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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                     No. 13-CF-616

                      ELLSWORTH W. COLBERT, APPELLANT,

                                          V.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CF1-3958-12)
                     (Hon. Herbert B. Dixon, Jr., Trial Judge)
(Argued June 23, 2015                                  Decided October 22, 2015)

      Jenifer Wicks for appellant.
      Patricia A. Heffernan, Assistant United States Attorney, with whom Ronald
C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Chrisellen R. Kolb, and Edward O’Connell, Assistant United States
Attorneys, were on the brief, for appellee.
      Before THOMPSON and BECKWITH, Associate Judges, and NEWMAN, Senior
Judge.
      Opinion for the court by Associate Judge THOMPSON.

      Dissenting opinion by Associate Judge BECKWITH at page 22.
                                         2

      THOMPSON, Associate Judge: After a jury trial, appellant Ellsworth Colbert

was convicted of manslaughter while armed, assault with a dangerous weapon

(knife) (“ADW”), and carrying a dangerous weapon (knife) (“CDW”). 1 On appeal,

he argues that he did not receive a fair trial because the government was not

required to disclose a police file, obtained mid-trial, pertaining to the decedent‟s

out-of-state conviction for assault. Appellant also assigns as error an instruction

the trial court gave in response to a question from the jury. For the following

reasons, we affirm.



                                        I.



      The jury heard the following evidence: On the morning of March 4, 2012,

the decedent, Robert Wright, was walking his friend‟s dog. He was accompanied

by another friend, Anthony Davis. Davis testified as follows. As he and Wright

were passing appellant‟s home, the dog, still on its leash, walked into appellant‟s

front yard. In response, appellant came out of his house, walked up to the other

two men in an “aggressive” manner, and asked, “[D]id your dog sh*t in my

yard[?]” Appellant was holding a walking stick at the time. Pulling out a knife,

      1
         The jury found appellant not guilty of first-degree premeditated murder
while armed, second-degree murder while armed, assault with intent to kill while
armed (AWIKWA), and assault with a dangerous weapon (walking stick).
                                           3

appellant then said, “[I]s this your dog? I‟m going to kill this motherf*cker.”

Davis described the blade as serrated and about two inches long.



      At this point, Wright told appellant that the dog belonged to a nearby

neighbor, Sean Hurd. According to Davis, appellant then walked ahead to Hurd‟s

home, “bang[ed]” on the door, and confronted Hurd on his front porch. Davis and

Wright trailed behind. From across the street, Davis heard appellant tell Hurd,

“[D]on‟t have your dog sh*tting in my yard.”



      A car was parked in Hurd‟s driveway. Wright began walking along the right

side of the driveway, as if to take the dog around the side of the house to the

backyard, while appellant and Hurd were still having an “animated talk” on the

other side of the car, near the front door. When Wright reached the top of the

stairway that led down the side of the house to Hurd‟s backyard, he told appellant

“[s]omething along the lines of . . . „the dog didn‟t shit in your yard, you dumb

*ss.‟” Appellant turned and approached Wright. Wright “possibly” made another

comment that Davis did not hear, and then, “all of a sudden[,]” appellant began

“throwing punches in the back of” Wright‟s head. Davis did not see a knife in

appellant‟s hand at that point, but appellant was still carrying his walking stick.
                                         4

      Wright eventually retreated down the steps around the house, and appellant

began to walk away, back down the driveway. A few seconds later, Wright came

back up the steps, carrying a shovel. At this point, appellant, who by now was in

the middle of the street, said, “I‟m going to get my son to kick your *ss, Rob

[Wright].” Wright, with shovel in hand, walked past Davis, who was standing in

the driveway, and Davis noticed a “gash mark” on Wright‟s neck, which had not

been there earlier in the morning. Wright continued into the street, where appellant

had turned around to face him.



      Wright, holding the shovel with his hands apart, first used it in a “defensive

manner” while appellant, who was still holding his walking stick (and, Davis

presumed, his knife as well, as Davis had never seen him put it away), was

“swinging” his arms. Then Wright began using the shovel in a “jousting” motion

and hit appellant about the head and shoulders, leaving a “red blood spot on

[appellant‟s] head on the right side.” During this same interval, appellant hit

Wright “on his head, his shoulder, [and] around the upper torso area” with his

walking stick.



      As appellant and Wright were “grappling” with each other, they moved out

of Davis‟s view, behind a large bush planted in the front yard. They remained
                                         5

behind the bush for “about two minutes,” in Davis‟s estimation, and then Wright

alone, without the shovel, came back into view and stumbled to the ground.

Appellant said, “[C]ome on, man, come on[,]” and Wright got back up, only to

“hiccup” and “f[a]ll face flat on the ground” without breaking his fall. Appellant

walked back to his house.



        Hurd, who had watched the fight from beside his front porch, corroborated

key aspects of Davis‟s testimony. He said that he was already on his front porch

when he saw Wright and Davis approaching, with appellant a few feet behind

them. Appellant was carrying a walking stick and a “little switchblade knife.” He

looked “angry” and “upset.”      Upon approaching within a few feet of Hurd,

appellant said, “[D]on‟t let this motherf*cker walk your dog. He [is] irresponsible.

This dog [has] been sh*tting in my yard. . . . I was about to stab this dog and this

mother*cker right here[.]” Wright and appellant exchanged words, which included

Wright saying, “[Y]ou and your son don‟t even keep up with each [other.]” This

comment seemed to “upset” appellant, and he “swung [his] knife at” Wright‟s

neck.



        Hurd saw Wright drop the dog‟s leash and go around the side of the house.

Appellant began to walk away, as if back to his house, while repeatedly saying,
                                         6

“I‟m going to get my son to f*ck you up, Rob.” Wright then re-appeared with a

shovel, walked after appellant, and the two “squared off” in the middle of the

street. Although by this point Hurd could not see a knife in appellant‟s hand, he

also had not seen appellant put away the knife he was holding earlier.



      Wright and appellant swung at each other simultaneously, Wright with the

shovel, appellant with his walking stick. Appellant then “rushed” Wright, causing

Wright to drop the shovel, and “they both fell on the ground” and behind a bush,

out of Hurd‟s sight. From what Hurd heard, the two continued to “tussle” for “a

few seconds[.]” Then, Hurd saw appellant emerge from behind the bush and start

walking back down the street to his house. As he did so, appellant repeatedly said,

“I told you not to f*ck with me.” Wright, meanwhile, had begun to walk back to

Hurd‟s driveway with a “blank look on his face.” He said, “[A]re you going to

stab [me], though?” Then he fell.



      Testimony from medical experts revealed that Wright had been stabbed

eight times. He had a one-and-three-quarter-inch wound in the left side of his

neck, a four-inch-deep stab wound in his right chest (which pierced the aorta and

the pericardial sack encompassing the heart), a one-and-a-half-inch-deep stab

wound in his left abdomen, a one-and-three-quarters-inch-deep stab wound in his
                                          7

left back (which fractured the ninth thoracic vertebra), and four cutting wounds on

his left wrist and hand. Although Hurd called 911 immediately after Wright‟s fall,

efforts to revive Wright failed. According to expert testimony, the “wound to the

chest [wa]s directly fatal[.]”



                                         II.



      Appellant argues that the government violated its disclosure obligations

under Brady v. Maryland, 373 U.S. 83 (1963), when it failed to turn over a police

investigative file, which prosecutors obtained mid-trial, pertaining to the

decedent‟s out-of-state conviction for assault with a deadly weapon. Appellant

does not, however, specifically complain of trial court error in this regard, no doubt

because he never asked the trial court to order the disclosure or to sanction the

government.



      The pertinent background is as follows: On December 21, 2012, as part of a

discovery supplement, prosecutors forwarded to defense counsel a National Crime

Information Center (NCIC) report indicating that an individual by the name of

Robert Wright had been convicted of assault with a deadly weapon in North

Carolina in 1998. The government noted that it was “not certain . . . that the
                                         8

charges on the report . . . pertain to the instant decedent.” On January 7, 2013, the

day before jury selection began, defense counsel notified the trial court that his

investigator, who had proven to be unreliable, had failed to follow up on the NCIC

report to determine whether the Robert Wright mentioned therein was the decedent

in this case. Through a Google search and by talking with people in the decedent‟s

neighborhood, defense counsel had managed to verify that people had heard that

the decedent had been convicted of assault in North Carolina and that he was living

in North Carolina in 1998. Although defense counsel never specifically requested

help in verifying that the decedent had committed the North Carolina crime in

question, the trial court responded to defense counsel‟s account by “directing” the

prosecutors “to devote whatever resources you can within reason to either

confirming or refuting the existence of that conviction as it relates to the

decedent[.]”



      On January 10, 2013, the second day of trial, the prosecutor advised the

court that the government not only had confirmed the “information contained in

the NCIC report” with one of the decedent‟s family members, but also, on an

understanding that the court had “asked the Government to go beyond that and

actually obtain the police file, if possible, from the North Carolina authorities[,]”

had obtained the police file. The trial court replied, “I don‟t know that I asked for
                                          9

all that but . . . some documentation of a conviction. Not necessarily a police file.”

Conceding that he must have misunderstood, the prosecutor indicated that he

hesitated to “provide detailed police . . . investigatory files” to defense counsel,

because the government would thereby “fe[e]d” to appellant information about the

decedent which he may not otherwise have had, enabling him to use the

information in his testimony should he take the witness stand.             The court

responded that if the prosecutor had something he thought the court had ordered

the government to turn over, he should bring it to the court for ex parte review.

When the prosecutor asked whether he should “do that right now,” the court

deferred its review, observing that “[a]pparently you have a lot of information

there” and saying that it did not want to delay having jurors come in. Defense

counsel expressed his understanding that the court would “deal with” the report

from North Carolina and told the court that he did not have “anything [else] to

raise” on the subject.



      After reviewing the North Carolina file in camera and determining that it did

not contain public documents but was, rather, “the investigative file either from the

prosecutor‟s office or the Police Department” and also that defense counsel already

had a print-out from the North Carolina court system that listed the conviction and

its date, the court had the following exchange with defense counsel:
                                         10


             Court: What do you need more than this [the conviction
             and its date] if the Government is willing to stipulate [to
             the conviction being the decedent‟s]?

             Defense counsel: If the Government stipulates to that,
             the only other thing I would like to know is what weapon
             was used.


Defense counsel also assented when, a few moments later, the court summarized

his position as, “want[ing] to . . . just stipulate what the offense was and what the

weapon was and that‟s it.” At no point did defense counsel demand access to the

North Carolina file or indicate (as appellant now argues) that he needed more time

to investigate facts about the decedent‟s crime or needed access to the North

Carolina police file in order to identify and perhaps call witnesses who had seen

the North Carolina assault.



      The parties eventually agreed on a stipulation, which defense counsel read

the jury:


             On January 5th, 1998, Robert Leroy Wright[,] the
             decedent[,] was convicted of assault with a deadly
             weapon [in]flicting serious injury in Greensboro, North
             Carolina, and was sentenced to a term of incarceration of
             three years and two months. Mr. Wright used a gun in
             the commission of this crime and[.]
                                           11

The trial court interrupted counsel at that point, but said that a written copy of the

stipulation would be given to the jury and asked whether there was any more

evidence. Defense counsel said, “That‟s all, Your Honor.” The court did not rule,

and appellant did not ask the court to rule, on whether the government needed to

disclose the North Carolina police file.



      Appellant now argues, for the first time, that the entirety of the North

Carolina police file should have been turned over to the defense because it was

“clearly . . . in the government‟s possession” and the “outcome of [appellant‟s]

trial would have been different had the defense been able to present at trial live

testimony of the incident in North Carolina,” rather than merely providing the

description of the crime contained in the stipulation. Appellant relies on Brady v.

Maryland, 373 U.S. at 87.



      The government violates its obligations under Brady when it has suppressed,

either willfully or inadvertently, information that is favorable to the accused, either

because it is exculpatory or because it is impeaching, and prejudice has ensued,

because the suppressed information is “material.” Strickler v. Greene, 527 U.S.

263, 281-82 (1999).       Information is material when “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the
                                         12

proceeding would have been different.” United States v. Bagley, 473 U.S. 667,

682 (1985).     “Reasonable probability” means “a probability sufficient to

undermine confidence in the outcome” of the trial. Ebron v. United States, 838

A.2d 1140, 1155 (D.C. 2003) (quoting Farley v. United States, 694 A.2d 887, 889

(D.C. 1997)).



      Assuming, without deciding, that appellant did not waive his Brady claim

when his counsel told the trial court that he sought nothing more than a stipulation

regarding Wright‟s North Carolina conviction, we review appellant‟s unpreserved

claim only for plain error. See Paige v. United States, 25 A.3d 74, 92 n.17 (D.C.

2011) (citing United States v. Olano, 507 U.S. 725, 734-36 (1993)).2



      There is no dispute that information about the decedent‟s prior conviction

was favorable to appellant because he was making a claim of self-defense. See

Johnson v. United States, 452 A.2d 959, 961 (D.C. 1982) (“[I]n this jurisdiction an

accused claiming self-defense in a homicide prosecution may attempt to show that


      2
           To establish plain error, appellant must show that (1) “there was an
error”; (2) “the error was clear or obvious”; (3) the error “affected [appellant‟s]
substantial rights”; and (4) “the error seriously affected the fairness, integrity or
public reputation of the judicial proceeding.” Comford v. United States, 947 A.2d
1181, 1189-90 (D.C. 2008) (internal citations and quotation marks omitted).
                                          13

the decedent was the aggressor by showing that the dead person was a bellicose

and violent individual[.]”). It is also clear that the police file, by mid-trial, was in

the government‟s possession, albeit only after the government, misunderstanding

the trial court‟s directive, made efforts to obtain information not previously in its

possession.3



      Appellant‟s Brady claim fails, however, because he has not demonstrated

that the contents of the police file were material to the case, i.e., that “there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Bagley, 473 U.S. at 682. The

jury heard extensive evidence about the decedent‟s propensity for violence. Davis

testified that he had seen the decedent fight two different people on earlier

occasions.     Two other witnesses testified about the decedent‟s fight with

appellant‟s son around 1993, when the decedent also engaged in threatening

behavior with a knife while standing outside the Colbert family home. Finally,

evidence of the North Carolina conviction, far from being suppressed, was

      3
         It is “axiomatic that [i]f the government does not possess the requested
information, there can be no Brady violation.” Reyes v. United States, 933 A.2d
785, 794 (D.C. 2007) (internal quotation marks omitted). Nor does Brady imply a
government “duty to investigate — and come to know — information which the
defendant would like to have but the government does not possess.” Guest v.
United States, 867 A.2d 208, 212 (D.C. 2005) (quoting Lewis v. United States, 393
A.2d 109, 115 (D.C. 1978)).
                                         14

admitted via stipulation.   In total, the evidence about these several incidents

enabled defense counsel to argue extensively in closing that the decedent had a

violent disposition.



      Appellant directs us to Sykes v. United States, 897 A.2d 769 (D.C. 2006), as

support for his argument that, had he obtained the police file, he would have been

able to put on live witnesses describing the North Carolina assault, a strategy that

he argues would have engendered a reasonable probability of altering the trial‟s

outcome.    Appellant‟s reliance on Sykes is misplaced.         In Sykes, the key

government witness was an informant who claimed to have heard Sykes admit to

committing felony murder. 897 A.2d at 770-71. However, two other witnesses

contradicted the informant during their grand jury testimony, and the testimony of

these two witnesses was not disclosed to the defense until two days before trial,

making it impossible for the two witnesses to be located. Id. at 772-76. The

defense had to rely on excerpts of their grand jury testimony. Id. at 776. In

analyzing Sykes‟s Brady claim, we reasoned that “there is a reasonable probability

that the live testimony of either [witness], or both,” likely procurable upon earlier

disclosure of the witnesses‟ grand jury testimony, “would have altered the

result[.]” Id. at 779. We concluded that Sykes‟s inability to have these witnesses

subjected to direct and cross-examination, so that the jury could view their
                                          15

demeanor, or to have these witnesses present a fuller picture of their version of

events than that provided in the grand jury transcript, limited the jury‟s ability to

determine whether it should believe these witnesses over the government

informant. Id. at 780-81. In other words, the jury‟s ability to judge the credibility

of the two witnesses was crucial.



      Unlike in Sykes, where the jury had the duty to decide which version of

events was correct based on a credibility determination, here there is no dispute

that Wright‟s North Carolina conviction occurred. Even if we assume both that the

defense could have procured the presence of witnesses to the North Carolina

assault that occurred fourteen years earlier and that the trial court would have

allowed those witnesses to testify,4 we are unpersuaded that the jury‟s hearing in-

person testimony about the assault would have appreciatively aided jurors in

determining what weight it should give to the decedent‟s history of violence when

analyzing appellant‟s self-defense claim, or would otherwise have been outcome

      4
          “[A] trial judge is not obliged to accept all evidence in whatever form it is
offered for presentation to a jury.” Johnson, 452 A.2d at 961. We certainly cannot
say that the trial court would have erroneously exercised its discretion had it
declined to permit witnesses to the North Carolina assault to testify about that
incident. Cf. Winfield v. United States, 676 A.2d 1, 5 (D.C. 1996) (“[T]he trial
judge will have discretion to exclude marginally relevant evidence creating the
danger that proof of prior dealings or hostility between the victim and third persons
will distract the jury from the issue in this case.”).
                                         16

determinative. We therefore can find no obvious error in the trial court‟s failure

sua sponte to require the disclosure of the North Carolina police file.



      We also note that the jury likely accepted that appellant acted to defend

himself against Wright because, despite the evidence of Wright‟s several, deep stab

wounds to the chest, abdomen, and back, the jury acquitted appellant of charges —

first-degree murder, AWIKWA, and second-degree murder — whose elements

require either intent to kill or absence of mitigating circumstances (such as an act

of violence by the victim).5 It seems likely that the jurors found appellant guilty of

manslaughter on a theory that he unreasonably used more force against Wright

than was necessary.6     Appellant has not shown how more information about

Wright‟s North Carolina conviction for assault with a gun would, to a reasonable

probability, have affected the jury‟s deliberations about whether appellant used

excessive force in inflicting the fatal knife wounds after (according to the

evidence) Wright dropped his shovel. And even if, as our dissenting colleague

      5
           Moreover, in one of its notes, the jury asked, “In considering self-
defense[,] once it becomes an act of self defense[,] does excessive force to protect
yourself outweigh the act of self defense[?]”
      6
           The jury was instructed that “[e]ven if the other person is the aggressor
and the defendant is justified in using force in self-defense, he may not use any
greater force than he actually and reasonably believes to be necessary under the
circumstances to prevent the harm he reasonably believes is intended or to save his
life or avoid serious bodily harm.”
                                          17

suggests, the jury‟s deliberations did not play out in the way we think likely,

appellant has not “show[n] a reasonable probability” that, as the third prong of the

plain-error test requires, the trial court‟s failure sua sponte to order the government

to produce the contents of the North Carolina file “had a prejudicial effect on the

outcome of his trial.” Kidd v. United States, 940 A.2d 118, 127 (D.C. 2007)

(internal quotation marks omitted).



                                         III.



      During deliberations, the jury asked the following question:


             For [the charges of first degree murder, second degree
             murder, and manslaughter], must all elements be true at
             the same point in time? OR Could all elements be true at
             some point in time, though not necessarily at the same
             point in time? (Emphasis in original.)


The trial court‟s response essentially consisted of telling the jury to re-read the

elements of each offense, paying special attention to those terms that refer to

timing requirements:


             It is difficult to give you a response to your question that
             would cover every possibility of what you are
             considering. With respect to the timing of events, you
             should apply your everyday understanding of the words
             that define the elements of the offenses. For instance, in
                                         18

             the elements of first degree murder, the use of the word
             “after” should clearly indicate that certain elements and
             events may occur at different times. If you have further
             questions on this or any other issue, I will respond as
             quickly as possible.


Defense counsel‟s sole objection at the time the trial court proposed this instruction

was that, in the interest of “balanc[e,]” he “want[ed] without being specific to

indicate that a plain reading of the elements would also indicate some of the

elements need to be present at the same time.” The court declined to make this

addition.



      Appellant now argues that the trial court should have specifically instructed

the jury that, with regards to manslaughter, “all elements must be true at the same

point in time.”    He contends that “timing was of the utmost importance in

determining [his] right to self-defense” because there were two separate incidents,

“pre and post shovel,” so that failure to instruct the jury specifically about the

timing aspects “left the jury with an erroneous instruction of law[.]”



      Appellant did not make this argument to the trial court, and it seems fair to

say that he waived it. His counsel told the trial court that he wanted the court,

“without being specific” and “without specifying the elements[,]” to note that some

elements of first-degree murder, second-degree murder, and manslaughter must be
                                         19

present simultaneously. His request for the court to make that response to the jury

note is quite different from the manslaughter-specific instruction he now contends

the court should have given.



      But even if appellant did not waive this argument, his claim lacks merit; the

trial court did not plainly err in failing to give appellant‟s desired instruction sua

sponte. In reviewing the claim, we recognize that the “decision on what further

instructions, if any, to give in response to a jury question lies within the sound

discretion of the trial court.” Yelverton v. United States, 904 A.2d 383, 387 (D.C.

2006) (quoting Bouknight v. United States, 641 A.2d 857, 860 (D.C. 1994)).

Nevertheless, “[w]here a jury has demonstrated confusion, . . . the trial judge may

not allow that confusion to continue, but must make an appropriate and effective

response.” Whitaker v. United States, 617 A.2d 499, 501 (D.C. 1992). And, when

the jury has made known its “specific difficulties” understanding the law, “the trial

court should clear them away with concrete accuracy.” Alcindore v. United States,

818 A.2d 152, 155 (D.C. 2003) (internal quotation marks omitted).



      Here, the jury‟s note did not, in any way, indicate which elements of which

offense were the focus of the jury‟s question. As there were many possibilities, the

trial court told the jury to re-read its instructions, paying special attention to the
                                         20

timing requirements already included therein. This is an approach that we have

acknowledged “may be appropriate in some circumstances.” Euceda v. United

States, 66 A.3d 994, 1008 (D.C. 2013). It was not plainly inappropriate here,

because there was no indication in the jury note that the jury was misinterpreting

the court‟s instructions or was misconstruing the elements of a crime. Cf. Gray v.

United States, 79 A.3d 326, 337-38 (D.C. 2013) (holding that the trial court should

have instructed the jury further about the crime of aiding and abetting because their

question indicated that they were considering whether the defendant could be

guilty based on conduct that could not legally constitute aiding and abetting);

Alcindore, 818 A.2d at 155-58 (holding that further instruction was warranted

when jury note indicated that the jury had reached a verdict that was inconsistent

with the law). Moreover, the court‟s response to the jury note invited jurors to

follow up with any further questions. The jury sent another note four hours later

on the topic of self-defense (contrary to appellant‟s argument, the jury did not

convict him of manslaughter “quickly” after receiving the court‟s response),

demonstrating that it was quite capable of sending another question if it still

needed assistance.



      We also cannot discern how appellant‟s substantial rights were adversely

affected by the trial court‟s failure to provide the instruction he now argues should
                                         21

have been given. The court instructed the jury that the elements of manslaughter

while armed are:


            One, that the defendant caused the death of the
            decedent[.]

            Two, that at the time he did so he intended to kill or
            seriously injure the decedent or acted in conscious
            disregard of an extreme risk of death or serious bodily
            injury to the decedent.

            Three, that he, the defendant, did not act in self-defense.

            And four, at the time of the offense the defendant was
            armed with a knife. (Emphasis added.)


Armed with the trial court‟s jury-note response directing jurors to read the

elements carefully, and paying particular attention to the timing language already

included (and italicized above), jurors undertaking a common-sense re-reading of

the instructions on manslaughter would likely have understood that elements one,

two, and four must occur simultaneously. Any erroneous belief by the jury that the

defendant did not need to be acting in self-defense throughout the incident would

only have worked in appellant‟s favor.



      For the foregoing reasons, the decision of the trial court is



                                       Affirmed.
                                        22




      BECKWITH, Associate Judge, dissenting:       The court holds that Ellsworth

Colbert‟s claim under Brady v. Maryland, 373 U.S. 83 (1963), fails because he has

not demonstrated that the contents of the North Carolina file were material to his

murder trial. Ante at 14. That materiality determination, for me, is genuinely

hampered by the fact that the trial court did not review the evidence as potential

Brady material and that we do not know what that evidence is.


      It is possible, as my colleagues state, that the admission of more details

about the North Carolina offense would not have changed anything because the

jurors, having already accepted that Mr. Colbert acted in self-defense, nevertheless

convicted him of manslaughter because they believed he used excessive force. But

that is not the only explanation for the jury‟s manslaughter conviction. Our cases

recognize, for example, that jurors sometimes compromise. See, e.g., Garcia v.

United States, 848 A.2d 600, 602 (D.C. 2004); Haynesworth v. United States, 473

A.2d 366, 368 (D.C. 1984) (referring to “the often necessary process of

compromise among jurors in their differing assessments of evidence”); cf.

Standefer v. United States, 447 U.S. 10, 22 (1980) (stating that juries in criminal

cases are permitted “to acquit out of compassion or compromise”). The jury in this

case was also given a provocation instruction, and could have determined that Mr.
                                         23

Colbert was guilty of manslaughter under a theory that he had acted in the heat of

passion caused by adequate provocation.


      However the jury‟s deliberations played out—and even under the excessive-

force scenario assumed by my colleagues—it is hard to say that testimony about

the details of the North Carolina offense could have had no impact on the verdict,

particularly given the glaring evidentiary void at the moment in which Mr. Colbert

inflicted the fatal stab wounds.1 Those details could have brought to life an offense

in which the decedent used a gun to inflict serious injury upon a victim. Perhaps

the file would have shown that the decedent‟s conviction stemmed from a plea to a

lesser offense, and that the decedent had actually committed a more serious crime

than that to which he pled, such as assault with intent to kill. A juror who had

heard only the unadorned stipulation and testimony that the decedent had

“possibly” been in some fights might have been left with the sense that the

decedent, though hot-tempered, was more prone to use less than deadly force in his

neighborhood conflicts, and therefore that Mr. Colbert had not acted in self-

defense when the decedent attacked him with the shovel. Detailed testimony about


      1
          According to the government‟s two eyewitnesses, the decedent pursued a
retreating Ellsworth Colbert and struck him in the head with a shovel, the men
grappled with each other and began to fight, and then after the fight the decedent
took several steps and fell face first to the ground. During the heart of the fracas,
however, the witnesses‟ view was obscured by a bush.
                                         24

the North Carolina assault could have convinced that same juror that the decedent

was quite capable of using deadly force, lending strength to Mr. Colbert‟s self-

defense claim. If that evidence would convince at least one juror to conclude that

the government had failed to disprove self-defense beyond a reasonable doubt—by

no means a farfetched scenario—the Brady evidence was material.


      The government has the file.        No one disputes that its contents are

exculpatory. See ante at 13. Under the circumstances, it was the government‟s

obligation to disclose the evidence to Mr. Colbert.2 To be sure, defense counsel


      2
          Although Mr. Colbert made a Brady request prior to trial, this obligation
exists with or without a request by the defendant. Strickler v. Greene, 527 U.S.
263, 280 (1999) (citing United States v. Agurs, 427 U.S. 97, 107 (1976)). The
North Carolina file came into the government‟s possession while the defense still
could have used it at trial, and it is hard to imagine that the government would have
concluded at that time that the evidence was not at least arguably material. See
Cone v. Bell, 556 U.S. 449, 470 n.15 (2009) (noting that “the prudent prosecutor”
will “resolv[e] doubtful questions in favor of disclosure”); Miller v. United States,
14 A.3d 1094, 1109 (D.C. 2011) (stating that “there is a duty of disclosure even
when the items disclosed subsequently prove not to be material”). The concerns
the government expressed about “having to represent Mr. Colbert” and “assist his
case” or “assist him in his testimony on the stand” by providing him with “detailed
. . . investigatory files” that “he may not otherwise have had at his disposal”
convey precisely why the government should have turned over the file rather than
sought to avoid doing so on the grounds that the evidence might tempt Mr. Colbert
to commit perjury on the stand. See Vaughn v. United States, 93 A.3d 1237, 1253
(D.C. 2014) (stating that prosecutors “have an obligation under Brady to assist the
defense in making its case”). And in any event such concerns, even if they
materialized, do not justify suppression of Brady evidence, but should be dealt
with through cross-examination. See, e.g., Benn v. United States, 801 A.2d 132
143 (D.C. 2002) (noting that a violation of the rule on witnesses may be remedied
                                                                       (continued…)
                                         25

should have done more to focus the discussion on Brady and get the trial court to

review the file as Brady evidence and order its disclosure.3 But counsel‟s failure in

that regard did not relieve the government of its independent and constitutionally

mandated obligation to disclose exculpatory information. Nor can Mr. Colbert

have waived his right to challenge the government‟s failure to disclose a file when

he did not know what the government knew—and what the government was so

disinclined to “fe[e]d” him—about the file‟s contents. See Brooks v. United States,

39 A.3d 873, 880 (D.C. 2012) (discussing the strong presumption against waiver of

a constitutional right and the government‟s burden of showing “an intentional

relinquishment or abandonment of a known right or privilege” (citation omitted));

Welch v. United States, 466 A.2d 829, 840 (D.C. 1983) (requiring a “knowing,

intelligent act done with sufficient awareness of the relevant circumstances and

likely consequences” (quoting Brady v. United States, 397 U.S. 742, 748 (1970))).


      In the end, the extent to which additional details about the North Carolina

(…continued)
by allowing opposing counsel to cross-examine the witness on the nature of the
violation, rather than by excluding that witness‟s testimony).
      3
             “In arguable cases, the prosecutor should provide the potentially
exculpatory information to the defense or, at the very least, make it available to the
trial court for in camera inspection.” Boyd v. United States, 908 A.2d 39, 61 (D.C.
2006). Here, the government presented the file to the court, and there was talk of
an ex parte review of the file, but the trial court never made a Brady ruling or
assessed the contents of the file for Brady materiality.
                                        26

offense might have affected the verdict here necessarily depends on the details

themselves.    Without knowing what that evidence is, we cannot say with

confidence that it would not have meaningfully enhanced the evidence of the

decedent‟s propensity for violence.    Consistent with our precedent, this court

should remand to the trial court with instructions that it place the North Carolina

file in the record and assess the file‟s materiality under Brady. See, e.g., Boyd v.

United States, 908 A.2d 39, 63 (D.C. 2006); Smith v. United States, 665 A.2d 962,

968-69 (D.C. 1995) (holding that the trial court abused its discretion by not

reviewing a transcript of a witness‟s prior testimony for potential Brady material

after the prosecutor acknowledged that it contained “minor inconsistencies”). This

would allow us to conduct a de novo review of the trial court‟s appraisal of the

Brady information with the benefit of the actual evidence.
