RENALDO K. LUCAS v. UNITED STATES

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CF-240

RENALDO K. LUCAS, APPELLANT,

v.

UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-14701-11)

(Hon. Robert I. Richter, Trial Judge)

(Argued November 22, 2013 Decided October 30, 2014)

Christine A. Monta, Assistant Public Defender, with whom James Klein and
Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.
Kristina Ament, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Elizabeth Trosman, John P. Mannarino, and
Amanda Winchester, Assistant United States Attorneys, were on the brief, for
appellee.

Before THOMPSON, Associate Judge, and STEADMAN and RUIZ, Senior
Judges.
 2

RUIZ, Senior Judge: Renaldo Lucas was convicted by a jury of unlawful

possession of a firearm by a felon,1 carrying a pistol without a license,2 possession

of an unregistered firearm,3 and possession of ammunition without a valid

registration for a firearm.4 On appeal he argues that a comment made by the

prosecutor in closing summation was improper and that, uncorrected by any

limiting or curative instruction, the comment prejudiced his right to a fair trial. We

agree that the prosecutor‟s comment may have implied, improperly, that appellant

was guilty because he was guilty of a past crime. However, we conclude that

appellant was not substantially prejudiced and we therefore affirm appellant‟s

convictions.

I.

The government‟s principal witness was Officer Andre Parker, who was on

duty in his marked patrol car on August 3, 2011. Officer Parker testified that

around 12:15 a.m. that morning he noticed two cars parked at the entrance to an

1
D.C. Code § 22-4503 (a)(1) (2012 Repl.).
2
D.C. Code § 22-4504 (a)(1) (2012 Repl.).
3
D.C. Code § 22-2505.01 (2012 Repl.).
4
D.C. Code § 7-2506.01 (3) (2012 Repl.).
 3

apartment parking lot and a man sitting on the adjacent curb. Thinking the

situation was suspicious, Officer Parker approached in his patrol car and lowered

his window. The man told him everything was “okay” but he said so in a slurred

voice that made Officer Parker think the man was under the influence of alcohol.

Officer Parker exited the patrol car and approached the two vehicles on foot.

As the officer approached, one of the cars started to quickly reverse.

Officer Parker pursued the car on foot, and saw appellant, who was in the

passenger seat, “making a movement about his waist area” like he was removing a

seatbelt. After reversing about forty yards, the car stopped. Appellant got out of

the vehicle and ran off with his right hand clutched at his waist. Officer Parker

gave chase. Just before appellant ducked behind a parked pickup truck, Officer

Parker testified, appellant removed an object from his waist area and threw it.

Officer Parker “saw and heard a silver object hit the rod [sic] iron fence” that ran

along the boundary of the parking lot behind the truck. To Officer Parker, the

object sounded “like it was something heavy” and the sound was “of two metals

clinging [sic] together, it was a loud bang,” not the sound a bottle or a can would

make. The officer caught up with appellant behind the truck and handcuffed him.

Appellant told Officer Parker that he had thrown a bottle of beer he had been

drinking and later explained that he ran away because he knew the driver had a
 4

suspended license. Officers searched the area adjacent to where appellant was

seized. They recovered a silver and black handgun from the other side of a tall

fence that bordered the parking lot.

On cross-examination, Officer Parker admitted that he was “uncertain” of

the object appellant had thrown as he was pursued.5 This was in part because the

encounter occurred at night6 and because when the officer began his pursuit as the

car reversed quickly backwards, he was as far as forty yards away. He had,

however, closed the distance to about ten feet by the time the object was thrown.

Officer Parker also admitted that there were a lot of weapons in the area along

Ridge Road where appellant was arrested. He further stated that photos taken of

the area around the fence-line where the gun was found showed “a bunch of trash”

and bottles, including at least one beer bottle.

5
Another officer, Ho Le, pursued appellant from a separate angle, in order
to head him off. At one point Officer Le lost track of Officer Parker and appellant,
who were separated from him by about four car lengths. Officer Le testified that
he did not see appellant throw anything nor did he hear anything strike the fence,
but his testimony makes clear that this was simply because his attention was
focused on running at an angle to intercept appellant, not on appellant himself.
6
Officer Parker testified that there were street lights in the parking lot and
that he had his flashlight in hand during the pursuit.
 5

Officer Bernard Lyons, a crime scene technician, testified that he processed

the recovered handgun, a semiautomatic pistol, and found usable prints on the

ammunition magazine, but not on the exterior of the weapon. The usable prints

recovered were smudged, however, and of no value for identification purposes.

Officer Lyons testified that the lack of usable prints on the exterior of the gun

could have been the result of the rough material on the plastic grip of the gun, of

multiple people handling the gun, of rubbing the gun against clothing while pulling

it from a waistband, or of the weapon having been left undisturbed for a period of

time while exposed to the elements. Officer Lyons agreed with defense counsel

that generally “if somebody sweats more, there‟s more likely to be a fingerprint.”

However, he opined that this would not necessarily result in an increased ability to

find prints on the grip of the recovered handgun given the rough surface of the

grip.

The prosecutor read into evidence the parties‟ stipulation that “as of August

3, 2011, defendant, Renaldo Lucas had a prior conviction for a crime punishable

by imprisonment for a term exceeding one year.” This stipulation was relevant to

the charged offense of unlawful possession of a firearm by a felon because it

established one of the elements of the offense: that appellant had a prior felony

conviction.
 6

In closing, the government presented its theory that appellant ran when

Officer Parker approached the car because “he had the gun that he knew he had no

business having and that he threw it right in front of that officer and [the gun] was

found right there on the ground where he had thrown it, where he was caught

moments later.” The defense countered that the reason appellant ran was that he

had been drinking that night and threw away his beer bottle as the officer chased

after him. Defense counsel argued that it should trouble the jury that according to

the government‟s theory “this gun was found at a time when someone was

nervously running from a car in August, ample reason to believe . . . . someone

might sweat” and yet appellant‟s fingerprints were not found on the weapon.

Defense counsel urged the jury to find that the government‟s evidence linking

appellant to the gun found by the fence was weak—only Officer Parker‟s

uncorroborated testimony—and reminded jurors that they were required to

presume appellant innocent unless the evidence established appellant‟s guilt

beyond a reasonable doubt.

That‟s especially important in this case because when
this case started, we told you. We told you during jury
selection just be aware as part of this case you need to
know that at some point in the past [appellant] was
convicted of a crime and you promised us that that would
not color your perception. That knowing all that, you
could still sit here and presume him innocent and give
him all the benefits of a fair trial and we are counting on
 7

you to do that. Only if the Government proves its case
can that change.

In rebuttal, the prosecutor responded to defense counsel‟s arguments about

the absence of fingerprints and the unreliability of Officer Parker‟s observations.

The prosecutor also made specific reference to appellant‟s prior conviction:

You‟ve got him saying I threw a beer [bottle] to try to
throw the officers off course before anybody‟s found
what he threw. And of course you have the gun found
mere feet away from where Officer Parker found
[appellant]. The gun is the reason why he ran. He had it
on his person just like he had that prior conviction on his
record.

(emphasis added). Appellant‟s counsel immediately objected but was overruled in

open court.

After closing arguments, the trial court gave final instructions to the jury.

No instruction was given on the proper, limited use of the stipulation that appellant

had a prior conviction. At the close of instructions, the court inquired whether

there were any objections. None was raised.
 8

The jury began deliberations after lunch and was dismissed for the day at

4:30 p.m. After the jury was dismissed, defense counsel returned to the issue of

the government‟s rebuttal comment about appellant‟s prior conviction, stating

There‟s one issue I wanted to discuss briefly if we could.
I objected during [the prosecutor‟s] closing to the
comment that was made[, “H]e had that gun just like he
had that prior conviction.[”] The Court overruled that
objection, rather than make a bigger spectacle out of it
and approach the bench, I accepted the Court‟s ruling but
I do think that it warranted then a curative instruction,
perhaps even a mistrial, Your Honor[,] but to reference it
in that way sounded very much like a propensity
argument. He had that gun just like he had that prior
conviction.

The trial court responded:

If you think it warranted an instruction, then you were
certainly obligated to say so. I mean, I‟m not going to
disagree with you that it probably wasn‟t a wise
comment. On the other hand, it is an element for them,
they have to show he has the prior conviction and he has
the gun and it was a simple statement over the course of
close to an hour of closing. It was one sentence and he
had that conviction just like he had the gun.

I don‟t see where it‟s in any way propensity. It‟s
something they have to prove. It‟s—I don‟t see where
there‟s the slightest prejudice from it. So I‟ll deny
whatever it is you‟re asking for now. Perhaps a mistrial,
then perhaps I‟m denying it.
 9

The following day, after deliberating during the morning, the jury found appellant

guilty of the four weapons offenses.

II.

Appellant contends that the prosecutor‟s comment in closing—“He had that

gun just like he had that prior conviction”—was improper propensity argument and

that the court erred in not recognizing it as such when defense counsel objected

and not granting what appellant terms counsel‟s later request for a mistrial or

curative instruction. “In considering claims of improper argument, „it is our

function to review the record for legal error or abuse of discretion by the trial

judge, not by counsel.‟” Robinson v. United States, 50 A.3d 508, 530 (D.C.

2012), cert. denied, 133 S. Ct. 2404 (2013) (quoting Gilliam v. United States, 46

A.3d 360, 366 (D.C. 2012)). The regulation of closing arguments is committed to

the discretion of the trial judge, as are decisions of how to deal with improper

comments. See Turner v. United States, 26 A.3d 738, 742 n.7 (D.C. 2011); Finch

v. United States, 867 A.2d 222, 225 (D.C. 2005). That discretion is not unfettered,

however, and “must be exercised in accordance with correct legal principles.”

Turner, 26 A.3d at 742 n.7. A court‟s exercise of discretion will necessarily turn

on its determination whether an argument is improper. Thus, we must first

determine whether the court correctly concluded, as a legal matter, see id. at 742,
 10

and McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991), that the prosecutor‟s

challenged comment, even if “[un]wise,” was not “in any way [a] propensity”

argument. For the reasons that follow, we disagree with the trial court‟s

assessment that there was no impropriety in the prosecutor‟s comment.

It is a long-standing rule in this jurisdiction that evidence of prior

convictions may not be introduced to prove, nor argument made to suggest, that a

defendant is guilty of the crime charged because he has a propensity to commit

criminal acts. See, e.g., Drew v. United States, 331 F.2d 85, 89 (D.C. Cir. 1964);

see also Fields v. United States, 396 A.2d 522, 527 (D.C. 1978). Because of the

risk that jurors will make an inference of criminal propensity from prior criminal

activity, evidence of a prior conviction is presumptively prejudicial and contrary to

the presumption of innocence. See Drew, 331 F.2d at 89-90. On the other hand,

evidence of prior convictions may be introduced and there is “nothing inherently

improper in the mere mention of a defendant‟s prior convictions in a prosecutor‟s

closing argument” provided there is an appropriate basis for it outside of proving

criminal propensity. (Amos) Jones v. United States, 579 A.2d 250, 254 (D.C.

1990). Thus, when a prosecutor‟s comment is challenged as a propensity

argument, the court must consider “whether the prosecutor‟s reference to a

defendant‟s previous conviction is such that, under the circumstances, reasonable
 11

jurors would naturally and necessarily regard the manner in which the [conviction

is mentioned] as implying that the defendant is guilty of the crime charged because

he was guilty of past crimes.” Dorman v. United States, 491 A.2d 455, 460 (D.C.

1985) (en banc).7 This is an objective analysis of the “impact upon the jury of the

prosecutor‟s manner of [using the] prior conviction rather than the motive or intent

of the prosecutor.”8 Id. at 461. The court focuses on the “manner” that prior

convictions are used because evidence of previous convictions will always be

prejudicial to the defendant to some degree, regardless of their admissibility for a

legitimate purpose. Id. at 460.

We do not automatically ascribe the most damaging interpretation to a

comment, viewed in isolation. Rather, we look at the comment in context and will
7
While the issue presented in Dorman involved statements made by a
prosecutor in cross-examining a defendant, the court specifically noted that similar
considerations apply to comments made in closing argument. 491 A.2d at 460 n.5.
We have fully adopted the same test for statements made in the context of closing
argument. See Ford v. United States, 487 A.2d 580, 591 (D.C. 1984) (citing
Fields, 396 A.2d at 527).
8
Whether a comment was made in good faith is not relevant in determining
if a statement was improper vel non. See Anthony v. United States, 935 A.2d 275,
286 (D.C. 2007) (“[W]e have no hesitation in concluding that the prosecutor‟s
transgression, though presumably unintentional, was serious in nature, and that an
appropriate judicial response was called for.”) (internal quotations omitted);
Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969) (“We have found
error in prosecutorial misstatements even where, as here, they were apparently
made in good faith.”).
 12

conclude it was improper if it would reasonably be understood by the jury as an

“invitation” to infer that the defendant was guilty of the crime charged because he

was guilty of a previous crime. Dyson v. United States, 450 A.2d 432, 441 (D.C.

1982); Ford, 487 A.2d at 591 (stating that a prosecutor is prohibited from

“suggesting in closing argument that the jury should infer criminal disposition

from the evidence of prior crimes”). Particularly relevant here is the juxtaposition

of the comment about appellant‟s prior conviction with the only material fact that

was disputed at trial: whether appellant possessed the gun that the officers found

on the other side of the fence.

We have cautioned that a jury is more likely to view a comment about a

prior conviction as an invitation to infer criminal propensity if the comment is

closely sequenced after or juxtaposed against a general denial or key elements of

the charged offense that the defendant denies. See Dorman, 491 A.2d at 459;

Fields, 396 A.2d at 527-28. Whether appellant possessed the gun the officers

found was the only element that was in dispute in any of the four charged

offenses.9 Appellant denied that he had thrown a gun, and argued that what he had

9
In addition to stipulating that appellant had a prior conviction, the parties
stipulated that he did not have a license to carry a pistol in the District of Columbia
and that he did not hold a registration for any firearm in the District. Thus, each of
(continued . . .)
 13

thrown was a beer bottle. In rebuttal, the prosecutor was addressing appellant‟s

denial of this key element when he mentioned appellant‟s prior conviction in the

same sentence. However, appellant‟s prior conviction was of no legal relevance to

whether appellant possessed the gun. The prosecutor‟s comment, moreover, made

no distinction between possession of the gun as an element common to all the

charged offenses, and the existing prior conviction, which was a separate and

distinct element of only one of the offenses.10 Nor did the prosecutor explain why

he mentioned the prior conviction—even after defense counsel objected. Cf. Ford,

487 A.2d at 591 (concluding comments were not improper in part because “the

prosecutor correctly told the jurors that they could consider [the defendant‟s] prior

convictions „in determining whether the man is telling the truth‟ but not to infer

that „because he did those things, he did these‟”). To the contrary, the prosecutor

equated the two, saying that appellant possessed the gun “just like” he had the prior

conviction. The jury could reasonably have perceived the prosecutor‟s comment

(. . . continued)
the four charged offenses turned on a sole disputed fact: whether appellant
possessed the gun and, with it, the ammunition found in the gun‟s magazine.
10
The jury instructions correctly listed the elements of the various offenses.
However, as we discuss in the text, it is the manner in which the prosecutor‟s
argument tied appellant‟s prior conviction together with the question of appellant‟s
possession of the gun that could reasonably be perceived by the jury as a
propensity argument.
 14

as “implying that the defendant is guilty of the crime charged because he was

guilty of past crimes.” Dorman, 491 A.2d at 460; see (Adrian) Williams v. United

States, 549 A.2d 328, 333-34 (D.C. 1988); Dyson, 450 A.2d at 441.11

The government argues on appeal that although the “intended import” of the

prosecutor‟s comment about the prior conviction in rebuttal is ambiguous, it

appears to have been made “in response to appellant‟s argument that there was

inadequate proof of possession,” to argue “that there was just as much proof of

appellant‟s possession (via the trial evidence) as there was of his prior conviction

(via the stipulation).” Thus, the government contends, “nothing about the

comment suggested to the jury that appellant‟s prior conviction made him the type

of person who would likely carry a gun.” We are not persuaded that this would be

the natural interpretation of the comment from the perspective of a jury hearing the

remark within the evidentiary context of this trial. The jury was informed that the

parties had agreed by stipulation to the fact that appellant had a prior conviction.

Indeed, the trial court instructed the jury that the stipulated prior conviction was
11
The government attempts to distinguish Dyson on the ground that the
prosecutor in Dyson made a “conscious attempt to lead the jury into considering”
criminal propensity. 450 A.2d at 441. However, as discussed supra, the intention
of the prosecutor is irrelevant in our initial determination of the propriety of
comments. In this regard, a comment may be objectively improper without
necessarily implying prosecutorial misconduct.
 15

“undisputed evidence in the case.” No similar agreement was made by the parties

about the possession of the gun; to the contrary, it was the only issue the jury had

to resolve and it was vigorously disputed. In this evidentiary context, a reasonable

juror could naturally interpret the comment as implying a propensity relationship

between the two facts—appellant‟s prior conviction and his possession of the

gun—mentioned by the prosecutor in tandem. 12

To be clear, the government was entitled to remind the jury of the stipulation

concerning appellant‟s prior conviction in summation as evidence of an element

the government had the burden to prove with respect to one of the charged

offenses. See (Johnny) Williams v. United States, 75 A.3d 217, 222 (D.C. 2013).

However, the prosecutor was required to do so in a manner that would not be

reasonably understood by the jury as an invitation to convict based on a perception

12
The government cites Pérez v. United States, 968 A.2d 39, 80 (D.C.
2009), for the proposition that we should assign the more benign meaning to the
prosecutor‟s comment and conclude it was not improper. But Pérez is not
controlling on the question of the propriety of the comment as the government had
conceded that the prosecutor‟s comments were improper. See id. at 79. The only
question we addressed in Pérez was whether the improper remarks were unduly
prejudicial. See id. at 79-80. This is an issue to which we will return, but one that
we do not yet address. At this stage, we are concerned solely with determining
whether the remark was improper, and we “look to the jury‟s reasonable
perception, using an objective” test; we do not consider the intentions of the
prosecutor. Dorman, 491 A.2d at 460, 461.
 16

of appellant‟s propensity to commit crime. See Turner, 26 A.3d at 744

(concluding comments were improper, regardless of the prosecutor‟s subjective

intentions, because “[i]t is incumbent upon the prosecutor to take care to ensure

that statements in opening and closing arguments” are proper). Defense counsel‟s

objection “was well founded and should have been sustained.” (Adrian) Williams,

549 A.2d at 334.

III.

Having concluded that defense counsel‟s objection to the prosecutor‟s

comment had merit and should not have been overruled, we must address whether

the comment resulted in reversible prejudice. See Robinson, 50 A.3d at 530-31.

Because there is a high likelihood that a jury will make an improper inference of

propensity from evidence of prior convictions, we presume prejudice. See, e.g.,

Eady v. United States, 44 A.3d 257, 265 (D.C. 2012); Johnson v. United States,

683 A.2d 1087, 1092 (D.C. 1996) (en banc); Drew, 331 F.2d at 89-90. However,

we will reverse only if appellant was “substantial[ly] prejudice[d].” Turner, 26

A.3d at 742. As the claim of error was preserved at trial, we review under the

harmless error standard under which the government bears the burden of showing

that the verdict was not substantially swayed by the comment such that this court

can say, with fair assurance, that the conviction is deserving of judicial confidence
 17

and should be affirmed. See (Damion) Jones, 17 A.3d 628, 634 (D.C. 2011);

Wheeler v. United States, 930 A.2d 232, 246 (D.C. 2007); see also Kotteakos v.

United States, 328 U.S. 750, 765 (1946) (“But if one cannot 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, it is

impossible to conclude that substantial rights were not affected.”).

In making that determination we look at: (1) the “gravity” of the improper

comment, (2) its relationship to the issue of guilt, (3) “the effect of any corrective

action by the trial judge,” and (4) the strength of the government‟s case. Turner,

26 A.3d at 742.

A. Gravity of Comment

Where a prosecutor repeatedly emphasizes an improper argument, the

gravity of the impropriety is heightened. See Turner, 26 A.3d at 744. Conversely,

there is less gravity in a passing, brief reference. See Finch, 867 A.2d at 228. As

the trial court observed, the single comment of the prosecutor here was not

repeated, and it referred to a conviction of which the jury had already been made

aware. These factors tend to lessen the gravity of the impropriety. On the other
 18

hand, “[i]mproper prosecutorial comments are looked upon with special disfavor

when they appear in the rebuttal because at that point defense counsel has no

opportunity to contest or clarify what the prosecutor has said.” Anthony, 935 A.2d

at 284 (quoting (David) Lee, 668 A.2d 822, 830 (D.C. 1995)); cf. Pérez, 968 A.2d

at 80 (noting that improper comment was made in opening statement and not

repeated, which mitigated any prejudice). Thus, even though we cannot say the

comment was without prejudicial import, we likewise cannot say the comment was

particularly grievous.13

B. Relationship to Issue of Guilt

The central question of fact at trial, and the only disputed issue, was whether

appellant possessed the handgun and then tried to discard it as he was being chased

by the officers. Appellant‟s prior conviction was relevant solely to one element of

the felon-in-possession charge.14 The prosecutor‟s comment tying the prior

13
It is in connection with assessing the gravity of the comment that the
prosecutor‟s intention may become relevant. The government argues it is
ambiguous, and the record does not reveal whether the prosecutor‟s comment
during rebuttal in this case was intended as a propensity argument. See (David)
Lee, 668 A.2d at 831; Pérez, 968 A.2d at 80.
14
The government does not argue that the prior conviction was legally
relevant for any other purpose.
 19

conviction to proof of whether appellant possessed the gun, however, could be

understood as implying his guilt on all four charged offenses. See Anthony, 935

A.2d at 285 (noting that prosecutor‟s misrepresentation of evidence in closing

argument went “to the very heart of the case”).

We have observed, however, that the risk of prejudice is at its height if the

prior conviction was for an offense similar to the one charged at trial. See, e.g.,

Fields, 396 A.2d at 527; cf. Finch, 867 A.2d at 228-29 (noting that because prior

convictions were non-violent drug and theft offenses, the prosecutor‟s comment

did not suggest appellant had a propensity to commit the charged crimes for armed

assault). In this case, the nature of appellant‟s previous conviction was not

disclosed to the jury.15 On balance, the manner in which the parties agreed to

stipulate to the prior conviction in a summary manner was calculated to lessen

prejudice to appellant. Cf. Goodall v. United States, 686 A.2d 178, 183 (D.C.

1996) (discussing the use of stipulations to reduce prejudicial effect).

C. Strength of Government’s Case

15
There could be concern that the jury might speculate as to the nature of a
prior conviction, but if that is a worry, defense counsel could ask that the nature of
the prior offense (in this case, apparently for drugs) be disclosed to the jury.
 20

While the government‟s evidence in this case was “„sufficient‟ to convict

appellant, it was not overwhelming.” Eady, 44 A.3d at 268. In Eady, a recent case

in which we reversed under plain error review after evidence of a prior conviction

was erroneously admitted and repeatedly emphasized,16 we noted that the

government‟s case hung on the testimony of a single government witness who

claimed to have seen the defendant with a weapon. See id.; see also (David) Lee,

668 A.2d at 832. Similarly in this case, the government‟s case against appellant

turned on the testimony of a single witness. Officer Parker testified that appellant

removed an object from his waist and threw it; he then saw and heard a silver

object hit a fence with a “bang” of two metals, not the sound of a bottle. But

Officer Parker‟s testimony did not stand alone because it was corroborated by two

other pieces of evidence. A silver and black gun was found on the other side of the

fence, and both parties noted in their respective closing arguments that

photographs taken of the gun at the scene depicted a clean gun, from which the

16
Eady reviewed for plain error, but its analysis is still instructive because
the “substantial prejudice” prong of harmless error review is somewhat akin to the
determination of whether an obvious error affected the appellant‟s “substantial
rights.” Wheeler, 930 A.2d at 246 (citing United States v. Dominguez Benitez, 542
U.S. 74, 81-82 (2004)).
 21

jury could infer that it had been lying on the ground for only a short time.17 In

addition, appellant leapt out of the car and began to flee when the officer

approached the car. As he did so, he held his waist area, an action which the

officer knew from experience was consistent with “hav[ing] a weapon in your

waistline or on your waist area.” On the other hand, there also was evidence

supporting the defense‟s argument that what appellant threw away was a beer

bottle: no one actually saw appellant with the handgun at any point; the officers

testified that guns are common in the area of Ridge Road where appellant was

seized; appellant told the arresting officer on the scene that he threw away a beer

bottle; and the area where the gun was found was littered with debris, including at

least one beer bottle.18

We reiterate that our inquiry here is not whether the evidence was sufficient

to sustain appellant‟s conviction; it clearly was. Our purpose is to determine the

prejudicial effect of the improper comment on appellant‟s trial viewed as a whole.

That the government‟s evidence, while strong, was not overwhelming adds weight

17
Officer Kimball, who found the gun, never testified to its condition upon
discovery.
18
On cross examination Officer Parker identified a number of glass bottles
from photographs taken at the scene. One was identified by a type of beverage or
brand—a bottle that had a color similar to that of a Heineken beer bottle. There
was no testimony offered that the other bottles were or were not also beer bottles.
 22

to the potentially prejudicial effect of the comment. Compare, e.g., Dorman, 491

A.2d at 464 (finding improper comments harmless where there was overwhelming

evidence of guilt), with Anthony, 935 A.2d at 285 (finding improper comments

caused substantial prejudice in part because the government‟s evidence was

“problematic” and “not especially compelling”). But, unlike in Eady, where the

improper references to prior convictions were repeated throughout the trial—by

both the prosecutor and the judge—in this case only the prosecutor made the

improper comment, and it was not repeated. The thrust of the prosecutor‟s closing

argument was directed to the evidence presented at trial and properly before the

jury for consideration: highlighting the government‟s evidence that supported that

appellant had the gun and responding to the defense‟s arguments pointing to

weaknesses in the government‟s case.

C. Corrective Actions

In appellant‟s trial the jury never received instruction on the proper use of

prior-conviction evidence. This court has made clear that “a trial court is

ordinarily required to give a strong, unambiguous instruction on the use of prior

convictions in its final charge to the jury.” Fields, 396 A.2d at 526; see Dyson,

450 A.2d at 441 (“In consideration of the potential prejudice to a defendant from
 23

misuse of evidence of prior criminal acts, we have required that care be taken to

insure that the jury is instructed concerning the limits upon the use of such

evidence.”).19 In this case the trial court had been alerted to the defense‟s concern

that admission of the prior conviction would be prejudicial on the disputed issue of

possession.20 Once an improper comment has been made, the use of timely

limiting and curative instructions can be an important consideration in determining

“whether a less blatant error was harmless.” Dorman, 491 A.2d at 462 (noting that

the trial court properly instructed the jury three times). In cases where comments

19
This well-established rule is embodied in a Standardized Criminal Jury
Instruction, which provides that the jury should first be instructed on the proper use
of prior convictions, before being specifically cautioned:

You may not use this evidence for any other purpose.
[Name of defendant] is only on trial for the crimes
charged. The defendant is not charged in this case with
any offense relating to [describe the other crimes
conduct], and you may not use this evidence to conclude
that [name of defendant] has a bad character, or that
[name of defendant] has a criminal propensity. The law
does not allow you to convict a defendant simply because
you believe he may have done bad things not specifically
charged as crimes in this case.

Criminal Jury Instructions for the District of Columbia, No. 2.321 (5th ed. 2013).
20
Defense counsel had requested that the court bifurcate the felon in
possession charge from the trial of the other three gun possession charges. The
request was denied on the ground that because the prior conviction was stipulated
to by the parties, it would merit little mention and “nobody is going to argue that it
means anything.”
 24

are particularly prejudicial, however, even a curative instruction may not be relied

upon to overcome the prejudice. See, e.g., Turner, 26 A.3d at 744; Dyson, 450

A.2d at 442; Bailey v. United States, 447 A.2d 779, 783 (D.C. 1982). The

government cites no case affirming a conviction obtained in a trial where there was

improper comment about a prior conviction and no instruction was given. Thus, in

this case the lack of a limiting or curative instruction concerning the use of a prior

conviction gives us significant pause.

IV.

“We cannot, and do not, take . . . prosecutorial misstatements lightly. In the

final analysis, however, we must determine whether a single lapse on the

prosecutor‟s part, assessed in the context of the entire trial, warrants reversal of

[appellant‟s] convictions.” (David) Lee, 668 A.2d at 833. We consider, first, that

in this case, notwithstanding the lack of trial instructions concerning the proper use

of appellant‟s prior conviction, the jury was not totally without any bearings on the

issue. Jurors had been made aware from the very beginning that appellant had

been convicted of an unrelated crime in the past and they had been admonished not
 25

to use that against him.21 At the end of the government‟s case the jury was read the

one-sentence stipulation that appellant had a prior conviction. In the defense‟s

closing argument, counsel referred to appellant‟s prior conviction and stressed to

the jury that they had

promised us that would not color your perception. That
knowing all that, you could still sit here and presume him
innocent and give him all the benefits of a fair trial and
we are counting on you to do that. Only if the
government proves its case can that change.

Furthermore, we can draw some inferences about the potential for prejudice

from the actions (and inaction) of counsel whose overall performance we have no

cause to question.22 Defense counsel did not mention the absence of a limiting

instruction concerning the prior conviction when the judge listed the instructions

21
During voir dire prospective jurors were informed that appellant had been
“convicted of an unrelated crime in the past” and that “[t]his doesn‟t change the
fact that in the eyes of the law [appellant] is presumed innocent of this charge
unless and until he can be proven guilty beyond a reasonable doubt.” Jurors were
then asked, “Now, knowing [appellant] has a prior conviction, do any of you think
you would have a hard time presuming him innocent?” The record supports that
the voir dire statement was taken to heart by prospective jurors. Four potential
jurors replied affirmatively; after being questioned at the bench, all four were
excused. Pretrial voir dire, however, is no substitute for proper jury instructions at
trial.
22
Appellant was represented at trial, as he is on appeal, by the District of
Columbia Public Defender Service.
 26

that would be read; counsel told the court he had “no changes” to propose in the

instructions. Counsel remained silent when, after instructing the jury, the trial

court inquired whether there were any objections to the instructions. Counsel

raised the issue of a curative instruction to address the prosecutor‟s rebuttal

comment, but did so only after the jury had deliberated for a full afternoon.

Counsel‟s failure to request a limiting instruction—either at the time that the

stipulation was read to the jury, or with the final jury instructions—may reflect

counsel‟s impression that in the context of the trial appellant‟s prior conviction was

not foremost on the jury‟s mind. With respect to improper prosecutorial comment,

we have affirmed “where, as a matter of strategy, defense counsel may decide that

it is more effective simply to let a potentially prejudicial remark pass, rather than

draw[] attention to it further by requesting a curative instruction.” Clark v. United

States, 639 A.2d 76, 80 (D.C. 1993). Indeed, that was the reason defense counsel

gave in this case for not immediately requesting a curative instruction when the

prosecutor mentioned the prior conviction in rebuttal.23 Defense counsel

23
Counsel explained that “rather than make a bigger spectacle out of it and
approach the bench, I accepted the court‟s ruling.”
 27

subsequently had a change of heart, but by that point the jury was already in the

midst of deliberation.24

As the trial court noted, the prosecutor‟s comment was a single, brief, non-

emphasized statement in the midst of around an hour of closing argument. We are

satisfied that the comment, viewed in the context of the trial as a whole, was not so

impactful on the jury as to substantially shift the grounds of their deliberations and

eventual verdict. Having assessed the impropriety of the comment, its centrality to

the issue of guilt, the absence of corrective action by the trial court, defense

counsel‟s admonition in his own closing argument recalling the trial judge‟s

24
Although we consider actions of counsel in evaluating the likelihood of
prejudice, we emphasize that counsel‟s mere failure to request a limiting
instruction does not necessarily relieve the trial court of the responsibility to
properly instruct the jury. See Coleman v. United States, 779 A.2d 303, 304-06
(D.C. 2001) (noting that instruction warning the jury on the proper use of prior-
conviction evidence may be required immediately after the evidence is introduced,
either on request of counsel or sua sponte); see also Finch, 867 A.2d at 225 n.1
(“Such an error or abuse may, to be sure, embrace not only incorrect rulings, but
also, on occasion, failure to intervene sua sponte when such intervention is called
for, . . . or to react with sufficient promptness and vigor to prosecutorial
misdeeds. . . .” (quoting Irick v. United States, 565 A.2d 26, 33 (D.C. 1989))); cf.
Clark, 639 A.2d at 80 (affirming where defense counsel refused court‟s offer to
give curative instruction). Even after the jury had begun to deliberate, had the trial
court perceived the comment as prejudicial, it would have been able to reinstruct
the jury at that point. See Blaine v. United States, 18 A.3d 766, 774 (D.C. 2011)
(noting that “[d]ecisions regarding reinstruction of a jury are committed to the
discretion of the trial court” (quoting Davis v. United States, 510 A.2d 1051, 1052
(D.C. 1986))).
 28

instructions during voir dire, the strength of the government‟s case, and counsel‟s

decision not to request any instruction before the jury began deliberating, we

conclude that while we presume prejudice, the prejudicial effect in this case was

not substantial. Turner, 26 A.3d at 742. Therefore, we are satisfied the

government has met its burden of demonstrating that the prosecutor‟s comment did

not substantially sway the jury and we therefore have sufficient confidence in the

verdict as to affirm appellant‟s conviction. See Kotteakos, 328 U.S. at 765.25

So ordered.

25
Because we find the prosecutor‟s comment and the trial court‟s
instructional error to be harmless, it follows that the trial court‟s denial of
appellant‟s motion for a mistrial was not an abuse of discretion. See Goins v.
United States, 617 A.2d 956, 958 (D.C. 1992) (“Whether to declare a mistrial is
within the sound discretion of the trial court, and its decision in that regard will not
be disturbed except „in extreme situations threatening a miscarriage of justice.‟”
(quoting Beale v. United States, 465 A.2d 796, 799 (D.C. 1983))). In evaluating
whether a motion for a mistrial based on alleged prosecutorial misconduct in a
criminal case was denied in error, this court looks to four factors substantively
similar to those elucidated in Turner, “all the while giving due deference to the
decision of the trial judge, who had the advantage of being present not only when
the alleged misconduct occurred, but throughout the trial.” (Charles) Lee v. United
States, 562 A.2d 1202, 1204 (D.C. 1989).