associate Judge: A jury found appellant Jeremiah Gray guilty

of two counts of armed robbery and two counts of possession of a firearm during a

crime of violence (“PFCV”). On appeal, appellant contends that the trial court (1)

abused its discretion when it precluded him from presenting expert testimony about

factors that affect the reliability of eyewitness identifications, and (2) abused its

discretion in responding to a juror note about aiding and abetting liability by doing

no more than re-reading in their entirety the aiding and abetting instructions the

jury had already heard (and inviting the jury to send another, more specific note if

it had additional questions). Although we appreciate that the court chose to

respond to the juror note in this way to avoid intruding into the jury‟s deliberations,

we are persuaded that the response was not adequate to dispel the confusion the

juror note revealed. Because we are unable to conclude beyond a reasonable doubt

that the inadequate response was harmless, we reverse.

I.

At trial, the government presented evidence that on March 14, 2010, around

3:00 a.m., Kevin Stevenson and Jonathan Gardner were leaving a nightclub and

were en route to Stevenson‟s car, which Stevenson had parked near 14th and S

3

Streets, N.W. After Stevenson got into the car, and as Gardner was reaching to

open the passenger-side door, two men wearing hoods approached Gardner with

their guns drawn. Gardner testified that the two men robbed him of his cell phone,

driver‟s license, keys, ring, earrings, necklace, and a pendant. One of the robbers

hit Gardner in the face with a gun, causing severe facial and dental injuries.1 An

unidentified third man approached Stevenson‟s car door and robbed Stevenson at

gunpoint of several items (his wallet, cell phone, identification, and bank cards).

Stevenson testified that all three robbers had silver handguns.

Just after the robbers fled, Stevenson flagged down Metropolitan Police

Department (“MPD”) Officer John Terry. Officer Terry testified that Stevenson

told him that “three black males in black jackets [who] all had handguns” had just

robbed him, and that the robbers were running south on 14th Street.2 Driving in

his police cruiser, Officer Terry canvassed the area looking for suspects.

“[A]round 40 to 45 seconds” later, near the corner of 14th and R Streets, N.W.,

1

Gardner‟s two front teeth were cracked, and Stevenson could “actually see

a little bit of the bone coming out of his nose almost.”

2

Officer Terry testified that he had no description of the height, weight,

build, age, complexion, or hairstyle of the assailants before he stopped appellant

and Tate. On days after the robbery, Stevenson and Gardner gave police additional

descriptors, but the defense emphasized that this was after the two victims had

discussed with each other which individual they had “picked at the police lineup.”

4

about a “block and a quarter” from where Stevenson had flagged him down,

Officer Terry saw appellant and Frank Tate, who matched the description

Stevenson had given.3 When Officer Terry activated his police lights, appellant

and Tate “looked back . . . and started running.” Officer Terry followed them and,

about 15 seconds after initially seeing them (and after briefly losing sight of them),

caught up with them outside a house at 1432½ Q Street. Tate was standing at the

top of the steps to the house, holding his hand in a fist as if he were knocking on

the door. (The resident of the house testified at trial, however, that he did not

know Tate or appellant and was not expecting anyone that night.) Appellant was

standing at the base of the steps. Both Tate and appellant were wearing “puffy

black coat[s].” Officer Terry conducted a pat-down search of both men for

weapons (but found none), and then handcuffed and detained them for a show-up

identification procedure.

3

Officer Terry testified that he saw no one else on the street. It had been

raining heavily, and it was still raining as Stevenson and Gardner walked to their

car and when officers canvassed the area looking for proceeds of the robbery.

5

At the time of the show-up procedure, Gardner “was bleeding profusely and

appeared to be in a lot of pain” and was “very upset.”4 Seated in separate police

vehicles, Stevenson and Gardner both positively identified appellant and Tate as

the persons who committed the robbery. Stevenson testified that on a scale of 1 to

10, he was “a 10 being sure” of his identification that night. Police searched the

area, but recovered no guns or proceeds of the robbery. Later, at the police station,

the officers searched appellant and Tate. Nothing was recovered from appellant,

but officers found in Tate‟s possession Gardner‟s keys, driver‟s license, chain, and

pendant.5 Clinton Hall, an MPD fingerprint specialist, testified that he reviewed

several latent prints lifted from Stevenson‟s car and that none of the usable prints

matched either appellant‟s or Tate‟s fingerprints.

4

Gardner acknowledged that he was “dizzy” after the incident and so

“shaken up” by it that, for a second, he did not remember “where he stayed.” He

also acknowledged that he had been drinking prior to the robbery and was a little

“buzzed” when it occurred. He identified appellant in court (saying that appellant

“was there”), but testified that at the time of the show-up identification, he was

focused on getting medical help and did not know whether he was shown one or

two people during the identification procedure. He testified that he made his

identification(s) during the show-up procedure because he “got a jolt, like, that‟s

him” and based on “gut feeling. I mean, I‟ve seen his face, clothes. I mean, you

know when somebody just did something to you.”

5

Police also recovered from Tate‟s cell phone a photo, taken on the day of

the robbery, of Tate holding a silver handgun.

6

On March 31, 2010, approximately two weeks after the robbery, Stevenson

and Gardner attended a line-up at police headquarters that included an individual

who police suspected was the third robber (as well as five police officers serving as

“fillers”). Neither Gardner nor Stevenson identified that suspect as the robber;

instead, both selected an MPD officer who stood in the line-up as number 14.

Stevenson, who testified that he thought number 14 was one of the individuals he

had identified during the show-up identification conducted on the night of the

robbery, said that on a scale of 1 to 10, he was “a 9 as to the certainty of the

identification [he] made.” Gardner told the prosecutor that he was “sure that . . .

number 14 is one of the persons who robbed me.” He explained at trial that during

most of the robbery, which lasted about two or three minutes, he was down on his

knees, facing forward, not looking “in anybody‟s face.” Stevenson explained that

he “couldn‟t really look at” the robber who had the gun in his face because he

“didn‟t want to turn around and be looking down the barrel of a gun.”

Before trial, appellant, whose defense theory was mistaken identification,

had notified the government of his intent to call Dr. Steven Penrod as an expert

witness to testify about several factors adversely affecting the reliability of

eyewitness identifications, including (as relevant to appellant‟s arguments on

appeal) the effects of “high stress or fear” and “the presence of a weapon during

7

the commission of a crime” (“weapon focus”) and the correlation between an

eyewitness‟s expressed confidence in an identification and the accuracy of the

identification. The trial court held a lengthy hearing on the expert-testimony issue.

Concluding that the proffered testimony would not address matters beyond the ken

of the jury and would not aid the jury, the court granted the government‟s motion

to exclude Dr. Penrod‟s testimony.

As part of its instructions to the jury following the parties‟ closing

arguments, the court included an aiding and abetting instruction. The jury was

given a written copy of the instructions when it retired to deliberate. During the

jury‟s deliberations, one of the jurors (not the foreperson) sent a note asking, “[f]or

someone to be found guilty of aiding and abetting an armed robbery and

possession of a firearm during a crime of violence or dangerous crime, do they

have to have participated at the time of the crime, or could they have participated

after the crime occurred?” After a discussion with counsel, and over defense

counsel‟s objection, the court responded to the note by rereading the aiding and

abetting instruction it had given before the jury retired to deliberate and advising

the jury that if it had additional questions, it should “go back and attempt to specify

a little bit more particularly what you‟re asking.”

8

Shortly after receiving the court‟s response to a second jury note (described

infra), the jury returned its verdicts convicting appellants of two counts of armed

robbery and two counts of PFCV. Before sentencing,6 appellant filed a motion for

a new trial on the basis of newly discovered information, viz. a statement by Tate

(who had pled guilty before trial) that appellant was not involved in the robbery.7

During the proceeding at which the trial court considered (and denied 8) that

motion, appellant‟s trial counsel told the court that the jury had “in essence

rejected the identifications of . . . Mr. Gardner and Mr. Stevenson when they

started asking questions by way of [the first] jury note.” Counsel argued that the

jury “had seen beyond the identifications and they had acknowledged that the

6

The court sentenced appellant to a total of 132 months‟ imprisonment.

7

Attached to the new-trial motion was a letter from Tate stating that he

committed the offenses with two other individuals (“Jamal Bell and his friend

P.J.”) and then ran into appellant on R Street after the incident occurred, but that

his counsel earlier had not permitted him to speak to appellant‟s counsel about the

matter. In opposing the new-trial motion, the government pointed out discrepancy

between the account Tate offered in his letter and the account he gave during his

plea proceeding and in connection with a Youth Rehabilitation Act study and a

pre-sentence report, and the discrepancy between Tate‟s explanation in his letter

about where he ran into appellant and appellant‟s statement to a detective

regarding the same.

8

The trial court denied the motion on the grounds that the “conspicuous

absence of [Tate‟s] offering that information and then his voluntarily coming forth

for the first time in a letter after Mr. Gray is convicted . . . will have no weight with

the jury” and that “jurors would reasonably look at Mr. Tate . . . as having nothing

to lose by falsely exonerating Mr. Gray.”

9

identifications were not reliable and in essence chose not to rely on the

identifications. . . . [T]hey went on to ask well, if Mr. Gray is not involved in the

actual robbery could he still be convicted of these offenses under a theory of aiding

and abetting if he acted after the fact.”

II.

Appellant argues that he is entitled to reversal of his convictions on the

grounds that the trial court (1) abused its discretion in precluding the testimony by

Dr. Penrod and (2) failed to explain to the jury, in response to the first jury note,

that aiding and abetting liability cannot be based on a defendant‟s conduct after a

completed crime. We address these arguments in turn.

III.

When ruling from the bench on the government‟s motion in limine to

exclude the proposed expert testimony, the trial court noted that in previous cases

it had admitted and heard Dr. Penrod‟s testimony about factors affecting the

reliability of eyewitness identifications. The court acknowledged Dr. Penrod‟s

10

qualifications, recognized that expert testimony on the reliability of eyewitness

testimony is helpful to the jury in some cases, expressed its understanding that a

trial court‟s decision whether to allow an expert to testify is a discretionary

decision that must be made on a case-by-case basis, gave “individualized

consideration to the defense‟s proffer in the context of the facts in this case,”9 and,

applying the Dyas factors that govern the admission of expert testimony in this

jurisdiction,10 explained at length its conclusion that Dr. Penrod‟s testimony should

be excluded. Summarized briefly, the court‟s reasoning was that Dr. Penrod‟s

testimony “should not be admitted because it [would] not assist the jury and

[might], in fact, distract them from the more probative evidence, some favoring

validity of identification and some undermining identification evidence[,] which

counsel will be presenting” (much of which the court had already heard during an

August 30-31 hearing on appellant‟s and Tate‟s motions to suppress the show-up

identifications and statements to police).

The court also remarked that “[t]he fact that people who profess a great

degree of confidence aren‟t necessarily accurate to a correlating degree doesn‟t

9

Russell v. United States, 17 A.3d 581, 588 (D.C. 2011).

10

See Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977).

11

require scientific testimony in the [c]ourt‟s judgment.” As to Dr. Penrod‟s

proffered testimony about the effect of stress and weapon-focus on the reliability

of identifications, the court said that it had “always had some doubts as to whether

this was really beyond the [ken] of laypeople, and [had in the past] permitted

[expert testimony on these matters] out of an abundance of caution.” Finally, the

court focused both on the “weight of the Government evidence” that “provide[d]

some corroboration to the victims‟ identification[s]” and on the “robust array of

areas of cross-examination” that it knew the defense would pursue to challenge the

reliability of the show-up identifications, including the facts that both Stevenson

and Gardner confidently but erroneously chose a police officer from the line-up

and that Gardner was badly injured at the time he made the show-up identification.

The court did not believe that Dr. Penrod had “much that [would] be beyond the

k[e]n of the jurors or [would] assist [them] in deciding the evidence in this case.”

Well after the trial court‟s ruling, this court issued its opinion in Minor v.

United States, 57 A.3d 406 (D.C. 2012), and its amended opinion in Patterson v.

United States. See 56 A.3d 1152 (D.C. 2012) (amending 37 A.3d 230 (D.C.

2012)). These opinions reflect the evolution of this court‟s jurisprudence regarding

the admissibility of expert testimony about factors affecting the reliability of

eyewitness identifications of strangers, in the wake of “new developments in

12

relevant scientific studies and case law concerning eyewitness identification.”11 In

light of Minor and Patterson, appellant‟s argument that the trial court erroneously

exercised its discretion in excluding all of Dr. Penrod‟s proffered testimony has

some traction.12 We conclude, however, for two reasons, that we need not

definitively decide whether the trial court erred in excluding the testimony.

11

Russell, 17 A.3d at 586.

12

This court concluded in Minor that the topics about which the expert in

that case would have testified, i.e., the effect of severe stress on eyewitness

identifications and the relationship between a witness‟s confidence and accuracy

— two of the topics on which Dr. Penrod‟s proffered testimony in this case would

have focused — are “beyond the ken of the average lay person” and “average

juror.” 57 A.3d at 414-15, 416 n.5. Minor also held that the scope of the second

Dyas factor (whether the witness has “sufficient skill, knowledge, or experience in

that field or calling as to make it appear that his opinion or inference will probably

aid the trier in his search for truth,” Dyas, 376 A.2d at 832 (emphasis and internal

quotation marks omitted)), “is narrow and assesses only whether the proffered

expert is qualified to give the proposed testimony.” 57 A.3d at 416 (brackets and

internal quotation marks omitted). At the same time, we left “for determination on

retrial the question whether or not the so-called weapons-focus effect is beyond the

ken of the average juror.” Id. at 415 n.3. We also acknowledged that “[o]ur

holding does not, of course, preclude a trial court from determining in an

appropriate case that particular expert testimony, even if it satisfies all three Dyas

factors, should be excluded as more prejudicial than probative on the facts of the

particular case.” Id. at 419 n.6. See also Patterson, 37 A.3d at 248 (Glickman, J.,

concurring) (“[W]e have chosen to follow the federal rule that relevant and

otherwise admissible evidence may be excluded only „if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.‟”) (concurring opinion withdrawn on

other grounds, 56 A.3d at 1155).

(continued…)

13

First, as described above, during the hearing on appellant‟s motion for a new

trial, appellant‟s trial counsel contended that the jury note about aiding and

abetting liability based on “participat[ion] after the crime occurred” indicated that

the jury had “rejected the identifications both of Mr. Gardner and Mr. Stevenson,”

had seen “beyond the identifications,” and had “acknowledged that the

identifications were not reliable and in essence chose not to rely on the

identifications.” We are inclined to agree with trial counsel‟s assessment, and on

that basis are persuaded that the exclusion of Dr. Penrod‟s testimony, if error, was

harmless. The non-expert testimony the jury heard gave them ample reason not to

rely on Gardner‟s and Stevenson‟s show-up identifications.13 That non-expert

testimony, which appellant‟s trial counsel particularly emphasized during closing

(…continued)

The amended Patterson opinion was issued after the Division granted

rehearing and agreed, see 56 A.3d at 1153, to strike, inter alia, a portion of the

original opinion that stated, at 37 A.3d at 238, that “[w]hen other evidence points

to the verity of a victim‟s identification of the accused, . . . that evidence is a

legitimate consideration for the trial judge in exercising judgment on whether to

exclude such expert testimony”).

13

The jury could have relied instead on other evidence to infer that

appellant was one of the robbers: the evidence that minutes after the robbery, on a

rainy night when no one else was on the street, it was appellant who was spotted

with Tate, ran away from police alongside him, and joined in the ruse Tate staged

to keep police from apprehending him while he (Tate) was in possession of

proceeds of the robbery).

14

argument, demonstrated concretely the points Dr. Penrod would have made, as it

included testimony that both victims incorrectly identified a police officer as the

third robber despite their confidence about their identifications; that Gardner was

in such distress at the time of the show-up identification that, for a time, he could

not even remember where he lived; and that Stevenson was focused on the weapon

one of the robbers was pointing at him and thus did not focus on the robbers‟ faces.

Second, as discussed below, although we think it presents a close question,

we are persuaded by appellant‟s argument that the trial court‟s response to the jury

note did not do enough to answer the question posed in the first jury note. Because

we are unable to say beyond a reasonable doubt that appellant sustained no

prejudice from the inadequate response to the jury note, we agree with him that he

is entitled to reversal of his convictions on that basis (and for that reason, too, we

need not resolve whether the trial court erred in excluding Dr. Penrod‟s

testimony).14

14

If the matter is re-tried, the trial court will have the opportunity to

consider the admissibility of any proffered expert testimony about factors affecting

the reliability of eyewitness identifications, and the scope of any expert testimony

that may be permitted, in light of Minor and Patterson. See Thomas v. United

States, 59 A.3d 1252, 1267 (D.C. 2013).

15

IV.

Appellant argues that the first jury note — asking whether appellant could

be found guilty of armed robbery if he participated not at the time of the crime, but

after the crime occurred — unambiguously “targeted the factual scenario . . . of

[appellant‟s] participation with his friend, Mr. Tate, during Mr. Tate‟s post-robbery

attempt to evade apprehension[.]” The jury was wondering, appellant contends,

whether it could convict appellant of armed robbery on the basis that he “assisted

Mr. Tate in an attempted cover up of the crime.” Appellant argues that because the

court‟s only response to the jury was a repeat of the instructions the jury had

already heard, which “did not specifically address . . . whether assisting someone

to avoid apprehension after a crime could be „aiding and abetting,‟” the court did

not dispel the jury‟s (or the one juror‟s) confusion and allowed the jury to convict

appellant on an improper basis.

To explain our analysis of appellant‟s argument, we begin with a detailed

discussion of the jury‟s notes.

A. Background

16

To recap, the jury‟s question regarding the aiding and abetting instruction

was:

For someone to be found guilty of aiding and abetting an

armed robbery and possession of a firearm during a crime

of violence or dangerous crime, do they have to have

participated at the time of the crime, or could they have

participated after the crime occurred?

After reading the note to counsel, the court observed that it was “sure [the jury]

would like a yes or no answer” but that their question did not “lend[] itself well to

a yes or no answer.” The court suggested that it should respond instead simply by

rereading the aiding and abetting instruction in its entirety. The prosecutor agreed,

but defense counsel objected to the court‟s proposal to re-read the entire

instruction, asserting that the jury‟s question did lend itself to a yes or no answer,

and that “the answer to the first part of the question is . . . yes” and “the answer to

the second part of the question is no.” Defense counsel noted that although the

government had not charged or presented evidence that appellant‟s presence with

Tate on S Street made him an accessory after the fact or that “a conspiracy [had]

tak[en] place,” the “plain meaning” of the jury‟s question was “they‟re just

wondering whether Mr. Gray walking with Mr. Tate in the alley is part of this

crime versus . . . the event on S Street, the actual robbery itself” and “whether the

walking down the alley itself with Mr. Tate, who has the proceeds of the robbery,

is sufficient for them to apply the aiding and abetting instruction.”

17

The court observed that the aiding and abetting instruction was “one of the

most complicated instructions” the jury had been given and said that it was “not

surprised they‟re a little confused and that they might need some assistance.” The

court acknowledged that defense counsel‟s interpretation “may be the correct

speculation as to what is in their mind,” but said that the jury‟s question was

“difficult to comprehend” and remarked that it was “hesitant to speculate as to

what they‟re saying exactly.” The next day, however, the court observed that the

jury‟s question came down to, “If he did something after, does that count?”15 The

court observed that the jury note “really calls upon us to define what they‟re

talking about — participating in what after the crime occurred?”

The court reasoned that a simple yes or no answer to the question about

participating “at the time of the crime” would not be appropriate (since “[t]he

instruction itself says any participation in planning or carrying out the crime would

qualify as aiding and abetting[]”). The court concluded the discussion with

counsel by saying that it would “start” by giving the full aiding and abetting

instruction again and inviting the jury to be more specific about what it was asking

15

Although the prosecutor, too, initially expressed the view that the note

was difficult to understand, she subsequently agreed that the jury was asking “if

someone could be guilty of something after the crime was over.”

18

if it still had a question. If the jury came back with a follow-up question, the court

suggested, “maybe we can interpret it as [defense counsel was] proposing.”

Defense counsel responded, “Understood. Understood.”

Thereafter the court re-read the aiding and abetting instruction. The

instruction was as follows:

You may find the defendant guilty of the crimes of armed

robbery and possession of a firearm during the

commission of a crime of violence or dangerous crime

without finding that he personally committed each of the

acts that make up the crime or that he was present while

the crime was being committed.

Any person who in some way intentionally participates in

the commission of a crime can be found guilty either as

an aider and abettor or as a principal offender. It makes

no difference which label you attach.

The person is as guilty of the crime as he would be if he

had personally committed each of the acts that make up

the crime.

To find that a defendant aided and abetted in committing

a crime, you must find that the defendant knowingly

associated himself with the commission of the crime, that

he participated in the crime as something he wished to

bring about and that he intended by his actions to make it

succeed.

Some affirmative conduct by the defendant in planning

or carrying out the crime is necessary.

19

Mere physical presence by the defendant at the place and

time the crime is committed is not by itself sufficient to

establish his guilt.

However, mere physical presence is enough if it is

intended to help the commission of the crime.

The government is not required to prove that anyone

discussed or agreed upon a specific time or method of

committing the crime.

The government is not required to prove that the crime

was committed in the particular way planned or agreed

upon.

Nor need the government prove that the principal

offender and the person alleged to be the aider and

abettor directly communicated with each other.

I‟ve already instructed you on the elements of each of the

offenses with which the defendant is charged.

And with respect to the charge of armed robbery,

regardless of whether a defendant is an aider and abettor

or a principal offender, the government must prove

beyond a reasonable doubt that the defendant acted with

the intent to steal the property.

With respect to the charge of possession of a firearm

during the commission of a crime of violence or

dangerous crime, regardless of whether a defendant is an

aider and abettor or a principal offender, the government

must prove beyond a reasonable doubt that the defendant

personally acted voluntarily and on purpose, not by

mistake or accident.

An aider and abettor is legally responsible for the

principal‟s use of a weapon during an offense if the

government proves beyond a reasonable doubt that the

20

aider and abettor had actual knowledge that some type of

weapon would be used to commit the offense.

You may but are not required to infer that the aider and

abettor knew that some type of weapon would be used to

commit the offense from the surrounding circumstances.

You may consider any statement made, acts done or not

done, the reasonable foreseeability that some weapon

would be required to commit the offense and any other

facts and circumstances received in evidence that indicate

the aider and abettor‟s knowledge or lack of knowledge.

For the defendant to be guilty of aiding and abetting the

offense of possession of a firearm during the commission

of a crime of violence, the government must prove both

that the defendant aided and abetted the commission of

the crime of violence or dangerous crime and also that

the defendant aided and abetted the possession of a

firearm.

There must be some affirmative conduct by the aider and

abettor in furtherance of the act of possessing the firearm.

It is not necessary that all the people who committed the

crime be caught or identified.

It is sufficient if you find beyond a reasonable doubt that

the crime was committed by someone and that the

defendant knowingly and intentionally aided and abetted

in committing the crime.

After re-reading the foregoing instruction, the court told the jury:

Now, ladies and gentlemen, if you still have an additional

question after I‟ve just given you the re-instruction on

this, I would ask you to go back and attempt to specify a

little bit more particularly what you‟re asking. But

21

hopefully that will help you in answering the question in

and of itself.

The jury then resumed its deliberations. About 4 ½ hours later, the jury sent

a second note. That note, signed by the jury foreperson, posed two questions. The

first question referred to the instruction that if the jury found appellant “not guilty

of the crimes of violence, [they] must find him not guilty of each of the[] [charged]

offenses of [PFCV].” The jury asked, “Is the converse true?” The colloquy

between the court and the parties about the second note focused initially on “what

converse means in this situation.” The prosecutor suggested as her first

interpretation that the jury might be asking whether “if we find him not guilty of

[PFCV],” “do [we] have to go back and reconsider . . . armed robbery,” i.e., “must

we find him not guilty of armed robbery.”16 Defense counsel argued that the jury‟s

new question “reveal[ed] that they didn‟t fully understand . . . the theory of aiding

and abetting” and did not understand the court‟s response to the first note “because

the Court didn‟t provide a direct answer” to that note. Defense counsel urged the

court to “seek . . . clarification” from the jury, asserting that the second note was

the jury‟s response to the court‟s invitation “to come back with a more concrete

16

The prosecutor also commented that the jury‟s question might mean that

they “initially think he‟s guilty of armed robbery but then not guilty of [PFCV] for

whatever reason[.]”

22

question” if they still needed assistance. The court agreed that “arguably” the

second note was “in response to that invitation.”

The court thought that when the jury asked whether the converse was true,

they seemed to be saying, “[I]f we find him guilty of armed robbery, must we find

him guilty of PFCV?” The court said that it would answer (and it went on to tell

the jury) that “[i]f you find the defendant guilty of armed robbery, you must then

separately determine whether the government has proved that he committed the

offense of possession of a firearm during the commission of a crime of violence.”

The other question in the second jury note was the following:

If they [presumably, crimes of violence and PFCV] are

severable, what [is meant by] “some affirmative conduct

by the aider and abettor in furtherance of the act of

possessing the firearm?”

The prosecutor opined that the jury was asking “what is affirmative conduct by an

aider and abettor in furtherance of possessing a firearm[?]” The court eventually

instructed the jury: “I can‟t define affirmative conduct for you. It is up to you to

23

determine whether there is proof of some affirmative conduct in furtherance of the

act of possession of the firearm during [a] crime of violence.”17

About an hour after hearing the court‟s responses to the second note, the jury

returned its guilty verdicts.

B. Discussion

The government presented evidence that appellant was a full participant in

the robbery on R Street, wielding a gun. Summarizing the evidence during closing

argument, the prosecutor told the jury that it was “clear that [appellant] is one of

the people who first came up and pointed a gun at . . . Gardner.” The prosecutor

added, however, that if the jury found that appellant and Tate “were working

together” and that “one of their actions helped the other accomplish the end goal

here,” they could find appellant guilty of aiding and abetting armed robbery.

The court‟s subsequent aiding and abetting instructions told the jury that

appellant could be guilty of armed robbery without being “present while the crime

was being committed.” Except in one respect, the government‟s evidence did not

17

Appellant does not challenge the court‟s response to this question.

24

suggest how appellant could have had a role in the charged offenses without having

been “present while the crime was being committed.”18 That respect was the

evidence of what the prosecutor called the “ruse” on Q Street. The prosecutor

previewed in her opening statement that when Officer Terry caught up with Tate

and appellant, Tate “was in a ruse-like way pretending to knock on the door [of

1432½ Q Street] as if he knew someone that lived there,” and appellant “stood

there with him” inside the fenced-in yard at the bottom of the three steps that led to

the doorway — joining in the “ruse,” the prosecutor implied. The prosecutor

pursued the same theme more explicitly in closing argument, emphasizing that

appellant was not just on the sidewalk or walking by, but was inside the fenced-in

yard of the house, “trying to pull off a ruse, trying to make the police not stop, and

not talk to them, not find out what Frank Tate might have in his pockets.”

In light of this background, we do not think it is speculation to say that the

jury‟s question that focused on “participat[ion] after the crime occurred” (1)

“strongly implie[d] they were not eager to credit”19 the identification evidence that

appellant participated in the robbery on R Street and (2) also implied that the jury

18

As appellant‟s trial counsel pointed out, the government presented no

evidence that, and did not argue that, “a conspiracy [had] tak[en] place.”

19

Euceda v. United States, 66 A.3d 994, 1009 (D.C. 2013).

25

(or, at least, the juror who posed the question) wanted to know whether appellant‟s

participation in what the prosecutor had described as the “ruse” in front of 1432½

Q Street met the test of aiding and abetting.

In general, “[t]he decision on what further instructions, if any, to give in

response to a jury question lies within the sound discretion of the trial court[,]”

Yelverton v. United States, 904 A.2d 383, 387 (D.C. 2006) (brackets and internal

quotation marks omitted), and “absent abuse of that discretion we will not

reverse.” Whitaker v. United States, 617 A.2d 499, 501 (D.C. 1992) (internal

quotation marks omitted). However, “[w]hen the jury explains specific difficulties,

the trial court „should clear them away with concrete accuracy.‟” Alcindore v.

United States, 818 A.2d 152, 155 (D.C. 2003) (quoting Bollenbach v. United

States, 326 U.S. 607, 612-13 (1946)). Similarly, “[w]hen a jury sends a note which

demonstrates that it is confused, the trial court must not allow that confusion to

persist[,]” id., but “must make an appropriate and effective response,” Whitaker,

617 A.2d at 501, dispelling the jury‟s confusion. “Telling jurors to refer back to

their original charge may be appropriate in some circumstances.” Euceda, 66 A.3d

at 1008. But where a jury has indicated its confusion on an important issue, it is

“not sufficient for the court to rely on more general statements in its prior charge.”

United States v. Nunez, 889 F.2d 1564, 1568 (6th Cir. 1989) (“A conviction ought

26

not to rest on an equivocal direction to the jury on a basic issue.”) (internal

quotation marks omitted).

We appreciate that in this case the trial judge, who recognized that the jury

was “a little confused” and wanted to “be as helpful as possible,” also wanted to be

careful to avoid “potentially intruding on [the jury‟s] deliberation.” Nevertheless,

we agree with appellant that, on the facts of this case — including that the jury

already had a written copy of the aiding and abetting instructions at the time the

first note was sent — simply re-reading the aiding and abetting instructions “did

not come close to clearing away the jurors‟ confusion with concrete accuracy.”

Euceda, 66 A.3d at 1008 (internal quotation marks omitted). It was clear from the

jury‟s first note that the jurors were “trying to find the „act or acts‟ that satisfied”

the definition of aiding and abetting but “were unsure which acts legally could

count[.]” Id. at 1009.20 As the trial court and the parties recognized, if appellant

had not been involved in planning or executing the robbery, his participation in the

“ruse” constituted only accessory-after-the-fact activity, which did not meet the

20

As described above, the trial court and the prosecutor eventually agreed

with appellant that the jury was asking, “If [appellant] did something after, does

that count?” and whether appellant “could be guilty of something after the crime

was over.”

27

test of aiding and abetting.21 “A proper response from the court would have made

this clear[.]” Id. at 1010.22

The aiding and abetting instruction did not provide the necessary

clarification. The court‟s instruction on the elements of robbery had told jurors

that it was “necessary that the defendant carried away the property after taking it,

so as to deprive someone of his possessions” and that “the least removal of the

thing from its place can be enough to show carrying away.” The aiding and

abetting instruction then told jurors that they could find appellant guilty if they

found that he “intentionally participate[d] in the commission of a crime,”

“knowingly associated himself with the commission of the crime,” and

“participated in the crime as something he wished to bring about and . . . intended

21

“By definition, an „aider and abettor‟ assists or participates in a crime

while that crime is in progress.” Carter v. United States, 957 A.2d 9, 16 (D.C.

2008). “By contrast, once the crime is complete, one who knowingly „receives,

relieves, comforts, or assists the felon in order to hinder the felon‟s apprehension,

trial, or punishment‟ is an „accessory after the fact.‟” Id. at 16-17. “The crime of

being an accessory after the fact . . . must be distinctly charged in the indictment.”

Williams v. United States, 478 A.2d 1101, 1106 (D.C. 1984). Mere participation in

Tate‟s ruse might have rendered appellant guilty of acting as an accessory after the

fact, but appellant was not charged with that offense.

22

As in Euceda, “the trial court‟s failure to properly address the jury‟s

questions had implications for” the PFCV charges as well, since those charges

depended in part on the jury finding appellant guilty of armed robbery. 66 A.3d at

1010.

28

by his actions to make it succeed,” and also that “mere physical presence is enough

if it is intended to help the commission of the crime.” 23 Jurors (all but one of

whom, it appears, were lay persons) could easily have understood (and the one

juror‟s question strongly suggests that he or she contemplated) that these

requirements were satisfied if appellant, not having participated in what transpired

on R Street and not having been shown to have helped plan the robbery or to have

been the designated get-away accomplice, did no more than associate himself with

Tate while the latter had (some of) the stolen property, with the intent that Tate

succeed in evading police attention and apprehension.

To be sure, the trial court instructed the jury that it was “to consider all of

the instructions as a whole” and that it was not to “follow some and ignore others.”

And, some portions of the aiding and abetting instructions (e.g., the instruction

that, to prove appellant guilty of armed robbery, the government “must prove

beyond a reasonable doubt that the defendant acted with the intent to steal the

property”) perhaps could not as easily as others be thought to cover participation in

the ruse. But in light of the other instructions quoted in the paragraph above, we

cannot conclude that the court‟s re-reading of the instructions the jury had already

23

Recall that the prosecutor had told jurors that they could find appellant

guilty of aiding and abetting armed robbery if they found that “one of their actions

helped the other accomplish the end goal here[.]”

29

heard (and had the opportunity to read and re-read for themselves) was effectively

designed to dispel the likely misunderstanding. Merely re-reading the instruction

provided no guidance about what part of the instruction was relevant to the juror‟s

question.24 Further, while the court invited the jury to inquire again if they still had

questions,25 with the court having taken the time to re-read the lengthy instruction,

“[t]he trepidation and confusion engendered by such a vague response may even

have caused the jur[or] to abandon [the] inquiry altogether.” Roberts v. United

24

The problem here was that “no one clear source for the answers was

contained within the trial court‟s previous instructions.” Euceda, 66 A.3d at 1008.

“At best, the jury may have been able to deduce the answers by assembling various

premises scattered through the court‟s instructions[,]” id. at 1009, “but any

reinstruction requiring a meandering search by a confused jury is not the concrete,

accurate guidance required of trial courts.” Id.

25

As recounted above, when the court said that it would give the jury this

invitation, defense counsel responded, “Understood. Understood.” Even if

arguendo defense counsel could be said to have agreed to the court‟s approach of

re-reading its initial aiding and abetting instruction, and thus to have waived his

initial objection, we think it fair to say that, after the jury sent the second note,

counsel renewed his argument that re-reading the instructions was not an adequate

response to the first note. He argued that the jury‟s new inquiry showed that jurors

“didn‟t fully understand . . . the theory of aiding and abetting” because of the

court‟s “non-responsive” answer to the first note and that the second note was the

jury‟s response to the court‟s invitation “to come back with a more concrete

question” if they still needed assistance. For these reasons, we cannot conclude

that appellant waived his objection to the court‟s response to the question posed in

the first note. Nor do we agree with the government that the only claim appellant

preserved was that the court should have responded to the first note with a “yes” or

“no” answer.

30

States, 402 A.2d 441, 443 (D.C. 1979).26 As the prosecutor acknowledged, the

court had an obligation “to help the jurors along and not simply . . . reread them

portions of instructions or whole instructions that they‟ve already had when [it‟s]

not helping.”

We are constrained to conclude that the court‟s response to the first note was

not adequate to dispel the jury‟s confusion and thus was an erroneous exercise of

the court‟s discretion. The remaining issue is whether we can conclude that the

error was harmless. The parties disagree about which harmlessness standard

applies. Appellant argues that the inadequacy of the court‟s response was an error

of constitutional dimension, requiring us to apply the harmless-beyond-a-

reasonable doubt standard articulated in Chapman v. California, 386 U.S. 18

(1967). The government argues that the less-stringent test of Kotteakos v. United

States, 328 U.S. 750, 765 (1946) applies, i.e., whether we can “say, with fair

assurance, after pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by the error.”

26

See also Preacher v. United States, 934 A.2d 363, 369 (D.C. 2007)

(holding that where “[t]he jury‟s question was clear, and it was central” to their

deliberations, but the court, instead of answering the jury‟s specific question,

“opted to repeat the standard . . . instructions,” its failure to provide guidance was

error, which was not rectified by the court‟s invitation to the jury to inquire further

if the court had not responded to their questions).

31

Our resolution of the issue is as follows: The jury‟s question appeared to

ask whether appellant could be convicted solely on the basis of something he did

on Q Street after the robbery. Thus, the jury seemed to be asking whether

appellant could be convicted even if he was not, as the victims claimed, one of the

men who robbed them on R Street. Since appellant‟s defense was mistaken

identity — i.e., that he was not one of the men who robbed the victims on R Street

— the jury‟s question pertained to a controlling issue in the case; it revealed a risk

that jurors could accept appellant‟s defense but still convict him, on an improper

basis. “The provision of an answer to a jury note that is adequate to dispel jury

confusion on a controlling issue of a case is such an important aspect of due

process of law that we [must] be satisfied beyond a reasonable doubt that an

omission to provide [such an answer] was harmless before we [can] conclude that

it did not vitiate the verdict.” Preacher, 934 A.2d at 370 (quoting Potter v. United

States, 534 A.2d 943, 946 (D.C. 1987)). Thus, even though it is in general “well

settled that instructional error is subject to harmless error analysis,” Brooks v.

United States, 599 A.2d 1094, 1101 (D.C. 1991), we conclude that the Chapman

standard applies.

32

We view this as a close case in which the standard of review makes all the

difference. There are, we acknowledge, reasons for thinking that the convictions

were not based solely on the evidence of appellant‟s participation in the ruse on Q

Street. For example, it is not clear why the jury would have convicted appellant of

armed robbery if they did not believe he participated in the conduct on R Street,

given that one of the court‟s instructions quoted above told them that appellant was

“legally responsible for the . . . use of a weapon during an offense” only if he had

“actual knowledge that some type of weapon would be used to commit the offense”

(italics added). It also is not clear why the jury would have convicted appellant of

PFCV if they did not believe that he participated in the conduct on R Street, given

that another of the court‟s instructions quoted above told them that for appellant to

be guilty of aiding and abetting the offense of PFCV, he must have committed

“some affirmative conduct . . . in furtherance of the act of possessing the firearm”

(and given that the police found no firearm on Tate or appellant after they

apprehended them on Q Street). We could perhaps say with fair assurance that

despite whatever doubt one or more jurors might have harbored initially about

whether appellant participated on R Street, the PFCV verdicts show that those

doubts were resolved in favor of a finding that he did so.

33

We have difficulty reaching that conclusion beyond a reasonable doubt,

however. We come back to the initial jury note, which posed the question about

whether a guilty verdict could be premised solely on “participat[ion] after the

crime occurred” with respect to both “armed” robbery and PFCV. The question

was posed despite what our paragraph above suggests were instructions that should

clearly have precluded a “yes” answer (even if the jury thought appellant was an

accessory after the fact to robbery). There is also the fact that the jury asked what

was meant by the phrase in the PFCV instruction, “some affirmative conduct by

the aider and abettor in furtherance of the act of possessing the firearm[.]” As

noted above, the court declined to define the term “affirmative conduct.” The fact

that the jury expressed uncertainty but received no guidance about that leaves us

with doubt about whether the PFCV convictions were premised on a finding that

appellant had a role in the events of March 14, 2010, that preceded his conduct on

Q Street. In addition, it seems clear that, hours after hearing the court re-read the

instructions on aiding and abetting, the jury was struggling to reach its verdicts.

As recounted above, the prosecutor suggested that the jury‟s question in its second

note might mean that they thought appellant was guilty of armed robbery “but then

not guilty of [PFCV] for whatever reason” and might be wondering whether, if

they found appellant not guilty of PFCV, they would need to “go back and

reconsider . . . armed robbery” and find appellant “not guilty of armed robbery.”

34

The foregoing points give us pause and are enough to prevent us from

concluding beyond a reasonable doubt that the jury did not convict appellant based

solely on his participation in the ruse on Q Street. Accordingly, we reverse

appellant‟s convictions.

So ordered.

WAGNER, Senior Judge, concurring in part, and dissenting in part: I join the

opinion for the court insofar as it concludes that the trial court‟s ruling excluding

the expert witness‟ testimony, if error, was harmless. I respectfully dissent from

Part IV of the opinion in which the majority finds that the trial court abused its

discretion in responding to the jury‟s note. In my view, the trial court acted

prudently and within its discretion by (1) reinstructing on aiding and abetting and

(2) inviting the jury to clarify the note if they still had a question after

reinstruction.

35

Although defense counsel thought otherwise, as the trial court observed, the

note did not lend itself to a simple yes or no answer. 1 The jury‟s question was also

subject to more than one interpretation. Appellant‟s trial counsel offered that the

jury might be distinguishing between the robbery on S Street and appellant

walking thereafter in the alley with Tate, who had the proceeds of the crime.

Slightly varying from that interpretation, appellant suggests on appeal that the jury

was focusing on two incidents, the armed robbery committed by three men and

post-robbery efforts to evade apprehension when appellant and Tate were arrested

on Q Street. Given the different meanings suggested, the trial court had reason to

be “hesitant to speculate as to what they‟re saying.” The trial court sought to

follow the best course without intruding into their deliberations and given the

situation. Where in the context of the case, the jury‟s note is not clear, the court

may seek clarification. See Potter v. United States, 534 A.2d 943, 946 (D.C. 1987)

(citation omitted) (stating that “where the jury‟s note is ambiguous, the court is not

1

The note stated:

For someone to be found guilty of aiding and abetting an

armed robbery and possession of a firearm during the

commission of a crime of violence or dangerous crime,

do they have to have participated at the time of [the]

crime, or could they have participated after the crime

occurred?

36

required to answer it without clarification”). Here, the trial court did just that. At

the same time, it reinstructed the jury on aiding and abetting, which was at the

center of their inquiry. This instruction provided the guidance essential for the jury

to determine whether the government had proven appellant‟s guilt under that

theory.2 At this juncture, there was no need for the trial court to do more to

respond adequately to the note. Under these circumstances, I am persuaded that

the trial court did not abuse its discretion in responding to the jury‟s note. See

Alcindor v. United States, 818 A.2d 152, 155 (D.C. 2003) (citing Whitaker v.

United States, 617 A.2d 499, 501 (D.C. 1992) (other citation omitted) (setting forth

the standard that the trial court‟s decision on reinstruction in response to a jury

note will not be reversed absent an abuse of discretion). Therefore, I would affirm

the judgment of the trial court.

2

Although the jury had a copy of the instructions in the jury room, they are

quite lengthy. The trial court‟s decision to refocus them on this relevant

instruction, among the many, appeared to be necessary and provided the jury with

the means to decide the aiding and abetting issues under the facts that they found.