                            District of Columbia
                             Court of Appeals
Nos. 14-CF-565, 14-CF-625 & 14-CF-638
                                                                     OCT - 6 2016
RAYSHAWN CLARK, DWAYNE HILTON and
    PERNELL LEE,
                           Appellants,

       v.                                                           CF3-10591-12;
                                                                    CF3-14421-13 &
                                                                    CF3-10590-12
UNITED STATES,
                                          Appellee.

             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

       BEFORE: BLACKBURNE-RIGSBY, EASTERLY and MCLEESE, Associate Judges.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

            ORDERED and ADJUDGED that the convictions on appeal are affirmed.
The matter is remanded solely for merger of appellants Clark’s and Hilton’s counts of
possession of a firearm during a crime of violence (“PFCV”) arising from the first armed
robbery and armed carjacking of Cornell Scott.


                                          For the Court:




Dated: October 6, 2016.

Opinion by Associate Judge Anna Blackburne-Rigsby.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
                                                                             10/6/16
             DISTRICT OF COLUMBIA COURT OF APPEALS

                    Nos. 14-CF-565, 14-CF-625 & 14-CF-638

      RAYSHAWN CLARK, DWAYNE HILTON, and PERNELL LEE, APPELLANTS,

                                         v.

                            UNITED STATES, APPELLEE.

                       Appeals from the Superior Court
                         of the District of Columbia
                (CF3-10591-12, CF3-14421-13 & CF3-10590-12)

                      (Hon. Anita Josey-Herring, Trial Judge)

(Argued May 5, 2016                                      Decided October 6, 2016)

      Marie L. Park for appellant Clark at the time of oral argument.

      Cecily E. Baskir for appellant Hilton.

     Silvana Naguib, Public Defender Service, with whom James Klein and
Samia Fam were on the brief, for appellant Lee.

      Timothy R. Cahill, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino,
and Natalia Medina, Assistant United States Attorneys, were on the brief, for
appellee.

      Before BLACKBURNE-RIGSBY, EASTERLY, and MCLEESE, Associate Judges.

      BLACKBURNE-RIGSBY, Associate Judge:           In these consolidated cases,

appellants Rayshawn Clark, Dwayne Hilton, and Pernell Lee appeal their
                                         2

convictions related to an armed carjacking, multiple armed robberies, and

subsequent flight from police in the early hours of June 17, 2012. 1 This case

presents two significant issues: (A) whether the trial judge should have excluded

complainant Cornell Scott’s in-court identifications of Clark and Lee, or imposed

some lesser sanction, because the complainant called a detective to discuss his

“refreshed recollection” of his assailants during the trial, and (B) whether the

evidence was sufficient to support Hilton’s and Lee’s convictions. Appellants

raise five other issues that we address more summarily. 2 We affirm and remand

solely for merger.


      1
         Appellants Clark and Hilton were each convicted of one count of
conspiracy, D.C. Code § 22-1805a (2009 Supp.); one count of armed carjacking,
D.C. Code §§ 22-2803, -4502 (2001); three counts of armed robbery, D.C. Code
§§ 22-2801, -4502 (2009 Supp.); four counts of possession of a firearm during a
crime of violence (“PFCV”), D.C. Code § 22-4504 (b) (2009 Supp.); and three
firearm counts, D.C. Code §§ 22-4504 (a) (2009 Supp.) (carrying a pistol outside
the home), 7-2502.01 (2009 Supp.) (unregistered firearm or “UF”), 7-2506.01
(2009 Supp.) (unlawful ammunition or “UA”). Appellant Lee was convicted of
one count each for robbery, PFCV, UF, reckless driving, D.C. Code § 50-2201.04
(2005 Supp.), fleeing a law enforcement officer, D.C. Code § 50-2201.05b (2005
Supp.), and unregistered firearm with a prior conviction, D.C. Code
§ 22-4503 (a)(1) (2011 Supp.).
      2
          Specifically, appellants also argue that (1) the trial judge should have
ordered a competency evaluation of Clark sua sponte, (2) the trial judge should
have excluded victim Tyaron Scott’s “surprise” in-court identification of Hilton,
(3) the trial judge erred in limiting cross-examination of a fact witness regarding
Hilton’s cell phone, (4) the trial judge’s response to a jury question amounted to an
impermissible anti-deadlock charge, and (5) Clark and Hilton’s PFCV convictions
arising from the carjacking and first armed robbery of Cornell Scott should merge.
                                                                   (continued . . .)
                                        3

                               I.     Background



      In short, the evidence at trial showed that appellants Clark, Hilton, and Lee

committed multiple armed robberies in Washington, D.C.          They first robbed

complainant Cornell Scott, taking items from his person and his truck from his

driveway. They next robbed complainant Tyaron Scott, who walked by during the

robbery of Cornell.3 The robbers drove away, but they had left behind a cell phone

at the scene, and they returned and robbed Cornell a second time in an

unsuccessful attempt to recover the phone. During the second robbery, police

arrived and appellants fled in an SUV. The exact role each appellant played in the

series of crimes is not crystal clear, but strong evidence tied each of them to the

crime spree — Clark and Lee were apprehended while fleeing, and Hilton’s cell

phone was recovered from the scene of the robberies.



      Specifically, in the early morning of June 17, 2012, complainant Cornell

Scott arrived at his home on the 5600 block of 14th Street, Northwest, Washington,

(. . . continued)
The government concedes the last issue, and we agree that Clark and Hilton should
each have one count of PFCV vacated on remand. See Nixon v. United States, 730
A.2d 145, 153 (D.C. 1999).
      3
         Because the complainants have the same surname (though they are not
related), we refer to them by their first names in the interest of clarity.
                                             4

D.C. When Cornell was about to enter his house, a car pulled up. The passenger

pretended to be lost and exited the vehicle to ask for directions, but, as Cornell

approached the passenger, he smacked Cornell in the nose with a gun.



      Two men dragged Cornell toward the street, and each held a gun to the back

of Cornell’s head as they searched his pockets.        The robbers found keys to

Cornell’s truck, and a third man took the keys and entered the truck. The truck

was equipped with an alarm, but Cornell explained how to disable it, and the third

man drove the truck away. The robbers also took Cornell’s personal effects but, in

an apparent oversight, not his cell phone.



      Just after the third robber drove Cornell’s truck away, complainant Tyaron

Scott walked by on the sidewalk. While one robber continued to hold Cornell at

gunpoint, the other robber (later identified as Hilton) robbed Tyaron of over $600

in cash. Although the robber instructed Tyaron to run away, Tyaron did not go

very far and was able to watch the men get into a black SUV and drive away. The

initial robberies happened “real quick,” lasting no more than five minutes overall.



      Cornell walked back toward his house and found a cell phone on the ground,

and he called 911 with his own cell phone to report that he had been “carjacked.”
                                        5

An SUV soon arrived, and one man (later identified as appellant Clark) exited,

pointed a gun at Cornell, and asked either, “Where’s my phone?” or “Where’s the

phone?” The robber then took Cornell’s cell phone, which was still in his hand

after he had called 911, but did not recover the cell phone that had been left

behind. Another man in the SUV yelled that police were approaching, Clark ran

back to the vehicle, and the SUV sped away.



      After a high-speed chase through residential neighborhoods, the SUV hit the

curb and flipped onto its roof. Two occupants of the vehicle crawled out and

started to run down 4th Street, and a police officer pursued them on foot. The two

fleeing men ran in different directions, and the officer pursued and detained only

the driver, identified as Lee.



      Clark was injured in the wreck and remained in the flipped SUV. Police

officers searched Clark’s pockets and recovered Cornell’s personal effects.

Investigators recovered one handgun from the wrecked SUV and another handgun

lying nearby.



      Cornell gave the police the cell phone that one of the robbers had left

behind. Around 5:30 a.m. on the morning of the robberies, that cell phone rang
                                         6

while on MPD Detective Wheeler’s desk at the police station. Detective Wheeler

called the number from the incoming call and reached Francine Lowe, who stated

that she had been calling her brother Hilton and that the cell phone belonged to

him.



       The jury convicted both Clark and Hilton of one count of conspiracy, three

counts of armed robbery, one count of armed carjacking, and four counts of PFCV

(plus four related firearm offenses for Clark and three for Hilton). Notably, Lee

faced the same charges as Clark and Hilton, but the jury convicted Lee of only one

count of robbery, fleeing a law enforcement officer, reckless driving, and PFCV

(plus two related firearm offenses). They received prison sentences of thirty-one

years (Clark), twenty-five years (Hilton), and eight years and eight months (Lee).

These consolidated appeals followed.



                                 II.   Discussion



       We address appellants’ claims in three groups: (A) Cornell’s “refreshed

recollection” leading to his identification of Clark and Lee, (B) the sufficiency of

the evidence supporting Hilton and Lee’s convictions, and (C) appellants’ other

claims. We provide additional procedural history as relevant.
                                         7

   A. In-Court Identifications by Cornell



      Clark argues that the trial court abused its discretion by allowing Cornell to

make an in-court identification based upon a “refreshed recollection” that was

inherently unreliable and, alternatively, by excluding any evidence that Cornell had

discussed his “refreshed recollection” with an MPD detective in violation of the

court’s witness sequestration order. During direct examination on the first day of

trial, Cornell indicated that he was not sure if he could identify the robbers but he

“might” be able to. Despite an admonition not to discuss his testimony, Cornell

called the lead detective, William Xanten, the next morning.           Cornell told

Detective Xanten that overnight he came to believe that he recalled enough about

the robbers to make in-court identifications of two of the three defendants (without

specifying which ones). According to the prosecutor’s disclosure letter, Cornell

did not otherwise discuss his testimony, and the prosecutor promptly notified all

three defense lawyers about the conversation on the day that it occurred.



      The trial resumed the following week, and defense attorneys for all

appellants proceeded to voir dire Cornell, who explained that his memory of his

assailants returned with time. He stated that the only thing Detective Xanten had

told him during the call was, “Sometimes, when people come to court, they change
                                         8

their looks, and they look different.”       Cornell did not otherwise discuss his

testimony with Detective Xanten, and he did not think he was violating any rule

about discussing testimony because he felt that he had to tell someone about a

development in the case.4



      The voir dire revealed Cornell’s belief that he could identify Clark and Lee

but not Hilton. The government did not plan to elicit the identifications, but

Hilton’s counsel requested to admit them on cross-examination to bolster his

defense. Clark’s counsel and Lee’s counsel objected, and the government deferred

to the court on the issue. The trial court credited Cornell’s explanation of his

revived memory and good faith in contacting Detective Xanten. Clark and Lee

requested cross-examination regarding the call, but the trial court refused; its only

“sanction” was to prevent the government from eliciting the identifications on

direct examination.    When asked by Hilton’s counsel on cross-examination,

Cornell identified Clark as the perpetrator of the second armed robbery who asked




      4
         Ideally, Cornell should have waited until he completed his testimony
before informing the prosecutor about his “refreshed recollection,” with the
possibility of being recalled as a witness later. Detective Xanten was the lead
detective on the case, and Cornell may not have recognized the importance of
waiting to disclose his new recollection or the distinction between speaking with
the detective (another witness) and speaking with the prosecutor.
                                         9

about the cell phone and Lee as the initial robber who had lured Cornell forward by

asking for directions.5



      We need not decide whether the trial court adhered to due process or

evidentiary requirements when it permitted Cornell to identify Clark and Lee in

court and precluded counsel for those defendants from questioning Cornell about

the context of his in-court identifications, because, on this record, we can safely

conclude that any error was harmless. See Perry v. New Hampshire, 132 S. Ct.

716, 727–28 (2012) (concluding that “[t]he fallibility of eyewitness evidence does

not, without the taint of improper state conduct, warrant a due process rule

requiring a trial court to screen such evidence for reliability before allowing the

jury to assess its creditworthiness”); United States v. Hunter, 692 A.2d 1370, 1374

(D.C. 1997) (emphasis added) (“[E]xcept in a very narrow class of cases . . . it is

the function of the jury to determine whether eyewitness identification is

reliable.”). But see Sheffield v. United States, 397 A.2d 963, 967 (D.C. 1979) (“A

defendant may challenge the admission of such testimony by raising a timely

objection to its admissibility at trial on the ground that under the law of evidence


      5
          Although Lee joined Clark in objecting at the time, only Clark has
appealed this issue. The government argues for plain error review, but Clark’s
counsel preserved this issue by objecting to both the admission of the identification
itself and the exclusion of any reference to the call to Detective Xanten.
                                         10

testimony is so inherently weak or unreliable as to lack probative value.”).6 The

jury was aware of the potential unreliability of Cornell’s identifications because he

was initially unable to identify Clark and Lee on the first day of his testimony.

Moreover, Cornell only identified Clark as the perpetrator of the second armed

robbery, and the record contained overwhelming evidence that Clark was one of

the three occupants of the SUV that fled the scene of the second robbery because

he was injured in the wreck and apprehended at the scene.7 The government also

did not highlight this identification evidence in its closing or rebuttal. Finally,

although Lee does not appeal this issue, Cornell’s identification of Lee as a

participant in the first armed robbery was also harmless; the jury did not rely on his

identification of Lee because the jury acquitted Lee of the first armed robbery.




      6
         See Kotteakos v. United States, 328 U.S. 750, 764–65 (1946) (no reversal
if the court, “with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, [can conclude] that the judgment
was not substantially swayed by the error”). Clark does not argue that the more
stringent harmlessness standard for constitutional error should apply. See
Chapman v. California, 386 U.S. 18, 25–26 (1967).
      7
        As explained herein, Clark’s presence in the SUV during the second
robbery was also sufficient to support co-conspirator liability even if he did not
commit the crime himself. See infra Part II (B).
                                         11

   B. Sufficiency of the Evidence



      “We review the sufficiency of the evidence in a light most favorable to the

government, giving it the benefit of all reasonable inferences. It is only where the

government has produced no evidence from which a reasonable mind might fairly

infer guilt beyond a reasonable doubt that this court can reverse a conviction.”

Gonzalez v. United States, 859 A.2d 1065, 1067 (D.C. 2004) (quoting In re M.I.W.,

667 A.2d 573, 575 (D.C. 1995)). Hilton argues that the evidence was insufficient

to support his conviction for carjacking because Cornell’s truck was not in his

“immediate actual possession.”8 Hilton and Lee also challenge their convictions

for the second armed robbery of Cornell, relying on Cornell’s identification of

Clark as the second robber and arguing that the evidence does not support either

conspiracy or aiding-and-abetting liability. We address these contentions in turn.




      8
         “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.” D.C. Code § 22-2803 (a)(1) (emphasis added).
                                          12

        1. Scope of the Carjacking Statute



        This court’s decision in Sutton v. United States, 988 A.2d 478 (D.C. 2010),

dealt with a similar situation in which a victim’s vehicle was stolen shortly after he

parked and walked away from the vehicle. Hilton argues both that Sutton can be

distinguished and that it was wrongly decided. Because overruling Sutton would

require an en banc decision, see M.A.P v. Ryan, 285 A.2d 310, 312 (D.C. 1971),

we focus on whether Sutton controls the result in this case, and we conclude that it

does.



        In Sutton, the victim had parked his car and walked about three car lengths

(forty-five to fifty feet) before he was confronted by the defendant and his

confederates. 988 A.2d at 481, 489. Sutton held up the victim at gunpoint while

other assailants took his keys, and the victim ran and jumped over a nearby fence

before the assailants drove his car away. Id. at 481. This court explained that the

touchstone of the “immediate actual possession” inquiry is whether the victim was

close enough to the vehicle at the time of the theft to have “prevented its taking”

but for the defendant’s use of force. Id. at 489. The statute does not require that

the victim have the subjective intent to drive the vehicle at the time of a carjacking.

Id. Accordingly, we affirmed Sutton’s conviction, even though the victim was
                                         13

walking away from the car and fled further after being held at gunpoint, because he

was close enough to his car to have intervened in the theft when he was initially

robbed (and, therefore, was “carjacked”). Id.



      The facts of this case are not meaningfully distinguishable from Sutton.

Cornell may not have intended to drive his truck at the time of the crime, but his

intent does not control. The dispositive question is whether Cornell was close

enough to the truck to have intervened, and he testified that he was a mere ten feet

away. Thus, Cornell was much closer than the victim in Sutton (who was forty-

five to fifty feet away), and Cornell could have prevented the theft of his vehicle if

not restrained at gunpoint.9 Therefore, the evidence was sufficient to satisfy the

“immediate actual possession” element of carjacking.10



      9
         In fact, Cornell’s immediate presence facilitated the taking of his vehicle
because the perpetrators’ use of force compelled him to explain how to disable the
car alarm.
      10
          We summarily dispose of Hilton’s argument that the evidence did not
show his involvement in the carjacking. Cornell testified that two men held guns
to his head while a third drove his truck away. Thus, Cornell’s testimony supports
a finding that all three appellants were active participants in the carjacking, and
Hilton offers only speculation that he might have taken the place of an unknown
fourth perpetrator between the initial robberies and the second robbery of Cornell.
See Downing v. United States, 929 A.2d 848, 857–58 (D.C. 2007) (affirming
carjacking conviction where defendant agreed to participate in a robbery, knew a
gun would be used, and helped put victim into the trunk of her car).
                                         14

      2. Co-Conspirator Liability



      To prove a defendant’s guilt as a co-conspirator, the government “must

prove that an agreement existed, that a substantive crime was committed by a co-

conspirator in furtherance of that agreement, and that the substantive crime was a

reasonably foreseeable consequence of the agreement.” 11       Wilson-Bey v. United

States, 903 A.2d 818, 840 (D.C. 2006) (en banc). The government need not prove

that the co-conspirator aided in the actual commission of the crime. Id. Hilton and

Lee concede that there was sufficient evidence of a conspiracy to commit the initial

armed robberies of Cornell and Tyaron. Nevertheless, they argue that the second

armed robbery of Cornell (1) was a discrete event separate from any participation

in the initial robberies of Cornell and Tyaron and (2) was not a reasonably

foreseeable result of the conspiracy to commit the initial robberies.12




      11
         The classic example of a foreseeable consequence is an accidental
shooting during an armed robbery — all conspirators are liable so long as they
knew a gun would be used. See Snowden v. United States, 52 A.3d 858, 866 (D.C.
2012).
      12
          The parties also briefed aiding-and-abetting liability, but we need not
consider that alternative theory because we conclude that the evidence was
sufficient to support the jury’s verdict under a co-conspirator theory.
                                        15

      To prove a conspiracy, the government need only prove that the conspirators

“agreed upon their fundamental goal,” and the details may be improvised or

refined as the crime unfolds. Collins v. United States, 73 A.3d 974, 983 (D.C.

2013). Moreover, “all parties are guilty for deviations from the common plan

which are the foreseeable consequences of carrying out the plan.” Snowden, supra

note 11, 52 A.3d at 866 (quotation marks omitted). Hilton and Lee contend that a

second robbery of Cornell was unforeseeable when the reason for returning was

merely to recover Hilton’s phone.



      We agree that a member of a conspiracy is not liable for all actions of a co-

conspirator to conceal a conspiracy once the criminal objectives have succeeded or

failed. See Grunewald v. United States, 353 U.S. 391, 400 (1957). In other words,

the mere existence of a criminal conspiracy is not enough to infer a “subsidiary

conspiracy to conceal.” Snowden, supra note 11, 52 A.3d at 867. In this case,

Hilton and Lee argue that their involvement in the conspiracy ended once the

initial armed robberies had been completed. Even assuming that is correct, Hilton

and Lee do not seriously dispute that the jury could find an agreement to recover

Hilton’s phone.    Thus, the record reflects a limited subsidiary conspiracy to

recover evidence the robbers had left behind (without merely implying an

indefinite plan to conceal the initial robberies), and Hilton and Lee are liable for
                                          16

any foreseeable criminal acts of Clark in furtherance of that subsidiary conspiracy.

Cf. United States v. Upton, 559 F.3d 3, 11–13 & n.6 (1st Cir. 2009) (explaining

that jury could infer that money laundering conspiracy was ongoing where co-

conspirators acted in concert to conceal it (specifically, when both co-conspirators

failed to file tax returns in 1999) without considering unilateral acts to conceal (for

example, when one co-conspirator filed a false 1997 tax return in the year 2000)).



      The second armed robbery of Cornell was a foreseeable consequence of the

subsidiary conspiracy to conceal (i.e., the plan to return to Cornell’s residence to

recover Hilton’s phone). The conspirators knew Cornell had been at his residence

just a few minutes earlier when he was initially robbed, and they knew that Clark

had a gun.13 It was thus foreseeable that Clark would threaten Cornell with the gun

and grab Cornell’s phone in a rushed and mistaken belief that it was Hilton’s

phone during this second armed robbery, ostensibly to conceal the first armed

robbery. See, e.g., Wilson-Bey, supra, 903 A.2d at 841 (emphasis added) (co-

conspirator liable for “unintended crimes that result from intentional participation

      13
          For this section of the analysis, we assume, as Hilton and Lee do, that the
jury credited Cornell’s identification of Clark as the perpetrator of the second
armed robbery. Nevertheless, the identity of the actual second armed robber is not
essential because all three are liable under a co-conspirator theory. Sufficient
evidence placed all three men in the SUV. Among other evidence, Clark was
apprehended in the wreck, Lee was apprehended on foot, and Hilton was identified
as the third man who escaped by the recovery of his phone.
                                           17

in a predicate crime, without proof of the mens rea otherwise required for the

subsequent crime”). We think it would also be foreseeable from the evidence that

Clark, in confronting Cornell again, would attempt to take any remaining items of

value.



         To be clear, we do not indefinitely impose liability for a co-conspirator’s

efforts to conceal a conspiracy. See Snowden, supra note 11, 52 A.3d at 867.

Here, however, the evidence supports a finding of a common plan among Clark,

Hilton, and Lee for Clark to recover Hilton’s cell phone from Cornell’s front yard.

Because Hilton and Lee could foresee (1) that Cornell would be at his residence

(because he had been there just minutes earlier and appellants had taken his

vehicle) and (2) that Clark would be armed, it was foreseeable that Clark would

again use a gun to take items from Cornell.



         Lee raises one further issue because the jury acquitted him of the conspiracy

charge (but convicted Clark and Hilton of conspiracy). Lee argues that this court

cannot consider co-conspirator liability when evaluating his sufficiency challenge.

This argument is foreclosed by our sufficiency analysis in (Anthony) Richardson v.

United States, 116 A.3d 434, 443 (D.C. 2015), which affirmed on a co-conspiracy

theory of liability for one count even where the jury acquitted the defendant of a
                                         18

separate conspiracy count. We explained that “the apparent contradiction is, at

most, an inconsistent verdict . . . . There is no reason to vacate appellant’s

conviction . . . merely because the verdicts cannot rationally be reconciled.” Id.

(internal quotation marks and alterations omitted).14 Thus, we must still consider a

conspiracy theory of liability in our sufficiency review. As explained above,

sufficient evidence supports a finding that Lee was a co-conspirator liable for the

foreseeable second armed robbery of Cornell.



   C. Other Claims



      We briefly address appellants’ remaining arguments in turn: (1) that the trial

judge should have ordered a competency evaluation of Clark sua sponte, (2) that


      14
          Lee’s reliance on appeals from bench trials is misplaced. When a trial
judge acts as the fact-finder and makes specific findings on the record, we can
review the sufficiency of those findings, and we may remand if the trial court left a
dispositive factual dispute unresolved, see Williams v. United States, 887 A.2d
1000, 1003–04 (D.C. 2005), or reverse outright if the trial court made a factual
finding that cannot satisfy an element of the crime, see Cave v. United States, 75
A.3d 145, 147 (D.C. 2013). In contrast, jury verdicts are entirely insulated from
review for consistency (1) to prevent the government from seeking review of the
inconsistent acquittal; (2) to protect the secrecy of jury deliberations; and (3) to
protect the jury’s right to nullify inconsistent with the law. See United States v.
Powell, 469 U.S. 57, 68–69 (1984). We instead review only the trial court’s
decision to submit each count to the jury, with our review of the sufficiency of the
evidence on each count acting as a “safeguard[] against jury irrationality.” Id. at
67.
                                         19

the trial judge should have excluded victim Tyaron Scott’s “surprise” in-court

identification of Hilton, (3) that the trial judge erred in limiting cross-examination

of a fact witness regarding Hilton’s cell phone, and (4) that the trial judge’s

response to a jury question amounted to an impermissible anti-deadlock charge.



      1. Clark’s Competence to Stand Trial



      The Incompetent Defendants Act defines “competence” to stand trial as

“sufficient present ability to consult with [one’s] lawyer with a reasonable degree

of rational understanding” and to have a “rational, as well as factual, understanding

of the proceedings.” D.C. Code § 24-531.01 (1) (2012 Repl.); see also Drope v.

Missouri, 420 U.S. 162 (1975) (holding Due Process Clause requires competence).

When defense counsel has not raised the issue at the trial level, this court accords

“great deference to the trial court’s inference from its personal observations of, and

conversations with, the defendant,” and we review the failure to order a sua sponte

competence evaluation for abuse of discretion. Gorbey v. United States, 54 A.3d

668, 679 (D.C. 2012).



      To raise a competence issue, Clark must identify “red flags” during the

course of the trial process that “inescapably call into question appellant’s
                                         20

competence to stand trial.” Id. (quoting Clyburn v. United States, 381 A.2d 260,

263 (D.C. 1977)). Clark relies upon a few references to his mental health history

during the course of the trial proceedings. The pretrial report and presentence

report both referenced some mental health conditions dating back to Clark’s

childhood. The last reported symptoms occurred in 2010, however, two years

before the charged crimes.



      We conclude that these limited “red flags,” consisting solely of mental

health issues predating the trial process, were insufficient to require a sua sponte

competency evaluation. The competence inquiry involves many factors, of which

mental health history is just one — others include the defendant’s behavior at trial,

his rational or irrational actions, and the representations of defense counsel. See

Gorbey, supra, 54 A.3d at 678. The other factors suggest competence. Clark’s

counsel explained his client’s understanding of the case at various points in the

trial process.15 The record also contains some statements from Clark that confirm

Clark’s rational understanding of trial process. 16 Further, Judge Josey-Herring


      15
         For example, Clark’s counsel confirmed that his client understood the
proceedings when explaining the rejection of two plea offers and the decision not
to pursue DNA testing under the Innocence Protection Act.
      16
         The trial court often asked questions multiple times with different
phrasings to check Clark’s comprehension. For example, when waiving DNA
                                                          (continued . . .)
                                         21

conducted an inquiry during trial itself to confirm that Clark understood and

knowingly waived his right to testify. See Boyd v. United States, 586 A.2d 670,

678–79 (D.C. 1991). Under these circumstances, even assuming that a trial court

has the same duty to inquire into a defendant’s mental health status as his own

counsel, see Blakeney v. United States, 77 A.3d 328, 342 (D.C. 2013), the court did

not abuse its discretion because the very limited “red flags” in the record did not

call Clark’s competence to stand trial into question.



      2. “Surprise” In-Court Identification of Hilton by Tyaron



      Ten days after the robberies, police presented Tyaron with a nine-person

photo array containing Hilton’s picture, but Tyaron selected a “filler” photo

instead. Nevertheless, Tyaron surprised all parties at trial by testifying that he was

confident enough in his recollection to make an in-court identification of Hilton.

Hilton’s counsel addressed the pretrial misidentification in the photo array on

cross-examination. On appeal, Hilton argues that the in-court identification, while

admissible, came as a prejudicial “surprise” that required the trial court to grant a

(. . . continued)
testing, Clark was given the opportunity to say “yes” that he understood his right,
“no” that he did not want additional testing, and “yes” that he was satisfied with
the testing already done. Additionally, Clark wrote a coherent letter proclaiming
his innocence to the judge presiding over his case in December 2013.
                                         22

mistrial because Hilton otherwise might have called an identification expert to

rebut the identification by Tyaron.



      We see no such prejudice by the surprise identification.         Significantly,

Hilton sought only a mistrial without suggesting less burdensome corrective action

— for example, a continuance to further prepare for cross-examination. Moreover,

we have said an in-court identification, by itself, is “an inherently suggestive type

of identification,” McCall v. United States, 596 A.2d 948, 951 (D.C. 1991), and the

government’s evidence against Hilton was strong (e.g., his cellphone and DNA

evidence). With neither a disclosure violation nor a challenge to the admissibility

of the identification, 17 we cannot conclude that the denial of a mistrial was an

abuse of discretion.




      17
           Unexpected evidence does not necessarily require a mistrial, and
reversible error occurs only when “(1) the prosecutor makes a pretrial
representation of the government’s intention that creates an obligation to inform
the defense and the trial court of new information in a timely manner, (2) the
prosecutor fails to honor his or her pretrial obligation, and (3) the defendant is
prejudiced.” Bellamy v. United States, 810 A.2d 401, 404 (D.C. 2002) (internal
quotation marks and alterations omitted). The record does not reflect any
disclosure violation.
                                        23

      3. Limited Cross-Examination about Hilton’s Cell Phone



      At trial, the government called Francine Lowe, Hilton’s sister, to testify

about his cell phone, which she had called on the morning of the robbery. On

cross-examination, Hilton wanted to elicit testimony that Lowe had seen Hilton

give his phone to other people in the general time frame of June 2012. The trial

judge sustained an objection by Clark’s counsel because Hilton’s counsel had not

established that Lowe had any knowledge about Hilton loaning his phone during

the specific time frame of the robberies, and the more general time frame (the

entire month of June 2012) was not relevant. We review the trial court’s relevance

determination for abuse of discretion, see United States v. Mosby, 495 A.2d 304,

305 (D.C. 1985), and discern no abuse in this case.



      Relevance is a fairly low bar, requiring only that the evidence tend to make a

material fact more or less probable. See (Troy) Richardson v. United States, 98

A.3d 178, 186 (D.C. 2014). Nevertheless, the defendant must establish a nexus

between the proffered evidence and the charged crimes and cannot invite

speculation about a third party’s guilt. See (Todd) Thomas v. United States, 59

A.3d 1252, 1264 (D.C. 2013). Here, Hilton’s proposed question was broad and

unsupported by an adequate proffer. The proposed question about Hilton having
                                          24

loaned his phone to anyone was generic. Counsel did not explain the frequency or

duration of the loans; offer to limit her question to a specific person with

opportunity to commit the crime; or respond to Clark’s concern that the answer

would invite impermissible speculation damaging his case. In light of this proffer,

the trial judge permissibly concluded that Lowe’s response would have left the jury

to speculate about a third-party perpetrator (or prejudice Hilton’s co-defendants)

and carried a risk of distracting the jury. See Winfield v. United States, 676 A.2d 1,

4–5 (D.C. 1996) (en banc).



      4. Response to Jury’s Deadlock Inquiry



      After deliberating for about a day and a half, the jury sent a note that read:

             In filling out the jury verdict form, we are allowed two
             options, “not guilty” or “guilty,” we have been discussing
             all morning, & for some counts we are unable to come to
             a unanimous decision. In the case that the jury does not
             agree on a specific count, how do we fill out the form?

The trial judge denied appellants’ motions for a mistrial because the jury had been

deliberating for a relatively short time in “a very complicated three co-defendant”

case, and she also concluded than an anti-deadlock charge would be premature.

No party objected to the trial judge’s proposed response, but, based upon an

apparent transcription error, all three appellants argue on appeal that the trial judge
                                         25

improperly required unanimity on all charges. See generally Winters v. United

States, 317 A.2d 530, 533–34 (D.C. 1974) (en banc).



      When there is a possible error in the record, it must be clarified by the trial

court. D.C. App. R. 10 (e)(1); see (Trenton) Thomas v. United States, 715 A.2d

121, 126 (D.C. 1998) (per curiam) (Schwelb, J., concurring). The government

filed a motion to clarify the record in the trial court, which was granted on July 8,

2016, revealing that the actual instruction read as follows: “I have received your

jury note at 1:10 signed by Juror 564. At this time, I will only take verdicts

regarding a charge or charges where there is a unanimous verdict -- that is, where

there is total agreement by each member of the jury as to a charge or charges.”



      With the benefit of this clarification of the record pursuant to Rule 10 (e)(1),

we now know that the trial court’s instruction required only that the jury continue

its work after relatively short deliberations. We review its instruction for plain

error. See Trapps v. United States, 887 A.2d 484, 490–91 (D.C. 2005). The trial

court’s instruction was not really an “anti-deadlock charge” at all, as its response

“boiled down to ‘please keep trying.’” Van Dyke v. United States, 27 A.3d 1114,

1124 (D.C. 2011). Moreover, the length of deliberations after an instruction can

demonstrate a lack of coercion, and in this case the jury deliberated for an
                                        26

additional day before returning unanimous verdicts. See id. (stating that continued

deadlock two hours after an instruction indicated a lack of coercion). Under the

circumstances, we discern no plain error in the trial court’s instruction requiring

the jurors to keep trying while offering an opportunity to return unanimous verdicts

on some counts.



                                III.   Conclusion



      The convictions on appeal are affirmed. We remand solely for merger of

Clark and Hilton’s PFCV counts arising from the first armed robbery and armed

carjacking of Cornell Scott.



                                                          So ordered.
