                                 District of Columbia
                                  Court of Appeals
No. 14-CF-1374

DONNELL THOMAS,                                                APR 28 2016
                                        Appellant,

      v.
                                                     CF3-13688-13


UNITED STATES,
                                        Appellee.


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

     BEFORE:      GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges; and
STEADMAN, Senior Judge.


                                  JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

             ORDERED and ADJUDGED that the judgment on appeal is affirmed.

                                        For the Court:




Dated: April 28, 2016.

Opinion by Associate Judge Stephen H. Glickman.
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. 14-CF-1374                     4/28/16

                        DONNELL THOMAS, APPELLANT,

                                         V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF3-13688-13)

         (Hon. Ronna L. Beck and Hon. Robert I. Richter, Trial Judges)

(Submitted February 12, 2016                              Decided April 28, 2016)

      Ron Earnest for appellant.

      Vincent H. Cohen Jr., Acting United States Attorney at the time the brief
was filed, with whom Elizabeth Trosman, Michael P. Spence, Christine Macey,
and Daniel J. Lenerz, Assistant United States Attorneys, were on the brief, for
appellee.

     Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and
STEADMAN, Senior Judge.


      GLICKMAN, Associate Judge: The deliberating jury at appellant’s trial sent a

note asking whether it could consider the absence of alibi evidence in evaluating

the government’s proof of appellant’s presence at the scene of the crime. Over
                                          2

appellant’s objection, the judge responded in the affirmative. We hold that the

judge did not abuse his discretion in so doing.



                                          I.



      On August 2, 2013, two young men confronted Matthew Stone near the

intersection of 14th and Belmont Streets and robbed him of his motor scooter at

gunpoint. The following day, police officers arrested appellant and a juvenile,

B.M., after observing the two of them riding the scooter. Three days later, Stone

viewed two photo arrays, each depicting one actual suspect and eight fillers. From

one array, he selected B.M.’s photograph as depicting one of the robbers. From

the other array, Stone eliminated seven of the fillers, leaving appellant and the

remaining filler as potential suspects.



      Appellant was charged by indictment with armed carjacking and related

offenses. At his trial, Stone described his robbers and identified appellant, noting

among other things that appellant had red highlights in his hair at the time. Stone

explained that although he was able to eliminate only seven out of the eight other

persons shown in appellant’s photo array, he could identify appellant as one of the

men who had taken his scooter upon seeing him in the courtroom.
                                          3

      The prosecution presented evidence corroborating Stone’s identifications.

The arresting officer testified about appellant’s furtive behavior during the stop and

B.M.’s possession of a loaded firearm.         A police investigator testified that

appellant’s hair did have a “reddish color” at the time of his arrest. An officer who

assisted with the arrests testified that appellant falsely told her he received the

motor scooter as a gift from his grandfather. Video surveillance evidence showed

that appellant and B.M. were in the vicinity of 14th and Belmont Streets around the

time of the robbery. Appellant sent text messages after the robbery saying he was

on a “scooter” or “moped.”        Finally, the prosecution introduced surveillance

evidence to prove that the filler Stone did not eliminate from the array containing

appellant’s photo could not have committed the robbery because he was miles

away at the time.



      Appellant presented a misidentification defense. He did not testify himself

or present alibi evidence, but he called several witnesses who testified that he did

not have red highlights in his hair.



      The jurors began deliberating at noon on a Thursday. After having Friday

off, they resumed deliberations on Monday.          That day they sent two notes
                                         4

indicating they were deadlocked. After the second note, Judge Beck delivered an

anti-deadlock instruction before dismissing the jury for the evening.



      The issue in this appeal developed on Tuesday. That morning, the jury sent

a note to the court containing the following inquiry: “We understand that we

cannot draw any conclusions from the fact that the defendant did not testify and we

are following that rule, but can we draw inferences from the lack of any provided

alibi?” Judge Richter, standing in for Judge Beck, responded to this inquiry just

before the lunch break. With the agreement of the parties, he told the jury, “I’m

not going to give you a simple yes or no answer. . . . You must decide the case

based on the evidence presented at trial. The government has the burden of

proving the defendant committed each of the offenses charged.”



      The jurors then went to lunch. Immediately after returning, they sent a

second note. It read: “We need clarification. In weighing the credibility and

accuracy of any testimony or other evidence that tends to place the defendant at the

scene of the crime on August 2nd, 2013, may we consider that there’s no

contradictory testimony such as an alibi?” Over appellant’s objections,1 Judge


      1
        Appellant proposed that the judge respond to this inquiry simply by re-
reading the standard instructions (already given by Judge Beck) that inform the
                                                                  (continued…)
                                           5

Richter replied to this inquiry as follows: “The answer to the question is yes, but

the defense has no burden to present any evidence. The government must prove

every element of an offense beyond a reasonable doubt, and you must decide the

case based only on the evidence presented at the trial.”



      After receiving this response, the jury resumed its deliberations. It returned

its verdict the following afternoon, finding appellant guilty of armed carjacking

and unauthorized use of a motor vehicle.



                                         II.



      Appellant claims that Judge Richter erred in answering the jury’s request for

clarification on Tuesday afternoon with a “yes” – i.e., telling the jurors that in

weighing the credibility and accuracy of the evidence placing appellant at the


(continued…)
jury of its duty to consider only the evidence admitted at trial and the government’s
burden of proof, without going further. Judge Richter concluded that merely
reiterating these two instructions would not be responsive to the jury’s need for
clear guidance. See Alcindore v. United States, 818 A.2d 152, 155 (D.C. 2003)
(“When a jury sends a note which demonstrates that it is confused, the trial court
must not allow that confusion to persist; it must respond appropriately.”);
Murchison v. United States, 486 A.2d 77, 83 (D.C. 1984) (“The trial court is under
an obligation to respond to a jury’s confusion, particularly where the jury makes
explicit its difficulties.” (internal quotation marks and citations omitted)).
                                           6

crime scene, they could consider that there was no alibi or other contradictory

evidence. Appellant characterizes this response as “the functional equivalent of a

missing witness instruction” and argues that it improperly shifted the burden of

proof.



         We do not agree. The comparison to a missing witness instruction is not apt.

A “missing witness” instruction explicitly allows a jury under certain

circumstances to infer that an absent witness’s testimony would have been

unfavorable to the party who failed to call the witness.2           Judge Richter’s

supplemental instruction did not, even implicitly, authorize the jury to draw such

an adverse inference. It merely permitted the jury to consider, in evaluating the

strength of the government’s evidence, that it had not been rebutted by contrary

evidence.




         2
        See Harris v. United States, 602 A.2d 154, 160-61 (D.C. 1992) (en banc)
(explaining that such an adverse inference from a party’s failure to call a witness is
permissible only when it is demonstrated both that the witness was “peculiarly
available” to the party and that the witness’s testimony would “elucidate the
transaction”); Criminal Jury Instructions for the District of Columbia, No. 2.300
“Missing Witness or Other Evidence” (5th ed. Rev. 2015) (hereinafter referred to
as the “Criminal Jury Instructions”).
                                           7

      As this court has said, “merely considering whether the government’s

evidence has been contradicted does not, without more, shift the burden of proof to

the defendant.     It is the role of the fact-finder, in determining a witness’s

credibility, to consider whether other evidence corroborates or contradicts the

witness . . . . We have repeatedly held that it is permissible for a fact-finder . . . to

consider whether the defense contradicted the government’s evidence.”3 This is

why the government in closing argument is allowed to “highlight[] the fact that

there was no evidence from the defense contradicting the government’s evidence,”4

and why such argument is permissible even when the defendant has chosen not to

testify.5 Indeed, Judge Richter’s response to the jury’s inquiry echoed the pattern

jury instruction on evaluating witness credibility in general. That instruction tells

the jury that it “may consider whether the witness has been contradicted or

supported by other credible evidence.”6 Appellant voiced no objection when Judge

      3
          Gilliam v. United States, 46 A.3d 360, 365 (D.C. 2012).
      4
        Reed v. United States, 828 A.2d 159, 164 (D.C. 2003) (stating that such
argument “[does] not come close to suggesting that the defense had the burden of
proof”). See also, e.g., Harris, 602 A.2d at 165 (holding that a prosecutor’s
comments that police officers’ testimony was corroborated while defendant’s
testimony was not did not shift the burden of proof to the defense, but “merely
conveyed to the jury that when evaluating the credibility of a witness,
corroboration or a lack thereof of the testimony should be considered.”).
      5
         Boyd v. United States, 473 A.2d 828, 833 (D.C. 1984); Jackson v. United
States, 623 A.2d 571, 586 (D.C. 1993).
                                           8

Beck earlier gave this very instruction and does not argue on appeal that it was

erroneous.



      Thus, Judge Richter’s response was legally correct. We see no reason to be

concerned that the jurors misinterpreted it as authorizing them to shift the burden

of proof to appellant or to draw an inference against him from his failure to present

alibi or other evidence. The jury seems to have been sensitive to the impropriety

of doing either of those things, for it limited its request for “clarification” to asking

whether it could consider the absence of evidence “[i]n weighing the credibility

and accuracy of any testimony or other evidence that tends to place the defendant

at the scene of the crime.” It did not ask whether it could draw any inferences

from the absence of evidence, as it had asked in its previous note.             And in

response, Judge Richter, apparently appreciating that an affirmative answer

without more might not provide sufficient guidance, went on to remind the jury

that appellant had no burden to present any evidence, that the government had to

prove every element of an offense beyond a reasonable doubt, and that the jury had

to decide the case based only on the evidence presented at the trial.




(continued…)
      6
        Criminal Jury Instructions No. 2.200 “Credibility of Witnesses.”
                                         9

      Appellant argues that the judge also should have told the jury explicitly not

to infer anything from his failure to present evidence of an alibi. A specific,

properly worded admonition to that effect would not have been inappropriate. Had

appellant requested it, Judge Richter might well have incorporated it in his

response to the jury. But appellant did not ask the judge to provide such additional

guidance, and we do not perceive that its omission misled the jury. Therefore, we

cannot conclude that the judge abused his discretion by responding to the jury’s

inquiry as he did, let alone that he plainly erred by omitting language appellant did

not request.7



                                                          Affirmed.




      7
         How best to respond to a deliberating jury’s request for guidance is a
matter committed to the trial judge’s “sound discretion.” Murchison v. United
States, 486 A.2d 77, 83 (D.C. 1984). Hence, when an objection is preserved, our
review is for abuse of discretion. However, when the objection has been forfeited,
our review is limited to plain error. See, e.g., Hargrove v. United States, 55 A.3d
852, 857-58 (D.C. 2012).
