Joseph Phil Smith v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CF-968

JOSEPH PHIL SMITH, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF3-1399-13)

(Hon. Rhonda Reid-Winston, Trial Judge)
(Argued March 20, 2017 Decided December 28, 2017)

Ian A. Herbert, with whom Nathaniel Edmonds, Jamie Gardner, Matthew
Crossman, and Danielle R.A. Susanj, were on the brief, for appellant.
Jennifer B. Loeb, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Chrisellen R. Kolb, and Peter Lallas, Assistant United States Attorneys,
were on the brief, for appellee.
Before THOMPSON and BECKWITH, Associate Judges, and FARRELL, Senior
Judge.
Opinion for the court by Associate Judge THOMPSON.
Opinion by Senior Judge FARRELL, concurring in part and dissenting in part,
at page 22.
 2

THOMPSON, Associate Judge: A jury found appellant Joseph P. Smith guilty

of first-degree burglary, kidnapping, robbery, and threatening to kidnap or injure a

person. Appellant argues in this appeal that the evidence was insufficient for

conviction and that the trial court erred in admitting certain testimony and physical

evidence, in refusing to give a portion of appellant’s defense theory in instructing

the jury, and in failing to intervene when the prosecutor made allegedly improper

statements during closing argument. We are satisfied that the evidence was

sufficient for conviction, but are persuaded that appellant is entitled to relief based

on what we conclude was the erroneous admission of an item of physical evidence.

We therefore reverse and remand for a new trial.

I.

The government presented evidence at trial that on the evening of January

27, 2013, Michael Hilliard was at home in his apartment at 2410 Good Hope Road,

S.E., when a man “with dreadlocks, or cornrows” knocked on his door and asked

whether he had a cigarette. Mr. Hilliard testified that he had “seen [the man]

around” and had given him cigarettes before. Mr. Hilliard told the man that he did

not and then closed the door. About half an hour later, the same man knocked on

Mr. Hilliard’s door again and asked the same question. After Mr. Hilliard again
 3

said “no,” “somebody came rushing in, [and] pushed the door open.” Mr. Hilliard

testified that a total of “[m]aybe three” people, two of whom were wearing ski

masks, entered his apartment at that time, including “the person with dreads.” At

that point, a struggle ensued until one of the men in a ski mask tied Mr. Hilliard’s

hands behind his back with wire from a speaker. The man with dreadlocks began

to move two of Mr. Hilliard’s television sets. Mr. Hilliard later discovered that his

laptop had been moved, and that his keys, MP3 player, mobile hotspot device,

portable speakers, and wallet were missing. He testified that one of the men in a

ski mask said to him, “Don’t say anything [to the police]. We know where you

live.”1 At some point after Mr. Hilliard’s hands had been tied, there was a knock at

the door, and the man with the dreadlocks went to the door, opened it, and then

closed it “real fast and said it was the police.” The man ran “out the

back . . . bedroom,” and the other two individuals also “took off running.”

Metropolitan Police Department (MPD) Officer Filip Simic testified that, in

response to a call for an assault in progress, he knocked on the door of Mr.

1
Mr. Hilliard was reluctant to testify, and a material witness warrant had to
be issued to obtain his presence in court. He testified that he had refused to
participate in a show-up identification because “of what one of the men said to
[him] in [his] apartment[,] which had made [him] afraid.” During trial, he left
voicemails for the prosecutor describing his fear and asked for “protection” and
“witness security.”
 4

Hilliard’s apartment. Officer Simic told the jury that a man “with an all dark

outfit,” “long dreads,” and “black gloves” — a man Officer Simic identified in

court as appellant — answered the door. For about “four to five seconds,” Officer

Simic and the man “lock[ed] . . . eyes” before the man “slammed the door in [the

officer’s] face.”

Officer Simic ran back out of the building to obtain assistance from his

fellow officers and to tell them to stay outside in case anyone tried to escape

through any of the windows. Officer Simic testified that he saw appellant “come

out [a] window” that was about eight to ten feet above the ground (even though

another officer, Officer Jennifer Ellis, had yelled, “[P]olice, don’t jump”). After

initially testifying that she did not see in the courtroom the man with “long dreads”

who jumped out of the window and identifying that man as appellant’s co-

defendant Andrew Roberson, Officer Ellis testified that appellant was the man she

saw jump out of the apartment window after she had yelled for him to stop.

Officer Johnny Hernandez similarly testified that he saw “the young man

jump out the window at 2410 Good Hope Road, and saw Officer Ellis run after the

man. Officer Hernandez initially followed the two in his vehicle, but eventually

exited his car when the man ran into a wooded area. Searching the area with a
 5

flashlight, Officer Hernandez eventually found appellant, lying on the ground.

After placing appellant in handcuffs, Officer Hernandez patted him down for any

weapons and asked whether he “had anything.” Appellant answered, “I have the

man’s . . . wallet in my . . . back pocket.” Officer Aaron Makanoff testified that he

found on appellant a number of items that belonged to complainant Hilliard: a

mobile hotspot, an MP3 player, identification cards, and keys. Officer Makanoff

testified that when appellant was in the police scout car after his apprehension,

appellant said that the property found on him was passed to him when “[w]e were

jumping out of” the window.2

The government offered into evidence and the court admitted a pair of

gloves (Government Exhibit 31) that Officer Simic testified were the “same

gloves” he saw appellant wearing when he opened the door to Mr. Hilliard’s

apartment in response to the officer’s knock. Officer Simic further testified that he

received the gloves from Officer Ernest Higginbotham and that he gave the gloves

to Officer Hernandez to put into evidence.

2
Officer Makanoff testified initially that appellant made statements that
“somebody passed [items] to him out a window that they were jumping out of”
(emphasis added), but subsequently testified that he “fe[lt] quite sure that in [his]
notes it says ‘we’ [rather than ‘they’].”
 6

Appellant testified that he was never in Mr. Hilliard’s apartment and never

jumped out of a window. He told the jury that on the evening of January 27, 2013,

he left his apartment to go to a gas station on Good Hope Road to buy orange juice

for his daughter. He testified that as he was walking home from the gas station, he

heard a person say “A-homes” and then turned and saw “a guy at the window.”

The “guy” asked appellant to “help him right quick” with “this TV.” The “guy”

then “disappeared” inside and, after a short time, appellant saw a man in a short

black coat “leap[] from the window.” When the man landed, he ran past appellant,

and appellant noticed on the grass a wallet and what appellant thought were a

phone and an MP3 player. Appellant testified that he picked up the items, placed

them in his pockets, “started walking,” and then “started running” after he saw the

police. Appellant testified that he did not have gloves on that evening.

Appellant’s trial counsel called Mr. Hilliard during the defense case to

confirm that appellant is “not the person that entered [Mr. Hillard’s] apartment.”

Mr. Hilliard answered that he had “never seen [appellant] before.” Mr. Hilliard

further testified that the assailant with the dreadlocks was much taller than he is.

After defense counsel asked Mr. Hilliard to stand side-by-side with appellant, Mr.

Hilliard agreed that “the person with dreadlocks was substantially taller than

[appellant] who just stood beside [Mr. Hilliard].”
 7

II.

We begin our analysis with appellant’s argument that there was insufficient

evidence to support his convictions. This, of course, impacts whether the

government will have the opportunity to retry appellants if we find that any of the

asserted errors constituted reversible error. See Evans v. United States, 122 A.3d

876, 886 (D.C. 2015) (“[W]e … address Mr. Evans’s challenge to the sufficiency

of the evidence, because a ruling in Mr. Evans’s favor on that issue would bar

retrial on Double Jeopardy grounds.”); Ford v. United States, 533 A.2d 617, 627

(D.C. 1987) (“When the reversal is based on the insufficiency of the

evidence, . . . a new trial is not permitted.”).3

Appellant contends that “no reasonable jury could conclude that the

government had provided sufficiently reliable evidence to prove beyond a

reasonable doubt that Mr. Smith was one of the burglars in Mr. Hilliard’s

apartment on the night of the alleged crimes.” We disagree. ‘“In a sufficiency

3
Despite arguing that the evidence was insufficient for conviction,
appellant’s brief asks us to reverse the judgment and remand the case “for a new
trial.” We assume that appellant did not thereby mean to abandon his
insufficiency-of-the-evidence claim.
 8

challenge we view the evidence in the light most favorable to the government,

draw all reasonable inferences in the government’s favor, and defer to the

factfinder’s credibility determinations.”’ Medina v. United States, 61 A.3d 637,

641 (D.C. 2013) (quoting Dunn v. United States, 976 A.2d 217, 221 (D.C. 2009)).

“A court must deem the proof of guilt sufficient if, ‘after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”’ Rivas v.

United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (D.C. 1979)).

Appellant’s insufficiency argument rests heavily on Mr. Hilliard’s testimony

that “he knew the burglar with dreadlocks” from the neighborhood and that

appellant “was not that burglar.” Appellant emphasizes that “[o]nly Officer

Simic’s testimony placed [appellant] in the apartment” and that “Officer Simic

himself was inconsistent about the description of the person he saw” there.

However, as we have often stated, “the testimony of a single witness is sufficient

to sustain a criminal conviction.” See, e.g., Gibson v. United States, 792 A.2d

1059, 1066 (D.C. 2002). This is so even when the witness is “not a perfect

witness” or when the testimony of the single witness is “contradicted by other

witnesses or evidence.” Tann v. United States, 127 A.3d 400, 430 (D.C. 2015).
 9

Although appellant contends there were some discrepancies in Officer Simic’s

description of appellant, the jury was free to, and apparently did, credit his

testimony, and “[w]e afford the jury’s credibility determination substantial

deference on appellate review.” Id. Further, the jury was entitled to credit Officer

Makanoff’s recollection that appellant made a statement to the effect that “we” —

appellant and others — jumped out of the window of Mr. Hilliard’s apartment. In

addition, the officers’ identifications of appellant were bolstered by the evidence

that a variety of Mr. Hilliard’s belongings were found on appellant at the time of

his arrest. While appellant in his testimony offered an innocent explanation for

having Mr. Hilliard’s items, the jury was entitled to (and apparently did) discredit

appellant’s testimony.

III.

Appellant contends that admission of Exhibit 31, the black gloves, and

Officer Simic’s testimony identifying the gloves, constituted error. More

specifically, appellant contends that the gloves (which the prosecutor proffered

were recovered by a cell block technician who searched appellant) should not have

been admitted “[w]ithout any testimony from Officer Higginbotham or any other
 10

officer explaining where the gloves were found.” Appellant asserts that without

evidence that the gloves were seized from him, the gloves, as well as Officer

Simic’s testimony connecting the gloves with the person he saw open Mr.

Hilliard’s door, had no probative value, were irrelevant, and should not have been

admitted.4 Appellant further argues that the implication of Officer Simic’s

testimony was that Officer Simic could identify appellant as the burglar who

opened the door in part because appellant was later in possession of the “same

gloves” that man had worn, something Officer Simic could have known only

4
The record is somewhat mixed regarding whether appellant preserved his
objection to the claimed erroneous admission of the gloves. At one point,
appellant’s counsel’s objection led the court to admit the gloves “subject to
connection.” Counsel later objected “[s]ubject to cross-examination,” but then did
not conduct a cross-examination that raised anew the “connection” issue. Counsel
did object during the government’s closing argument when the prosecutor
emphasized that Officer Simic “saw the gloves” admitted as Exhibit 31. And, after
the prosecutor’s closing argument and before the physical evidence went back to
the jury, counsel objected that the gloves had never been connected to appellant.
On this record, appellant’s claim that the gloves were erroneously admitted into
evidence is at least arguably subject to plain error review. The government does
not urge us to apply the plain error standard, however (arguing instead that the trial
court did not abuse its discretion in admitting the gloves), and, therefore, in
evaluating the impact of erroneously admitted evidence, we shall apply the
Kotteakos standard. See Lazo v. United States, 930 A.2d 183, 189 (D.C. 2007)
(citing Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Under that standard,
“which requires us to examine the prejudicial effect of the erroneously admitted
evidence in relation to the strength of the government’s case,” id., “reversal is not
warranted if we determine, ‘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.’” Jones v. United States, 17 A.3d 628, 634
(D.C. 2011) (quoting Kotteakos, 328 U.S. at 765).
 11

through the (testimonial hearsay) statement of Officer Higginbotham or whichever

other MPD employee recovered the gloves. Thus, appellant argues, the “admission

of the gloves necessarily included the implied hearsay statement that the gloves

were found on Mr. Smith.”5

While ‘“[t]he trial court has broad discretion in determining the admissibility

of physical evidence,”’ Fleming v. United States, 923 A.2d 830, 836 (D.C. 2007)

(quoting Gilmore v. United States, 742 A.2d 862, 871 (D.C. 1999)), the legal

requirement for admission of physical evidence is “some connection with the

accused or the crime.” Burleson v. United States, 306 A.2d 659, 661 (D.C. 1973).

We have stated repeatedly that a missing link in the chain of custody of physical

evidence “affect[s] only the weight to be given to the evidence, not its

admissibility.” See, e.g., Garcia v. United States, 897 A.2d 796, 801 (D.C. 2006).

Importantly, however, it appears that we have applied that principle only in cases

where there is testimony that the item of physical evidence was found in the

5
Appellant cites Young v. United States, 63 A.3d 1033, 1045 (D.C. 2013)
(recognizing that where DNA analyst “was not personally involved in the process
that generated [DNA] profiles” and “had no personal knowledge of how or from
what sources the profiles were produced,” her testimony that she matched a DNA
profile derived from appellant’s buccal swab with male DNA profiles derived from
the sexual assault victim would have been “meaningless” absent her unspoken
reliance on “out-of-court assertions by absent lab technicians . . . [about how] they
derived the profiles”).
 12

defendant’s (actual or constructive) possession. See, e.g., In re D.S., 747 A.2d

1182, 1187-88 (D.C. 2000) (finding no error in admission of weapon despite an

alleged break in the chain of custody because the defendant failed to rebut the

presumption that the weapon admitted into evidence was the weapon taken from

him, but doing so only after noting testimony by one Officer Key “that the weapon

admitted into evidence at trial was the weapon [police] recovered from [the

defendant] the night he was placed under arrest”).

In the instant case, Officer Hernandez testified that appellant was not

wearing gloves at the time he was apprehended, no gloves were found around

where appellant was apprehended even though Officer Hernandez searched the

area, and there was no testimony that the black gloves admitted into evidence as

Government Exhibit 31 were otherwise found in appellant’s possession. Officer

Simic testified that he received the gloves from Officer Higginbotham at the police

station, and Officer Hernandez testified that he received the gloves from Officer

Simic and “placed them on the property [book],” but Officer Higginbotham did not

testify and thus did not provide trial evidence (nor did anyone else testify at trial)

that the gloves were found during a search of appellant. Officer Simic — who

acknowledged on cross-examination that there was nothing unusual about the

gloves he saw when the man with dreads opened the door — testified that the
 13

gloves admitted as Exhibit 31 were the very same gloves worn by the man with

dreads, so the officer did connect the generic black gloves to the crime (albeit

weakly). But because the identity of the man with dreads was in dispute, Officer

Simic’s testimony about the gloves did not connect appellant to the crime in the

way the testimony would have done had there also been evidence that the gloves

were found in appellant’s possession. More particularly, the gloves did not tie

appellant to the dreadlocked burglar whom Officer Simic saw standing in the

doorway of Mr. Hilliard’s apartment.

Thus, the issue here is the source of the gloves – i.e., how the police came to

have custody of the gloves – rather than a missing link in their chain of custody.

Further, the problem is not merely, as the government suggests, that Officer Simic

failed to describe how he could recognize the generic black gloves as the ones the

man with dreadlocks wore or the ones Officer Higginbotham gave him. The

problem is more fundamental: without testimony that the gloves were found in

appellant’s possession, the fact that they were the gloves worn by the man with

dreads was irrelevant to the issue of whether appellant was one of the burglars.

Because the disputed issue was not whether the man with the dreads was wearing

black gloves but whether appellant was that man, introduction of the gloves was

“likely to have a damaging impact on the jury.” Burleson, 306 A.2d at 662
 14

(warning of the “general mental tendency, when a corporal object is produced as

proving something, to assume, on sight of the object, all else that is implied in the

case about it” (internal quotation marks omitted)). With the admission of the

gloves, the jury would have a tendency to believe not only that these were the

gloves the man with dreads wore, but also that appellant was that man, even

though there was no evidence that the gloves were found in his possession. Cf. id.

at 661-62 (reasoning that where “the disputed and only issue” was whether the

defendant used a gun during an assault, admission of a gun that a witness said he

was “reasonably sure” was the weapon the defendant brandished during an assault

but that was not found in defendant’s possession created tendency for the jury “to

believe . . . that the accused did in fact use a gun”; reversing the defendant’s

conviction because the “connection [of the gun] with appellant was too conjectural

and remote” and its admission constituted reversible error).

In short, in the absence of evidence about how Officer Higginbotham came

to have the gloves or where he found them, the problem here is that any connection

between appellant and the gloves is conjectural. And, given that the identity of the

man with dreads was a central disputed issue (and the fact that the complainant

could not or would not identify appellant as the man with dreads and also testified

than the man was taller than appellant), we cannot say that the admission of the
 15

gloves was harmless error. To the contrary, admission of the gloves may have

caused the jury to believe what the government’s introduction of the gloves

implied: that the fact that the gloves were in the government’s custody

corroborated Officer Simic’s testimony that appellant was the man with the dreads

and thus one of the burglars.

There was in this case what appellant’s trial counsel referred to as a “severe

identification issue.” Although reluctant-complainant Hilliard’s testimony — to

the effect that appellant was not the man with dreads — was perhaps easily written

off by the jury as reflecting Mr. Hilliard’s fear of identifying appellant, we think it

likely that Mr. Hilliard’s testimony that the man with the dreads was much taller

than Mr. Hilliard (and, by implication, much taller than appellant) was not quite so

easily discounted as the jury considered appellant’s misidentification defense.

And, notwithstanding testimony by officers that appellant was the man seen in the

apartment, jumping out of the apartment window, or running away after that jump6

6
Officer Simic clearly identified appellant as the man he saw open Mr.
Hilliard’s door, but the other officers’ identifications were more ambiguous or
confusing. Officer Hernandez testified that he saw a man jump out of the window,
but he never testified that he recognized that man. Instead, when asked “Who was
the young man who jumped out of the window?,” he replied, “He was later
identified as Joseph Smith.” And, as described above, Officer Ellis initially gave a
narrative in which she saw Mr. Roberson but not appellant jump out of a window.

(continued…)
 16

and evidence that appellant was found with several items taken from Mr. Hilliard’s

apartment,7 the prosecutor deemed it necessary in closing argument to shore up

that testimony by emphasizing that Officer Simic “got a good look at” appellant’s

hands and “told you that these gloves in Government’s Exhibit 31 were on

[appellant’s] hands.” We have observed repeatedly that “[a] prosecutor’s stress

upon the centrality of particular evidence in closing argument tells a good deal

about whether the admission of the evidence was meant to be, and was,

prejudicial.” Gathers v. United States, 101 A.3d 1004, 1009 (D.C. 2014) (internal

quotation marks imitted). Here, the prosecutor’s emphasis on the gloves leaves us

unable to say with assurance that the erroneous admission of the black gloves that

had not been connected to appellant was harmless.8

At oral argument, the government emphasized that the jury was unable to

reach a verdict with respect to appellant’s co-defendant Roberson, the man officers

(…continued)
7
We note, too, that the jury could not reach a verdict as to appellant’s co-
defendant Roberson, who, the evidence showed, dropped Mr. Hilliard’s mini-
speakers just before he was apprehended, who was “found with a ski mask,” and
whom “multiple officers saw . . . jump from the [apartment] window.”
8
We also note that the trial court’s comments at sentencing appear to reflect
the court’s assessment that the government’s case was not overwhelming. The
court remarked, “[A]ll of us sat through the trial. But the jury decided what the
jury decided. And I’m not going to go behind the jury’s verdict.”
 17

testified was the first to jump out of the apartment window, even though Roberson

admitted that he was wearing gloves when he was arrested and stipulated that

gloves admitted as Government Exhibit 30 were recovered from him. Thus, the

government suggested, the sets of gloves were not such compelling evidence that

improper admission of the Exhibit 31 gloves should be considered prejudicial

error. We cannot agree. Unlike with appellant, no officer testified to seeing

Roberson in the apartment, or to seeing gloves on him while he was fleeing from

the apartment, and thus the relevance of the gloves found on him was as a tool of

the burglar trade, so to speak, rather than as corroborative of identity. It was

otherwise with respect to the black gloves admitted as Government Exhibit 31.

Those gloves were offered as corroborative of appellant’s identity as the burglar

who opened the door to Officer Simic.

For the foregoing reasons, we conclude that appellant is entitled to reversal

of his convictions. As we did in Burleson, we reverse and remand for new trial.9

9
In light of this disposition, we do not address at length appellant’s
argument that admission of the gloves amounted to admission of (implied) hearsay
and to the admission of testimonial hearsay (the implication being that there was
on an out-of-court declaration to Officer Simic about the recovery of the gloves
from appellant’s person, made with the primary purpose of amassing evidence for
trial), in violation of appellant’s rights under the Confrontation Clause. The
government contends that there was no implicit assertion that the gloves were
taken from appellant, but does not suggest that if there was implied hearsay, it fell
(continued…)
 18

IV.

We briefly address another of appellant’s arguments in case it should arise

on re-trial.10 Appellant contends that it was error for the court to “refuse[] to give

(…continued)
within any hearsay exception or its admission would not violate appellant’s rights
under the Confrontation Clause.

It seems unlikely to us that the jury missed the implication that the gloves
were taken from appellant. Further, it seems fair to say either that the testimony
about the gloves did rely on (implied) testimonial hearsay (that supplied the
missing connection between the gloves and appellant) and was admitted in
violation of the Confrontation Clause, cf. Young v. United States, 63 A.3d 1033
(D.C. 2013), or that the testimony was irrelevant and prejudicial (as we have
concluded in the text above).
10
We need not resolve appellant’s contention that it was error to admit
Officer Simic’s testimony about what Mr. Hilliard told Officer Simic when the
officer asked him what had happened. The government argues that Officer Simic’s
testimony about what Mr. Hilliard said was not hearsay, and was properly
admitted, because it conveyed admissible identification testimony and excited
utterances by Mr. Hilliard, who, at the time he spoke to Officer Simic, was
“exhausted,” “breathing very heavily,” “holding himself to a chair,” and “bleeding
from the mouth” from being hit by one of the intruders — i.e., still feeling the
physical and emotional effects of the burglary. The government also argues that
the statements were elicited while Officer Simic was confronted with and
responding to an ongoing emergency. If Officer Simic testifies at a new trial, the
trial court will have the opportunity in the first instance to determine whether his
testimony is admissible as non-hearsay or should be excluded as testimonial
hearsay. See Michigan v. Bryant, 562 U.S. 344, 365 (2011) (“Trial courts can
determine in the first instance when any transition from nontestimonial to
testimonial occurs, and exclude ‘the portions of any statement that have become
testimonial[.]’” (footnote omitted) (quoting Davis v. Washington, 547 U.S. 813,
829 (2006)); Simmons v. United States, 945 A.2d 1183, 1187 (D.C. 2008) (noting
(continued…)
 19

[his] proposed defense theory instruction” regarding “how he came to have Mr.

Hilliard’s property on him when he was arrested.”11 Appellant proposed a three-

paragraph defense theory instruction:

(…continued)
that a decision to admit or exclude a proffered out-of-court statement as an excited
utterance is “committed in the first instance to the discretionary judgment of the
trial judge”).

We also need not discuss at length appellant’s argument that the trial court
erred in allowing the prosecutor to make “improper and highly prejudicial”
statements during closing argument to the effect that appellant’s presence during
the testimony of the government’s witnesses gave him an opportunity to tailor his
testimony, even though the prosecutor “could point to nothing specific that Mr.
Smith did to tailor his testimony.” As appellant acknowledges, the Supreme
Court’s holding in Portuondo v. Agard, 529 U.S. 61 (2000), “[a]llow[s] comment
upon the fact that a defendant’s presence in the courtroom provides him a unique
opportunity to tailor his testimony is appropriate . . . to the central function of the
trial, which is to discover the truth.” Id. at 73; see also Teoume-Lessane v. United
States, 931 A.2d 478, 494-95 (D.C. 2007) (recognizing that Portuondo overruled
this court’s previous determination in Jenkins v. United States, 374 A.2d 581 (D.C.
1977), in which this court held that a defendant’s Sixth Amendment confrontation
rights, which include the right to listen to the testimony of all other witnesses
before testifying, includes “the right to testify without the prosecutor commenting
on the effect these circumstances have on the defendant’s credibility as a witness”;
and noting that “the Constitution would allow such comments even without
specific indications of tailoring”). We specifically declined in Teoume-Lessane “to
exercise our supervisory authority to prohibit the government from commenting on
a defendant’s ability to tailor his own testimony to the evidence,” emphasizing that
“this court’s supervisory authority is to be sparingly exercised.” 931 A.2d at 494
(internal quotation marks omitted).
11
“A defendant is entitled to instructions that ‘fairly and fully’ present his
theory of the case ‘when properly requested by counsel and when . . . supported by
[some] evidence.’” Williams v. United States, 6 A.3d 843, 845 (D.C. 2010)
(quoting Stack v. United States, 519 A.2d 147, 154-55 (D.C. 1986)).
 20

Joseph Smith denies being in the apartment of Mr.
Hilliard on the evening of January 27th, 2013; and
accordingly, denies committing any of the offenses
charged against him; this is, first-degree, burglary,
robbery, kidnapping, and threats.

It is further Joseph Smith’s defense that the officers were
mistaken in the identification of Mr. Smith as the person
who opened the door of Mr. Hilliard’s apartment on
January 27th, 2013, and who jumped from the window of
that apartment.

It is Joseph Smith’s defense that he picked up from the
ground outside of Mr. Hilliard’s apartment window
property that was dropped or discarded by an unknown
person who jumped from Mr. Hilliard’s window and who
then began running away before the police arrived.

The government argued that the third paragraph of this instruction would “give[]

improper weight to [appellant’s] testimony.” The trial court omitted the third

paragraph, finding that it was not “appropriate.”

Appellant was charged with burglary, kidnapping, robbery, and threatening

to kidnap or injure a person. Although the government presented evidence and

argued that appellant was one of the burglars actually inside Mr. Hilliard’s

apartment — i.e., a principal, not a mere aider and abettor — the court gave the

jury an aiding and abetting instruction, telling them that, for conviction, it was “not

necessary [for the jury to] find that the defendant was actually present while the

crime was committed.” With that instruction given, a defense-theory instruction
 21

that conveyed only appellant’s general denial that he was in the apartment and his

theory that police misidentified him as the man who was seen in the apartment by

Officer Simic and was seen by officers jumping from the apartment window

(defense theories adequately conveyed through the first two paragraphs of the

instruction quoted above) may not have been enough to honor appellant’s

constitutional right to present a defense to aiding and abetting the burglars’ crimes.

With only the instruction conveyed by the first two paragraphs quoted above, there

was a “risk that the jury might find [appellant] guilty [on an aiding and abetting

theory] although believing his testimony [that he was never in Mr. Hilliard’s

apartment and was not the man seen jumping from the window].” Laughlin v.

United States, 385 F.2d 287, 294 (D.C. Cir. 1967).

The trial court is not required to “rehearse the evidence” or to “give special

emphasis to the defendant’s testimony,” id., and is not required to instruct the jury

“in the exact language” a defendant requests. Stack, 519 A.2d at 154. However,

with the court having given the jury an aiding and abetting instruction, we think it

was error for the court to decline to give, with any modifications the court deemed

appropriate, see id. at 156, an instruction conveying the defense theory that the

man who jumped out of the window with the items later found on appellant’s
 22

person was “unknown” to appellant (and thus not a fellow participant or associate

in the charged crimes).

The judgments of conviction are reversed and the case is remanded for a

new trial.

So ordered.

FARRELL, Senior Judge, concurring in part and dissenting in part: I agree

with the court that the gloves admitted in evidence did not pass the test of

relevance. But, unlike my colleagues, I am not convinced that the gloves and the

accompanying testimony by Officer Simic about the gloves had any material effect

on the jury’s verdict. The combined identifications of appellant as someone who

jumped out of the window of the victim’s apartment was very strong; appellant

explained his capture minutes later with the victim’s property in his pocket by a

story that taxed the credulity of any reasonable juror; and the glove evidence

ultimately played a minimal part in the prosecutor’s argument of the case to the

jury.
 23

First, as to the glove testimony. Officer Simic did indeed testify, without

adequate foundation, that the gloves introduced in evidence were those appellant

had been wearing when he opened the door in response to Simic’s knock. But in

his opening summation the prosecutor devoted only five sentences of some thirty

transcript pages of argument to the gloves, and appellant’s counsel in response

suggested why:

[Simic] gave a description of someone with gloves. Who
else said that? Absolutely, no one. Mr. Smith, upon
arrest, [had] no gloves. The government says, well, . . .
these are the gloves [in Govt. Exhibit 31, a photograph];
[w]here did that come from? The officers that arrested
Mr. Smith . . . [and] searched Mr. Smith, they didn’t say
anything about recovering gloves from [him]. You never
heard any evidence of where this . . . pair of gloves came
from.

Unsurprisingly, in his rebuttal argument the prosecutor did not mention the gloves

again.

Far from depending on the (incredible shrinking) evidence of the gloves, the

government’s case was built on the identification of appellant by three officers as

one of the men each saw jump from the victim’s apartment window, after which

appellant fled down Good Hope Road before he was found hiding and in

possession of the victim’s wallet and other personal property. Simic, from eight or
 24

nine yards away, saw appellant, wearing dreadlocks, hunched over in the window

before he jumped and started running down Good Hope Road. Officer Ellis

likewise saw appellant, “the man with the dreads,” crouch and jump from the

window and begin running after she yelled to him not to. She “had [her] eyes on

[appellant] until [she] saw” Officer Hernandez take up the chase. Ellis, as the

court notes, initially confused appellant with codefendant Roberson in court and

claimed not to see him there, but she soon corrected herself (“He is here. I’m

sorry. I didn’t see him”) and unequivocally identified appellant, “sitting there . . .

with the long dreadlocks,” as the man she had seen jump from the window and run

down Good Hope Road.

Lastly, Officer Hernandez heard Ellis yell “don’t jump,” then saw appellant

jump from the window and run down Good Hope Road. Hernandez pursued

him in his vehicle, then alighted and chased him on foot down an embankment,

where appellant was found hiding in the woods with the victim’s possessions. My

colleagues assert that Hernandez never actually said that appellant and the man

who jumped were the same, only that he later learned of that fact (appellant “was

later identified as Joseph Smith.”) But regardless of when Hernandez learned

appellant’s name, no one hearing his testimony as a whole would have reasonably

doubted that in his mind appellant, “wearing . . . dreads in the back and . . . a red
 25

striped shirt” in court, was the same person Hernandez identified from on-scene

arrest photos as the man he had chased and caught after watching him jump from

the window and run.

As the court points out, the jury could also credit a fourth officer’s testimony

that appellant, in the squad car, admitted that “we” — he and others — had jumped

out of the window of the victim’s apartment. But, of course, appellant told a

different story at trial about how he was caught seemingly red-handed with the

victim’s property. As he was walking home from a store, a stranger inside a

nearby building asked his help in hoisting a TV out of a window (a window some

nine feet above ground). Appellant agreed to, but then the man suddenly jumped

out of the window, dropping some items as he did, and ran away. Appellant

picked up and pocketed the items, including a wallet and an MP3 player, and when

he saw a police car approach he ran and eventually hid in the woods. Appellant

could offer no description of the man who jumped and ran, nor did he explain why

he fled the police and hid or what he intended to do with the pocketed items. They

were, as his lawyer imagined his thinking in closing argument, “good and valuable

stuff”; “I’ll take it. Why not?” Appellant’s counsel, in characterizing the

government’s case to the jury, might well have been commenting on appellant’s

own story: “it sounds a little bit crazy.”
 26

For all of these reasons, I see no reasonable, realistic possibility that the jury

was influenced by the glove evidence in finding appellant guilty, under whichever

standard of review the court applies. See ante at [10] n.4. I reach the same

conclusion of no prejudice as to appellant’s other assignments of error as well.