                                District of Columbia
                                 Court of Appeals

No. 15-CF-277
                                                                     JUL 21 2016
CHRISTOPHER T. HOLMES,
                                  Appellant,

      v.                                               CF1-15515-12


UNITED STATES,
                                  Appellee.


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

      BEFORE: THOMPSON and MCLEESE, Associate Judges; and KING, Senior Judge.


                                    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 appellant’s convictions are affirmed.

                                                For the Court:




Dated: July 21, 2016.

Opinion by Senior Judge Warren R. King.

Opinion concurring in part and dissenting in part by Associate Judge Roy W. McLeese.
 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.


                DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 15-CF-277                        7/21/16

                        CHRISTOPHER T. HOLMES, APPELLANT,

                                         v.

                             UNITED STATES, APPELLEE.

                        Appeal from the Superior Court of the
                                District of Columbia
                                  (CF1-15515-12)

                    (Hon. Rhonda Reid Winston, Trial Judge)

(Argued April 7, 2016                                    Decided July 21, 2016)

      Peters H. Meyers for appellant.

      Nicholas P. Coleman, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Assistant
United States Attorney, were on the brief, for appellee.

      Before THOMPSON and MCLEESE, Associate Judges, and KING, Senior Judge.

      Opinion for the court by Senior Judge KING.

       Opinion by Associate Judge MCLEESE, concurring in part and dissenting in
part, at page 22.

      KING, Senior Judge: Following a jury trial, appellant Christopher Holmes

was convicted of second degree murder while armed and possession of a firearm
                                         2

during a crime of violence. On appeal, Holmes argues that the trial court erred in

admitting witness testimony about another crime that Holmes reportedly

committed and about witness fear. He also argues that the trial court erred in

denying his motion for a mistrial after a prospective defense witness yelled outside

of the courtroom that her life was in danger. For the reasons stated below, we

affirm.



                                         I.



      The charges against appellant Christopher Holmes arose from the fatal

shooting of David Tucker outside a barbershop located in the Southeast quadrant

of the District of Columbia in October 2008. On the day of the shooting, Holmes

walked into the Classic Kutz Barbershop on 22nd Street. Larocko Miles, one of

the barbers, testified that he saw a young man, later identified as Holmes, come

into the barbershop wearing an “Elmer Fudd”-style hat with earflaps. Tucker, who

was sitting inside the barbershop, told Holmes, “[W]hat you coming in here for[?]

[A]in’t nobody in here for you to rob.”        Holmes replied, “[M]an, you say

anything[,]” and started to leave.     As Holmes was leaving, Tucker stated,

“[Y]ou’re going to do something[,] young’un[?]” Holmes replied, “[N]aw, I ain’t

going to do nothing.” Although Holmes and Tucker exchanged more words, all
                                         3

Miles could discern was Tucker saying to Holmes, twice, “[W]hat you say,

young’un[?]” Tucker then walked out of the barbershop after Holmes.



      Akeem Young, who had known Holmes and Tucker for many years, was

standing outside of the barbershop when Holmes came out saying, “[T]his n****r

got me f**ked up.” Tucker then “storm[ed]” out of the barbershop and approached

Holmes, grabbed him by the “shoulder and neck area,” and told him to “get the hell

away from the barbershop.” A struggle ensued between the two men during which

Tucker pushed Holmes into the street. Holmes pulled out what appeared to Young

to be a .40-caliber gun and pointed it at Tucker. Young began to run away and

heard Tucker say to Holmes, “[W]hat you going to do[?] You going to shoot me

out here in public, [in] broad day light?” Seconds later, Young heard gunshots.



      Miles, who heard three gunshots after Tucker went outside, saw Tucker

come back into the barbershop and fall to the floor. Lee Wade, who was inside the

barbershop, also heard gunshots and saw the victim fall in through the front door.

Tucker later died from a single gunshot that had penetrated his heart.
                                         4

      Holmes was indicted on September 5, 2012, for one count of first-degree

premeditated murder while armed,1 one count of possession of a firearm during

crime of violence (PFCV),2 and one count of carrying a pistol without a license

(CPWL).3 Before trial, the trial court granted Holmes’s unopposed motion to

dismiss the CPWL count. Following a jury trial, Holmes was acquitted of first-

degree premeditated murder while armed and its accompanying PFCV charge, but

found guilty of the lesser-included offenses of second-degree murder while armed

and its accompanying PFCV charge. This appeal followed.



                                        II.



      On appeal, Holmes argues that the trial court erred in allowing Nicholas

Proctor, the victim of a robbery, to testify that prior to the shooting he had told

Tucker that the perpetrator of the robbery “might have been someone named Bar

Beast,” which the defense stipulated was Holmes’s nickname.




      1
          D.C. Code §§ 22-2101, -4502 (2012 Repl.).
      2
          D.C. Code § 22-4504 (b) (2012 Repl.).
      3
          D.C. Code § 22-4504 (a) (2012 Repl.).
                                         5

      In general, evidence of other uncharged crimes is inadmissible if it is offered

to prove a defendant’s propensity to commit the charged crime. Drew v. United

States, 331 F.2d 85, 89–90 (D.C. Cir. 1964). Other crimes evidence is admissible,

however, if it is “necessary to place the charged crime in an understandable

context.” Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996) (en banc);

see also Toliver v. United States, 468 A.2d 958, 961 (D.C. 1983). Such evidence

may still be excluded if its probative value is substantially outweighed by danger

of unfair prejudice. Johnson, supra, 683 A.2d at 1100–01. “[T]he evaluation and

weighing of evidence for relevance and potential prejudice is quintessentially a

discretionary function of the trial court, and we owe a great degree of deference to

its decision.” Id. at 1095.



      Here, Proctor’s testimony was not admitted for the purposes of proving

Holmes’s criminal propensity; rather it was offered to explain the confrontation

between Holmes and Tucker.        We conclude that not only did the trial court

exercise its proper discretion, the court did so with caution to prevent potential

prejudice from the testimony. More specifically, at the pretrial hearing on the

matter, the court found that Proctor’s testimony was relevant to help explain

Tucker’s accusatory statements toward Holmes in the barbershop, giving context to

the animosity between the two men leading up to the shooting. The trial court
                                         6

twice expressed its concern regarding the potential prejudice against Holmes, and,

thus, limited Proctor’s testimony to only what he had told Tucker prior to the

shooting, not why Proctor thought Holmes might have been the perpetrator. For

reasons stated below, we are satisfied that such testimony was admissible as

Johnson evidence given the circumstances here and that the trial court acted

properly to “control the development and use of the evidence at trial” in

minimizing the testimony’s potential prejudice. Id. at 1101.



      Holmes argues that Proctor’s testimony was not necessary to place the

shooting in an understandable context because Tucker was just “trash talking”

when he told Holmes, “[A]in’t nobody in here for you to rob.” This argument fails

because evidence at trial showed that the two men had a close relationship prior to

the shooting, with Tucker having treated Holmes like a “son,” including buying

him clothes and giving him money. With this history between Holmes and Tucker,

Proctor’s testimony was necessary to explain why Tucker would now accuse

Holmes of robbery. Deprived of Proctor’s testimony, the jury would have been left

uninformed and unable to bridge the gap between the men’s previous close

relationship and Tucker’s accusation against Holmes which escalated to angry

exchanges and the eventual fatal shooting. See, e.g., Brown v. United States, 934

A.2d 930, 940–41 (D.C. 2007) (evidence of defendant’s uncharged possession of
                                         7

illegal drugs was admissible to help explain the reason why defendant and

codefendant, as part of a turf war over drugs, would approach two strangers and

immediately shoot them in the back); Bonhart v. United States, 691 A.2d 160

(D.C. 1997) (evidence that defendant sold drugs to victim for years, supplied crack

cocaine to victim and roommate two days before fire, and had threatened to burn

down apartment building if victim did not pay him for recent drug sale was

admissible in prosecution for arson and murder to put arson in context).



      Holmes also contends that the probative value of Proctor’s testimony was

substantially outweighed by the danger of unfair prejudice. This argument is

without merit. The record on appeal shows that the trial court twice expressed its

concern regarding the potential prejudice of Proctor’s testimony, and, as a

precautionary measure, limited the testimony to only what Proctor had told Tucker

prior to the shooting. See Johnson, supra, 683 A.2d at 1104–05 & n.22 (evidence

of uncharged murders was properly admitted because it was not offered to prove

the defendant’s criminal disposition but as identity evidence and direct evidence of

the charged crimes, also the trial court took appropriate actions to minimize undue

prejudice by denying the prosecutor’s request to admit an autopsy photo and

distressed 911 call reporting the murders). The jury was allowed to only hear that

Proctor had told Tucker the robber “might have been someone named Bar Beast,”
                                         8

not why and how Proctor arrived at that conclusion. Furthermore, the government,

in its closing argument, limited its use of this testimony to only explaining

Tucker’s statements:



            There’s nobody in here for you to rob is a pretty specific
            thing to say to somebody. Now ask yourself who did Mr.
            Tucker have a reason to say those words to and now at
            the end of this trial you know the answer to that question
            too. Mr. Tucker had a reason to say those words to Bar
            Beast, the Defendant, Christopher Holmes. What was
            that reason? Mr. Tucker thought that Bar Beast had
            robbed Nicholas Proctor, a long-time friend of Mr.
            Tucker. Why did Mr. Tucker think that? Because that’s
            what Mr. Proctor told him a few weeks before the
            murder.



On this record, we conclude that any potential prejudice was minimized by the

court’s effort to limit Proctor’s testimony, ensuring that evidence was offered only

to explain Tucker’s accusatory statements toward Holmes, not to prove Holmes’s

criminal propensity. Accordingly, we reject Holmes’s challenge to the trial court’s

admission of Proctor’s testimony.
                                         9

                                       III.



      Next, Holmes argues that the trial court erred in admitting fear testimony

given by two government witnesses:           Akeem Young and Carlton Clemons.

Holmes maintains that the probative value of this fear evidence was substantially

outweighed by the danger of unfair prejudice, especially because the government,

in its closing arguments, focused on both the witnesses’ generalized fear of being

involved in a homicide case and Young’s specific fear of the shooter.



      Additional Background Information



      At trial, Young admitted to not telling all that he knew about the shooting to

the grand jury, including that he saw Holmes pull out a gun and point it at the

victim just before he was shot. He testified that he did not “want to be involved”

in any “conflicts[,]” because he had “a lot of family in the streets in Washington,

D.C.” Young also described two incidents where Holmes warned Young not to

talk about what he saw during the shooting. During cross-examination, Young

agreed with defense counsel that Holmes never specifically threatened him.
                                           10

      Clemons, Young’s cousin, was an extremely reluctant witness who had to be

arrested and forcibly brought to court to testify in this case. At the grand jury

hearing, he acknowledged that he was “concerned for [his] safety” and did not

want to “be involved” in the case. At trial, Clemons testified that he and Young

were at the barbershop trying to sell Young’s television set on the day of the

shooting. Clemons, however, claimed that he suffered a concussion and, thus, was

having difficulty recalling information about the shooting. Clemons was then

impeached with his grand-jury testimony in which he stated that a man whom

Young pointed out to him and identified as “Bar Beast” came into the barbershop.

After Clemons left the barbershop, he saw the victim and Bar Beast, who was

wearing a “big boofy [sic] looking hat” that could be “pulled down over [one’s]

ears[,]” struggle with each other. At this point, Young told Clemons that they

needed to leave.     Clemons heard gunshots and saw Bar Beast holding what

appeared to be a black semiautomatic pistol. In response to the government’s

question about his failure to appear for trial, Clemons indicated that he did not

want to be “involved in a homicide case,” and that “anybody that[] [was] involved

in something like this would be fearful of [sic] their life.”



      In closing, the government argued that the reason Young initially failed to

tell the truth (i.e., that Young saw Holmes shoot Tucker “in broad daylight in the
                                         11

middle of the street”) was that Young “was scared”; Young “kn[e]w[] the

shooter[,]” and “live[d] two blocks from where th[e] shooting happened.” The

government also observed that “the shooter kn[e]w[] [] Young, [and] kn[e]w he

was out there[,]” as demonstrated by the fact that Holmes told Young “twice to

keep his mouth shut about this case.” The government told the jury, “[I]magine

what this must have been like for [] Young,” who was “17, 18 years old” at the

time, and thus was “scared” when he came to the grand jury, and did not “want to

be involved” in the case. With regards to Clemons, the government argued that

Clemons did not tell the police what he knew because he was “kind of scared” and

was “afraid for a different reason from [] Young,” as Clemons was not from the

neighborhood and did not “know th[o]se guys.” It was, however, “the same fear,

the same desire not to be involved.”



      Discussion



      Recognizing that witness fear evidence “tends to be prejudicial because it

suggests the witness fears reprisal at the hands of the defendant or his associates if

she [or he] testifies[,]” we have held that such evidence may nevertheless be

admissible where the witness has given conflicting statements. Mercer v. United

States, 724 A.2d 1176, 1184 (D.C. 1999) (quoting McClellan v. United States, 706
                                          12

A.2d 542, 551 (D.C. 1997)).          More specifically, “evidence of a witness’

‘generalized fear,’ not specifically a fear of the defendant, may be admissible, in

the court’s discretion, to show bias or motive when the witness has previously

withheld information or makes conflicting statements.” Parker v. United States,

797 A.2d 1245, 1249 (D.C. 2002).            The admissibility of such evidence is

determined “by looking to the specificity of the fear, i.e., by considering whether

the threat is specifically linked to the defendant.” Id. at 1249.



      Here, Clemons’s fear testimony was admissible to explain his adamant

refusal to testify at trial and his prior conflicting statements. We are satisfied that

Clemons’s fear testimony was “generalized” fear, and thus, did not unduly

prejudice Holmes. First, Clemons admitted that he did not live in the area and,

thus, as the government suggested, he did not know the men involved in the

shooting. Second, at no point during his testimony did Clemons indicate that he

was specifically fearful of Holmes or that he was threatened by Holmes or by

anyone on his behalf. In fact, the record suggests that Clemons was afraid to

testify in general because this was “a homicide case,” which understandably could

provoke fear in the witness whether or not he knew or was threatened by the

perpetrator. In other words, Clemons’s fear had no direct connection to Holmes

that could result in undue prejudice. Accordingly, we find no abuse of discretion
                                         13

in allowing Clemons’s fear testimony. See, e.g., Gordon v. United States, 783

A.2d 575, 587 (D.C. 2001) (questions about witness’s general fears were proper,

but not questions about witness’s fear of “these people,” i.e., the defendants);

Clayborne v. United States, 751 A.2d 956, 964 (D.C. 2000) (general question

about “snitching” not linked to defendant was permissible); Carter v. United

States, 614 A.2d 913, 917–918 (D.C. 1992) (question about a general threat from

“other people” on “the street” was proper, but question about a more specific threat

from the defendant would be improper).



      Young’s testimony, on the other hand, presented a more complicated set of

circumstances as it was slightly more specific in relation to Holmes. Young knew

the victim and Holmes well and vice versa. They lived in the same neighborhood

and Young’s family also lived in the District. These facts were highly probative as

they helped explain how Young could have been afraid of the potential negative

consequences of testifying against Holmes at trial, which may have motivated

Young to withhold information initially. Young also testified that Holmes twice

indicated to Young that he should keep quiet.4 While we have held that it is an


      4
         Sometime after the shooting, Young was walking down the street when he
saw Holmes in a car; Holmes put his finger to his lips, which Young understood to
mean that he should not “run[] [his] mouth.” Subsequently, when Young was
incarcerated at the Oak Hill juvenile detention center, he saw Holmes, who was
                                                              (continued…)
                                      14

abuse of discretion to admit “evidence of threats solely to go to the general

credibility or bias of the witness[,]” such evidence is admissible to “explain

specific behavior of the witness, such as inconsistent statements, delay in

testifying, or unusual courtroom demeanor.” Mercer, supra, 724 A.2d at 1184. On

this record, we are content that Young’s testimony regarding Holmes’s warnings,

perceived as threats or not, was admissible as highly probative evidence in

explaining Young’s reluctance to testify and his prior inconsistent statements.

Also, Young’s testimony was not directed at Holmes in such a way that would

cause the jury to believe Holmes had threated or intimidated Young in order to

prevent him from testifying. All in all, Young admitted during cross-examination

that Holmes never threatened him, indicating that Young did not take Holmes’s

nonverbal and verbal warnings as threats. Having found no error in the court’s

decision to admit fear testimony from Young and Clemons, we reject Holmes’s

challenge on this ground.




       ___________
       (…continued)
apparently visiting someone else. Young ran up to greet Holmes, but Holmes told
him to “be quiet about that[,]” which Young thought was referring to what he saw
outside of the barbershop. However, Young admitted that Holmes had never
threatened him.
                                          15

                                          IV.



      Lastly, Holmes argues that the trial court erred in denying his motion for

mistrial following a prospective defense witness’s verbal outburst outside of the

courtroom. On appeal, Holmes argues, for the first time, that in the alternative the

trial court should have conducted an investigation into whether the jury heard and

was affected by the outburst before denying the mistrial motion. For the foregoing

reasons, we find no reversible errors in the trial court’s decision.



      Additional Background information



      During cross-examination of a government witness, a woman engaged in a

loud verbal outburst outside of the courtroom. The transcript of the proceeding

only reflects a pause due to interruption. Defense counsel continued his cross-

examination and waited until after lunch recess to raise the issue with the court and

moved for a mistrial on the ground of prejudice.5 Counsel asked the record to

reflect that the witness “was screaming” that “there are people in this room. My


      5
         After defense counsel finished his cross-examination of the government
witness, another witness took the stand and finished his testimony before the court
adjourned for lunch.
                                         16

life is in danger,” and that “that she felt threatened.” The outburst, according to

defense counsel, “went on for some time.” The woman’s name was mentioned to

the jury during voir dire as a prospective defense witness. The record does not

indicate that she was actually present and seen by the jury at that time and Holmes

does not claim in his briefs on appeal that she was present. Prior to the outburst,

defense counsel informed the trial judge that he may not call the woman to testify

and the woman ultimately never testified.



      The prosecutor argued that because the outburst took place outside of the

courtroom6 “the jury would have no reason to believe that the incident in the

hallway was in any way connected to anything that was happening in [the]

courtroom,” and that the outburst was not “so loud that the jury could not hear the

questions [defense counsel] was asking or the answers the witness was giving.”

The trial court stated that it did not hear all that defense counsel claimed to have

heard but acknowledged that it heard someone say something “about her life being

in danger or something.” Ultimately, the trial court denied the motion for mistrial

because it was not clear whether the jury even heard the outburst or realized that it

was a witness and “would have connected it to either side in this trial.” Therefore,

      6
        The woman was in the area between the outer and inner doors of the
courtroom.
                                          17

the court could not conclude that Holmes was prejudiced by the outburst. The

court also noted defense counsel’s equivocal representation about whether he

planned to call this witness. When the trial resumed, the trial court did not instruct

the jury to disregard the outburst. As noted above, this witness was never called to

testify.



       Discussion



       “The decision to order a mistrial is subject to the broad discretion of the trial

court and our standard of review is deferential.” Gordon, supra, 783 A.2d at 583.

We are “only inclined to reverse ‘in extreme situations threatening a miscarriage of

justice.’”7 Id. (quoting Wright v. United States, 637 A.2d 95, 100 (D.C. 1994)). In

circumstances where “the impartiality of [the jury] has been plausibly called into

question, it is the responsibility of the trial judge to hold a hearing to determine

whether the allegation of bias has merit.” Tann v. United States, 127 A.3d 400,


       7
          The dissent cites to Gordon, supra, 783 A.2d at 586, 590, as an example
where this court “emphasized the highly prejudicial effect of emotional outbursts
reflecting witness fear.” Post at 25. We note, however, that there are significant
factual differences between that case and the case at bar. In Gordon, the witness
tearfully testified at some length during the trial about her fear of the defendant,
whereas here a woman yelled briefly outside of the courtroom and was never
called to the stand to testify.
                                          18

470 (D.C. 2015) (quoting Medrano-Quiroz v. United States, 705 A.2d 642, 649

(D.C. 1997)). Although a hearing is required and the government has the burden

“to demonstrate that the [jury’s] contact with extraneous information was harmless

or non-prejudicial[,] the extent and type of the trial court’s investigation into the

improper contact are confided to the court’s discretion and reviewable only for

abuse.” Id. (quoting Hill v. United States, 622 A.2d 680, 684 (D.C. 1993); Leeper

v. United States, 579 A.2d 695, 699 (D.C. 1990)). “There is ‘no per se rule that

individual questioning of each juror is always required,’ and ‘the trial judge has

broad discretion to fix the exact procedures by balancing the need to make a

sufficient inquiry against the concern that the inquiry not create prejudicial effects

by unduly magnifying the importance of an insignificant occurrence.’” Id. at 470–

71 (quoting Al-Mahdi v. United States, 867 A.2d 1011, 1019 (D.C. 2005)).



      Tann involved a defendant (Tann) who had an outburst in open court when

the jury found him guilty of murders and conspiracy and his codefendants guilty of

conspiracy but had yet to finish deliberations on their remaining charges.8 Tann,

supra, 127 A.3d at 469. Tann’s codefendants moved for mistrial. When the jury

      8
          Tann stated: “I don’t see how I can get found guilty, and what type of
court is this? I wasn’t even there . . . . [N]owhere near . . . . I get found guilty and
I’m innocent. God going to challenge y’all for this. I’ll see y’all in heaven . . . .
I’m innocent. How the f**k I get found guilty? . . . That's f**king–that’s crazy.”
Tann, supra, 127 A.3d at 469.
                                         19

resumed deliberations, the trial judge held a hearing on the facts surrounding

Tann’s outburst, and found that Tann’s conduct was not violent or threatening to

the jury despite his reference to the afterlife. Further, the court observed no

reaction from the jury that constituted significant concern and, thus, denied the

motion for mistrial. Id. at 470.



      On appeal, Tann’s codefendants argued that the trial court erred in denying a

mistrial without conducting a voir dire because the jury might have convicted them

for fear that if it found them not guilty, they would be free and able to carry out

Tann’s “threats.” Id. at 471. This court, however, found that Tann’s statements

did not expressly implicate his codefendants in any way; the trial court gave a

prompt curative instruction; and the jury did not contact the judge about the

outburst to voice any sort of concern. Id. “[C]onsider[ing] the risk that further

investigation would turn an insignificant matter in the jurors’ minds into a

significant one—a possibility that was well within the trial court’s discretion to

take into account,” we held that the trial court did not err in denying the voir dire

request and properly denied the motion for mistrial. Id.



      Here, unlike in Tann, the outburst took place outside of the courtroom, and it

was by no means clear that the jurors heard the outburst, understood exactly what
                                         20

was said, or even saw the person making it. Even assuming the jury could hear the

outburst, there was no evidence that any jurors could have drawn a connection, let

alone with prejudice, to Holmes or the matter on trial before since this witness was

never called to testify.



      In any event, we hold that the trial court’s subsequent colloquy with counsel

was sufficient. Here, like in Tann, the trial judge was present and observed

firsthand the situation and the jury’s reaction.9 See Tann, supra, 127 A.3d at 471

(holding that it was “crucial . . . that the trial judge actually observed Tann’s

outburst and viewed its effect (or lack thereof) on the jury when determining the

correct course of action”). Even though the trial judge here did not give a curative

instruction following the outburst or conduct a voir dire, we find no abuse of

discretion as an instruction or voir dire would have, as the trial judge


      9
           The dissent questions this finding and its significance under Tann,
observing that “it is unclear whether the trial court saw the potential witness as she
was screaming outside the courtroom” and that “the trial court may not have heard
everything the potential witness screamed and did not observe the jurors’ responses
to the outburst.” Post at 29. We respectfully disagree. The outburst took place
during the cross-examination of another witness where all those involved in the
trial—the judge, the jury, appellant and his counsel, and government counsel—
were present. We think it is significant that the judge was in the courtroom with
the jury and was able to hear the outburst and observe the jury’s reaction, or lack
thereof. The fact that the judge did not hear all that defense counsel claimed to
have heard does not in and of itself negate the judge’s “firsthand knowledge” of
the situation nor undermine her assessment of any potential impact on the jury.
                                          21

acknowledged, unnecessarily called the jury’s attention to the outburst, especially

after a significant amount of time had passed and the jury had no reason to connect

the outburst to the trial or Holmes.



      The dissent cites to Tann for the proposition that “[i]f a plausible concern

about jury taint arises, the trial court must either grant a mistrial or take steps to

ensure that the jury’s ability to be impartial has not been undermined.” Post at 27.

The dissent further states that the trial court “was required either to grant a mistrial

or to take other steps, such as giving a curative instruction or conducting a voir

dire of the jury, to ensure that the jury’s impartiality had not been undermined.”

Post at 28. We respectfully disagree as we do not think our decision in Tann goes

that far. In fact, we said in that case that “[t]here is ‘no per se rule that individual

questioning of each juror is always required,’ and ‘the trial judge has broad

discretion to fix the exact procedures by balancing the need to make a sufficient

inquiry against the concern that the inquiry not create prejudicial effects by unduly

magnifying the importance of an insignificant occurrence.’” Tann, supra, 127

A.3d at 470-71. The Tann court clearly emphasized the importance of the trial

judge’s broad discretion in situations like this where she would have to ensure the

balance between inquiring into the possible impact on the jury and not drawing

unnecessary and prejudicial attention to the outburst.
                                         22



      In addition, we think it is significant that defense counsel waited several

hours before even raising the issue with the trial judge and never requested a

curative instruction or asked the trial judge to conduct a voir dire. For all of these

reasons, we hold that the trial court did not abuse its discretion in denying mistrial

as there was no evidence showing that the outburst prejudiced Holmes in any way

or presented an extreme situation “threatening a miscarriage of justice” Gordon,

supra, 783 A.2d at 583.



                                         V.



      For the foregoing reasons, Holmes’s convictions are affirmed.



                                              So ordered.



      MCLEESE, Associate Judge, concurring in part and dissenting in part. I

agree that the trial court did not abuse its discretion in admitting other-crimes

evidence and witness-fear evidence. I therefore join Parts I, II, and III of the

court’s opinion. I respectfully dissent from Part IV of the court’s opinion, in which
                                         23

the court concludes that trial court permissibly took no steps to address an outburst

outside of the courtroom during trial.



      The trial transcript reflects that there was an interruption in the courtroom on

the second day of trial. Defense counsel subsequently represented that a potential

defense witness “in the back” had been screaming “there are people in this room.

My life is in danger.” Defense counsel also represented that the potential witness

had said that she felt threatened and that “there’s family here in this room.”

According to defense counsel, the incident went on for some time and caused

defense counsel to stop during the cross-examination of a witness.           Defense

counsel further represented that he could see the potential witness’s face through

the courtroom door, that the jurors would also have been able to see the potential

witness, and that some if not all of the jurors were looking in that direction.

Expressing concern that the jurors might feel that someone had threatened the

potential witness, defense counsel requested a mistrial.



      The prosecutor opposed a mistrial, arguing that jurors would not have

known who was screaming. The prosecutor also indicated that he had not heard as

much of the outburst as defense counsel described, although the prosecutor
                                          24

acknowledged that he had heard a woman’s voice saying something about

believing her life was in danger.



      Describing the potential witness as having been loud, the trial court

acknowledged having heard the potential witness say something about her life

being in danger. The trial court further acknowledged that it did not know what

the jurors might have seen or heard. No one suggested that the trial court conduct

a voir dire of the jury or give a curative instruction, and the trial court did not take

either step. Instead, the trial court denied the mistrial motion.



      Outbursts such as the one in the present case “implicate[] a defendant’s

Sixth Amendment right to an impartial jury.” Tann v. United States, 127 A.3d 400,

470 (D.C. 2015). According to defense counsel’s representations, the jurors in this

case likely heard, and may well have seen, a woman screaming right outside the

courtroom door that her life was in danger and that “family” was in the courtroom.

This is a murder case, and the jury heard testimony that several witnesses were

afraid to testify. Ante at 9-14. Specifically, the day before the outburst at issue,

one witness gave testimony indicating that he feared for his life.              Almost

immediately after the outburst, another witness implied that he was afraid for his

family and described incidents in which Mr. Holmes had directed him to keep
                                          25

quiet. Given that testimony, it would be quite natural for the jurors to infer that the

screaming woman was a terrified potential witness.             We have repeatedly

emphasized the highly prejudicial effect of emotional outbursts reflecting witness

fear. See, e.g., Gordon v. United States, 783 A.2d 575, 586, 590 (D.C. 2001)

(“[E]vidence concerning a witness’[s] fear tends to be extremely prejudicial

because it appeals to the passions of the jury and may cause the jury to base its

decision on something other than the rule of law.”; reversing conviction, because

witness’s “highly emotional testimony that she feared for her life was erroneously

admitted” and “the error was not harmless”).



      In my view, the outburst in this case raised a “plausibl[e]” concern that the

jurors had been exposed to extrinsic information that could affect the jury’s ability

to be impartial. Tann, 127 A.3d at 470. Once such a concern arises, “it is the

responsibility of the trial judge to hold a hearing” to address the concern. Id. At

such a hearing, “it is the government’s burden to demonstrate that the jury’s

contact with extraneous information was harmless or non-prejudicial.”               Id.

(brackets and internal quotation marks omitted). “The evidence of record must

justify a high degree of confidence that the likelihood of juror partiality has been

rebutted. Otherwise, the court is obliged to declare a mistrial or grant other

adequate relief.” Id. (brackets, citation, and internal quotation marks omitted).
                                          26



      In this case, the trial court did nothing to assess or address the potentially

prejudicial effect of the outburst. The trial court did not determine what the jurors

heard and saw, did not inquire into whether the jurors’ ability to be impartial had

been affected, and did not instruct the jury to disregard the outburst. Thus, the trial

court did not fulfill its obligation to “declare a mistrial or grant other adequate

relief.” Tann, 127 A.3d at 470 (internal quotation marks omitted). I have found no

case from this jurisdiction in which a trial court took no steps at all in response to a

comparable incident. To the contrary, in each such case that I have found, the trial

court conducted an inquiry, gave a curative instruction, or did both. See, e.g., id. at

470-71 (trial court gave curative instruction after defendant’s outburst); Hallman v.

United States, 410 A.2d 215, 217 (D.C. 1979) (trial court gave curative instruction

after spectator was sobbing and weeping during opening statement); Christian v.

United States, 394 A.2d 1, 21-23 (D.C. 1978) (trial court gave curative instruction

after outburst from testifying witness); Evans v. United States, 392 A.2d 1015,

1025-26 (D.C. 1978) (trial court gave curative instruction after outburst from

codefendant); Hammond v. United States, 345 A.2d 140, 141-42 (D.C. 1975) (trial

court conducted voir dire and gave curative instruction after outburst by defendant

and father outside courtroom); cf. Commonwealth v. Tribblett, 363 A.2d 1212,

1214-15 (Pa. Super. Ct. 1976) (affirming conviction despite outburst in which
                                          27

spectator stood up and began screaming that defendant had threatened spectator’s

life; trial court gave immediate curative instruction).



      The court’s affirmance in this case rests on four principal considerations.

First, the court reasons that mistrials are disfavored, that the trial court has broad

discretion about whether a mistrial is required, and that the trial court also has

broad discretion about how to handle concerns about jury taint. Ante at 17-18.

Cases such as Tann, however, establish a limit on the scope of the trial court’s

discretion. If a plausible concern about jury taint arises, the trial court must either

grant a mistrial or take steps to ensure that the jury’s ability to be impartial has not

been undermined. See, e.g., Tann, 127 A.3d at 470. By failing to meet this

requirement, the trial court in the present case abused its discretion.



      Second, the court points out that it is unclear whether any juror either heard

the potential witness’s screaming about fearing for her life or connected those

screams to this case. Ante at 19-20. Given that the trial court, defense counsel,

and the prosecutor all heard the potential witness’s screams and her reference to

fearing for her life, there is little reason to doubt that one or more of the jurors did

as well. More fundamentally, the court is placing the burden of uncertainty on the

incorrect party. Defense counsel’s representations about the outburst raised a
                                           28

plausible concern about jury taint. Under our cases, the burden therefore was on

the trial court or the prosecution to create a record demonstrating with a high

degree of confidence that there was no basis for concern. No such record was

created in this case. The trial court thus was required either to grant a mistrial or to

take other steps, such as giving a curative instruction or conducting a voir dire of

the jury, to ensure that the jury’s impartiality had not been undermined.



      Third, the court accurately points out that defense counsel did not request a

curative instruction or a voir dire of the jury. Ante at 22. Although such a request

would certainly have been helpful, our cases foreclose the idea that the absence of

such a request is fatal to Mr. Holmes’s claim. Rather, if a defendant seeks a

mistrial based on a plausible concern about jury taint, the trial court must either

grant the motion or otherwise adequately address the concern. Tann, 127 A.3d

470. Defense counsel’s failure to request a curative instruction or voir dire of the

jury does not eliminate the trial court’s responsibility.



      Fourth, the court relies heavily on Tann. Ante at 18-21. That reliance is

misplaced. Rather than supporting affirmance in this case, Tann requires reversal.

I first note one factual correction. The court states that, as in Tann, the trial court

in this case “observed firsthand the situation and the jury’s reaction.” Ante at 20.
                                          29

To the contrary, it is unclear whether the trial court saw the potential witness as she

was screaming outside the courtroom. Moreover, the record indicates that the trial

court may not have heard everything the potential witness screamed and did not

observe the jurors’ responses to the outburst. In fact, the trial court explicitly

acknowledged that it did not know what the jurors might have seen or heard. A

fact that we deemed “crucial” in Tann, 127 A.3d at 471, is thus missing in the

present case. More fundamentally, Tann required the trial court in this case either

to declare a mistrial or to take some other step to address the potential prejudice

arising from the outburst. 127 A.3d at 470. We affirmed in Tann in significant

part because the trial court properly followed that legal framework, by giving a

curative instruction.    Id. at 470-71.     We presume that juries follow such

instructions. See, e.g., McRoy v. United States, 106 A.3d 1051, 1061 (D.C. 2015)

(“[T]he court issued a clear curative instruction, which we presume the jury

followed, absent evidence to the contrary.”). In Tann, the risk of jury taint was

addressed in a way that we presume effective. In the present case, the trial court

took no steps to address the risk of jury taint. Under the legal framework that we

applied in Tann and that binds us here, reversal is required.



      I would reverse and remand the case for further proceedings. I therefore

respectfully dissent in part.
