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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CF-1183
CARLOS JOHNSON, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2018-CF2-006369)
(Hon. Robert Salerno, Trial Judge)
(Argued June 3, 2021 Decided March 9, 2023)
Deborah A. Persico for appellant. Anne Keith Walton also entered an
appearance.
Ethan L. Carroll, Assistant United States Attorney, with whom Timothy J.
Shea, United States Attorney at the time, and Elizabeth Trosman, John P.
Mannarino, Bryan Han, and Julia Cosans, Assistant United States Attorneys, were
on the brief, for appellee.
Before EASTERLY and MCLEESE, Associate Judges, and GLICKMAN, * Senior
Judge.
*
Judge Glickman was an Associate Judge at the time of argument.
2
GLICKMAN, Senior Judge: Appellant Carlos Johnson was charged in a six-
count indictment with unlawful possession of a firearm by a person previously
convicted of a felony (FIP), 1 possession of an unregistered firearm (UF), 2 two counts
of possession of a large capacity ammunition feeding device (PLCAFD), 3 and two
counts of unlawful possession of ammunition (UA). 4 The indictment alleged that
appellant possessed each of these items “on or about April 25, 2018,” which was the
date the police discovered them in a search of appellant’s residence. After a three-
day trial, the jury convicted appellant of FIP, UF, one count of PLCAFD (relating to
the 30-round capacity magazine), and one count of UA (relating to the .40-caliber
ammunition), and acquitted him of the other two counts.
Seeking reversal, appellant claims that the trial court erred in admitting
evidence from the records of his Instagram account, presented as part of the
government’s proof that he committed the charged offenses, and that there was
1
D.C. Code § 22-4503(a)(1), (b)(1).
2
Id. § 7-2502.01(a).
3
Id. § 7-2506.01(b). Although the indictment did not specify this, one count
was for possession of an extended magazine with a 30-round capacity, and the other
count was for possession of a magazine with a 15-round capacity.
4
Id. § 7-2506.01(a)(3). One count was for possession of .40-caliber
ammunition, and the second count was for possession of 9-mm ammunition.
3
insufficient evidence of constructive possession to support his convictions. He
further claims that the court erred in responding to questions from the deliberating
jury and in giving a coercive anti-deadlock instruction. We are not persuaded by
appellant’s arguments, and we affirm his convictions.
I. Trial
At approximately 6:30 in the morning on April 25, 2018, Metropolitan Police
Department (MPD) officers executed a search warrant at appellant’s two-bedroom
apartment. In one of the bedrooms, the officers found appellant and his former
girlfriend, Shaquice Campbell. Ms. Campbell, whom the government called as a
witness at trial, was asleep in the bed. Appellant was lying on the floor next to the
bed. In a corner of the room by the closet, less than a foot away from appellant, lay
a black, .40-caliber M&P Smith & Wesson handgun with a red laser sight attached
to it. The gun had one .40-caliber round in the chamber and nineteen .40-caliber
rounds in an attached large capacity extended magazine.
Underneath the bed, which the officers had to lift up in order to search the
area, they found eight rounds of 9-mm ammunition inside a sock, and two handgun
magazines, one with a 12-round capacity that was loaded with nine .40-caliber
rounds of ammunition, and the other with a 15-round capacity loaded with fifteen
4
.40-caliber rounds. The officers found seven more rounds of .40-caliber ammunition
in a small box in the top drawer of the bedroom dresser.
Ms. Campbell testified at trial that she had gone to the apartment a few hours
earlier that morning to visit appellant. She said she did not know where the gun
came from and that she had not seen it before she fell asleep on appellant’s bed.
Appellant was not wearing pants when the police entered his bedroom. A pair
of jeans was lying on the floor beside the firearm. In the jeans the police found a
wallet containing appellant’s D.C. identification card. Elsewhere in the bedroom,
the officers found a folder containing appellant’s birth certificate and resume. The
information on the resume included appellant’s name, his home address, his phone
numbers, and his email address. The police also found other paperwork in
appellant’s name in the bedroom, and photographs of appellant and his mother.
In the second bedroom, the officers found appellant’s sister, Lashawn
Johnson, asleep in bed. Ms. Johnson was the only other person in the apartment.
The police did not find firearms, ammunition, or ammunition magazines in her
bedroom or anywhere else in the apartment but appellant’s bedroom.
5
The police found and seized five cellphones during their search of the
apartment, three of them from appellant’s bedroom and two from the living room.
Detective Thomas Roy noticed one of the bedroom phones was receiving messages
for an Instagram account. Detective Roy turned off the phone and later obtained and
sent to Instagram a search warrant for its records of that account.
Prior to trial, the government moved in limine to admit some of the account
records produced by Instagram in response to that warrant, including video clips,
photographs, and textual messages. The government proffered this material as direct
and substantial proof that appellant possessed the Smith & Wesson handgun
recovered from his bedroom. 5 Appellant opposed the motion, contending among
other things that the government could not attribute the Instagram account or its
contents to him, and that even if it could, the messages and videos the government
wished to introduce were not probative of the crimes with which he was charged.
After reviewing the evidence and hearing the parties’ arguments, the trial
judge ruled that, subject to being properly authenticated at trial, the proffered
5
No fingerprints were recovered from the firearm or magazine seized by the
police. DNA analysts were unable to derive DNA profiles from swabs of the firearm
and its magazine.
6
evidence (with immaterial exceptions) would be admissible as direct proof of the
charged crimes. The judge found that the video clips showed someone resembling
appellant holding a “firearm resembling the one at issue . . . close enough in time to
the date of the seizure” of the handgun in appellant’s apartment to be relevant direct
evidence that appellant possessed that handgun. The judge further found sufficient
circumstantial evidence to allow the jury to find that appellant admitted in a textual
message that he possessed the handgun’s large capacity magazine.
At trial, the government called Facebook’s custodian of records, Amy Servas.
Facebook had acquired Instagram, and Ms. Servas testified that she could
authenticate both Facebook and Instagram records. Ms. Servas explained that
Instagram is a social media network where account holders can share photos, videos,
and textual messages with other Instagram account holders. These include what Ms.
Servas referred to as “direct shares,” which are private communications between
account holders that are not publicly available. Ms. Servas explained that Instagram
maintains exact electronic copies of all this material in its business records for each
account, along with other data including the email address, cell phone number,
user/screen name, and profile picture provided by the account holder who opened
the account.
7
Ms. Servas identified business records produced in response to the search
warrant for the Instagram account. This account bore the user (or screen) name
“being_loyal_bring_u_pain” (hereinafter, “Being Loyal”). 6 These records showed
that the Being Loyal account was registered by the account holder to the same email
address and the same cell phone number that were shown as appellant’s in the
resume that the police found in his bedroom. As Ms. Servas testified, the account
records stated that Facebook had confirmed the cell phone number by sending to it
a text message with a verification code, which the recipient (presumably appellant)
then sent back to Facebook to confirm his opening of the Instagram account. Ms.
Servas identified the photograph that the account holder had submitted to Instagram
as their “profile” picture; it was a photograph of appellant. Instagram’s production
also included a number of other photographs of appellant that had been posted to
Being Loyal’s Instagram account. 7
The records produced by Instagram and identified by Ms. Servas included
four short video clips sent to Being Loyal on February 18, 2018, from another
6
The business records do not identify the account holder by name, but instead
by a pseudonym, “ripmalongLiveBLove.”
7
Appellant’s former girlfriend, Ms. Campbell, identified appellant in these
photographs at trial.
8
Instagram account with the user/screen name “got_no_respect” (hereinafter, “No
Respect”). In each clip, appellant is seen dancing to music along with other persons
and waving an object in his hand that looks like a black handgun with a red laser-
sight attachment and what was described as a “drum” ammunition magazine. In the
videos, the laser sight is activated and emits a bright red beam. The government
contended that the gun depicted in these videos was the same gun with the same red
laser sight that the police found and seized in appellant’s bedroom on April 25, 2018,
though with a different magazine inserted. 8 On cross-examination, Ms. Servas
agreed that the account records did not disclose who recorded the videos or when or
where they were recorded.
Ms. Servas also identified an exchange of private direct share messages on
April 17, 2018 (one week before the police executed the search warrant at appellant’s
apartment) between the Being Loyal and No Respect accounts. The exchange of
messages was set forth verbatim in Instagram’s account records. During that
exchange, No Respect sent Being Loyal a photo of an extended ammunition
magazine with the label “ProMag S&W M&P 40” and asked whether that was what
Being Loyal had. (The photo also was included in the account records.) In response,
8
The police did not find a drum magazine in appellant’s apartment. Appellant
was not charged with possession of such a magazine.
9
Being Loyal confirmed to No Respect that he possessed the magazine shown in that
photo, which the government claimed was like the one in the .40-caliber M&P Smith
& Wesson handgun found on the bedroom floor beside appellant. 9 On cross-
examination, Ms. Servas acknowledged that someone who obtained an Instagram
account holder’s account name and password would be able to log into the account
without using the holder’s cell phone, and post as if they were the account holder.
An employee in the MPD’s gun registration unit testified that appellant did
not have a registration certificate entitling him to possess a firearm in the District of
9
The direct share exchange between Being Loyal and No Respect on April
17, 2018, went as follows:
Time Author Text
4:03:47 No Respect “What ur shit look like”
4:04:03 Being Loyal “Look it up”
4:04:37 No Respect “U playing but what its it again”
4:07:17 [No Respect sends photograph of an extended magazine labelled
“ProMag S&W M&P40”]
4:07:28 No Respect “Thats urs”
4:07:31 Being Loyal “Yea”
10
Columbia, and the parties stipulated that he had previously been convicted of a crime
punishable by imprisonment for a term exceeding one year.
Called as a defense witness, appellant’s sister, Lashawn Johnson, testified that
the .40-caliber handgun found beside appellant in his bedroom was actually hers. 10
She said she bought it in December of 2017 and had kept it under her pillow in her
bedroom. However, she said, because she planned to leave the apartment early on
the morning of April 25, 2018, for an appointment, she took the gun to appellant’s
bedroom and left it there with him while he was still asleep. She said she did this
“[s]o he could feel safe” when he awoke and saw the weapon there with him. Ms.
Johnson explained that appellant had recently been the victim of a shooting, and that
the “only way” he felt “okay” in her absence was if he had guns around; “[t]he guns
around make him feel safe,” she said. Ms. Johnson further testified that she had 9-
mm and .40-cal. ammunition and ammunition magazines in the apartment on April
25. She said she kept her ammunition in a box in appellant’s bedroom dresser and
in a sock under his bed, and the magazines on the floor in his bedroom. However,
10
Ms. Johnson said this was one of two handguns she possessed at the time,
the other being a 9-mm Ruger. The police did not discover the Ruger during their
search of the apartment.
11
Ms. Johnson testified that she had never seen appellant holding a gun and that, to
her knowledge, he was unaware of the ammunition in his room.
On cross-examination, government counsel questioned Ms. Johnson about the
Being Loyal Instagram account. Ms. Johnson denied knowing that appellant had an
Instagram account, and she initially denied having an Instagram account of her own.
Thereafter, however, she testified that she had used the Being Loyal account herself,
as (she said) did “[a] lot of people” including appellant’s friends. Ms. Johnson
identified appellant as the individual waving the object with the red laser sight in the
four videos posted in the Being Loyal account. 11
II. Authentication and Admission of the Instagram Records
Appellant argues that the trial court erred in ruling that the videos showing
him waving a handgun and the direct share exchange concerning his possession of a
large capacity magazine were properly authenticated, and in admitting that evidence
as direct proof of the charged crimes. Although these contentions overlap, we
address them separately.
11
No photographs or videos were introduced in evidence showing Ms.
Johnson in possession of the black, .40-caliber M&P Smith & Wesson handgun, nor
did she claim to have engaged in the April 17 direct share exchange with No Respect.
12
A. Authentication
Regarding the authenticity of the evidence from the Being Loyal Instagram
account, appellant claims that “at best, the government proffered that appellant may
have at times had access to the Instagram account which contained posts of the
videos, messages and photo[s] admitted into evidence.” But, appellant continues,
the government provided “no evidence” that he was the only person who had access
to the Being Loyal account, and he cites the testimony of his sister and Instagram’s
records custodian that others used or (if possessed of his password and account
name) could have used the account. In addition, appellant argues that the
government failed to present evidence establishing that the videos were not
“doctored” to falsely show him in possession of a firearm he did not actually have,
that the objects in the videos were “actual firearms as opposed to a replica or a toy,”
or that the videos were created around the time they were uploaded. Appellant
further asserts that the government provided no evidence that he actually possessed
the extended magazine depicted in the April 17 direct share exchange between Being
Loyal and No Respect, that he was the author of any of the messages in that
exchange, or that the messages had not been altered. Consequently, appellant
contends, “the government failed to proffer sufficient evidence of the authenticity,
13
accuracy and trustworthiness of any of the social media posts,” and the trial court
therefore should not have admitted the evidence.
Authenticity — whether an item of evidence is genuinely what its proponent
claims it is — is a component of relevance. Evidence must be relevant to be
admissible. “Evidence is relevant if it has ‘any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.’” 12 Thus, ‘“[t]he test for
relevance is not a particularly stringent one,’ requiring only a ‘reasonable possibility’
of a link between the contested evidence and the crime.” 13 Accordingly, this court
has held that authenticity need not be established with certainty as a “condition
precedent” to the admission of evidence as relevant; rather, in general, “all that must
be shown” is a “reasonable possibility” that the evidence is “what it purports to be.” 14
12
Plummer v. United States, 813 A.2d 182, 188 (D.C. 2002) (quoting Street
v. United States, 602 A.2d 141, 143 (D.C. 1992)).
13
Stewart v. United States, 881 A.2d 1100, 1110 (D.C. 2005) (first quoting
Street, 602 A.2d at 143; and then quoting Winfield v. United States, 676 A.2d 1, 4
(D.C. 1996) (en banc)).
14
Id. at 1111. “Where there is reason for suspicion that a document is not
what it purports to be,” the Stewart court added, “the trial judge, in the exercise of
his or her discretion, may exclude it from evidence.” Id. (quoting Murphy v.
McCloud, 650 A.2d 202, 214 (D.C. 1994)).
14
In other words, as is true under the Federal Rules of Evidence as well, authentication
as a condition of admissibility merely requires the proponent of the evidence to show
that a jury reasonably could find the evidence to be genuine by a preponderance of
the evidence. 15 Once that showing has been made, the opposing party “remains free
to challenge the reliability of the evidence, to minimize its importance, or to argue
alternative interpretations of its meaning, but these and similar other challenges go
to the weight of the evidence — not to its admissibility.” 16
15
See United States v. Vayner, 769 F.3d 125, 129-30 (2d Cir. 2014)
(explaining that the authentication “‘requirement is satisfied if sufficient proof has
been introduced so that a reasonable juror could find in favor of authenticity or
identification.’ The ultimate determination as to whether the evidence is, in fact,
what its proponent claims is thereafter a matter for the jury” (citation omitted)); see
also United States v. Browne, 834 F.3d 403, 409-10, 413 (3d Cir. 2016) (citing
Federal Rule of Evidence 104(b), and holding that government presented sufficient
extrinsic evidence to authenticate chats on a social media site); United States v.
Maritime Life Caribbean Ltd., 913 F.3d 1027, 1032-33 (11th Cir. 2019) (holding
that trial court erred by excluding document because proponent failed to prove its
authenticity by “the greater weight of the evidence.” “A two-step process governs
the determination of whether a document is authentic. The district court must first
make a preliminary assessment of authenticity under Rule 901, which requires a
proponent to present sufficient evidence to make out a prima facie case that the
proffered evidence is what it purports to be. If the proponent satisfies this prima
facie burden, the inquiry proceeds to a second step, in which the evidence may be
admitted, and the ultimate question of authenticity is then decided by the factfinder.”
(citations, internal quotation marks, and alteration omitted)).
16
Vayner, 769 F.3d at 131 (quoting United States v. Tin Yat Chin, 371 F.3d
31, 38 (2d Cir. 2004)); accord Stewart, 881 A.2d at 1111 (stating that under the
“reasonable possibility” standard, “the absence of a definitive link to the crime or
the defendant merely affects the weight of the evidence, not its admissibility”).
15
We deem these principles to apply in full to the authentication of social media
records as well as traditional documentary (and other) evidence, albeit they must be
applied with the need for alertness to the ways in which electronically stored data
“can be manipulated or corrupted” and the “ease with which a social media account
may be falsified or a legitimate account may be accessed by an imposter.” 17 The
requisite likelihood of authenticity may be shown by direct evidence or
circumstantial evidence. “Although a witness with personal knowledge may
authenticate a document by testifying that the document is what the evidence
17
Browne, 834 F.3d at 412. We note that this court has recognized one
exception to the “reasonable possibility” standard of authentication: We have held
that a party seeking to introduce tape recordings of voice conversations must
establish they are “authentic, accurate, and trustworthy” by clear and convincing
evidence. Butler v. United States, 649 A.2d 563, 567 (D.C. 1994) (quoting Springer
v. United States, 388 A.2d 846, 852 (D.C. 1978)). But cf. id. (“To establish the
authenticity, accuracy and trustworthiness of the tape, we have also required that
‘the possibilities of misidentification and adulteration be eliminated, not absolutely,
but as a matter of reasonable probability.’” (quoting Springer, 388 A.2d at 852)).
This heightened standard (whether it is really “clear and convincing evidence” or
merely “reasonable probability”) reflects concerns that voice identifications may be
unreliable and particularly difficult to make, that recording, reproduction, and
preservation processes may result in distortion, loss of content, or other inaccuracies,
and that “more so than photographs or other demonstrative evidence, sound
recordings are susceptible to alterations that may be impossible to detect.” Id.
(quoting United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977) (alteration
omitted)). Appellant has not argued that a “clear and convincing” standard must be
applied to evidence of the kind before us in this case, and we are not persuaded it is
necessary here to depart from the generally applicable “reasonable possibility”
standard. Rigorous application of the latter standard suffices to take into account
whether appellant’s Instagram records had been altered or falsified.
16
proponent claims it to be, this is merely one possible means of authentication and
not . . . an exclusive requirement.” 18 For example, and as pertinent in this case, we
have recognized that authenticity “may be established by the nature and contents of
the writing combined with the location of its discovery.” 19 Evidence that “identity
verification is necessary to create” a social media record also may help to confirm
its authenticity. 20 Other courts have concluded that the government sufficiently
linked social media pages to the defendants by tracing the pages and the accounts to
the defendants’ mailing and email addresses. 21
18
Browne, 834 F.3d at 415.
19
In re Slaughter, 929 A.2d 433, 444 (D.C. 2007) (quoting Settles v. United
States, 570 A.2d 307, 309 (D.C. 1990)); see also Vayner, 769 F.3d at 132
(recognizing that “the contents or ‘distinctive characteristics’ of a document can
sometimes alone provide circumstantial evidence sufficient for authentication,” as
where the contents were not a matter of common knowledge).
20
Vayner, 769 F.3d at 133.
21
Browne, 834 F.3d at 413 (citing United States v. Hassan, 742 F.3d 104, 133
(4th Cir. 2014)); United States v. Lamm, 5 F.4th 942, 948 (8th Cir. 2021) (holding
that cell phone number, email address, photographs of defendant, and related
information found in defendant’s apartment linked to defendant and the Facebook
account sufficient for authentication); United States v. Quintana, 763 F. App’x 422,
427 (6th Cir. 2019) (holding that “account in defendant’s name, an email address
with his name and moniker, a location linked to defendant, dates that correspond to
witness testimony, and a picture of defendant” sufficient for authentication but
noting that “the government could have done more to connect the Facebook profile
to [defendant], like . . . provide evidence linking the email addresses and telephone
number on the account with” defendant); United States v. Lewisbey, 843 F.3d 653,
658 (7th Cir. 2016) (acknowledging that Facebook account name with defendant’s
17
Decisions to admit or exclude evidence are committed to the trial court’s
discretion. A trial judge’s ruling on the relevance of evidence, including a ruling on
authenticity, “is a highly discretionary decision that will be upset on appeal only
upon a showing of grave abuse.” 22
We conclude that the judge did not abuse his discretion in ruling the Instagram
evidence authenticated and admissible against appellant in this case. The
government provided sufficient proof for the jury to find that the video clips and
direct share exchange constituted genuine evidence of what the government claimed
they showed — appellant’s recent actual possession of a firearm like the one the
police found in his bedroom, and appellant’s recent admission to possession of a
large capacity ammunition feeder for that firearm.
To begin with, the government presented substantial evidence that appellant
was in fact the holder and a current user of the Being Loyal account from which the
video clips and direct share communications were exchanged. The email address
and phone number provided when the account was opened matched those found on
nickname, and place of residence, email address, and photographs of defendant were
relevant for authentication of Facebook page).
22
Furr v. United States, 157 A.3d 1245, 1250 (D.C. 2017) (quoting Riddick
v. United States, 995 A.2d 212, 216 (D.C. 2010)).
18
appellant’s resume, which the police found with appellant in his bedroom, in a folder
along with his birth certificate. Instagram had verified the phone number by texting
a code to it and obtaining confirmation, which presumably was provided by
appellant since the phone number was his. Consistent with these indicia of
appellant’s ownership of the account, the records of the account contained numerous
photos of appellant, corroborating his usage. Of particular note, his photograph was
the profile picture submitted to Instagram by the account holder when the account
was opened; such a picture is not self-authenticating, but as the trial judge observed,
a profile photo “tends to have greater probative value of who owns the account and
who uses the account . . . than simply other pictures sent to or received from the
account.” And appellant’s continuing ownership and use of the Being Loyal account
up to the time of his arrest was significantly corroborated by the fact that a cell phone
in his bedroom was receiving push notifications from that account when the police
were there on April 25, 2018. While appellant’s sister claimed that she and others
had access to and had used the account, that testimony was not substantiated by the
account records or any other evidence, and even if true, it did not refute the
government’s proof that the account belonged to and was utilized by appellant. 23
23
See United States v. Brinson, 772 F.3d 1314, 1321 (10th Cir. 2014) (holding
that, despite evidence that other individuals had access to the Facebook account and
had posted messages to it, the trial court could reasonably find that the defendant
authored the messages in question); United States v. Recio, 884 F.3d 230, 237 (4th
19
Moreover, the video clips posted to the Being Loyal account from the No
Respect account and the private direct share exchange between the two accounts
were reasonably linked to appellant personally. There is no genuine dispute that the
video clips, sent in mid-February, showed appellant holding and waving an object
that appeared to be a black handgun with an extended ammunition magazine and a
red laser sight. Like the trial judge, we are persuaded that a jury reasonably could
find that the object looked like the same black, .40-caliber M&P Smith & Wesson
handgun with a red laser sight that police found next to appellant in his bedroom
only two months later. As we discuss in more detail in the next section of this
opinion, the jury therefore reasonably could view the clips as direct and substantial
evidence that appellant possessed that handgun on April 25.
Similarly, the jury reasonably could find that it was appellant who admitted
possessing the large capacity magazine shown in the photo that No Respect sent to
Being Loyal on April 17 (which the government contended was the magazine found
Cir. 2018) (“[T]here was no evidence that another person accessed the [defendant’s]
Facebook account. Moreover, what matters is not whether a jury could find that [the
defendant] did not author the post in question, but rather whether the jury could
reasonably find that he did. Given the strong evidence that the Facebook account
was [the defendant’s], and without any evidence of unauthorized access, the jury
could find that [the defendant] was the true author of the post. The Government
therefore properly authenticated the Facebook post.”).
20
in the gun by appellant’s side only a week later). Even if it is conceivable some
other person accessed the Being Loyal account and engaged in the private exchange
with No Respect, the requirement of authentication did not require the government
to prove with “absolute certainty” that it was appellant who did so, only the
reasonable possibility that he did so. On the evidence here of appellant’s relationship
to the Being Loyal account, appellant certainly was the most likely candidate, and a
jury could so find. 24
Appellant argues that the government presented no proof that the Instagram
videos had not been doctored in some way and uploaded to falsely incriminate him.
But appellant is demanding that the government had to disprove a phantom of his
own imagination. There was no evidence that the videos had been doctored or faked
in any way. Appellant offered no reason to think it at all likely that someone had
fabricated and sent him video evidence showing him dancing with a handgun. The
same is true of appellant’s argument that the government failed to prove the
messages in the direct share exchange had not been materially altered. Appellant
advanced no evidence of such alteration. Given that those messages were recorded
Indeed, the “coincidence” that a large capacity magazine for the .40-caliber
24
Smith & Wesson handgun was found next to appellant just a week after Being Loyal
claimed to have such a magazine itself strengthens the inference that it was appellant
who made that claim.
21
in real time and maintained by Instagram, we do not even understand how they could
have been altered; appellant does not explain how any alteration could have been
accomplished or provide any reason to think it had been.
Appellant similarly objects that the government did not definitively prove that
the object depicted in the videos was the firearm the police seized on April 25 (which
was the weapon the prosecution needed to prove he possessed), and not a different
but similar firearm, a replica, or a toy. (This contention overlaps with appellant’s
claim that the Instagram evidence was not “direct and substantial” proof of the
charged weapons offenses, and we discuss it further infra.) Appellant posits (again,
without evidentiary support) that it is possible the videos were created long before
they were sent to him in February, in which case it might be less likely that they
depicted the same firearm the police recovered at appellant’s home in April. 25
The short answer to all these objections is that they go to the weight, but not
the admissibility, of the evidence. These objections do not undermine the trial
25
But cf. Jones v. United States, 127 A.3d 1173, 1186 (D.C. 2015) (“Given
the likelihood that the gun previously seen in appellant’s possession was of the same
distinctive type used in the charged offenses, it was less concerning that the prior
sightings may have occurred several months, or even a year, before the charged
offenses.”).
22
judge’s determination that the videos were sufficiently authenticated to allow the
jury to consider whether they supported the possession charges against appellant.
B. “Direct and Substantial Proof”
That brings us to appellant’s contention that the trial court abused its
discretion by admitting the Instagram evidence as direct proof of the charged crimes.
Appellant argues that the Instagram evidence was not direct proof but rather “other
crimes” evidence — what is commonly referred to as “Drew evidence.” Appellant
asserts that the government offered this evidence (improperly and prejudicially) for
the sole purpose of proving his propensity to commit the charged offenses, and that
it was properly admissible only on conditions not satisfied in this case. 26 We reject
appellant’s contention (as did the trial court) because we conclude that the Instagram
evidence was indeed admissible as direct and substantial proof of the crimes
26
See Drew v. United States, 331 F.2d 85, 89-90 (D.C. Cir. 1964). “Under
Drew, evidence of other crimes committed by a defendant is admissible only if it is
offered to prove a legitimate and materially disputed issue, such as motive, intent,
common plan, identity, or absence of mistake or accident, and only if the trial judge
finds by clear and convincing evidence that the defendant committed the other
crimes, and determines that the probative value of the evidence is not substantially
outweighed by the risk of unfair prejudice posed by its admission.” Jones, 127 A.3d
at 1184 (citations omitted).
23
charged, and appellant has not shown that the prosecution utilized the evidence
improperly to prove his criminal disposition or that the jury might have done so.
The “strictures of Drew” do not apply to evidence of a defendant’s uncharged
criminal conduct that is “direct and substantial proof of the charged crime.” 27 This
court repeatedly has held “that evidence of a defendant’s prior possession of the
weapon or type of weapon used to commit a charged offense can be admitted as
direct and substantial proof of the crime charged” 28 so long as the weapon “is linked
to both the defendant and the crime and the connection is not too remote or
conjectural.” 29 Accordingly, admissibility typically “turns on a consideration of the
temporal proximity of the incidents of prior possession to the charged offense and a
comparison of the appearance of the weapon previously possessed by the defendant
with that of the weapon actually used in the charged offense.” 30 These principles
apply not only to weapon possession; they apply to evidence of the defendant’s prior
27
Jones, 127 A.3d at 1184 (quoting Johnson v. United States, 683 A.2d 1087,
1098 (D.C. 1996) (en banc)).
28
Id.
Ruffin v. United States, 219 A.3d 997, 1009 (D.C. 2019) (internal quotation
29
marks omitted) (quoting King v. United States, 618 A.2d 727, 728-29 (D.C. 1993)).
30
Jones, 127 A.3d at 1185.
24
possession of other instrumentalities as well. In general, “[a]n accused person’s
prior possession of the physical means of committing the crime is some evidence of
the probability of his guilt, and is therefore admissible.” 31
“A trial judge has broad discretion to determine the admissibility of evidence
of uncharged misconduct as direct and substantial proof of the crime charged under
Johnson, and on appeal our review of a judge’s ruling admitting such evidence is
limited to a consideration of whether there has been an abuse of discretion.” 32 We
find no abuse of discretion in the judge’s decision to admit the Instagram evidence
as direct and substantial proof of the charges in this case.
Appellant was charged with possessing the .40-caliber M&P Smith & Wesson
handgun bearing a distinctive red laser sight and a large capacity ammunition feeder
that police found in his bedroom on April 25, 2018. Appellant denied possessing
either item on that date; probative evidence showing his recent prior possession of
those items would constitute direct and substantial proof of the charges and rebut
appellant’s denial. The judge reasonably found that the records of appellant’s
31
Ruffin, 219 A.3d at 1009 (quoting Coleman v. United States, 379 A.2d 710,
712 (D.C. 1977)).
32
Jones, 127 A.3d at 1185 (citing Busey v. United States, 747 A.2d 1153, 1165
(D.C. 2000)).
25
Instagram account supplied such evidence. The video clips, posted only two months
earlier, showed appellant in physical possession of what appeared to be a matching
handgun with the same distinctive red laser sight. While the records did not disclose
when the video clips were recorded, both the judge and the jury (who could compare
appellant’s appearance in the clips to his appearance at trial) reasonably could find
it most likely that the clips were recorded more or less contemporaneously with their
posting, and not long in the past. 33 The April 17 direct share exchange included a
message, evidently from appellant for the reasons already explained, claiming
possession of a large capacity ammunition feeder for that same make and model of
handgun — an admission, we note, that implied appellant’s likely possession at that
time of the handgun as well as the feeder. It is true that the evidence established
“only a reasonable probability, and not a certainty,” 34 that appellant had recently
possessed the gun and magazine that he was charged with possessing on April 25,
but that was sufficient; the linkage was not conjectural or remote, “so the lack of
certainty goes to the weight of the evidence, not its admissibility.” 35
33
Cf. United States v. Bowens, 938 F.3d 790, 794 (6th Cir. 2019); United
States v. Vázquez-Soto, 939 F.3d 365, 375 (1st Cir. 2019).
34
Busey, 747 A.2d at 1165.
35
Id.
26
Appellant argues that even if the Instagram evidence was relevant and
otherwise admissible, “[t]he prejudice of admitting such sensational videos and
messages greatly outweighed any conceivable probative value” because “jurors were
exposed to videos in which appellant was purportedly pointing and waving a gun
around and two others in the video were doing the same.” This argument lacks merit.
As we concluded in Stewart, “[a]ppellant overreaches when he argues that juries are
so inflamed by the sight of a gun that they will simply disregard the court’s
instructions to decide the case without prejudice and to base their verdict solely on
the evidence.” 36 The Instagram videos were particularly probative of the disputed
question of appellant’s possession of the handgun and magazine on April 25, and
there is no indication in the record that they were inflammatory or otherwise unfairly
prejudicial.
Finally, the government did not urge the jury to draw an adverse propensity
inference from the Instagram evidence. At appellant’s request, as we discuss infra,
the trial judge instructed the jury not to use the Instagram evidence “to conclude that
[appellant] has a bad character or is likely to commit crimes.” We conclude that the
record does not support appellant’s objections to the admission of the Instagram
36
Stewart v. United States, 881 A.2d 1100, 1112 (D.C. 2005).
27
evidence under Drew or any concern that the jury treated the Instagram evidence as
proof of appellant’s criminal disposition.
III. Sufficiency of the Evidence
Appellant argues that the evidence presented by the prosecution at trial was
not sufficient to prove beyond a reasonable doubt that he possessed the .40-caliber
M&P Smith & Wesson handgun and the associated 30-capacity extended magazine
and .40-caliber ammunition. 37 In evaluating this claim, we must view the evidence
“in the light most favorable to the government, giving full play to the right of the
jury to determine credibility, weigh the evidence, and draw justifiable inferences of
fact.” 38 We must deem the proof of guilt sufficient if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” 39
37
The jury did not convict appellant of possessing the 15-capacity magazine
or the 9-mm ammunition.
38
Moore v. United States, 927 A.2d 1040, 1049 (D.C. 2007) (quoting Curry
v. United States, 520 A.2d 255, 263 (D.C. 1987)).
39
Id. (quoting Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en
banc)).
28
Since the Smith & Wesson handgun and its accoutrements were found on the
floor next to appellant rather than in his hands or on his physical person, the issue is
whether the government proved his constructive possession of the items. “To prove
constructive possession of . . . weapons, or other contraband, the evidence must show
that the accused knew of its presence and had both the ability and [the] intent to
exercise dominion and control over it.” 40 When illicit items have been discovered
in the accused’s own home, a jury usually may infer that the accused had the
requisite knowledge, dominion and control of them. 41 Even when the accused shared
the premises with others, “additional probative evidence may suffice” to establish
constructive possession by the accused, 42 as where the contraband was found in plain
view, in the defendant’s own bedroom or other personal space, or “in proximity to
the defendant’s personal items such as mail or personal papers, photographs, and
identification cards.” 43
40
Id. at 1050 (citing Rivas, 783 A.2d at 129).
41
Id.
42
Id.
43
Evans v. United States, 122 A.3d 876, 890-91 (D.C. 2015) (quoting Schools
v. United States, 84 A.3d 503, 510 (D.C. 2013)).
29
Such additional probative evidence was adduced in the present case. The
police found the handgun, its extended magazine, and its ammunition in appellant’s
bedroom, where they also found appellant’s personal papers and effects, and
appellant himself asleep on the floor next to the gun. 44 The handgun was in plain
view, within close reach of appellant, and additional ammunition for it was in the
top drawer of appellant’s bedroom dresser and under his bed. His former girlfriend,
the only other person in the room, testified that the gun was not hers. 45 Moreover,
the evidence from appellant’s Instagram account included the video footage showing
appellant waving a weapon that looked like the one in appellant’s bedroom, and an
admission reasonably attributable to appellant that he possessed the large capacity
magazine attached to that weapon.
We conclude that the evidence adduced at trial was sufficient to permit the
jury to find appellant guilty beyond a reasonable doubt of possessing the .40-caliber
Smith & Wesson handgun and ammunition, along with the large capacity
44
That this room was appellant’s bedroom was confirmed at trial by his former
girlfriend and his sister.
45
Although appellant’s sister claimed that the handgun belonged to her and
that she had placed it on the floor next to appellant while he was asleep, the jury was
free to disbelieve that testimony.
30
ammunition feeder attached to the gun, recovered from his bedroom on April 25,
2018.
IV. Jury Instructions
Appellant argues that the trial court erred in responding to the deliberating
jury’s request for legal guidance and in later giving the jury an anti-deadlock
instruction. We conclude that neither contention entitles appellant to relief.
A. The Supplemental Instructions in Response to Notes from the Jury
The jury began its deliberations on the morning of August 28, 2018. On the
following morning, one of the jurors became unavailable. The court empaneled one
of the alternate jurors and instructed the jury to begin its deliberations afresh. At
12:50 p.m., after the jury had deliberated for approximately an hour and a half, it
sent a note saying: “What do we do if we cannot agree? We are at an impass[e].”
Appellant moved for a mistrial, which the court denied. The court instead instructed
the jury to continue deliberating.
At 4:10 that afternoon, the jury sent another note, which asked, in relevant
part: “Is . . . the possession we are to determine exclusively limited to the time of the
31
search warrant? Can possession be established at any time? Can past possession of
an item be used to infer subsequent possession?” The court conferred with the
parties as to how to respond to this note. As to the first two questions, they agreed
that the question for the jury was limited to whether appellant possessed the
handgun, magazines, and ammunition at the time the police executed the search
warrant at appellant’s apartment. Regarding whether past possession could be used
to infer subsequent possession, the judge indicated his inclination to tell the jury:
“[Y]ou can but need not infer possession on or about the date of the charged offense,
April 25th, 2018, based on possession at an earlier time.” “That was the whole
reason,” the judge said, “why the Instagram evidence was relevant in the first
instance. It’s not for propensity. It’s to show . . . possession.” Appellant’s counsel
requested that the court include an admonition to the jury not to use his past firearm
possession as propensity evidence, and the judge agreed to incorporate that in the
supplemental instructions he would prepare and share with counsel that evening.
The next morning, the judge reviewed his proposed response to the jury’s note
with the parties. The proposed response stated that each charge required the
government to prove possession by appellant “on or about April 25, 2018,” and that
the jury “cannot find Mr. Johnson guilty of a charged offense based on possession
at some other time.” Referring to the Instagram video clips, the proposed response
32
stated that “[t]he government has presented evidence that the government contends
shows Mr. Johnson with the firearm at issue in Count [One] at some point prior to
April 25, 2018.” If the jury were to so find, the proposed response said, it could use
that evidence “only for the limited purpose of deciding whether the government . . .
proved beyond a reasonable doubt that Mr. Johnson possessed the firearm,
ammunition, and large-capacity feeding devices” at issue on or about April 25, 2018.
Granting appellant’s request for a limiting instruction against drawing adverse
propensity inferences, the judge next included the following passage:
Mr. Johnson is only on trial for the crimes charged. He is
not charged in this case with any offense relating to
possession of firearms or ammunition at any other time,
and you may not use this evidence [of previous
possession] to conclude that he has a bad character or is
likely to commit crimes. The law does not allow you to
convict Mr. Johnson simply because you believe he may
have done other things not specifically charged as crimes
in this case at other times.
The government asked the court to delete this passage, but the judge declined to do
so, saying it was “important limiting language to make sure that the jury does not
misuse the video evidence.” The judge noted that the language tracked “very
closely” the standard pattern jury instruction on “other bad acts.”
33
The government also asked the court to include “the standard instruction on
the definition of ‘on or about.’” 46 Appellant objected to including this definition.
He argued that there was no reason to give the instruction because there was no
dispute or uncertainty as to the exact date of the charged offenses — it was April 25,
2018, the date on which the police executed the warrant to search appellant’s
apartment and found him there with the handgun, ammunition, and large capacity
ammunition feeding devices. And giving the requested “on or about” instruction
would “confuse the issue,” appellant pointed out, because it might be understood to
allow the jury to convict him based on his possession of the gun shown in the
Instagram video clips sent in February 2018. Citing case law and the comment to
Criminal Jury Instruction 3.103, appellant argued that where the prosecution has
been permitted to introduce evidence of prior bad acts in its proof of the charged
46
Specifically, the government requested that the court include language from
Instruction 3.103 of the Criminal Jury Instructions for the District of Columbia (5th
ed.) so as to read as follows:
The indictment charges that the offenses in this case were
committed “on or about” April 25, 2018. The proof need
not establish with certainty the exact date of the alleged
offense. It is sufficient if the evidence in the case
establishes beyond a reasonable doubt that the offense was
committed on a date reasonably near the date alleged.
34
offense, it is error to give an “on or about” instruction if it might lead the jury to
convict on the basis of those prior acts alone. 47
The court overruled the objection and granted the government’s request. It
explained that defining “on or about” answered the jury’s question as to the relevant
time period, which the indictment stated was “on or about” April 25, 2018. As to
appellant’s concern that “on or about” might mislead the jury into convicting
appellant on the basis of his possession shown in the video clips, the court reasoned
that its limiting instructions ensured against that possibility.
With that issue resolved, the jury was called back into the courtroom to hear
the court’s supplemental instructions in response to their note. 48
47
See United States v. Thomas, 459 F.2d 1172, 1177 (D.C. Cir. 1972).
48
The court instructed the jury as follows:
The government has the burden of proving beyond
a reasonable doubt every element of the offenses with
which Mr. Johnson is charged. Each of the charged
offenses is alleged to have occurred on or about April 25th,
2018, and possession is an element of each charged
offense. Accordingly, to find Mr. Johnson guilty of a
charged offense, the government must prove beyond a
reasonable doubt that he possessed the item that is the
subject of that offense on or about April 25th, 2018. You
cannot find Mr. Johnson guilty of a charged offense based
on his possession at some other time. The proof need not
35
The jury then resumed its deliberations at 10:34 a.m. At 11:45 a.m., it sent a
note stating: “Having discussed at length, we do not believe we will ever be able to
come to a unanimous decision. We do not see the point in continuing deliberation.
Please advise.” The government requested the court to give the Winters 49 anti-
establish with certainty the exact date of the alleged
offense. It is sufficient if the evidence in the case
establishes beyond a reasonable doubt that the offense was
committed on a date reasonably near the date alleged.
The government has presented evidence that the
government contends shows Mr. Johnson with the firearm
at issue in Count 1 at some point prior to April 25th, 2018.
It is up to you to decide whether to accept that evidence.
If you find that Mr. Johnson possessed the firearm at issue
in Count 1 at an earlier time, you may use this evidence
only for the limited purpose of deciding whether the
government has proved beyond a reasonable doubt that
Mr. Johnson possessed the firearm, ammunition, and
large-capacity feeding devices that are the subjects of
Counts 1 through 6 on or about April 25th of 2018. You
may not use this evidence for any other purpose. Mr.
Johnson is only on trial for the crimes charged. He is not
charged in this case with any offense relating to possession
of firearms or ammunition at any other time, and you may
not use this evidence to conclude that he has a bad
character or is likely to commit crimes. The law does not
allow you to convict Mr. Johnson simply because you
believe he may have done other things not specifically
charged as crimes in this case at other times.
49
Winters v. United States, 317 A.2d 530, 533 (D.C. 1974) (en banc)
(approving instruction designed to “stimulat[e] a decision in the face of deadlock”
while “preserving juror independence”).
36
deadlock instruction, while appellant moved for a mistrial. The judge observed that
the jury had been deliberating for only about an hour after receiving the supplemental
instructions in response to their questions, and that “this was not a simple answer to
a simple question.” Stating that he “believe[d] the jury ha[d] not completed its work
and that they could perhaps benefit from additional deliberation,” the judge decided
to give the Winters instruction.
Following that instruction, at 12:21 p.m., the jury returned to its deliberations.
At 12:55 p.m., it reported that it had reached verdicts on all counts. The jury returned
to the courtroom, rendered its verdicts, was polled without incident, and was found
to be unanimous.
B. The “On or About” Instruction
Appellant argues that the trial court erred by instructing the jury in accordance
with Criminal Jury Instruction 3.103 that the government did not have to prove the
“exact date” of the alleged offenses, but only that the offenses were committed on a
date reasonably near the date alleged in the indictment. We are persuaded that it was
37
a mistake to include this instruction, but we are satisfied that the error did not mislead
the jury or prejudice appellant. 50 It therefore does not entitle appellant to relief.
The “decision on what further instructions, if any, to give in response to a jury
question lies within the sound discretion of the trial court.” 51 “Nevertheless,
‘[w]here a jury has demonstrated confusion, . . . the trial judge may not allow that
confusion to continue, but must make an appropriate and effective response.’” 52
Because the indictment alleged that the charged offenses were committed “on
or about” April 25, 2018, it is understandable that the judge felt obliged in this case
to grant the government’s request for Instruction 3.103. But at trial there was no
question regarding the exact and only date on which the government sought to prove
appellant committed those offenses. It was the date the police searched his
50
See Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979) (“[T]he
appellate court makes two distinct classes of inquiries when reviewing a trial court’s
exercise of discretion. It must determine, first, whether the exercise of discretion
was in error and, if so, whether the impact of that error requires reversal. It is when
both these inquiries are answered in the affirmative that we hold that the trial court
‘abused’ its discretion.”).
51
Colbert v. United States, 125 A.3d 326, 334 (D.C. 2015) (quoting Yelverton
v. United States, 904 A.2d 383, 387 (D.C. 2006)).
52
Id. (alteration in original) (quoting Whitaker v. United States, 617 A.2d 499,
501 (D.C. 1992)).
38
apartment, and that was indisputably “on” April 25 and not any date “about” it.
While the government introduced Instagram records evidencing appellant’s earlier
possession of the handgun and an extended magazine, it did so only for the limited
purpose of proving his possession at the time of the search; the government expressly
disavowed prosecuting appellant for his possession at any time prior to April 25.
Under these circumstances, the “on or about” instruction was inappropriate; it
was unhelpful to the jury and served no useful purpose, and it had the potential to
lead the jury to convict appellant improperly for previous possession indicated by
the Instagram evidence. As the comment to Instruction 3.103 explains,
This instruction should be given where an issue of fact as
to the date of the offense is presented by the evidence, or
where there is a variance between the date alleged in the
information or indictment and the date proved by the
evidence. Generally, there is little purpose in giving this
instruction when the government’s proof has focused on a
specific date, or specific dates for multiple offenses. . . .
[N]ormally the giving of the instruction under such
circumstances would be harmless error since there is little
likelihood that the jury will speculate that the offense or
offenses occurred on a different date or dates. But see
U[nited] S[tates] v. Thomas, 459 F.2d 1172, 1177 (D.C.
Cir. 1972) (where government permitted to introduce
evidence of prior acts of cruelty to support case on charged
offense, it was error to give “on or about” instruction
39
which might have permitted jury to convict on basis of
prior acts).[53]
Although it was a mistake to give the “on or about” instruction, we do not
evaluate it in a vacuum, ignoring what else the court told the jury at the same time.
The rest of the supplemental instruction dispelled the risk that the jury would convict
appellant for possession prior to April 25 (which was the reason the judge himself
gave for overruling appellant’s objection to Instruction 3.103). The judge
emphatically told the jury that it could use the evidence that appellant possessed the
firearm “at some point prior to April 25th, 2018,” “only for the limited purpose of
deciding whether . . . [appellant] possessed the firearm, ammunition, and large-
capacity feeding devices that are the subjects of Counts 1 through 6 on or about April
25th of 2018,” and not “for any other purpose.” The judge reiterated that appellant
was “not charged in this case with any offense relating to possession of firearms or
ammunition at any other time,” and that the law did not allow the jury to convict him
for possession “at other times.” The jurors could only have understood these
admonitions as meaning they could not find appellant guilty for any prior possession
53
Criminal Jury Instructions for the District of Columbia, No. 3.103, cmt. (5th
ed. 2022) (citations omitted).
40
shown or implied by the Instagram evidence (which was the only evidence of prior
possession presented by the prosecution). 54
We think the verdict itself provides some additional assurance that the jurors
complied with this limitation and convicted appellant based on what they found he
possessed on April 25. One of the counts on which the jurors convicted appellant
charged him with possession of .40-caliber ammunition. The only evidence at trial
that he possessed such ammunition was what the police found in his bedroom on
April 25; the Instagram records contained no evidence that he possessed ammunition
54
Appellant objects that the supplemental instruction did not specifically
caution the jury against convicting him for possessing a large capacity ammunition
feeding device a week before the police searched his bedroom, based on the April
17 Instagram message in which he admitted possessing the device shown in a
photograph. Appellant did not object at trial to this omission from the supplemental
instruction, and appellant has failed to demonstrate that it amounted to plain error.
See Rogers v. United States, 222 A.3d 1046, 1050 (D.C. 2019). The supplemental
instruction may not have been letter-perfect, but we are confident it correctly
conveyed what was necessary.
Appellant also objects to the statement in the supplemental instruction that
proof of appellant’s earlier possession of the firearm seized by the police on April
25 could be probative of his possession of the ammunition and large capacity feeding
devices also seized at that time. This, too, was not an objection he raised at trial.
We do not deem the statement erroneous, let alone plainly so. Evidence that a
defendant possessed a firearm at a given time and place makes it at least slightly
more probable that he also possessed the ammunition and feeding devices that were
compatible with the firearm and that were found with it at same time and place.
41
at any other time. So we think it a fair inference that the jury found that appellant
possessed the .40-caliber ammunition found in his bedroom on April 25. 55 If the
jury so found, it is difficult to fathom why they would not also have found he
possessed the .40-caliber firearm and its extended magazine that the police also
found in his bedroom during the same search (particularly since much of the .40-
caliber ammunition was recovered from that firearm and magazine).
We conclude that the supplemental instruction as a whole mitigated the “on
or about” mistake and effectively advised the jury that the government had to prove
appellant possessed the contraband that the police found in his bedroom on April 25,
2018. We therefore are satisfied that the trial court did not abuse its discretion, and
that the instructional “error was sufficiently insignificant to give us fair assurance
that the judgment was not substantially swayed by it.” 56
55
We do not think this inference is inconsistent with the jury’s acquittal of
appellant on the charges that he possessed the 9-mm ammunition and the 15-round
capacity magazine also found in his bedroom on April 25. Unlike the other
contraband, the 9-mm ammunition and 15-round capacity magazine were not out in
the open and plainly visible to appellant; they were secreted under appellant’s bed
and could not be seen until the police lifted the bed up. Appellant’s sister had
claimed those items as hers, and the government presented no evidence specifically
linking them to appellant.
56
Brooks v. United States, 599 A.2d 1094, 1101-02 (D.C. 1991) (explaining
that “instructional error is subject to harmless error analysis”). We apply the test of
harmlessness applicable to non-constitutional error, considering that the “on or
42
C. The Winters Anti-Deadlock Instruction
Appellant contends the court committed reversible error by giving the Winters
anti-deadlock instruction, over his objection, after the jury had deliberated
approximately five and a half hours and twice declared itself at an impasse. He
contends the instruction’s coerciveness was shown by “the speedy shift” to a guilty
verdict it produced just 34 minutes after the court delivered it.
Whether to give an anti-deadlock instruction when a jury reports itself at an
impasse, and which approved instruction to give, are questions committed to the
discretion of the trial judge. 57 “It is, of course, an abuse of that discretion to give an
anti-deadlock instruction under circumstances creating a substantial risk of juror
coercion.” 58 We evaluate that risk by assessing “the inherent coercive potential of
the situation before the court” and examining whether the actions of the trial judge
about” instruction did not unconstitutionally authorize the jury to convict appellant
of an offense with which he was not charged in the indictment, or based on evidence
obtained in violation of the Constitution.
57
Jones v. United States, 999 A.2d 917, 924-25 (D.C. 2010); see also
Epperson v. United States, 495 A.2d 1170, 1173 (D.C. 1985).
58
Hankins v. United States, 3 A.3d 356, 361 (D.C. 2010).
43
“exacerbated, alleviated or were neutral with respect to coercive potential.” 59 We
have distilled from our cases the following pertinent principles guiding the
determination of whether an anti-deadlock instruction resulted in a substantial risk
of coercion:
We examine the question of coercion from the jurors’
perspective. Coercion of a verdict does not mean simple
pressure to agree. Rather, pressure to agree is
impermissibly coercive when it is likely to force a juror to
abandon his or her honest conviction as a pure
accommodation to the majority of jurors or the court. The
question is one of probabilities, not certainties; from our
review of the record, we must be able to say with assurance
that the jury arrived at its verdict freely and fairly.
As a rule, it is not coercive to give a standard anti-
deadlock instruction when a jury has declared itself unable
to agree after having deliberated for a considerable length
of time. Typically, where the jury’s numerical division
and leaning have not been disclosed and no juror has been
singled out, no members of the jury have any reason to
suppose the anti-deadlock instruction is aimed at them (or
at their position). As a result, no juror would have a reason
to feel forced to abandon his or her conviction.[60]
We do not perceive a significant degree of coercive potential in the record
before us in this case. The jury’s initial impasse note was received by the trial court
59
Harris v. United States, 622 A.2d 697, 701 (D.C. 1993).
60
Hankins, 3 A.3d at 361-62 (internal quotation marks, alterations, and
citations omitted).
44
about an hour and half after the renewed commencement of deliberations. In
response, the judge merely asked the jury to continue deliberating, and the jury did
so. There is no claim that this directive was coercive or inappropriate, and we do
not think it was. After a few hours, the jury submitted substantive questions to the
court. The court’s response to those questions helped to focus the inquiry for the
jurors and gave them things to chew over and digest. The jury deliberated only about
an hour after receiving the court’s response before it again reported being
deadlocked. Thus, as of that time, the deliberations had not been unduly lengthy,
the jury had not disclosed a numerical split or a prior verdict, no dissenting juror had
been singled out, there was no indication of destructive acrimony among the jurors,
and no juror claimed to be under external pressure to conclude or be released from
the deliberations.
In those circumstances, the judge reasonably could believe that, with proper
encouragement and guidance from the court in the form of a non-coercive anti-
deadlock instruction, the jury might work productively through its impasse. 61 And
61
That the jury had twice declared itself unable to reach a verdict did not
require the judge to declare a mistrial in lieu of giving an anti-deadlock instruction.
It would have been premature for the judge to have given an anti-deadlock
instruction after only the first note expressing the jury’s inability to reach a verdict.
The judge was obliged to determine that the jury was truly at an impasse — here, by
waiting until after the second note — before giving an anti-deadlock instruction.
45
the Winters instruction the judge chose to give neutrally asked all the jurors — both
those for acquittal and those for conviction —– to “listen to each other’s arguments
with a willingness to be convinced,” and to decide the case if they could
“conscientiously do so.” In giving that instruction, the judge did not act
precipitously or impatiently, and he did not tell the jurors they had to reach a verdict
or suggest what verdict they ought to reach. It is true that our cases have
acknowledged “the coercive potential of the [Winters] instruction’s rather emphatic
language; we have deemed it to represent the ‘highwater mark’ of an anti-deadlock
instruction because of the ‘sting’ it carries in favor of a verdict.” 62 But this in itself
is not enough to render the Winters instruction substantially coercive, and our cases
have approved its use repeatedly, including in circumstances comparable to those
present here. We do not see that the judge’s actions in giving the Winters instruction
can be said to have contributed to a coercive atmosphere or to have caused any juror
to “abandon his honest conviction as a pure accommodation to the majority of jurors
or the court.” 63
See, e.g., Epperson, 495 A.2d at 1172; Reed v. United States, 383 A.2d 316, 322
(D.C. 1978).
Hankins, 3 A.3d at 360 n.3 (quoting Jones v. United States, 946 A.2d 970,
62
975 (D.C. 2008) (quoting Winters, 317 A.2d at 533, 534)).
63
Winters, 317 A.2d at 532. It is worth noting that the jury’s eventual verdict
reflected an individualized and discriminating assessment of the evidence, in that the
46
Appellant’s argument for the existence of coercion comes down to the simple
fact that the jury agreed on its verdict only 34 minutes after receiving the Winters
instruction. If half an hour seems relatively quick, that “may be some indication of
the anti-deadlock instruction’s effectiveness, but we do not think it implies
coerciveness,” 64 particularly in light of the short total duration of the deliberations
and the uncomplicated facts of the case. “Countering such an implication is the fact
that no juror hesitated to assent to the verdict when the jury was polled.” 65
We conclude that the trial judge did not abuse his discretion in giving the
jurors a Winters instruction.
jury found appellant guilty on four counts and not guilty on two of them. There was
nothing irrational or inconsistent in that outcome.
64
Hankins, 3 A.3d at 363 (holding that coercion was not shown where the jury
reached a verdict an hour after the judge’s anti-deadlock instruction); see also Nixon
v. United States, 730 A.2d 145, 154-55 (D.C. 1999) (no coercion where jury reached
its verdict about one hour after receiving the Winters instruction).
65
Hankins, 3 A.3d at 364. “The purpose of the jury poll . . . ‘is to ascertain
for a certainty that each of the jurors approves of the verdict as returned; that no one
has been coerced or induced to sign a verdict to which he does not fully assent.’”
Green v. United States, 740 A.2d 21, 25 (D.C. 1999) (quoting Humphries v. District
of Columbia, 174 U.S. 190, 194 (1899)).
47
V. Conclusion
For the foregoing reasons, we affirm appellant’s convictions.