The opinion
District of Columbia
Court of Appeals
No. 15-CF-277
JUL 21 2016
CHRISTOPHER T. HOLMES,
Appellant,
v. CF1-15515-12
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: THOMPSON and MCLEESE, Associate Judge; and KING, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that the appellant‘s convictions are affirmed.
For the Court:
Dated: July 21, 2016.
Opinion by Senior Judge Warren R. King.
Opinion concurring in part and dissenting in part by Associate Judge Roy W. McLeese.
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. 15-CF-277 7/21/16
CHRISTOPHER T. HOLMES, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CF1-15515-12)
(Hon. Rhonda Reid Winston, Trial Judge)
(Argued April 7, 2016 Decided July 21, 2016)
Peters H. Meyers for appellant.
Nicholas P. Coleman, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Assistant
United States Attorney, were on the brief, for appellee.
Before THOMPSON and MCLEESE, Associate Judges, and KING, Senior Judge.
Opinion for the court by Senior Judge KING.
Opinion by Associate Judge MCLEESE, concurring in part and dissenting in
part, at page 22.
KING, Senior Judge: Following a jury trial, appellant Christopher Holmes
was convicted of second degree murder while armed and possession of a firearm
2
during a crime of violence. On appeal, Holmes argues that the trial court erred in
admitting witness testimony about another crime that Holmes reportedly
committed and about witness fear. He also argues that the trial court erred in
denying his motion for a mistrial after a prospective defense witness yelled outside
of the courtroom that her life was in danger. For the reasons stated below, we
affirm.
I.
The charges against appellant Christopher Holmes arose from the fatal
shooting of David Tucker outside a barbershop located in the Southeast quadrant
of the District of Columbia in October 2008. On the day of the shooting, Holmes
walked into the Classic Kutz Barbershop on 22nd Street. Larocko Miles, one of
the barbers, testified that he saw a young man, later identified as Holmes, come
into the barbershop wearing an ―Elmer Fudd‖-style hat with earflaps. Tucker, who
was sitting inside the barbershop, told Holmes, ―[W]hat you coming in here for[?]
[A]in‘t nobody in here for you to rob.‖ Holmes replied, ―[M]an, you say
anything[,]‖ and started to leave. As Holmes was leaving, Tucker stated,
―[Y]ou‘re going to do something[,] young‘un[?]‖ Holmes replied, ―[N]aw, I ain‘t
going to do nothing.‖ Although Holmes and Tucker exchanged more words, all
3
Miles could discern was Tucker saying to Holmes, twice, ―[W]hat you say,
young‘un[?]‖ Tucker then walked out of the barbershop after Holmes.
Akeem Young, who had known Holmes and Tucker for many years, was
standing outside of the barbershop when Holmes came out saying, ―[T]his n****r
got me f**ked up.‖ Tucker then ―storm[ed]‖ out of the barbershop and approached
Holmes, grabbed him by the ―shoulder and neck area,‖ and told him to ―get the hell
away from the barbershop.‖ A struggle ensued between the two men during which
Tucker pushed Holmes into the street. Holmes pulled out what appeared to Young
to be a .40-caliber gun and pointed it at Tucker. Young began to run away and
heard Tucker say to Holmes, ―[W]hat you going to do[?] You going to shoot me
out here in public, [in] broad day light?‖ Seconds later, Young heard gunshots.
Miles, who heard three gunshots after Tucker went outside, saw Tucker
come back into the barbershop and fall to the floor. Lee Wade, who was inside the
barbershop, also heard gunshots and saw the victim fall in through the front door.
Tucker later died from a single gunshot that had penetrated his heart.
4
Holmes was indicted on September 5, 2012, for one count of first-degree
premeditated murder while armed,1 one count of possession of a firearm during
crime of violence (PFCV),2 and one count of carrying a pistol without a license
(CPWL).3 Before trial, the trial court granted Holmes‘s unopposed motion to
dismiss the CPWL count. Following a jury trial, Holmes was acquitted of first-
degree premeditated murder while armed and its accompanying PFCV charge, but
found guilty of the lesser-included offenses of second-degree murder while armed
and its accompanying PFCV charge. This appeal followed.
II.
On appeal, Holmes argues that the trial court erred in allowing Nicholas
Proctor, the victim of a robbery, to testify that prior to the shooting he had told
Tucker that the perpetrator of the robbery ―might have been someone named Bar
Beast,‖ which the defense stipulated was Holmes‘s nickname.
1
D.C. Code §§ 22-2101, -4502 (2012 Repl.).
2
D.C. Code § 22-4504 (b) (2012 Repl.).
3
D.C. Code § 22-4504 (a) (2012 Repl.).
5
In general, evidence of other uncharged crimes is inadmissible if it is offered
to prove a defendant‘s propensity to commit the charged crime. Drew v. United
States, 331 F.2d 85, 89–90 (D.C. Cir. 1964). Other crimes evidence is admissible,
however, if it is ―necessary to place the charged crime in an understandable
context.‖ Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996) (en banc);
see also Toliver v. United States, 468 A.2d 958, 961 (D.C. 1983). Such evidence
may still be excluded if its probative value is substantially outweighed by danger
of unfair prejudice. Johnson, supra, 683 A.2d at 1100–01. ―[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 great degree of deference to
its decision.‖ Id. at 1095.
Here, Proctor‘s testimony was not admitted for the purposes of proving
Holmes‘s criminal propensity; rather it was offered to explain the confrontation
between Holmes and Tucker. We conclude that not only did the trial court
exercise its proper discretion, the court did so with caution to prevent potential
prejudice from the testimony. More specifically, at the pretrial hearing on the
matter, the court found that Proctor‘s testimony was relevant to help explain
Tucker‘s accusatory statements toward Holmes in the barbershop, giving context to
the animosity between the two men leading up to the shooting. The trial court
6
twice expressed its concern regarding the potential prejudice against Holmes, and,
thus, limited Proctor‘s testimony to only what he had told Tucker prior to the
shooting, not why Proctor thought Holmes might have been the perpetrator. For
reasons stated below, we are satisfied that such testimony was admissible as
Johnson evidence given the circumstances here and that the trial court acted
properly to ―control the development and use of the evidence at trial‖ in
minimizing the testimony‘s potential prejudice. Id. at 1101.
Holmes argues that Proctor‘s testimony was not necessary to place the
shooting in an understandable context because Tucker was just ―trash talking‖
when he told Holmes, ―[A]in‘t nobody in here for you to rob.‖ This argument fails
because evidence at trial showed that the two men had a close relationship prior to
the shooting, with Tucker having treated Holmes like a ―son,‖ including buying
him clothes and giving him money. With this history between Holmes and Tucker,
Proctor‘s testimony was necessary to explain why Tucker would now accuse
Holmes of robbery. Deprived of Proctor‘s testimony, the jury would have been left
uninformed and unable to bridge the gap between the men‘s previous close
relationship and Tucker‘s accusation against Holmes which escalated to angry
exchanges and the eventual fatal shooting. See, e.g., Brown v. United States, 934
A.2d 930, 940–41 (D.C. 2007) (evidence of defendant‘s uncharged possession of
7
illegal drugs was admissible to help explain the reason why defendant and
codefendant, as part of a turf war over drugs, would approach two strangers and
immediately shoot them in the back); Bonhart v. United States, 691 A.2d 160
(D.C. 1997) (evidence that defendant sold drugs to victim for years, supplied crack
cocaine to victim and roommate two days before fire, and had threatened to burn
down apartment building if victim did not pay him for recent drug sale was
admissible in prosecution for arson and murder to put arson in context).
Holmes also contends that the probative value of Proctor‘s testimony was
substantially outweighed by the danger of unfair prejudice. This argument is
without merit. The record on appeal shows that the trial court twice expressed its
concern regarding the potential prejudice of Proctor‘s testimony, and, as a
precautionary measure, limited the testimony to only what Proctor had told Tucker
prior to the shooting. See Johnson, supra, 683 A.2d at 1104–05 & n.22 (evidence
of uncharged murders was properly admitted because it was not offered to prove
the defendant‘s criminal disposition but as identity evidence and direct evidence of
the charged crimes, also the trial court took appropriate actions to minimize undue
prejudice by denying the prosecutor‘s request to admit an autopsy photo and
distressed 911 call reporting the murders). The jury was allowed to only hear that
Proctor had told Tucker the robber ―might have been someone named Bar Beast,‖
8
not why and how Proctor arrived at that conclusion. Furthermore, the government,
in its closing argument, limited its use of this testimony to only explaining
Tucker‘s statements:
There‘s nobody in here for you to rob is a pretty specific
thing to say to somebody. Now ask yourself who did Mr.
Tucker have a reason to say those words to and now at
the end of this trial you know the answer to that question
too. Mr. Tucker had a reason to say those words to Bar
Beast, the Defendant, Christopher Holmes. What was
that reason? Mr. Tucker thought that Bar Beast had
robbed Nicholas Proctor, a long-time friend of Mr.
Tucker. Why did Mr. Tucker think that? Because that‘s
what Mr. Proctor told him a few weeks before the
murder.
On this record, we conclude that any potential prejudice was minimized by the
court‘s effort to limit Proctor‘s testimony, ensuring that evidence was offered only
to explain Tucker‘s accusatory statements toward Holmes, not to prove Holmes‘s
criminal propensity. Accordingly, we reject Holmes‘s challenge to the trial court‘s
admission of Proctor‘s testimony.
9
III.
Next, Holmes argues that the trial court erred in admitting fear testimony
given by two government witnesses: Akeem Young and Carlton Clemons.
Holmes maintains that the probative value of this fear evidence was substantially
outweighed by the danger of unfair prejudice, especially because the government,
in its closing arguments, focused on both the witnesses‘ generalized fear of being
involved in a homicide case and Young‘s specific fear of the shooter.
Additional Background Information
At trial, Young admitted to not telling all that he knew about the shooting to
the grand jury, including that he saw Holmes pull out a gun and point it at the
victim just before he was shot. He testified that he did not ―want to be involved‖
in any ―conflicts[,]‖ because he had ―a lot of family in the streets in Washington,
D.C.‖ Young also described two incidents where Holmes warned Young not to
talk about what he saw during the shooting. During cross-examination, Young
agreed with defense counsel that Holmes never specifically threatened him.
10
Clemons, Young‘s cousin, was an extremely reluctant witness who had to be
arrested and forcibly brought to court to testify in this case. At the grand jury
hearing, he acknowledged that he was ―concerned for [his] safety‖ and did not
want to ―be involved‖ in the case. At trial, Clemons testified that he and Young
were at the barbershop trying to sell Young‘s television set on the day of the
shooting. Clemons, however, claimed that he suffered a concussion and, thus, was
having difficulty recalling information about the shooting. Clemons was then
impeached with his grand-jury testimony in which he stated that a man whom
Young pointed out to him and identified as ―Bar Beast‖ came into the barbershop.
After Clemons left the barbershop, he saw the victim and Bar Beast, who was
wearing a ―big boofy [sic] looking hat‖ that could be ―pulled down over [one‘s]
ears[,]‖ struggle with each other. At this point, Young told Clemons that they
needed to leave. Clemons heard gunshots and saw Bar Beast holding what
appeared to be a black semiautomatic pistol. In response to the government‘s
question about his failure to appear for trial, Clemons indicated that he did not
want to be ―involved in a homicide case,‖ and that ―anybody that[] [was] involved
in something like this would be fearful of [sic] their life.‖
In closing, the government argued that the reason Young initially failed to
tell the truth (i.e., that Young saw Holmes shoot Tucker ―in broad daylight in the
11
middle of the street‖) was that Young ―was scared‖; Young ―kn[e]w[] the
shooter[,]‖ and ―live[d] two blocks from where th[e] shooting happened.‖ The
government also observed that ―the shooter kn[e]w[] [] Young, [and] kn[e]w he
was out there[,]‖ as demonstrated by the fact that Holmes told Young ―twice to
keep his mouth shut about this case.‖ The government told the jury, ―[I]magine
what this must have been like for [] Young,‖ who was ―17, 18 years old‖ at the
time, and thus was ―scared‖ when he came to the grand jury, and did not ―want to
be involved‖ in the case. With regards to Clemons, the government argued that
Clemons did not tell the police what he knew because he was ―kind of scared‖ and
was ―afraid for a different reason from [] Young,‖ as Clemons was not from the
neighborhood and did not ―know th[o]se guys.‖ It was, however, ―the same fear,
the same desire not to be involved.‖
Discussion
Recognizing that witness fear evidence ―tends to be prejudicial because it
suggests the witness fears reprisal at the hands of the defendant or his associates if
she [or he] testifies[,]‖ we have held that such evidence may nevertheless be
admissible where the witness has given conflicting statements. Mercer v. United
States, 724 A.2d 1176, 1184 (D.C. 1999) (quoting McClellan v. United States, 706
12
A.2d 542, 551 (D.C. 1997)). More specifically, ―evidence of a witness‘
‗generalized fear,‘ not specifically a fear of the defendant, may be admissible, in
the court‘s discretion, to show bias or motive when the witness has previously
withheld information or makes conflicting statements.‖ Parker v. United States,
797 A.2d 1245, 1249 (D.C. 2002). The admissibility of such evidence is
determined ―by looking to the specificity of the fear, i.e., by considering whether
the threat is specifically linked to the defendant.‖ Id. at 1249.
Here, Clemons‘s fear testimony was admissible to explain his adamant
refusal to testify at trial and his prior conflicting statements. We are satisfied that
Clemons‘s fear testimony was ―generalized‖ fear, and thus, did not unduly
prejudice Holmes. First, Clemons admitted that he did not live in the area and,
thus, as the government suggested, he did not know the men involved in the
shooting. Second, at no point during his testimony did Clemons indicate that he
was specifically fearful of Holmes or that he was threatened by Holmes or by
anyone on his behalf. In fact, the record suggests that Clemons was afraid to
testify in general because this was ―a homicide case,‖ which understandably could
provoke fear in the witness whether or not he knew or was threatened by the
perpetrator. In other words, Clemons‘s fear had no direct connection to Holmes
that could result in undue prejudice. Accordingly, we find no abuse of discretion
13
in allowing Clemons‘s fear testimony. See, e.g., Gordon v. United States, 783
A.2d 575, 587 (D.C. 2001) (questions about witness‘s general fears were proper,
but not questions about witness‘s fear of ―these people,‖ i.e., the defendants);
Clayborne v. United States, 751 A.2d 956, 964 (D.C. 2000) (general question
about ―snitching‖ not linked to defendant was permissible); Carter v. United
States, 614 A.2d 913, 917–918 (D.C. 1992) (question about a general threat from
―other people‖ on ―the street‖ was proper, but question about a more specific threat
from the defendant would be improper).
Young‘s testimony, on the other hand, presented a more complicated set of
circumstances as it was slightly more specific in relation to Holmes. Young knew
the victim and Holmes well and vice versa. They lived in the same neighborhood
and Young‘s family also lived in the District. These facts were highly probative as
they helped explain how Young could have been afraid of the potential negative
consequences of testifying against Holmes at trial, which may have motivated
Young to withhold information initially. Young also testified that Holmes twice
indicated to Young that he should keep quiet.4 While we have held that it is an
4
Sometime after the shooting, Young was walking down the street when he
saw Holmes in a car; Holmes put his finger to his lips, which Young understood to
mean that he should not ―run[] [his] mouth.‖ Subsequently, when Young was
incarcerated at the Oak Hill juvenile detention center, he saw Holmes, who was
(continued…)
14
abuse of discretion to admit ―evidence of threats solely to go to the general
credibility or bias of the witness[,]‖ such evidence is admissible to ―explain
specific behavior of the witness, such as inconsistent statements, delay in
testifying, or unusual courtroom demeanor.‖ Mercer, supra, 724 A.2d at 1184. On
this record, we are content that Young‘s testimony regarding Holmes‘s warnings,
perceived as threats or not, was admissible as highly probative evidence in
explaining Young‘s reluctance to testify and his prior inconsistent statements.
Also, Young‘s testimony was not directed at Holmes in such a way that would
cause the jury to believe Holmes had threated or intimidated Young in order to
prevent him from testifying. All in all, Young admitted during cross-examination
that Holmes never threatened him, indicating that Young did not take Holmes‘s
nonverbal and verbal warnings as threats. Having found no error in the court‘s
decision to admit fear testimony from Young and Clemons, we reject Holmes‘s
challenge on this ground.
___________
(…continued)
apparently visiting someone else. Young ran up to greet Holmes, but Holmes told
him to ―be quiet about that[,]‖ which Young thought was referring to what he saw
outside of the barbershop. However, Young admitted that Holmes had never
threatened him.
15
IV.
Lastly, Holmes argues that the trial court erred in denying his motion for
mistrial following a prospective defense witness‘s verbal outburst outside of the
courtroom. On appeal, Holmes argues, for the first time, that in the alternative the
trial court should have conducted an investigation into whether the jury heard and
was affected by the outburst before denying the mistrial motion. For the foregoing
reasons, we find no reversible errors in the trial court‘s decision.
Additional Background information
During cross-examination of a government witness, a woman engaged in a
loud verbal outburst outside of the courtroom. The transcript of the proceeding
only reflects a pause due to interruption. Defense counsel continued his cross-
examination and waited until after lunch recess to raise the issue with the court and
moved for a mistrial on the ground of prejudice.5 Counsel asked the record to
reflect that the witness ―was screaming‖ that ―there are people in this room. My
5
After defense counsel finished his cross-examination of the government
witness, another witness took the stand and finished his testimony before the court
adjourned for lunch.
16
life is in danger,‖ and that ―that she felt threatened.‖ The outburst, according to
defense counsel, ―went on for some time.‖ The woman‘s name was mentioned to
the jury during voir dire as a prospective defense witness. The record does not
indicate that she was actually present and seen by the jury at that time and Holmes
does not claim in his briefs on appeal that she was present. Prior to the outburst,
defense counsel informed the trial judge that he may not call the woman to testify
and the woman ultimately never testified.
The prosecutor argued that because the outburst took place outside of the
courtroom6 ―the jury would have no reason to believe that the incident in the
hallway was in any way connected to anything that was happening in [the]
courtroom,‖ and that the outburst was not ―so loud that the jury could not hear the
questions [defense counsel] was asking or the answers the witness was giving.‖
The trial court stated that it did not hear all that defense counsel claimed to have
heard but acknowledged that it heard someone say something ―about her life being
in danger or something.‖ Ultimately, the trial court denied the motion for mistrial
because it was not clear whether the jury even heard the outburst or realized that it
was a witness and ―would have connected it to either side in this trial.‖ Therefore,
6
The woman was in the area between the outer and inner doors of the
courtroom.
17
the court could not conclude that Holmes was prejudiced by the outburst. The
court also noted defense counsel‘s equivocal representation about whether he
planned to call this witness. When the trial resumed, the trial court did not instruct
the jury to disregard the outburst. As noted above, this witness was never called to
testify.
Discussion
―The decision to order a mistrial is subject to the broad discretion of the trial
court and our standard of review is deferential.‖ Gordon, supra, 783 A.2d at 583.
We are ―only inclined to reverse ‗in extreme situations threatening a miscarriage of
justice.‘‖7 Id. (quoting Wright v. United States, 637 A.2d 95, 100 (D.C. 1994)). In
circumstances where ―the impartiality of [the jury] has been plausibly called into
question, it is the responsibility of the trial judge to hold a hearing to determine
whether the allegation of bias has merit.‖ Tann v. United States, 127 A.3d 400,
7
The dissent cites to Gordon, supra, 783 A.2d at 586, 590, as an example
where this court ―emphasized the highly prejudicial effect of emotional outbursts
reflecting witness fear.‖ Post at 25. We note, however, that there are significant
factual differences between that case and the case at bar. In Gordon, the witness
tearfully testified at some length during the trial about her fear of the defendant,
whereas here a woman yelled briefly outside of the courtroom and was never
called to the stand to testify.
18
470 (D.C. 2015) (quoting Medrano-Quiroz v. United States, 705 A.2d 642, 649
(D.C. 1997)). Although a hearing is required and the government has the burden
―to demonstrate that the [jury‘s] contact with extraneous information was harmless
or non-prejudicial[,] the extent and type of the trial court‘s investigation into the
improper contact are confided to the court‘s discretion and reviewable only for
abuse.‖ Id. (quoting Hill v. United States, 622 A.2d 680, 684 (D.C. 1993); Leeper
v. United States, 579 A.2d 695, 699 (D.C. 1990)). ―There is ‗no per se rule that
individual questioning of each juror is always required,‘ and ‗the trial judge has
broad discretion to fix the exact procedures by balancing the need to make a
sufficient inquiry against the concern that the inquiry not create prejudicial effects
by unduly magnifying the importance of an insignificant occurrence.‘‖ Id. at 470–
71 (quoting Al-Mahdi v. United States, 867 A.2d 1011, 1019 (D.C. 2005)).
Tann involved a defendant (Tann) who had an outburst in open court when
the jury found him guilty of murders and conspiracy and his codefendants guilty of
conspiracy but had yet to finish deliberations on their remaining charges.8 Tann,
supra, 127 A.3d at 469. Tann‘s codefendants moved for mistrial. When the jury
8
Tann stated: ―I don‘t see how I can get found guilty, and what type of
court is this? I wasn‘t even there . . . . [N]owhere near . . . . I get found guilty and
I‘m innocent. God going to challenge y‘all for this. I‘ll see y‘all in heaven . . . .
I‘m innocent. How the f**k I get found guilty? . . . That's f**king–that‘s crazy.‖
Tann, supra, 127 A.3d at 469.
19
resumed deliberations, the trial judge held a hearing on the facts surrounding
Tann‘s outburst, and found that Tann‘s conduct was not violent or threatening to
the jury despite his reference to the afterlife. Further, the court observed no
reaction from the jury that constituted significant concern and, thus, denied the
motion for mistrial. Id. at 470.
On appeal, Tann‘s codefendants argued that the trial court erred in denying a
mistrial without conducting a voir dire because the jury might have convicted them
for fear that if it found them not guilty, they would be free and able to carry out
Tann‘s ―threats.‖ Id. at 471. This court, however, found that Tann‘s statements
did not expressly implicate his codefendants in any way; the trial court gave a
prompt curative instruction; and the jury did not contact the judge about the
outburst to voice any sort of concern. Id. ―[C]onsider[ing] the risk that further
investigation would turn an insignificant matter in the jurors‘ minds into a
significant one—a possibility that was well within the trial court‘s discretion to
take into account,‖ we held that the trial court did not err in denying the voir dire
request and properly denied the motion for mistrial. Id.
Here, unlike in Tann, the outburst took place outside of the courtroom, and it
was by no means clear that the jurors heard the outburst, understood exactly what
20
was said, or even saw the person making it. Even assuming the jury could hear the
outburst, there was no evidence that any jurors could have drawn a connection, let
alone with prejudice, to Holmes or the matter on trial before since this witness was
never called to testify.
In any event, we hold that the trial court‘s subsequent colloquy with counsel
was sufficient. Here, like in Tann, the trial judge was present and observed
firsthand the situation and the jury‘s reaction.9 See Tann, supra, 127 A.3d at 471
(holding that it was ―crucial . . . that the trial judge actually observed Tann‘s
outburst and viewed its effect (or lack thereof) on the jury when determining the
correct course of action‖). Even though the trial judge here did not give a curative
instruction following the outburst or conduct a voir dire, we find no abuse of
discretion as an instruction or voir dire would have, as the trial judge
9
The dissent questions this finding and its significance under Tann,
observing that ―it is unclear whether the trial court saw the potential witness as she
was screaming outside the courtroom‖ and that ―the trial court may not have heard
everything the potential witness screamed and did not observe the jurors‘ responses
to the outburst.‖ Post at 29. We respectfully disagree. The outburst took place
during the cross-examination of another witness where all those involved in the
trial—the judge, the jury, appellant and his counsel, and government counsel—
were present. We think it is significant that the judge was in the courtroom with
the jury and was able to hear the outburst and observe the jury‘s reaction, or lack
thereof. The fact that the judge did not hear all that defense counsel claimed to
have heard does not in and of itself negate the judge‘s ―firsthand knowledge‖ of
the situation nor undermine her assessment of any potential impact on the jury.
21
acknowledged, unnecessarily called the jury‘s attention to the outburst, especially
after a significant amount of time had passed and the jury had no reason to connect
the outburst to the trial or Holmes.
The dissent cites to Tann for the proposition that ―[i]f a plausible concern
about jury taint arises, the trial court must either grant a mistrial or take steps to
ensure that the jury‘s ability to be impartial has not been undermined.‖ Post at 27.
The dissent further states that the trial court ―was required either to grant a mistrial
or to take other steps, such as giving a curative instruction or conducting a voir
dire of the jury, to ensure that the jury‘s impartiality had not been undermined.‖
Post at 28. We respectfully disagree as we do not think our decision in Tann goes
that far. In fact, we said in that case that ―[t]here is ‗no per se rule that individual
questioning of each juror is always required,‘ and ‗the trial judge has broad
discretion to fix the exact procedures by balancing the need to make a sufficient
inquiry against the concern that the inquiry not create prejudicial effects by unduly
magnifying the importance of an insignificant occurrence.‘‖ Tann, supra, 127
A.3d at 470-71. The Tann court clearly emphasized the importance of the trial
judge‘s broad discretion in situations like this where she would have to ensure the
balance between inquiring into the possible impact on the jury and not drawing
unnecessary and prejudicial attention to the outburst.
22
In addition, we think it is significant that defense counsel waited several
hours before even raising the issue with the trial judge and never requested a
curative instruction or asked the trial judge to conduct a voir dire. For all of these
reasons, we hold that the trial court did not abuse its discretion in denying mistrial
as there was no evidence showing that the outburst prejudiced Holmes in any way
or presented an extreme situation ―threatening a miscarriage of justice‖ Gordon,
supra, 783 A.2d at 583.
V.
For the foregoing reasons, Holmes‘s convictions are affirmed.
So ordered.
MCLEESE, Associate Judge, concurring in part and dissenting in part. I
agree that the trial court did not abuse its discretion in admitting other-crimes
evidence and witness-fear evidence. I therefore join Parts I, II, and III of the
court‘s opinion. I respectfully dissent from Part IV of the court‘s opinion, in which
23
the court concludes that trial court permissibly took no steps to address an outburst
outside of the courtroom during trial.
The trial transcript reflects that there was an interruption in the courtroom on
the second day of trial. Defense counsel subsequently represented that a potential
defense witness ―in the back‖ had been screaming ―there are people in this room.
My life is in danger.‖ Defense counsel also represented that the potential witness
had said that she felt threatened and that ―there‘s family here in this room.‖
According to defense counsel, the incident went on for some time and caused
defense counsel to stop during the cross-examination of a witness. Defense
counsel further represented that he could see the potential witness‘s face through
the courtroom door, that the jurors would also have been able to see the potential
witness, and that some if not all of the jurors were looking in that direction.
Expressing concern that the jurors might feel that someone had threatened the
potential witness, defense counsel requested a mistrial.
The prosecutor opposed a mistrial, arguing that jurors would not have
known who was screaming. The prosecutor also indicated that he had not heard as
much of the outburst as defense counsel described, although the prosecutor
24
acknowledged that he had heard a woman‘s voice saying something about
believing her life was in danger.
Describing the potential witness as having been loud, the trial court
acknowledged having heard the potential witness say something about her life
being in danger. The trial court further acknowledged that it did not know what
the jurors might have seen or heard. No one suggested that the trial court conduct
a voir dire of the jury or give a curative instruction, and the trial court did not take
either step. Instead, the trial court denied the mistrial motion.
Outbursts such as the one in the present case ―implicate[] a defendant‘s
Sixth Amendment right to an impartial jury.‖ Tann v. United States, 127 A.3d 400,
470 (D.C. 2015). According to defense counsel‘s representations, the jurors in this
case likely heard, and may well have seen, a woman screaming right outside the
courtroom door that her life was in danger and that ―family‖ was in the courtroom.
This is a murder case, and the jury heard testimony that several witnesses were
afraid to testify. Ante at 9-14. Specifically, the day before the outburst at issue,
one witness gave testimony indicating that he feared for his life. Almost
immediately after the outburst, another witness implied that he was afraid for his
family and described incidents in which Mr. Holmes had directed him to keep
25
quiet. Given that testimony, it would be quite natural for the jurors to infer that the
screaming woman was a terrified potential witness. We have repeatedly
emphasized the highly prejudicial effect of emotional outbursts reflecting witness
fear. See, e.g., Gordon v. United States, 783 A.2d 575, 586, 590 (D.C. 2001)
(―[E]vidence concerning a witness‘[s] fear tends to be extremely prejudicial
because it appeals to the passions of the jury and may cause the jury to base its
decision on something other than the rule of law.‖; reversing conviction, because
witness‘s ―highly emotional testimony that she feared for her life was erroneously
admitted‖ and ―the error was not harmless‖).
In my view, the outburst in this case raised a ―plausibl[e]‖ concern that the
jurors had been exposed to extrinsic information that could affect the jury‘s ability
to be impartial. Tann, 127 A.3d at 470. Once such a concern arises, ―it is the
responsibility of the trial judge to hold a hearing‖ to address the concern. Id. At
such a hearing, ―it is the government‘s burden to demonstrate that the jury‘s
contact with extraneous information was harmless or non-prejudicial.‖ Id.
(brackets and internal quotation marks omitted). ―The evidence of record must
justify a high degree of confidence that the likelihood of juror partiality has been
rebutted. Otherwise, the court is obliged to declare a mistrial or grant other
adequate relief.‖ Id. (brackets, citation, and internal quotation marks omitted).
26
In this case, the trial court did nothing to assess or address the potentially
prejudicial effect of the outburst. The trial court did not determine what the jurors
heard and saw, did not inquire into whether the jurors‘ ability to be impartial had
been affected, and did not instruct the jury to disregard the outburst. Thus, the trial
court did not fulfill its obligation to ―declare a mistrial or grant other adequate
relief.‖ Tann, 127 A.3d at 470 (internal quotation marks omitted). I have found no
case from this jurisdiction in which a trial court took no steps at all in response to a
comparable incident. To the contrary, in each such case that I have found, the trial
court conducted an inquiry, gave a curative instruction, or did both. See, e.g., id. at
470-71 (trial court gave curative instruction after defendant‘s outburst); Hallman v.
United States, 410 A.2d 215, 217 (D.C. 1979) (trial court gave curative instruction
after spectator was sobbing and weeping during opening statement); Christian v.
United States, 394 A.2d 1, 21-23 (D.C. 1978) (trial court gave curative instruction
after outburst from testifying witness); Evans v. United States, 392 A.2d 1015,
1025-26 (D.C. 1978) (trial court gave curative instruction after outburst from
codefendant); Hammond v. United States, 345 A.2d 140, 141-42 (D.C. 1975) (trial
court conducted voir dire and gave curative instruction after outburst by defendant
and father outside courtroom); cf. Commonwealth v. Tribblett, 363 A.2d 1212,
1214-15 (Pa. Super. Ct. 1976) (affirming conviction despite outburst in which
27
spectator stood up and began screaming that defendant had threatened spectator‘s
life; trial court gave immediate curative instruction).
The court‘s affirmance in this case rests on four principal considerations.
First, the court reasons that mistrials are disfavored, that the trial court has broad
discretion about whether a mistrial is required, and that the trial court also has
broad discretion about how to handle concerns about jury taint. Ante at 17-18.
Cases such as Tann, however, establish a limit on the scope of the trial court‘s
discretion. If a plausible concern about jury taint arises, the trial court must either
grant a mistrial or take steps to ensure that the jury‘s ability to be impartial has not
been undermined. See, e.g., Tann, 127 A.3d at 470. By failing to meet this
requirement, the trial court in the present case abused its discretion.
Second, the court points out that it is unclear whether any juror either heard
the potential witness‘s screaming about fearing for her life or connected those
screams to this case. Ante at 19-20. Given that the trial court, defense counsel,
and the prosecutor all heard the potential witness‘s screams and her reference to
fearing for her life, there is little reason to doubt that one or more of the jurors did
as well. More fundamentally, the court is placing the burden of uncertainty on the
incorrect party. Defense counsel‘s representations about the outburst raised a
28
plausible concern about jury taint. Under our cases, the burden therefore was on
the trial court or the prosecution to create a record demonstrating with a high
degree of confidence that there was no basis for concern. No such record was
created in this case. The trial court thus was required either to grant a mistrial or to
take other steps, such as giving a curative instruction or conducting a voir dire of
the jury, to ensure that the jury‘s impartiality had not been undermined.
Third, the court accurately points out that defense counsel did not request a
curative instruction or a voir dire of the jury. Ante at 22. Although such a request
would certainly have been helpful, our cases foreclose the idea that the absence of
such a request is fatal to Mr. Holmes‘s claim. Rather, if a defendant seeks a
mistrial based on a plausible concern about jury taint, the trial court must either
grant the motion or otherwise adequately address the concern. Tann, 127 A.3d
470. Defense counsel‘s failure to request a curative instruction or voir dire of the
jury does not eliminate the trial court‘s responsibility.
Fourth, the court relies heavily on Tann. Ante at 18-21. That reliance is
misplaced. Rather than supporting affirmance in this case, Tann requires reversal.
I first note one factual correction. The court states that, as in Tann, the trial court
in this case ―observed firsthand the situation and the jury‘s reaction.‖ Ante at 20.
29
To the contrary, it is unclear whether the trial court saw the potential witness as she
was screaming outside the courtroom. Moreover, the record indicates that the trial
court may not have heard everything the potential witness screamed and did not
observe the jurors‘ responses to the outburst. In fact, the trial court explicitly
acknowledged that it did not know what the jurors might have seen or heard. A
fact that we deemed ―crucial‖ in Tann, 127 A.3d at 471, is thus missing in the
present case. More fundamentally, Tann required the trial court in this case either
to declare a mistrial or to take some other step to address the potential prejudice
arising from the outburst. 127 A.3d at 470. We affirmed in Tann in significant
part because the trial court properly followed that legal framework, by giving a
curative instruction. Id. at 470-71. We presume that juries follow such
instructions. See, e.g., McRoy v. United States, 106 A.3d 1051, 1061 (D.C. 2015)
(―[T]he court issued a clear curative instruction, which we presume the jury
followed, absent evidence to the contrary.‖). In Tann, the risk of jury taint was
addressed in a way that we presume effective. In the present case, the trial court
took no steps to address the risk of jury taint. Under the legal framework that we
applied in Tann and that binds us here, reversal is required.
I would reverse and remand the case for further proceedings. I therefore
respectfully dissent in part.