concurring.
I join the majority in affirming Black-son’s convictions but I write separately because I would travel a different path than the majority. I find the trial court erred in admitting Yeager’s grand jury testimony as “adoptive admissions” against Blackson, but I also find the error was harmless under the applicable standard of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
*14While the test for the admissibility of “adoptive admissions” is of course not drawn from the “five Ws” taught in journalism school (the “who, what, when, where and why” questions every story should answer), those questions come to mind as one considers whether the evidence in this case permitted the trial court to “make a preliminary determination [that the] jury could reasonably conclude that the defendant unambiguously adopted another person’s incriminating statement.” Holmes v. United States, 580 A.2d 1259, 1264 n. 8 (D.C.1990). I am of the view that the evidence was insufficient for the trial judge to reach that determination. On the contrary, the evidence establishes precious little to answer the key questions relevant to the adoptive admissions analysis: Who was telling the story? Was Blackson paying attention? Where was Blackson? How did Blackson manifest his assent (or acquiesce in the statements)? The record does not answer these questions. Instead, all we know is that Black-son was “there,” in the back yard of someone’s house, when a group of five people, including Yeager, were “walking off, walking back, walking off walking back” while engaged in some sort of conversation about the shooting that had occurred the night before. That is plainly insufficient to allow the trial judge to permit the jury to find that Blackson “unambiguously” adopted other people’s statements and admit into evidence what would otherwise be rank hearsay against Blackson.
Our court has recognized that “adoptive admissions” present significant risks of unreliability that caution against their admission into evidence in all but the plainest of circumstances. As we said in Holmes, “[t]here are great possibilities of error in relying on oral utterances which are supposed to have been heard, understood, and acknowledged by the defendant.” 580 A.2d at 1259 (internal citations omitted). Here, the trial judge recognized the serious potential for unreliability when he said “part of the problem is that [Yeager] gives a whole recitation and this wasn’t done in a way where it could be clear who is making the statements, whether they’re admissions or whether statements made by others that may ultimately be hearsay. Because it wasn’t parsed out as who is saying what.... And without it being clear who said what, it’s hard for the Court to glean what are [admissions] what are not [admissions].” Ultimately, however, the court allowed the government to introduce the statements as adoptive admissions because Blackson was “present” and “in a position where you would expect that if things didn’t occur the way they were describing them he would have said something.”
That is simply not enough to meet the demanding standard necessary for a reasonable jury to find that it “clearly appealed]” that Blackson “understood and unambiguously assented to the statements.” Harris v. United States, 834 A.2d 106, 117 (D.C.2003) (citations omitted). Why should one expect Blackson to deny the statements if, for all the record shows, he was not physically positioned to hear them? Perhaps instead he was “walking off, walking back” and hence out of earshot when some or even all of the statements were made. Such possibilities are why “judicial resort to the adoptive admission doctrine may provide an open invitation to manufacture evidence, or to make something out of nothing or very much out of very little.” Holmes, 580 A.2d at 1263 (internal citation omitted).
Even though I conclude that the trial court erred in admitting Yeager’s statements as “adoptive admissions,” I join the majority in affirming Blackson’s convictions because I find the trial court’s error was harmless. Blackson admits he shot Jones; the only question is whether the *15government negated Blackson’s theory of self-defense. The record plainly establishes that the government did so, and it did so with no help from Yeager. Although the car in which Blackson was traveling was going slowly, nobody except Blackson in either Blackson’s car or Jones’s car claimed to have seen anyone from Jones’s car point a gun at Blackson. And after the shooting, Blackson told his friend McGee that he was “bamming out” and “had to do what [he] had to do” in case “they [ie., the Butler Gardens group] would have tried to get us again ... so [he] had to get them back.” Blackson subsequently told McGee “don’t worry about nothing” because “if anything happens, then it’s all going to come back on [Blackson].”
The government presented additional evidence to negate Blackson’s theory of self-defense but even this brief recitation is sufficient to establish that it is “highly probable” that the error in admitting the “adoptive admissions” did not have “a substantial and injurious effect or influence in determining the jury’s verdict.” Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239. I therefore join in the judgment.