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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CF-410

                         JAMES A. CORBIN, APPELLANT,

                                       v.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF3-10713-12)

                       (Hon. Stuart G. Nash, Trial Judge)

(Argued February 19, 2015                                   Decided July 23, 2015)

     Daniel Gonen, Public Defender Service, with whom James Klein and Alice
Wang, Public Defender Service, were on the brief, for appellant.

       Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Suzanne Grealy Curt, Erik Kenerson, and Peter Lallas, Assistant United
States Attorneys, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and BELSON,
Senior Judge.

      BLACKBURNE-RIGSBY, Associate Judge: The central issue on appeal is one

of statutory construction, namely, whether the District of Columbia’s carjacking

statute, D.C. Code § 22-2803 (2001), encompasses attempted unarmed carjacking.
                                         2

We conclude that it does not, and that the government must charge a suspect of

attempted unarmed carjacking under our general attempt statute, D.C. Code § 22-

1803 (2013 Supp.), separately from the completed offense.



      Following a jury trial, appellant James Corbin was found guilty of four

counts resulting from two incidents that occurred on December 16, 2007. For the

first incident, involving Eva Kleederman, appellant was convicted of unarmed

carjacking and robbery of Ms. Kleederman’s keys. 1 For the second incident,

involving Christine Cannon, appellant was convicted of unarmed carjacking and

first degree theft of personal property in the car.2 Primarily, appellant challenges

the sufficiency of the evidence supporting the carjacking of Ms. Kleederman,

arguing that the evidence shows that he merely attempted to take Ms.

Kleederman’s car, and that the carjacking statute under which he was charged and

convicted does not proscribe attempted carjacking. We agree, and we vacate this

conviction and remand for resentencing for attempted carjacking in accordance

with our holding.



      1
         In violation of D.C. Code § 22-2803 (a)(1) and D.C. Code § 22-2801
(2001), respectively.
      2
        In violation of D.C. Code § 22-2803 (a)(1) and D.C. Code §§ 22-3211,
-3212 (a) (2001), respectively.
                                         3

      In addition to his sufficiency claim, appellant argues that the trial court

abused its discretion by: (1) permitting the government to comment, in closing

argument, on appellant’s right to independent DNA testing under Teoume-Lessane

v. United States, 931 A.2d 478 (D.C. 2007), when defense counsel did not open the

door to this argument, and (2) refusing to issue a proposed jury instruction on

scientific research suggesting that an eyewitness’s level of confidence does not

correlate to reliable identification. We affirm the trial court’s ruling on these

claims.3


      3
          Appellant also challenges the sufficiency of the evidence supporting his
robbery conviction, arguing that the evidence in the record merely shows that he
intended to permanently deprive Ms. Kleederman of the car’s ignition key during
an unsuccessful attempt to take the car, but does not show that he intended to
permanently deprive Ms. Kleederman of the keys that he actually took: those
attached to the ignition key. Accordingly, he contends that he should have been
convicted of attempted robbery, not completed robbery. See Lattimore v. United
States, 684 A.2d 357, 359-60 (D.C. 1996) (stating that a robbery conviction
requires the government to “prove larceny and assault” and larceny includes
“intent to permanently deprive”).

       Viewing the evidence in the light most favorable to the government and
deferring to the jury’s responsibility to weigh evidence, make credibility
determinations, and draw reasonable inferences, see id. at 359, we conclude that
the jury was entitled to infer that appellant “intend[ed] the natural and probable
consequences of [his] acts knowingly done[,]” or in this case, to infer his intent to
steal the keys attached to the ignition key, as expressed through the act of grabbing
and pulling at them. See, e.g., Wilson-Bey v. United States, 903 A.2d 818, 839
n.38 (D.C. 2006) (en banc). Evidence supporting a guilty verdict need not “negate
every possible inference of innocence” in order for a jury to find that the elements
of a crime are proved beyond a reasonable doubt. In re D.P., 996 A.2d 1286, 1290
(D.C. 2010) (citation and internal quotation marks omitted). The jury was not
                                                                  (continued . . .)
                                          4

                            I.   Factual Background



    A. The Kleederman Carjacking



      On the afternoon of December 16, 2007, Ms. Eva Kleederman drove her

five-year-old daughter from their home in Virginia to a violin recital at a venue on

Mississippi Avenue, Southeast, Washington, D.C. Ms. Kleederman testified at

trial that she was unfamiliar with the area and became lost while following printed

directions. Upon seeing a man — presumably appellant — walking nearby, Ms.

Kleederman rolled down her window and asked him for directions to Mississippi

Avenue.    Ms. Kleederman described appellant as an African-American and a

“slight person,” about five feet and six or seven inches tall, “fifty-ish,” with “salt

and pepper-ish, grayish” hair and “rough . . . sandpapery . . . gravelly” skin on his

face, possibly due to “a bad shave or pocked skin,” wearing jeans and a mid-thigh

length dark green or black “parka-looking winter jacket.” When Ms. Kleederman

asked him for directions, appellant opened the passenger side door of her car “in

the blink of an eye” and sat in the passenger seat, stating that he lived near

(. . . continued)
compelled to infer from the evidence, as appellant argues, that he intended to steal
the ignition key alone and not the other keys. Accordingly, we hold that the
evidence in the record is sufficient to support appellant’s conviction for a
completed robbery.
                                         5

Mississippi Avenue and would direct her. Ms. Kleederman was shocked and told

appellant that she does not take passengers, but he responded “that’s okay. I

understand. I’m an honest person.” Although she felt alarmed, Ms. Kleederman

“didn’t want to appear biased or racist just because [she] found [her]self in . . . a

part of town [she] knew to be largely black” and decided to drive on, “against [her]

better judgment.” Appellant directed Ms. Kleederman for about ten minutes and

avoided her attempts at conversation. During the drive, Ms. Kleederman noticed a

cut on appellant’s middle or index finger that was “oozing . . . gelatinous blood,”

and later found some of this blood on the door and dashboard of her car.



      Upon entering a wooded street in Fort Dupont Park, identified at trial as Fort

Dupont Drive, Southeast, appellant instructed Ms. Kleederman to slow down,

saying “I live near here.” When Ms. Kleederman slowed down, appellant began to

push her toward the driver-side door, saying “get out of the car” while trying to

pull the key out of the ignition. At the same time, Ms. Kleederman began to push

on the car horn and scream for help. Appellant was unable to pull the key out of

the ignition, but managed to wrench away all of the other keys attached to it. He

then exited the car, walked around to the driver side door, and tried to pull Ms.

Kleederman out. At that moment, Mr. Amin Muslim and Mr. Stanley Daniels

were driving by and stopped their car to aid Ms. Kleederman, prompting appellant
                                        6

to run off into a wooded area separating Fort Dupont Drive from Minnesota

Avenue, Southeast. Mr. Muslim gave chase into the woods while calling 911 on

his phone but eventually lost sight of appellant as appellant exited the woods

toward Minnesota Avenue.



      Meanwhile, off-duty police officer Stephanie Poyner of the Metropolitan

Washington Airports Authority Police Department was visiting her mother at her

childhood home on G Street, Southeast, which intersects Minnesota Avenue just

opposite the wooded area into which appellant had fled. Drawn by the sound of a

woman screaming for help coming from the direction of Fort Dupont Park, Officer

Poyner walked to the intersection of G Street and Minnesota Avenue. Looking

towards the wooded area, she saw a man exit the wood line at a place where there

were no trails and where she had never before seen a person enter or exit. Officer

Poyner came within thirty-five feet of the man and described him as an African-

American of “average weight,” approximately five feet and seven inches tall, with

“mixed gray hair,” wearing blue pants and a black thigh-length jacket. The man

crossed Minnesota Avenue and entered another wooded area behind G Street.

Officer Poyner drove into Fort Dupont Park, found Ms. Kleederman, and reported

what she had seen to police officers on the scene. After the incident, the United
                                        7

States Park Police swabbed several smears of blood in Ms. Kleederman’s car and

submitted the swabs to the Federal Bureau of Investigation (“FBI”).



   B. The Cannon Carjacking



      Before dark that same evening,4 Ms. Christine Cannon and her fiancé, Mr.

Ahmad Johnson, were driving home after a day of shopping, in which they had

filled Mr. Johnson’s car full of Christmas presents. Ms. Cannon, who was three or

four months pregnant at the time, asked Mr. Johnson to stop for a snack, so he

parked in front of the Dollar General store at a strip mall on Pennsylvania Avenue,

Southeast, and Minnesota Avenue. Ms. Cannon remained in the passenger seat of

the car with the car keys in the ignition. Shortly after Mr. Johnson left, Ms.

Cannon saw a man — whom she identified as appellant at trial — look into the car

“like [he was] scoping.” The car was unlocked and appellant swiftly entered and

sat in the driver’s seat and told Ms. Cannon to “get the f---[expletive] out of the

car.” Ms. Cannon said “no” and reached for the keys, but he hit her in her chest.

Ms. Cannon attempted to open her door and call out to Mr. Johnson, but appellant

pulled her door shut, saying “b----[expletive] you should have got out of the car.


      4
         Ms. Cannon testified that she could not remember the exact time, but that
“it was like evening” and not completely dark.
                                          8

Now I’m going to kill you.” Appellant kept his left hand in his jacket throughout

the incident and, at some point, told her that he had a gun and would shoot her.



      Appellant sped away with Ms. Cannon in the car, driving “like a maniac” on

both sides of the road. Ms. Cannon tried to look back and appellant hit her in the

jaw, saying “turn your a--[expletive] around.” Eventually, Ms. Cannon covertly

spilled some ginger ale on her dark jeans and told appellant that she was pregnant

and believed she was having a miscarriage because she was “bleeding.” The man

slowed down enough to shove Ms. Cannon out of the car and then pulled away.

Ms. Cannon stumbled but caught her fall, and found a ride back to the Dollar

General store.



      Ms. Cannon described the man who had driven the car at trial as “brown

skinned,” and “not a big guy,” in his thirties to forties, with “salt and pepper hair”

and an unshaved face “like a goatee” or “a full beard” that he was “trying to grow

in.” He appeared to be wearing black or blue jeans, and a “black leather or black

sweatshirt with leather in it,” which Ms. Cannon later referred to as a “jacket.” In

identifying appellant at trial, Ms. Cannon stated that his most memorable attribute

were his eyes, which told her “not to play with him” during the events in question.
                                         9

   C. Connecting the Crimes



      Shortly after Officer Poyner left the scene of the Kleederman carjacking, she

happened to be driving toward the intersection of Pennsylvania Avenue and

Minnesota Avenue where the Dollar General store was located. It was evening by

this time, but some daylight remained. 5 As she neared the intersection, Officer

Poyner noticed the man whom she had seen running from the wooded area across

Minnesota Avenue earlier in the afternoon.         She testified at trial that she

recognized his “clothing” and his “physical appearance.”        Circling around to

observe him, she saw him looking into cars at a Shell gas station next to the strip

mall where Ms. Cannon sat waiting in Mr. Johnson’s car. Officer Poyner saw him

approach and enter the driver seat of Mr. Johnson’s car while a woman sat in the

passenger seat. In “a matter of seconds,” the car sped off and Officer Poyner

followed in her personal vehicle while calling 911. The man drove erratically

down Pennsylvania Avenue, Southeast, toward the Maryland border, weaving in

and out of traffic and running traffic lights. Officer Poyner saw the passenger door

open a couple of times and saw the man strike the woman on her head. Unable to


      5
        Officer Poyner testified that she did not remember how much time elapsed
from when she witnessed appellant cross Minnesota Avenue until she left in her
car to drive toward the intersection of Minnesota Avenue and Pennsylvania
Avenue, but stated that “some daylight” remained.
                                        10

keep up with the speeding car, Officer Poyner returned to the strip mall and spoke

with police officers.



   D. The Investigation



      The investigation moved slowly and was eventually suspended.           Police

officers recovered Mr. Johnson’s car on January 4, 2008, in the possession of two

individuals who were quickly ruled out as suspects. Based on an address that these

individuals provided, police officers visited the residence of a suspect but were

unable to obtain any evidence tying him to the crimes at issue. Officers showed

photo arrays that included this suspect to Ms. Kleederman and Officer Poyner, but

neither was able to make a definitive identification. Appellant was not a suspect at

this time and was not included in the photo arrays. Then, in a report dated August

3, 2010, the FBI returned a positive match for appellant from swabs of the blood

recovered in Ms. Kleederman’s car, which provided cause to arrest appellant.6




      6
        The FBI explained at trial that the delay between 2008, when it received
the swabs, and 2010, when it returned a positive match, was due to a backlog in the
FBI laboratory and the low-priority of cases with no known suspect.
                                            11

   E. The Trial



      The government relied on appellant’s DNA match to tie him to the

Kleederman carjacking. Neither Ms. Kleederman nor Officer Poyner was able to

identify appellant at trial, but Officer Poyner testified that she had no doubt that the

person she observed in both incidents was the same person. Ms. Cannon was able

to identify appellant, however, explaining during her testimony that appellant

“stands out to me like a sore thumb because of his eyes.” Ms. Cannon testified that

she did not notice any blood on appellant during the incident or on herself

afterward.



      The trial court instructed the jury on the elements of the charged crimes,

explaining, with regard to the Kleederman incident, that the jury must find

carjacking is an “attempt[] to take a motor vehicle from the immediate actual

possession of [Ms. Kleederman] against [her] will.” Appellant was convicted and

sentenced to 180 months of incarceration, comprised of separate consecutive

ninety-month sentences for the carjackings of Ms. Kleederman and Ms. Cannon,

and concurrent sentences of ninety months for robbery and fifty-four months for

first degree theft. This appeal followed.
                                        12

                                II.   Discussion



   A. The Statutory Construction Issue: Sufficiency of the Evidence in the
      Kleederman Carjacking



      Appellant posits that he merely attempted to take Ms. Kleederman’s car and,

consequently, that the evidence offered at trial was insufficient to convict him

under the plain language of the carjacking statute, D.C. Code § 22-2803 (a)(1). As

a result, appellant’s sentence of ninety months of incarceration, a sentence that is

commensurate with actually completing the crime of carjacking, was greater than

he should have received for an attempt, the sentence for which, under our general

attempt statute, is capped at five years, or sixty months. See D.C. Code § 22-1803.



      There are two parts to this argument. The first is a sufficiency question:

whether a reasonable jury could conclude beyond a reasonable doubt that appellant

completed a carjacking under the statute. If he did not, we must answer a second

legal question:   whether the carjacking statute, as written, encompasses both

attempted and completed offenses.
                                         13

      1. Whether appellant completed a carjacking



      Appellant argues that “simply getting into someone’s car and giving bad

directions, even on purpose, is not a carjacking” in the District of Columbia, but

rather an attempted carjacking.     Ms. Kleederman willfully followed his “bad

directions,” he argues, and the fact that she was nervous and did not use her best

judgment in doing so does not override her willful compliance. In any event,

appellant argues that he did not complete a carjacking because he was ultimately

unsuccessful in taking the car from Ms. Kleederman’s possession. We agree.



      In order to establish that a defendant completed a carjacking under the

statute, the government must prove that the defendant, inter alia, took “immediate

actual possession” of another person’s motor vehicle. (John) Allen v. United

States, 697 A.2d 1, 2 (D.C. 1997). The carjacker may but need not physically

remove the vehicle from a victim’s presence in order to “take” under the statute.

Moorer v. United States, 868 A.2d 137, 141 (D.C. 2005) (“Carjacking simply

requires possession or control . . . of the car. Neither the [carjacking] statute nor

the case law requires the government to prove asportation . . . .”). Indeed, we have

held that a victim retains “immediate actual possession” as long as the car “is

within such a range that the victim could, if not deterred by violence or fear, retain
                                          14

actual physical control over it.” Winstead v. United States, 809 A.2d 607, 610

(D.C. 2002) (citation and internal quotation marks omitted). A taking occurs as

soon as the carjacker, by force or violence, shifts possession and control from the

victim to himself or herself, which may occur “at any point during a continuous

course of assaultive conduct, not just at the starting point.” Id. at 611.



      On the facts before us, appellant never took “immediate actual possession”

of Ms. Kleederman’s car, as necessary to complete a carjacking.              Certainly,

appellant’s presence in the car made Ms. Kleederman nervous and fearful, but he

did not threaten Ms. Kleederman or brandish any kind of weapon, and Ms.

Kleederman willfully followed appellant’s instructions while “retain[ing] actual,

physical control” over her car throughout. Contra Winstead, supra, 809 A.2d at

611 (concluding that a defendant took immediate actual possession when he

ordered the victim at gunpoint to enter her nearby car and drive against her will).

Though appellant later tried to push and pull Ms. Kleederman out of her car, his

use of force and violence, in itself, is not sufficient to establish “immediate actual

possession” because Ms. Kleederman remained in the driver seat, retained

possession of her keys, and never relinquished her possession and control. See

Moorer, supra, 868 A.2d at 141. Appellant’s attempts were ultimately thwarted by

Mr. Muslim and Mr. Daniels, prompting appellant to give up and flee. Put simply,
                                         15

we hold that the evidence in the record is insufficient to show that appellant

actually took the car, as required to support a conviction for completed carjacking

under D.C. Code § 22-2803 (a)(1), but rather supports an attempted carjacking.

We must now turn to the question of whether the carjacking statute under which

appellant was convicted encompasses attempted carjacking, such that appellant

may be sentenced under the guidelines for the completed offense.



      2. Whether the carjacking statute encompasses attempted unarmed
         carjacking



      Appellant argues that the plain language of § 22-2803 (a)(1) does not

proscribe attempted unarmed carjacking and that nothing in the legislative history

of the statute demonstrates that the Council of the District of Columbia (“Council”)

intended to punish an attempted unarmed carjacking as harshly as a completed
                      7
unarmed carjacking.        Rather, appellant suggests that attempted unarmed




      7
           Appellant further argues that the backdrop of well-established legal norms
undergirding the legislation drafted by the Council militates against punishing
attempted crimes equal to completed crimes. See, e.g., Solem v. Helm, 463 U.S.
277, 293 (1983) (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *15 (1769)) (“It
. . . is generally recognized that attempts are less serious than completed crimes.”)
                                         16

carjacking falls under our general attempt statute, D.C. Code § 22-1803,8 and that

it was error to convict him under the carjacking statute.



      As a preliminary matter, we have parsed the elements of the carjacking

statute in the context of merger analysis on several occasions and observed that the

definition of unarmed carjacking includes attempted carjacking.9 However, none


      8
          At the time of the events at issue, D.C. Code § 22-1803 provided:

              Whoever shall attempt to commit any crime, which
              attempt is not otherwise made punishable by chapter 19
              of An Act to establish a code of law for the District of
              Columbia, approved March 3, 1901 (31 Stat. 1321), shall
              be punished by a fine not exceeding $1,000 or by
              imprisonment for not more than 180 days, or both.
              Except, whoever shall attempt to commit a crime of
              violence as defined in § 23-1331 shall be punished by a
              fine not exceeding $5,000 or by imprisonment for not
              more than 5 years, or both.
      9
         See Pixley v. United States, 692 A.2d 438, 440 (D.C. 1997) (quoting the
full text of the unarmed carjacking statute to complete a merger analysis of
carjacking and robbery, stating: “we observe that carjacking by definition includes
an “attempt [ ]” to take property, while robbery does not”); Allen, supra, 697 A.2d
at 2 (quoting the full text of the unarmed carjacking statute to complete a merger
analysis of carjacking and unauthorized use of a motor vehicle, stating: “In order to
establish a violation of the carjacking statute, the prosecution must prove beyond a
reasonable doubt that the defendant 1) knowingly or recklessly; 2) by force or
violence; 3) took from another person; 4) immediate actual possession; 5) of a
person’s vehicle; or 6) attempted to do so”); see also Moorer, supra, 868 A.2d at
141 & n.9 (citing Pixley, supra, 692 A.2d at 440, and Allen, supra, 697 A.2d at 2)
(comparing the elements of carjacking and the offense of taking property without
right (“TPWR”) to conclude, after an analysis similar to merger analysis, that the
                                                                  (continued . . .)
                                         17

of these prior decisions have addressed the question of whether the language of the

carjacking statute proscribes attempted unarmed carjacking, and we conclude that,

in these prior decisions, “the judicial mind was not asked to focus upon, and the

opinion did not address, the point at issue[.]” Bishop v. United States, 983 A.2d

1029, 1038 (D.C. 2009) (citation and internal quotation marks omitted) (declining

to treat as binding a prior decision applying a particular standard because the prior

decision provided no reasoning or authority and the standard was not essential to

the prior decision). Accordingly, our prior decisions are not binding on this court

with regard to this question of statutory construction. Id. (quoting M.A.P. v. Ryan,

285 A.2d 310, 312 (D.C. 1971)).



      “We review issues of statutory construction de novo[,]” recognizing that our

task is to “discern, and give effect to, the legislature’s intent.” Wynn v. United

States, 48 A.3d 181, 188 (D.C. 2012) (citations omitted). Our “primary and


(. . . continued)
latter is not a lesser included offense of the former, stating: “Carjacking simply
requires possession or control (or attempted possession or control) of the car” and
“carjacking by definition includes an attempt, whereas TPWR does not”); Sutton v.
United States, 988 A.2d 478, 482 (D.C. 2010) (quoting D.C. Code § 22-2803
(a)(1)) (stating that a carjacking occurs when one “[1] ‘knowingly or recklessly’
[2] uses ‘force or violence’ to [3] ‘take from another person immediate actual
possession of [4] a person’s motor vehicle,’ or when someone ‘attempts to do so’”
in the context of a sufficiency challenge in which the court interpreted the second
and third elements of carjacking, as listed) (brackets in original).
                                         18

general rule of statutory construction is that the intent of the lawmaker is to be

found in the language that he [or she] has used.” Id. (quoting Peoples Drug Stores,

Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)). Yet we

will not “make a fetish out of plain meaning nor should we make a fortress out of

the dictionary.”   Whitfield v. United States, 99 A.3d 650, 656 (D.C. 2014)

(citations, internal quotation marks, and brackets omitted). We recognize that each

word of a statute “may or may not extend to the outer limits of its definitional

possibilities[,]” and that “[t]he meaning — or ambiguity — of certain words or

phrases may only become evident when placed in context.” Wynn, supra, 48 A.3d

at 188 (citations and internal quotation marks omitted). We must, therefore, seek

to give these words a “sensible construction,” Clyburn v. United States, 48 A.3d

147, 151 (D.C. 2012) (citation omitted), and, in so doing, we may look beyond the

plain language of a statute “where there are persuasive reasons for doing so,” such

as to “reveal ambiguities that the court must resolve[,]” to avoid “absurd results,”

to avoid “obvious injustice[,]” or to “effectuate the legislative purpose[.]” Peoples

Drug Stores, Inc., supra, 470 A.2d at 754-55 (citations and internal quotation

marks omitted).



      Where a criminal statute remains ambiguous after applying these Cannons of

statutory interpretation, however, “it is well-established that [such] statutes should
                                         19

be strictly construed and that ambiguities should be resolved in favor of the

defendant (i.e., the Rule of Lenity).” Whitfield, supra, 99 A.3d at 656 (citation and

internal quotation marks omitted). “To be sure, the rule of lenity is a secondary

Cannon of construction, and is to be invoked only where the statutory language,

structure, purpose[,] and history leave the intent of the legislature in genuine

doubt.” Id. (citation omitted).



      At the time of the events at issue, D.C. Code § 22-2803 (a)(1) proscribed

unarmed carjacking as follows:10

             A person commits the offense of carjacking if, by any
             means, that person knowingly or recklessly by force or
             violence, whether against resistance or by sudden or
             stealthy seizure or snatching, or by putting in fear, or
             attempts to do so, shall take from another person
             immediate actual possession of a person’s motor
             vehicle.11

      10
          In the time since the events at issue, the language defining carjacking and
its armed variant has remained unchanged. The Council amended the statute’s
sentencing guidelines in subsections (a)(2) and (b)(2) in the statute’s present
version, enacted June 11, 2013.
      11
          The statute goes on to provide sentencing guidelines and define the
offense of armed carjacking:

             (a)(2) A person convicted of carjacking shall be fined not
             more than $5,000 and be imprisoned for a mandatory-
             minimum term of not less than 7 years and a maximum
             term of not more than 21 years, or both.

                                                                 (continued . . .)
                                          20

(emphasis added). Our analysis centers on the phrase “or attempts to do so.” A

straightforward, grammatically sound reading of this language suggests that the

Council intended the phrase to modify the preceding means of taking, rather than

the subsequent words, “shall take.” See Peoples Drug Stores, Inc., supra, 470

A.2d at 753 (citations and internal quotation marks omitted) (“[I]n examining the

(. . . continued)
               (b)(1) A person commits the offense of armed carjacking
               if that person, while armed with or having readily
               available any pistol or other firearm (or imitation thereof)
               or other dangerous or deadly weapon (including a sawed-
               off shotgun, shotgun, machine gun, rifle, dirk, bowie
               knife, butcher knife, switch-blade knife, razor, blackjack,
               billy, or metallic or other false knuckles), commits or
               attempts to commit the offense of carjacking.

                 (2) A person convicted of armed carjacking shall be
                 fined not more than $10,000 and be imprisoned for a
                 mandatory-minimum term of not less than 15 years
                 and a maximum term of not more than 40 years, or
                 both. However, the court may impose a prison
                 sentence in excess of 30 years only in accordance with
                 § 24-403.01(b-2). For purposes of imprisonment
                 following revocation of release authorized by § 24-
                 403.01(b)(7), armed carjacking is a Class A felony.

             (c) Notwithstanding any other provision of law, a person
             convicted of carjacking shall not be released from prison
             prior to the expiration of 7 years from the date of the
             commencement of the sentence, and a person convicted
             of armed carjacking shall not be released from prison
             prior to the expiration of 15 years from the date of the
             commencement of the sentence.

D.C. Code § 22-2803.
                                        21

statutory language, it is axiomatic that [the] words of the statute should be

construed according to their ordinary sense and with the meaning commonly

attributed to them.”). Under this reading, which appellant endorses, the statute

would seem to proscribe attempts to use “force or violence,” attempts to act

“against resistance,” attempts to “sudden[ly] or stealthy seiz[e],” attempts to

“snatch[],” or attempts to “put[] in fear[,]” but not attempts to take. Yet our

decisions have also interpreted this phrase to refer to the subsequent language,

“shall take.” 12 Under this reading, which the government endorses, the statute

would seem to proscribe attempts to take.



      The ambiguity mostly stems from the wording and position in the sentence

of the phrase “or attempts to do so.” As to its wording, the use of “or” suggests

that the phrase refers backward to modify the means of taking. As to its position in

the sentence, placing the phrase “or attempts to do so” before the verb “take” does

not obviously suggest that the phrase modifies the verb. What is more, even if we

switch the order of the phrase and the verb when reading the statute, the result is

grammatically incorrect: “A person commits the offense of carjacking if, by any

means, that person . . . [shall take] or attempts to do so[.]” A grammatically

correct phrase modifying the singular noun “person” would read “shall take or

      12
           See supra note 9.
                                          22

attempt to do so.” We find this ambiguity particularly puzzling, given that the

Council, when drafting statutes that proscribe attempted and completed acts, seems

to follow a linguistic pattern of using the phrase “[act], or attempt/s to [act].”13 In

fact, the carjacking statute itself follows this linguistic pattern when proscribing

attempted and completed armed carjacking. See D.C. Code § 22-2803 (b)(1)

(“commits or attempts to commit”). In short, however one reads the statute, the

placement of the phrase “or attempts to do so” creates ambiguity as to whether the

statute refers to attempts to effectuate the means of carjacking that actually result

in a completed carjacking, or attempts to “take” that fail, and result in an attempted

carjacking.



      The ambiguity remains when reading the unarmed carjacking subsection of

the statute together with the armed carjacking subsection. See D.C. Code § 22-

2803 (a)(1) (stating that a person commits unarmed carjacking “if, by any means,

that person . . . shall take from another person immediate actual possession of a

person’s motor vehicle”); D.C. Code § 22-2803 (b)(1) (stating that a person

      13
          Appellant points to ten statutes to suggest that the Council favors a
particular formulation when including “attempt” language in a statute that also
proscribes a completed act, including the arson statute, see D.C. Code § 22-301
(2013 Supp.) (“burn or attempt to burn”), the escape statute, see D.C. Code § 22-
2601 (2013 Supp.) (“escape or attempt to escape”), and the unauthorized use of
official insignia statute, see D.C. Code § 22-1409 (b) (2013 Supp.) (“makes or
attempts to make unauthorized use of”).
                                         23

commits armed carjacking “if that person, while armed . . . commits or attempts to

commit the offense of carjacking.”). One might reasonably conclude that the

Council, in drafting these subsections as such, intended to treat unarmed and armed

carjacking differently — namely, by proscribing unarmed carjacking only when

completed, and proscribing armed carjacking whether attempted or completed. If

this were so, a person who commits an attempted unarmed carjacking could not be

convicted under the carjacking statute, but would instead fall within the ambit of

the general attempt statute, D.C. Code § 22-1803 (proscribing attempts to commit

any crime not otherwise punishable under the D.C. Code).14



      On the other hand, a less obvious yet still reasonable reading of the same

subsections could lead one to conclude that the armed carjacking subsection’s

“commits or attempts to commit” language implies a similar interpretation for the

unarmed carjacking subsection, such that the carjacking statute proscribes

attempted and completed carjacking, whether unarmed or armed.               Yet this

conclusion begs a question:      if the Council intended this meaning, why use

different language? In the absence of statutory language that clearly conveys the

Council’s intent, we turn for guidance to the legislative history of the statute. See

Whitfield, supra, 99 A.3d at 656.

      14
           See supra note 8.
                                          24

        The Council introduced carjacking as a separate offense in the District of

Columbia as part of a bill entitled “Carjacking Prevention and Bail Reform

Amendment Act of 1992 Temporary Amendment Act of 1992,” seeking to address

a surge in carjackings in the District of Columbia. See D.C. Bill 9-629, § 2 (Sept.

18, 1992) (hereinafter “draft version”); see also Council of D.C., Comm. on the

Judiciary, Comm. Rep. on Bill 10-16, “Carjacking Prevention Amendment Act of

1993,” at 2 (Feb. 10, 1993) (hereinafter “committee report”). Noticeably absent

from the draft version of the statute is the “attempts to do so” language at issue

here.    Noticeably present, however, are separate sentencing guidelines for

attempted carjacking. The draft version provided:

              (a) A person commits the offense of carjacking if by any
              means, that person knowingly or recklessly by force or
              violence, whether against resistance or by sudden or
              stealthy seizure or snatching, or by putting in fear, shall
              take from the person immediate actual possession of a
              person’s motor vehicle.

              (b) A person convicted of carjacking shall be fined not
              more than $10,000 or be imprisoned for a mandatory
              minimum term of not less that [sic] 15 years or both.

              (c) A person convicted of attempted carjacking shall be
              fined not more than $1,000 or be imprisoned for not more
              than 3 years, or both.

D.C. Bill 9-629, § 2 (Sept. 18, 1992).
                                          25

      The present language of the carjacking statute first appeared in an October 6,

1992, amendment to this draft version. See Amendment No. 6 to D.C. Bill 9-629,

Attachment 2 (October 6, 1992) (hereinafter “amendment”). This amendment

added, inter alia, the phrase “or attempts to do so” after the phrase “putting in fear”

and removed the separate three-year mandatory maximum sentence for attempted

carjacking in subsection (c). Id.15 The Council did not indicate why it amended

the draft bill in this way. On the one hand, we might conclude that the Council

removed the three-year mandatory maximum sentence for attempted carjacking in

subsection (c) in order to punish attempted carjacking under the general attempt

statute, which, at the time, set the mandatory maximum sentence for attempt at one

year. See D.C. Code § 22-1803 (1981). Decreasing the maximum sentence for

attempted carjacking from three years to one year would complement the Council’s

contemporaneous decision to reduce the mandatory minimum sentence for

unarmed carjacking from fifteen years to seven years. Compare D.C. Bill 9-629,

§ 2 (Sept. 18, 1992), with Amendment No. 6 to D.C. Bill 9-629, Attachment 2

(October 6, 1992). On the other hand, removing this separate sentencing guideline

for attempted carjacking from the draft bill may merely indicate that the Council


      15
          In the years since, the language of the carjacking statute has remained
unchanged, with the exception of modifications to the sentencing guideline
provisions in (a)(2) and (b)(2), and the addition of a new subsection (c), also
related to sentencing. See supra note 11.
                                          26

considered punishing attempted carjacking less severely but ultimately decided not

to do so, and preserved this decision by adding the phrase “or attempts to do so” to

the final carjacking statute.



      The committee report accompanying the final version of the carjacking

statute is silent on any intent to punish attempted carjacking and completed

carjacking equally, and the word “attempt” does not appear in the report. See

Council of D.C., Comm. on the Judiciary, Comm. Rep. on Bill 10-16, “Carjacking

Prevention Amendment Act of 1993” (Feb. 10, 1993).16 The report explains that

the Council created a separate offense of carjacking to increase the minimum

penalty for the crime, which was classified as robbery at the time and punishable

under the District’s since-modified robbery statute, D.C. Code 22-2901 (1981).17


      16
           The committee report explains that carjacking had become a “growth
industry” in 1992, and that a nationwide surge in carjacking prompted Congress to
make it a federal crime. See Council of D.C., Comm. on the Judiciary, Comm.
Rep. on Bill 10-16, “Carjacking Prevention Amendment Act of 1993,” at 2 (Feb.
10, 1993). In particular, the Council mentioned the gruesome carjacking-homicide
of Pamela Basu that drew national attention, and stated that the District was not
immune from this nationwide surge. Id. at 2-3. The Council also noted that
District residents were particularly impacted by the surge in carjackings because
the District is a “city of renters,” for whom a car is likely the most valuable
possession. Id. Thus, the Council thought it necessary to create the separate
offense of carjacking with an increased minimum penalty, up from the two year
minimum that a carjacker would have received under the robbery statute. Id. at 3.
      17
           The robbery statute, D.C. Code § 22-2901 (1981), provides:
                                                                (continued . . .)
                                          27

Id. at 3. The Council did not indicate, however, whether it intended the District’s

carjacking statute to follow the model of its robbery statute, which does not

proscribe attempted robbery. Nor did the Council indicate that it intended the

District’s carjacking statute to follow the model of the federal carjacking statute,

which proscribes attempted and completed carjacking, but provides sentencing

guidelines based on the victim’s degree of injury or death, rather than whether the

suspect was armed or unarmed.18


(. . . continued)

              Whoever by force or violence, whether against resistance
              or by sudden or stealthy seizure or snatching, or by
              putting in fear, shall take from the person or immediate
              actual possession of another anything of value, is guilty
              of robbery, and any person convicted thereof shall suffer
              imprisonment for not less than 2 years nor more than 15
              years.
       18
          The federal carjacking statute, 18 U.S.C. § 2119 (1996), enacted just
before the District’s statute as part of the Anti Car Theft Act of 1992, Pub. L. No.
102-519, 106 Stat 3384, and mentioned in the committee report, includes a similar
“or attempts to do so” phrase that, unlike the District’s statute, unambiguously
follows the verb “takes.” The federal carjacking statute provides:

              Whoever, with the intent to cause death or serious bodily
              harm takes a motor vehicle that has been transported,
              shipped, or received in interstate or foreign commerce
              from the person or presence of another by force and
              violence or by intimidation, or attempts to do so, shall—

              (1) be fined under this title or imprisoned not more than
              15 years, or both,
                                                                 (continued . . .)
                                            28

       In the absence of any clear intent behind the Council’s amendments and

eventual choice of language, we cannot conclude whether it drafted the statute to

encompass or exclude attempted unarmed carjacking. We perceive no clear intent

with regard to attempted carjacking in the legislative history, nor can we identify

any well-founded support for the many inferences that the parties suggested in

their arguments. Granted, the legislative history seems to indicate that the Council

was not satisfied by proscribing only completed carjackings, yet the Council

expressed no legislative intent to punish attempted and completed carjacking

equally.19



       We conclude that the subsection of the carjacking statute proscribing

unarmed carjacking, § 22-2803 (a)(1), is ambiguous as to whether it also

proscribes attempted unarmed carjacking. While it is plausible, with some effort,

(. . . continued)

               (2) if serious bodily injury (as defined in section 1365 of
               this title) results, be fined under this title or imprisoned
               not more than 25 years, or both, and

               (3) if death results, be fined under this title or imprisoned
               for any number of years up to life, or both, or sentenced
               to death.

(emphasis added).
       19
            See supra note 16.
                                         29

to construe the plain language of the statute as proscribing attempts to “take,” it is

at least equally plausible to construe this language as proscribing attempts to “put[]

in fear,” among other means of effectuating a completed carjacking. The actual

meaning intended by the Council is unclear. Because we are unable to a resolve

this evident ambiguity, “we construe [the statute] in conformance with the rule of

lenity[,]” and rule in appellant’s favor. Whitfield, supra, 99 A.3d at 664 (“We

apply the rule of lenity . . . where the language of the regulation is ambiguous and

two alternative interpretations are equally possible.”). The Council is, of course, at

liberty to revise the statute to punish attempted carjacking as a lesser or equal

offense to completed carjacking. In the interim, however, we hold that attempted

unarmed carjacking is punishable under our general attempt statute, § 22-1803,20


      20
          See supra note 8. In order to prove an attempt to commit any offense,
“the government must prove that the accused: (1) intended to commit that
particular crime; (2) did some act towards its commission; and (3) and failed to
consummate its commission.” Frye v. United States, 926 A.2d 1085, 1096 (D.C.
2005). We have adopted the “dangerous proximity” theory of attempt, whereby:

             An attempt consists of an act which is done with the
             intent to commit a particular crime and is reasonably
             adapted to the accomplishment of that end. The act must
             go beyond mere preparation and must carry the criminal
             venture forward to within dangerous proximity of the
             criminal end sought to be attained.

             This “dangerous proximity” test, formulated by Justice
             Holmes, does not require that appellants have
             commenced the last act sufficient to produce the crime
                                                             (continued . . .)
                                        30

and is not punishable under the carjacking statute, § 22-2803 (a)(1). Accordingly,

we vacate appellant’s conviction for the carjacking of Ms. Kleederman and remand

for resentencing for attempted carjacking in accordance with this holding.



   B. Appellant’s Abuse of Discretion Arguments



      1. The government’s statements regarding appellant’s                right   to
         independent DNA testing under Teoume-Lessane



      Appellant next argues that the trial judge abused his discretion and

impermissibly shifted the burden of proof to appellant by allowing the government

to mention at trial that appellant has the right to conduct independent DNA testing

under the Innocence Protection Act. 21 We have held that the government may


(. . . continued)
               but focuses instead on the proximity of appellants’
               behavior to the crime intended.

Jones v. United States, 386 A.2d 308, 312 (D.C. 1978) (footnote omitted). “[M]ere
preparation is not an attempt, but preparation may progress to the point of attempt.
Whether it has is a question of degree which can only be resolved on the basis of
the facts in each individual case.” Id. at 313 n.2. It is sufficient for the
government to prove that “except for some interference,” defendant’s “overt act
done with the intent to commit a crime . . . would have resulted in the commission
of the crime.” Evans v. United States, 779 A.2d 891, 894 (D.C. 2001).
      21
           D.C. Code §§ 22-4131 to -4135 (2012 Repl.)
                                          31

inform the jury of a defendant’s right to independent DNA testing to rebut

defendant’s suggestion that the government’s procedures are biased. See Teoume-

Lessane, supra, 931 A.2d at 491 (“[T]he defense’s questions had attempted to

create the impression that the FBI’s testing had been selectively performed to skew

the results by focusing only on the items most damaging to appellant, while

ignoring items that could have helped to exculpate him.”). Appellant argues that

he did not make a bias argument at trial, but merely questioned the reliability of

DNA testing by challenging “the validity of the underlying methods and

assumptions,” an argument that does not open the same door as questions about

bias under Teoume-Lessane. Appellant argues that by allowing evidence of a

defendant’s right to independent DNA testing when there was no unfairly

prejudicial inference to counter, the trial court allowed the jury to infer that he had

failed to present independent DNA testing evidence because it would have

confirmed his guilt. We agree, yet we conclude that any error on the trial court’s

part was harmless.



      At trial, the government relied on Teoume-Lessane to move in limine for

leave to elicit testimony from its DNA-testing expert regarding appellant’s right to

independent DNA testing because it anticipated that defense counsel would attack

“the specific methods or probabilities used or recommended by the expert in this
                                        32

case.” In support of this motion, the government argued that Teoume-Lessane

permits it to point out a defendant’s right to independent DNA testing if the

defense “suggests that the government erred in its random match probability” or

attacks “a laboratory’s protocols, the analysis performed by the DNA expert, or the

type or extent of that analysis.” Defense counsel responded that Teoume-Lessane’s

holding is narrowly restricted to suggestions of bias, which were not part of

defense counsel’s strategy in this case. The trial judge ruled in the government’s

favor, stating that the “government has a right to respond” to an argument from

defense counsel “that the protocols used by this tester were likely to result in an

unreliable identification.” Disagreeing with defense counsel’s narrow reading of

Teoume-Lessane, the trial judge stated “[w]ell, I [may] have misread it. But that’s

my ruling.   I’m not going to require the government to sit silent while the

reliability of their procedures is challenged.”      Subsequently, during cross-

examination of the government’s DNA expert, the trial court concluded that

defense counsel opened the door under Teoume-Lessane. The parties agreed to

stipulate to a defendant’s right to conduct independent DNA testing, and the trial

judge read this stipulation to the jury, along with a reminder that the government

bears the burden of proof.     Later, the government reminded the jury of the

defendant’s right to conduct independent DNA testing in rebuttal to defense

counsel’s cross-examination of its DNA expert. Upon defense counsel’s objection,
                                         33

the trial judge issued a curative instruction reminding the jury that “this is a

sensitive area of the law” and “it is the Government’s burden to prove its case

beyond a reasonable doubt.”



      We review a trial court’s decision to admit evidence, and its determination

that the evidence is more probative than prejudicial, for abuse of discretion. See id.

at 491 (citations omitted). In Teoume-Lessane, and later in Gee v. United States,

54 A.3d 1249, 1255-58 (D.C. 2012), this court narrowly held that the door opens to

an independent-DNA-testing rebuttal when defense counsel suggests that the

government used biased procedures or withheld evidence in order to obtain a

conviction. See Teoume-Lessane, supra, 931 A.2d at 491 (“[D]efense’s questions

had attempted to create the impression that the FBI’s testing had been selectively

performed to skew the results by focusing only on the items most damaging to

appellant, while ignoring items that could have helped to exculpate him.”); Gee,

supra, 54 A.3d at 1255-57 (applying Teoume-Lessane to conclude that defense

counsel unfairly suggested to the jury “that the Government was only testing that

which they found a positive test and ignored other[] [portions of a piece of

clothing] that presumably might have been tested and could have exculpated your

client[,]” thereby “creating the impression that the government had deliberately

ignored, and then had withheld from the defense, evidence that could have called
                                         34

into question the government’s DNA-based case”). Thus, our inquiry must focus

on defense counsel’s statements at trial that the government contends amount to

accusations of bias, thereby opening the door under Teoume-Lessane.



      The government does not point to a specific statement from defense counsel

that suggests biased procedures, nor did we find one in our review, but the

government instead suggests that defense counsel implied bias through a recurring

theme of “attack[ing] the priorities of the FBI examiners and their attentiveness to

their work” and suggesting “laziness and sloppiness.” Specifically, during the

government’s case, defense counsel cross-examined its DNA expert and seven lab

technicians and established that the DNA analysis took several years and that some

of the initial analysts had taken fewer notes to document their work than some of

the later analysts. Defense counsel also sought to establish that the FBI’s protocols

for determining the probability of a DNA match relied on too little DNA and too

small a population group to be reliable, citing a study conducted in Arizona. On

redirect, the government rehabilitated its DNA expert by eliciting an explanation of

the FBI’s testing approach. In closing argument, defense counsel characterized

“the basic science, the principles that DNA analysis is founded upon” as “flawed.”

Defense counsel also noted that the government’s DNA expert “told you that this

was a low priority case. But, that’s a reason to doubt. It is low priority for her.
                                          35

But it’s not low priority for [appellant].” Finally, defense counsel used an analogy

of the pitfalls of failing to show work in an algebra class to suggest similar pitfalls

when FBI technicians “d[o] not document anything” and do not “show [their]

work.”



      Here, the trial court, citing Teoume-Lessane, stated that “[t]he government

has a right to respond” with an independent-DNA-testing rebuttal when defense

counsel argues that “the protocols used by this tester were likely to result in an

unreliable identification of your client.” Teoume-Lessane is clear: suggestions of

bias open the door. See Teoume-Lessane, supra, 931 A.2d at 491. There is a

distinction between a bias attack and an attack on the competence of an expert or

the validity of protocols. Biased methods carry a degree of intentionality that

incompetence and unreliability do not.         Defense counsel’s suggestion during

closing arguments that this was a “low priority” case and that technicians did not

“show their work” are charges of incompetence and unreliability, not bias. We

have not applied Teoume-Lessane to competence and reliability challenges, and we

decline to do so here.



      Accordingly, the trial court erred by construing the holding of Teoume-

Lessane to permit the government to offer an independent-DNA-testing rebuttal
                                         36

when defense counsel fervently challenged the competence of DNA testing

personnel and the reliability of testing methods. Contrary to the trial judge’s

statement, the government is not required to “sit silent” when facing this challenge,

but is permitted to –– and, in the present case, did –– rehabilitate its witness

through redirect examination or additional testimony on the competence of

personnel and the reliability of the challenged procedures.



      Yet we also conclude that permitting the government to inform the jury of

appellant’s right to independent DNA testing in this case was harmless error. See

Kotteakos v. United States, 328 U.S. 750, 765 (1946). The trial court was careful

to explain that appellant’s right did not alter the government’s burden of proof, and

this instruction was sufficient to mitigate the harm on the facts before us, where

there was ample circumstantial evidence tying appellant to the Kleederman

carjacking. See (Claude) Allen v. United States, 603 A.2d 1219, 1224 (D.C. 1992

(en banc) (“[O]ne would presume that the jury applied the law as stated by the

judge, not by the prosecutor”). Given this DNA evidence, there is no indication

that, had the trial court not erred in permitting an independent-DNA-testing

rebuttal, defense counsel’s arguments regarding the FBI’s protocols would have

convinced the jury to find in appellant’s favor.
                                         37

      2. Jury instructions regarding scientific research on the reliability of
         eyewitness identification



      In appellant’s only claim on appeal related to the Cannon carjacking, he

argues that the trial court abused its discretion by rejecting a proposed jury

instruction   incorporating   recent   scientific   research   regarding   eyewitness

identification because the trial court “erroneously believed” that it “could not

instruct the jury based on scientific research.” Appellant argues that this research

was particularly relevant because Ms. Cannon’s in-court identification provided

the pivotal link between the two incidents.22



      At trial, appellant’s defense counsel proposed jury instructions on

eyewitness reliability based on instructions that the state of New Jersey recently

adopted at the suggestion of the Supreme Court of New Jersey in State v.

Henderson, 27 A.3d 872, 884, 916-17, 919, 925-26 (N.J. 2011) (concluding, based

on expert testimony and a special master’s report examining scientific studies on

memory and eyewitness identification, that “science abundantly demonstrates the

many vagaries of memory encoding, storage, and retrieval; the malleability of

      22
            Appellant contends that the District of Columbia’s model jury
instructions for eyewitness identification rely on authority that is over forty years
old and “give[s] the jury no guidance on how to evaluate an eyewitness’s
confidence” in making an identification.
                                         38

memory; the contaminating effects of extrinsic information; the influence of police

interview techniques and identification procedures; and the many other factors that

bear on the reliability of eyewitness identifications”). 23 The defense counsel’s

proposed instructions cited to Henderson and several other cases in footnotes

without any explanation or citation to the scientific studies cited in those cases.

Instead, the instructions referred generally to the results of those studies, using

phrases such as “research has shown that there are risks of making mistaken

identifications” and “research has revealed that human memory is not like a video

recording . . . .”



       In rejecting defense counsel’s proposed instruction, the trial court explained

to the parties that “the problem with the instruction . . . is that it talks about the

research. There is no evidence of research that is before the jury. I don’t think that

it’s appropriate for me to be talking about what the research is on this issue.”

Defense counsel proceeded to explain that “the research exists” and is “well


       23
          The District of Columbia’s Jury Instructions Committee acknowledged
the Henderson decision and recent social science studies on eyewitness
identification in a comment to its 2013 revision. See Criminal Jury Instructions for
the District of Columbia (“Red Book”), No. 9.210 (5th ed. rev. 2013). It noted,
however, that “[t]he Committee is not in agreement over whether, and under what
circumstances, additional instruction is necessary that would warn a jury to take
care in appraising identification testimony.” Id. This comment was not included
in the 2012 revision that was available to the trial judge in the present case.
                                          39

established,” and the trial court responded: “I’m comfortable with the Red Book

[i]nstruction. I believe that that sets forth the appropriate considerations for the

jury to take into account in assessing the strength and reliability of Ms. Cannon’s

identification.” Defense counsel noted her objection for the record, and the trial

judge elaborated:

             Well I think that that area is an area that could come
             before the jury in the form of evidence and it could be
             rebutted by the government by contrary studies.24 But, I
             don’t think that it’s appropriate to just instruct the jury as
             to what the research has found in this evolving area of
             law. It would be up to them to evaluate the research if it
             was put before them. But, it does not appear that it will
             be put before them in this case. So, I will stick with the
             Red Book.



      The trial judge issued the following jury instruction based on the model

instruction in the Red Book, Criminal Jury Instructions for the District of

Columbia, No. 9.210 (5th ed. rev. 2012):



      24
            Appellant contends that he did not offer an expert on eyewitness
identification at trial because defense counsel only learned that Ms. Cannon would
identify appellant in court the day before it happened, in an email from the
government. Prior to receiving the government’s email, appellant contends, hiring
an expert in the off-chance that a witness would end up identifying appellant would
have wasted public funds and, accordingly, “jury instructions were the only
practicable means of educating the jury.” However, defense counsel filed a
general motion to suppress any potential in-court identifications at the start of trial
and could have opted to acquire an expert.
                                          40

             A number of factors may affect the reliability of an
             identification of the defendant by an alleged eyewitness
             including the witness’ opportunity to observe the
             criminal acts and the person committing them including
             but not limited to the length of the encounter; the
             distance between the various parties; the lighting
             conditions at the time; the witness’ state of mind at the
             time of the offense.

             Secondly, any subsequent identification and the
             circumstances surrounding that identification including
             the length of time that elapsed between the crime and the
             identification; the witness’ state of mind when making
             the identification and any statements or actions by law
             enforcement officers concerning the identification.

             Third, any failure of a witness to make an identification
             or a misidentification by the witness and any other
             factors that may have been brought to your attention by
             expert testimony and the remaining evidence that you
             conclude bear upon the reliability of the witness’ in-
             Court or out of Court identification of the defendant.



      The trial court has “broad discretion in formulating jury instructions, and its

refusal to grant a request for a particular instruction is not a ground for reversal if

the court’s charge, considered as a whole, fairly and accurately states the

applicable law.” Fearwell v. United States, 886 A.2d 95, 101 (D.C. 2005) (citation

and internal quotation marks omitted).         “[A] party is entitled to a requested

instruction only if there is evidence in the record to support the request.” Id.

(citation omitted).   The trial court must make “an informed choice among

permissible alternatives . . . based upon and drawn from a firm factual
                                          41

foundation[,]” and thus abuses its discretion by fashioning jury instructions that are

not so drawn. Nelson v. McCreary, 694 A.2d 897, 901 (D.C. 1997) (citation

omitted).



      Appellant concedes that the trial court was not “required as a matter of law”

to adopt the proposed instruction. Indeed, the parties did not introduce any expert

testimony or scientific studies regarding eyewitness identification, and defense

counsel was not entitled to an instruction that the record could not support. See

Fearwell, supra, 886 A.2d at 101 (explaining that a party is “only” entitled to a

requested instruction if the record will support it). Yet appellant contends that the

trial court’s statements indicate that it premised its decision to reject defense

counsel’s proposed jury instructions on a legally erroneous belief that it could not

consider the proposed scientific research, rather than a discretionary decision that it

would not do so. See Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979)

(holding that reversal is required where the trial court fails to recognize its capacity

to exercise discretion). We disagree.



      In our view, the trial court’s choice of language provides no indication that it

considered itself constrained to reject the scientific research outright. The trial

court did not say that it was “precluded” or “prohibited,” or that “case law clearly
                                         42

requires exclusion” of such scientific research.      Rather, after hearing defense

counsel’s arguments, the trial court concluded that it would not be “appropriate” to

instruct the jury about research on eyewitness identification that the parties had not

presented to the jury. In choosing to “stick with the Red Book” instructions, the

trial court recognized that the proposed instruction differed, in that it extensively

referenced research in an “evolving area of law” that was not before the jury, and

this difference provided reasonable cause for concern. See Johnson, supra, 398

A.2d at 364 (“[T]he determinations committed to the trial court’s discretion are

rational acts of decision-making. An informed choice among the alternatives

requires that the trial court’s determination be based upon and drawn from a firm

factual foundation.”). The trial court’s statement that this research “could come

before the jury in the form of evidence and it could be rebutted by the government

by contrary studies” expresses a clear discretionary preference for the adversary

process and constitutes a thoughtful exercise of discretion. This record does not

support appellant’s contention that the trial judge was under the legally erroneous

view that he was precluded from using the proposed instruction.25


      25
         Notably, the language that defense counsel adopted from the Henderson
decision was the result of just such an adversarial process. In that case, the
government, defense counsel, and amici curiae “collectively produced more than
360 exhibits, which included more than 200 published scientific studies on human
memory and eyewitness identification” and “testimony from seven expert
witnesses.” See Henderson, supra, 27 A.3d at 829. On the basis of this evidence,
                                                              (continued . . .)
                                         43

                               III.   Conclusion



      Accordingly, we affirm appellant’s convictions with regard to all but the

carjacking of Ms. Kleederman because the evidence in the record is insufficient to

establish that appellant completed this carjacking.       We therefore vacate this

conviction and remand for resentencing for attempted carjacking in accordance

with our holding.



                                                    So ordered.




(. . . continued)
the court stated that “the record proves that the possibility of mistaken
identification is real[,]” and accordingly proposed revised jury instructions. Id. at
878.

       Appellant contends that the Henderson case and the studies cited therein are
legislative facts appropriate for judicial notice, citing Jones v. United States, 548
A.2d 35, 42, 45 (D.C. 1988), where we assessed the reliability of a drug testing
method. In Jones, we held that the trial court may, in the absence of expert
testimony in the record, take judicial notice of other court opinions and scientific
literature for the limited purpose of establishing “general acceptance of a scientific
technique[,]” and that, to this end, “[e]xpert testimony in other cases, subject to
cross-examination, can be probative[.]” Id. at 42, 45. The trial court exercised its
discretion to reject the jury instructions, and there is nothing in the record that
leads us to conclude that the trial court was unaware of or misinformed about our
case law.
