The opinion
YEAGLEY, Associate Judge
(dissenting) :
I am not prepared to extend the scope of the plain error rule any further. Accordingly, I dissent. I thought that our invoking the rule in Lofty v. United States, D.C.App., 277 A.2d 99 (1971), relied on by the majority, was an extremely close question and represented its outer limits. A strong argument can be made that we went too far in Lofty . Neither Lofty nor this case involves the denial of a basic element of a fair trial. The instant case involves only the question of whether an instruction that was given at the end of the trial should also have been given sua sponte when impeaching testimony was admitted. In this case neither the court nor counsel perceived that the situation called for action whereas in Lofty the defect was deliberate and not an oversight for the prosecutor had suggested at the time that an instruction be given immediately. Id. at 100 .
In the course of the broadening application of the plain error rule there has been a tendency to forget that “plain error” is not the rule but the exception. The general rule, with which we must begin, is that trial errors must be objected to at the time they occur if they are to be considered on appeal. Adams v. United States, D.C.App., 302 A.2d 232, 234-35 (1973); Wooten v. United States, D.C.App., 285 A.2d 308 , 309 n. 3 (1971); Bunter v. United States, D.C.App., 245 A.2d 839, 841-42 (1968).
Not long after our decision in Lofty this court severely limited the scope of that decision after carefully examining the plain error rule. In that case, Dixon v. United States, D.C.App., 287 A.2d 89, 97 (1972), this court held that its decision was not controlled by a statement in Lofty taken from United States v. McClain, 142 U.S. App.D.C. 213, 218, 440 F.2d 241, 246 (1971), that
“whenever evidence is brought in which is admissible only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautionary instruction” [footnote omitted; emphasis in original]
for the reason that Dixon , unlike McClain and Lofty , did not involve the impeachment of one’s own witness, but rather the impeachment of the defendant. Since here, as in Dixon , the impeachment of the *643 prosecutor’s own witness is not involved, I suggest that Dixon is more analogous to this situation than is Lofty . The Dixon court examined the precedents and determined that the immediate cautionary instruction in Lofty was useful to avoid confusion on the part of the jury when a prior inconsistent statement was introduced to rebut the surprise testimony of the government’s own witness. The court in Dixon observed
. the situation which confronted the court in Coleman [Coleman v. U. S., 125 U.S.App.D.C. 246 , 371 F.2d 343 (1966), cert. denied, 386 U.S. 945 , 87 S. Ct. 979 , 17 L.Ed.2d, 875 (1967)], Jones [Jones v. U. S., U.S.App.D.C. 36, 385 F. 2d 296 (1967)], and Lofty justified an immediate instruction sua sponte by the trial court because jury confusion undoubtedly occurred where trial counsel suddenly claimed surprise at his own witness’s testimony, and was then allowed to introduce ... a prior [inconsistent] statement . . . . [ 287 A.2d at 99 .]
There was no element of surprise in the instant case, and I see no reason to conclude that the jury could have been so confused as to require an immediate cautionary instruction.
It is quite a different situation when a prosecutor is caught by surprise 1 and must impeach his own witness with prior statements for it may well appear to the jury that the earlier inconsistent statements were being admitted for the truth of their content as a part of the government’s case in chief.
In Dixon the court went on to observe that:
In considering the propriety of a rule which would require an immediate cautionary instruction sua sponte by the trial court (unless trial counsel specifically requests no instruction), it is important to note that such a rule would be a departure from the practice found generally throughout the United States. An extensive examination of the law of both state and federal jurisdictions reveals that, as a general rule, counsel must request an instruction on evidence which is admitted for a special or limited purpose . . . . [ 287 A.2d at 98 (footnotes omitted; emphasis in original).] 2
I see no logic in departing from what appears to me to be the sound reasoning of Dixon which I submit should control the result here.
Dixon was not the first case in this jurisdiction to apply that philosophy for it was held many years ago that:
Except upon essential principles of law concerning which it is the duty of the trial judge to instruct the jury whether requested or not, there is no duty to instruct in the absence of a request. And the request must be proper. It is not the duty of a trial judge to recast or modify an erroneous or misleading requested instruction. [George v. United States, 75 U.S.App.D.C. 197, 201 , 125 F.2d 559, 563 (1942) (citations omitted).]
The power of this court to notice unob-jected to defects affecting substantial rights is discretionary and it has long been held in this jurisdiction that “‘[a]bsent a clear showing of prejudice, we are not disposed to notice alleged errors which are raised for the first time on appeal.’ ” Hill v. United States, D.C.App., 280 A.2d 925, 926 (1971). See Adams v. United States, supra at 234. It is specifically provided at the end of Super.Ct.Cr.R. 30 3 regarding instructions to the jury that:
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating dis *644 tinctly the matter to which he objects and the grounds of his objection.
In a case not involving a failure to instruct, but involving an erroneous instruction not objected to, the Ninth Circuit observed that the purpose of the rule is to permit courts sua sponte to notice errors which the parties failed to call to the court’s attention “but it does not authorize the consideration of matters which another rule specifically states shall not be assigned as error.” Herzog v. United States, 226 F.2d 561, 570 (9th Cir. 1955), adhered to on rehearing, 235 F.2d 664 , cert. denied, 352 U.S. 844 , 77 S.Ct. 54 , 1 L.Ed.2d 59 (1956) (emphasis in original).
The Fifth Circuit applied the literal reading of rule 30 to a case very similar to this involving the impeachment of a code-fendant and refused to hold it was plain error not to instruct the jury sua sponte even though no instruction on impeachment testimony was included later in the general instructions, United States v. Easterly, 444 F.2d 1236 (5th Cir. 1971). Also see Blakeley v. United States, 249 F.2d 235 (5th Cir. 1957).
In another case where a prior inconsistent statement of the accused was allowed in evidence without a limiting instruction, none having been requested, the Second Circuit quoted from 1 Wigmore, Evidence § 13 at 301 (3d ed. 1940) to the effect that “[t]he better opinion is that the opponent of the evidence must ask for that instruction; otherwise, he may be supposed to have waived it as necessary for his protection.” The court then added, “[t]he defense may not remain silent in hopes that the district court will fall into reversible error where the possible error could have been passed upon and cured, if need be, by a properly timed objection.” United States v. Curry, 358 F.2d 904, 912 (2d Cir.), cert. denied, 385 U.S. 873 , 87 S.Ct. 187 , 17 L. Ed.2d 100 (1966) (footnote omitted) (emphasis in original). Apparently no instruction of any kind was given as to the limited purpose for admitting the testimony and the court found no reversible error even though the failure could have been deemed to be quite damaging. I find no logical reason why the same result should not obtain here.
In a case remarkably like the one at bar where appellant called a codefendant as a witness who was impeached with a prior inconsistent statement implicating the appellant, but where no instruction was given limiting the use of the testimony to purposes of impeachment, the Second Circuit, following the same rule as in Curry, supra, said: “Appellant made no request for such instructions at the trial; his failure to make such a request bars him from raising the issue for the first time on appeal.” United States v. Ballentine, 410 F.2d 375, 377 (2d Cir. 1969) (citations omitted).
It is important to one who has a strong defense to have the case carefully and properly tried. But the plain error rule invites a shrewd attorney who has a weak defense to conclude that his best strategy is- to remain silent and let the judge make his own way hoping thereby to “sow error in the record”. If the courts are to grant relief frequently by labeling it plain error we cannot expect defense counsel to help trial courts to avoid error which is essential to a strong adversary judicial system. The time has come to recognize that there must be a line beyond which we will not make an exception to the general rule that an unobjected to error will not be noticed on appeal; otherwise resort to the exception will continue to expand endlessly by feeding on itself. A decision in one close case is being used as authority to extend the exception to another but less justifiable situation just as we are asked to extend it here because of the arguable similarity with Lofty, supra. It is one thing for appellate courts to reverse when the trial court has been guilty of misdirection, but quite another to do so for delayed direction.
*645 I find it significant that in the course of the trial in the instant case when the prosecutor interrupted the examination of the complainant by counsel for defendant Allen to observe he was “digging the ditch deeper for [the other two codefendants], and if neither of these counsel have any objections to what’s going on, I don’t have any objections”, counsel for appellant Johnson responded as follows indicating he was well aware of the necessity of a defense lawyer sometimes remaining silent and not objecting even where an objection might seem to be required. He said:
MR. ARMSTRONG: Well, Your Honor, on behalf of Mr. Johnson, I am aware of the problem that [the prosecutor] has just mentioned.
Counsel for these defendants have to make tactical decisions as to whether or not to maintain a low profile or object at every point. I made many decisions, as I have made other decisions in the course of the trial, regardless of if my client disliked my failure to cross-examine [the witness] earlier. There is some truth in what [the prosecutor] is saying with respect to further examination, the course it may take, as Mr. Koenick proceeds. But I would have to make judgments as I go along.
Super.Ct.Cr.R. 52(b) is identical to the same numbered federal rule promulgated by the Supreme Court, but I am unable to find any direct endorsement by that Court of the use of the plain error rule to override rule 30 requiring objections be made to jury instructions if error is to be preserved. We know, however, that many years ago the Supreme Court said that:
Exceptions to a charge must be specifically made in order to give the court opportunity then and there to correct errors and omissions, if any. Pennsylvania R. R. Co. v. Minds, 250 U.S. 368, 375 , 39 S.Ct. 531 , 63 L.Ed. 1039 , and cases cited; Allis v. United States, 155 U.S. 117, 122 , 15 S.Ct. 36 , 39 L.Ed. 91 . Even if some of the instructions were erroneous, the exceptions taken were not such as to require a new trial. [Burns v. United States, 274 U.S. 328, 336 , 47 S.Ct. 650, 653 , 71 L.Ed. 1077 (1927).]
In Humes v. United States, 170 U.S. 210, 211-12 , 18 S.Ct. 602 , 42 L.Ed. 1011 (1898), where error was assigned for failure of the court to give certain instructions, the Supreme Court said:
We cannot regard as error the omission of the court to give instructions which were not asked. In Isaacs v. U. S., 159 U.S. 487, 491 , 16 Sup.Ct. 51 , [ 40 L.Ed. 229 ], Mr. Justice Brown said: "It is no ground for reversal that the court omitted to give instructions, where they were not requested by the defendant. It is sufficient that the court gave no erroneous instructions.” [Citations omitted; emphasis added.]
It appears that so far there has been no specific guidance from the Supreme Court in applying those two federal rules but in view of the clear language it incorporated in rule 30, one might expect it to adhere to its opinion in Humes .
This is not to contend that an appellate court should fail to recognize plain error or that it should affirm a judgment where it is clear an essential element of a fair trial was absent, such as advice to the jury as to the basic elements of the offense or of the standard of reasonable doubt. These are not merely desirable but essential to a fair trial. But here the defect is not of that nature. It is simply one of the court giving an instruction only once when it should have been given twice. Absent a clear showing of a miscarriage of justice, we should not be quick to relieve one of a conviction because of so-called plain error where trial counsel perceived no error at the time and the evidence of guilt was convincing.
When errors occur at trial but it is not clear that a substantial right was adversely *646 affected by failure of counsel and the court to act, appellant’s contention might better be reviewed on the standard of whether there was ineffective assistance of counsel. 4 However, this is not to be equated with unsuccessful trial strategy or tactics. Counsel here was not inexperienced and was alert to the problem of making tactical decisions as the trial progressed.
I would follow the policy adopted by the Supreme Court and the Second Circuit as reflected by Humes, Burns, Curry, and Ballentine, supra, and hold that appellant’s failure to request the instruction at trial bars him from raising the issue for the first time on appeal.
. In Coleman v. United States, supra at 249, 371 F.2d at 346 , quoted with approval in Lofty , the court seemed to place some emphasis on the fact that the element of surprise was present which is quite the opposite of the case here.
. See also P. Robinson, A Proposal for Limiting the Duty of the Trial Judge to Instruct the Jury Sua Sponte, 11 San Diego L.Rev. 325, 328 (1974).
. Identical to Fed.R.Crim.P. 30.
.A Proposal for Limiting the Duty of the Trial Judge to Instruct the Jury Sua Sponte, supra at 352.