                               District of Columbia
                                Court of Appeals

No. 14-CF-1326
                                                                     AUG – 4 2016
DAVID A. SHEPHERD,
                                         Appellant,

      v.                                               CF1-9602-12


UNITED STATES,
                                         Appellee.


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

      BEFORE: FISHER and THOMPSON, Associate Judges; and PRYOR, 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 matter on appeal is affirmed.
.

                                         For the Court:




Dated: August 4, 2016.

Opinion by Associate Judge John R. Fisher.
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-1326                        8/4/16

                         DAVID A. SHEPHERD, APPELLANT,

                                         V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CF1-9602-12)

                       (Hon. Russell F. Canan, Trial Judge)

(Argued April 13, 2016                                     Decided August 4, 2016)

      Joshua Deahl, Public Defender Service, with whom James Klein and
Jonathan Anderson, Public Defender Service, were on the brief, for appellant.

       Anne Y. Park, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, and Elizabeth Trosman and Suzanne Grealy Curt,
Assistant United States Attorneys, were on the brief, for appellee.

      Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.

      FISHER, Associate Judge: Appellant David Shepherd appeals his convictions

related to the shooting death of Henry Miller. He contends that the trial court erred

by excluding details of Miller‘s past assault on an ex-girlfriend. Appellant also

argues that the trial court erred by leaving the record uncorrected after the
                                          2

government mischaracterized the evidence in rebuttal argument. We hold that the

trial court did not abuse its discretion with respect to the prior act of violence and,

although the prosecutor misstated certain evidence, the misstatements did not

substantially prejudice appellant. Accordingly, we affirm.



                                   I. Background



      On June 2, 2012, appellant David Shepherd agreed to help his coworker

James Ingram and Ingram‘s wife, Jayda Ingram, move.             James and appellant

worked together at Bowie Lawn Service, and, from 10 a.m. to 10 p.m., they used

two of the company‘s white work trucks to move the Ingrams‘ possessions.

During that time, appellant spoke to Jayda about some personal issues he was

having with his wife. After appellant and the Ingrams parted ways, James and

Jayda picked up James‘s first cousin, Henry Charles Miller (―Chuck‖ or ―Miller‖),

from his home in southeast D.C.         They drove to a liquor store where they

purchased some vodka and then drove to 1128 Chicago Street, S.E. – arriving

around 11 p.m. – after James received a call from one of his tenants there.



      When Jayda pulled up to 1128 Chicago Street, the white work truck that

appellant had been driving earlier in the day was parked out front. After helping
                                           3

the Ingrams, appellant had gone to the house to socialize with some of the tenants

with whom he was friends. During that time, appellant also called his wife, ―got a

little agitated,‖ said ―something like ‗I should kill her,‘‖ and then later said ―I keep

it with me.‖ The tenant who heard these statements did not remember how much

time separated ―I should kill her‖ from ―I keep it with me‖ and did not understand

what appellant meant.



      After James and Chuck got out of the truck, James went into the house and

Milton Dickerson (one of the tenants, who was ―like an uncle‖ to Jayda) came to

sit next to her in the passenger side of the truck. Jayda ―started to pull out drinks‖

and poured one each for herself, Chuck, and Milton. A couple of minutes later,

Chuck followed James into the house to look for cigarettes, and appellant joined

the ―social atmosphere near the truck.‖



      Appellant stood outside the truck by the passenger side door, and ―started to

elaborate [to Jayda] . . . about the [upsetting] situation . . . going on between him

and his [wife].‖     Shortly thereafter, Chuck returned, stood ―directly behind

[appellant], and said ‗excuse me‘‖ because, according to Jayda‘s testimony, ―the

cigarettes were on the dashboard inside of the truck.‖ This irritated appellant, who
                                        4

started yelling, ―[D]on‘t you see me fucking talking? You better get the fuck back.

You rude ass [racial epithet].‖



      Chuck abandoned his attempt to get the cigarettes and walked away, saying,

―Man, whatever.‖ This reaction seemed to aggravate Shepherd, who, ―[en]raged

and upset,‖ continued to yell at Chuck, saying things like, ―you don‘t know who

the fuck I am.‖ Eventually, Chuck started to get upset when he ―felt like his

manhood was being tested[,]‖ and he started ―saying things back‖ to appellant. At

some point during the heated argument, Jayda tried explaining to appellant that

Chuck was her cousin, but appellant said, ―I don‘t give a fuck who he is.‖ Both

Jayda and Milton got out of the truck and unsuccessfully attempted to calm the

situation.



      After James came down from the house to defuse the situation, appellant

agreed to leave. James went back to the house and Jayda, Milton, and Chuck

walked back to the truck. Appellant got in his truck, closed the door, and appeared

to be about to leave, but, after less than ―60 seconds,‖ he got out of the truck

saying, ―Jayda, fix me a drink. I‘m about to get a drink and then I‘m leaving.‖ At

this point, Jayda had her drink, had given Chuck his drink, and responded to

appellant, ―You need to calm down. We all family.‖ Appellant said, ―Yeah, you
                                          5

right. We all family.‖ But once appellant was within arm‘s reach, he said, ―But

family can get their fucking head blown off.‖ Then he ―pulled out a gun and shot

Chuck right in his mouth.‖



      Appellant then put the gun in his waistband, walked back to his truck, and

drove away, eventually leading the police on a prolonged high-speed chase which

ended when he crashed into a metal gate at Gallaudet University. The pursuing

officers took appellant into custody and found a revolver on the floorboard of the

driver‘s side of the truck. Once in the back of the officers‘ scout car, appellant

said, ―What the fuck you looking at? I‘m in trouble.‖



      In support of his claim of self-defense, appellant testified that, after their

exchange of words, Chuck ―attempted to pull a pistol‖ on him and that, during the

ensuing struggle for the gun, ―it went off.‖ Two eyewitnesses in addition to Jayda

testified to the contrary. Milton testified that he saw the gun in appellant‘s hand

when appellant ―raised his hand . . . [at] arm[‘]s distance‖ from Chuck. Milton saw

the ―flash of fire‖ when appellant shot Chuck in the face. David White, a retired

District of Columbia firefighter who lived across the street, testified that, from his

window, he ―saw the flash‖ from the gun after appellant ―walked up‖ to Chuck and

―fired in his face.‖
                                         6



      At trial, the government introduced the medical examiner‘s toxicology

report, which indicated that Chuck Miller‘s blood alcohol content was .19 at the

time of his death. Appellant called Emily Jeskie, an expert in the field of ―forensic

biology and DNA analysis.‖ Jeskie testified that testing the gun swabs showed

Chuck was a major contributor of DNA and that appellant was a possible

contributor, and testing the cartridge and cartridge casing swabs showed that

Chuck was a possible contributor of DNA but that appellant was excluded as a

contributor.



      On July 11, 2014, the jury found appellant guilty of first-degree murder

while armed and related gun charges, fleeing a law enforcement officer, and

destroying property.



                            II. Prior Acts of Violence



      ―[I]n this jurisdiction an accused claiming self-defense in a homicide

prosecution may attempt to show that the decedent was the aggressor by showing

that the dead person was a bellicose and violent individual.‖ (William) Johnson v.

United States, 452 A.2d 959, 961 (D.C. 1982). For this purpose, ―the accused may
                                         7

present [evidence of] prior acts of violence committed by the victim . . . even if

unknown to the accused.‖ (Markus) Johnson v. United States, 960 A.2d 281, 301

(D.C. 2008). ―This is an exception to the general rule, which precludes evidence

of any prior wrongs to prove that one acted in conformity with earlier conduct on a

later occasion . . . .‖ Harris v. United States, 618 A.2d 140, 144 (D.C. 1992).



      We recognize this exception because, when ―a controversy arises whether

the deceased was the aggressor, one‘s persuasion will be more or less affected by

the character of the deceased; it may throw much light on the probabilities of the

deceased‘s action,‖ Evans v. United States, 277 F.2d 354, 356 (D.C. Cir. 1960)

(quoting the 1940 edition of Wigmore), and may, in turn, ―buttress a claim of self-

defense.‖ 1A John Henry Wigmore, Evidence in Trials at Common Law § 63 at

1366 (Tillers rev. 1983). ―[T]he question is what the deceased probably did,‖

United States v. Burks, 470 F.2d 432, 435 n.4 (D.C. Cir. 1972) (citation omitted),

and, as Wigmore explained, while a particular instance of the victim‘s ―violent or

quarrelsome conduct‖ does not prove the victim committed an act of aggression, it

―does increase the probability of the [defendant‘s self-defense] story where there is

. . . other evidence suggestive of such an act [of aggression].‖ 1A Wigmore at

1366-67, 1382.
                                         8

      There are important countervailing considerations, however, and a defendant

does not have an absolute right to introduce such evidence. Even if proof of prior

acts of violence is arguably relevant and admissible, the trial court ―is entrusted

with broad discretion to determine the substance, form, and quantum of evidence

which is to be presented to a jury‖ and ―may exclude the proffered evidence if its

probative value is outweighed by the danger of undue prejudice.‖ Hawkins v.

United States, 461 A.2d 1025, 1033 (D.C. 1983) (citation omitted). This balancing

test may prove particularly difficult because, ―[o]f the three methods of proving

character[,] . . . evidence of specific instances of conduct is the most convincing.‖

Fed. R. Evid. 405, advisory committee note to 1972 proposed rules. ―At the same

time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise,

and to consume time.‖ Id.



      This court has evaluated the following factors when balancing the probative

value and prejudicial impact of first aggressor evidence: the form of proof

(accusations or convictions), whether presenting it would waste trial time or

confuse the issues, remoteness in time, the decedent‘s character in the interim, and

the ―type‖ of violence evidenced by the prior act. See, e.g., Evans v. United States,

277 F.2d 354, 356 (D.C. Cir. 1960) (evidence showing ―that the deceased was

aggressive when drunk‖ should have been admitted because it would be ―highly
                                         9

relevant in helping the jury to determine‖ the truthfulness of the defendant‘s

testimony that the deceased assaulted her, as he was drunk the night she stabbed

him); Hawkins, 461 A.2d at 1033 (trial judge did not abuse his discretion by

excluding first aggressor evidence that, among other things, was too remote in

time, was followed by decedent‘s ―apparently peaceable‖ behavior in the interim,

and occurred in dissimilar circumstances); (Markus) Johnson, 960 A.2d at 302

(holding the prior incident was ―too remote in time and different in type‖).



      In this case, appellant wished to present evidence related to three prior

events which resulted in criminal convictions of the decedent: (1) a 2010

misdemeanor assault involving domestic violence, (2) a 2010 unarmed purse

snatching which resulted in a conviction for attempted robbery, and (3) possession

of unregistered firearms in 2002. The court excluded the 2002 conviction, finding

that it was ―too remote‖ and did not ―show aggression.‖ However, when balancing

the ―legitimate needs for the defense to show that [the decedent] has [committed]

specific acts of violence,‖ the court permitted the ―fact of the [robbery] and

[domestic violence assault] convictions‖ without ―getting into the facts of either of

those instances.‖ Appellant does not challenge the court‘s decision with respect to

the attempted robbery or the 2002 conviction. He argues, rather, that it was an
                                          10

abuse of discretion to exclude the details of the domestic violence misdemeanor, as

summarized in the paragraph-long Gerstein statement.1



      Appellant presented sufficient evidence to raise a claim of self-defense

(through his testimony and the DNA evidence, which could be interpreted to

corroborate his testimony). Thus, the question of whether appellant may have been

the aggressor was before the jury, and the Gerstein statement was arguably

admissible. Additionally, the circumstances were similar in one respect—Miller

was intoxicated on both occasions. The Gerstein statement described Miller, while

highly intoxicated, breaking into his ex-girlfriend‘s house, tearing off her clothes,

―repeatedly slamming her head against the wall[,]‖ ―spitting in her face[,]‖ and

striking her in the head with a towel rod in front of her children – acts which

certainly indicate that Miller had a ―violent‖ or ―bellicose‖ nature.




      1
         A Gerstein statement is a sworn statement by a law enforcement officer
―used by prosecutors to establish probable cause at the defendant‘s initial
appearance before the court following his arrest.‖ Littlejohn v. United States, 705
A.2d 1077, 1080 (D.C. 1997) (citing Gerstein v. Pugh, 420 U.S. 103, 120, 124 n.25
(1975)). Appellant argues this statement should have been admitted both as first-
aggressor evidence and to rebut Jayda Ingram‘s testimony that Miller was a
―peaceful‖ person. As to the latter, the trial court‘s admission of Miller‘s
convictions for simple assault and attempted robbery was enough to counter
Jayda‘s testimony about Miller‘s peaceful character.
                                         11

      Even so, it was proper for the trial court to consider that the circumstances

were quite different. The prior acts occurred within the context of domestic

violence, and the conduct at trial supposedly involved pulling a gun on someone he

had just met. See Hawkins, 461 A.2d at 1033 (holding appellant‘s prior act of

violence less probative because it occurred within the ―special context of the

marital relationship‖); (Markus) Johnson, 960 A.2d at 302 (prior act of violence

was ―different in type, as it involved a heterosexual romantic relationship,‖ not ―an

alleged homosexual advance with no prior romantic involvement‖).



      Cases such as Hawkins and (Markus) Johnson do not automatically exclude

prior acts of domestic violence from being admitted as first-aggressor evidence.

See Evans, 227 F.2d at 356 (admitting testimony from wife of deceased that her

husband would act ―belligerent and in a really bellicose type of manner,‖ at least

with her, when drinking). However, they illustrate the sound principle that prior

acts of violence have more probative value when they are similar in kind to the

events on trial. See Thompson v. United States, 546 A.2d 414, 418-19 (D.C. 1988)

(―Evidence of other crimes may be relevant on purely logical grounds—an armed

robber is, other things being equal, statistically more likely than a law-abiding

citizen to commit a second similar crime.‖ (emphasis added)); H. Richard Uviller,

Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the
                                        12

Courtroom, 130 U. Pa. L. Rev. 845, 847-48 (1982) (―[O]ur pooled experience

leads us to expect repetitions of characteristic conduct,‖ and we thus ―look[]

forward from an established event . . . to predict the likely repetition of its

occurrence.‖ (emphasis added)).       In this case, Miller‘s prior actions while

intoxicated were unlike those that Shepherd ascribed to him during trial.



      Moreover, there was at most a tenuous link between this proffered first-

aggressor evidence and the point in contention here. Appellant‘s claim of self-

defense turned on a single question: who brought the gun to the confrontation. As

the Gerstein statement sheds little light, if any, on the threshold question of who

brought the gun to the scene, its probative value was minimal and easily

outweighed by the danger of unfair prejudice.        The inflammatory details of

Miller‘s past actions were more likely to confuse the jury and ―invite a disposition

based upon [a] good guy/bad guy comparison rather than the validity of the self-

defense defense,‖ Hawkins, 461 A.2d at 1033 n.13 (Record citation omitted),

which depended entirely on whether Miller pulled the gun on appellant.



      The trial court understood that the jury might misuse the ―powerful‖ details

of Miller abusing his ex-girlfriend to infer that Miller was a ―bad guy.‖ This

strong (and not necessarily incorrect) inference about Miller‘s character raises the
                                           13

likelihood that the jury would improperly jump to the illogical conclusion that

Miller had a gun and pulled it on Shepherd, when, in fact, Miller‘s abusive conduct

fails to illuminate the question of gun possession. Recognizing the strong potential

for these details to interfere with the jury‘s ability to impartially evaluate the merits

of the case, the trial court permitted the jury to learn the fact of Miller‘s

misdemeanor conviction without admitting the accompanying details.



      ―The concept of ‗exercise of discretion‘ is a review-restraining one.‖

(James) Johnson v. United States, 398 A.2d 354, 362 (D.C. 1979). Given the

limited probative value of the first-aggressor evidence and the likelihood that it

would confuse or prejudice the jury, the trial court did not erroneously exercise its

discretion by excluding the Gerstein statement and admitting instead Miller‘s

conviction for simple assault. Even if there were imperfections in the trial court‘s

exercise of discretion, appellant suffered no significant prejudice. His fate was

properly determined by the jury‘s assessment of the credibility of the eyewitnesses

(appellant included) and the other powerful evidence of guilt described elsewhere

in this opinion. Because reversal is not required, the trial court did not abuse its

discretion. See (James) Johnson, 398 A.2d at 367.2


      2
         ―[T]he appellate court makes two distinct classes of inquiries when
reviewing a trial court‘s exercise of discretion. It must determine, first, whether
                                                                     (continued…)
                                          14



                      III. Mischaracterizations on Rebuttal



      Appellant claims that the trial court abused its discretion when, in response

to the prosecutor‘s misstatements during rebuttal, ―[t]he only curative step the

Court took was to repeat the standard instruction that it is the jury‘s recollection of

the evidence that controls.‖ The principles governing our review of such claims

are ―well-settled.‖ Finch v. United States, 867 A.2d 222, 225 (D.C. 2005). We

first determine ―whether the challenged comments were, in fact, improper[,]‖ and

if they were, ―we must [then] determine whether the trial judge erred or abused his

discretion in responding to them.‖ Id. This analysis ―takes into consideration the

context in which the comments were made, the gravity of the impropriety, its

relationship to the issue of guilt, the effect of any corrective action taken by the

judge, and the strength of the government‘s case.‖           Id. at 226.    ―Improper

prosecutorial comments are looked upon with special disfavor when they appear in

the rebuttal because at that point defense counsel has no opportunity to contest or




(…continued)
the exercise of discretion was in error and, if so, whether the impact of that error
requires reversal. It is when both these inquiries are answered in the affirmative
that we hold that the trial court ‗abused‘ its discretion.‖ Id.
                                         15

clarify what the prosecutor has said.‖ Coreas v. United States, 565 A.2d 594, 605

(D.C. 1989) (citations omitted).3



      When making our assessment, we remember that ―[t]he courtroom

atmosphere, prior remarks which have provoked the questioned statements, and

other factors which cannot be appraised by a reviewing court, may render remarks

of counsel innocuous, although they may appear viciously prejudicial when

removed from their setting.‖ Irick v. United States, 565 A.2d 26, 32 (D.C. 1989)

(citation omitted). We also ―bear in mind that the trial court has latitude in

regulating closing argument, and we do not lightly overturn its discretionary

rulings.‖ Clayborne v. United States, 751 A.2d 960, 968 (D.C. 2000).



      The prosecutor made three primary misstatements on rebuttal. First, she said

that ―Emily Jeskie, the defendant‘s DNA examiner, told you that the . . . DNA that

was on those cartridges was more consistent with bodily fluid‖ (emphasis added).

Ms. Jeskie‘s testimony actually suggested (but did not directly assert) that swabs of

the gun contained levels of Miller‘s DNA that were ―more likely to come from a

      3
          Because appellant made timely objections, we ―may not affirm the
convictions unless we are satisfied that the appellant did not suffer ‗substantial
prejudice‘ from the prosecutor‘s improper comments.‖ Finch, 867 A.2d at 226
(citing the test for harmless error under Kotteakos v. United States, 328 U.S. 750,
765 (1946)).
                                        16

bodily fluid.‖ The prosecutor also incorrectly stated (mockingly) that appellant

said he had ―two hands on that tiny little barrel of the gun‖ even though appellant

described placing his hands not merely on the barrel but on top of Miller‘s hand

and under the barrel to ―block . . . the back of the gun.‖ Finally, the prosecutor

asserted that appellant said, ―I always carry something with me‖ when, in fact,

government witness William Smith (a tenant of the Chicago Street house) testified

that appellant said ―I keep it with me‖ (emphasis added).



      The trial court acknowledged that the evidence ―wasn‘t quoted precisely‖ in

the government‘s rebuttal. However, it concluded that, ―in the real world of this

trial and what was said and how it was said, and the tone it was said, I didn‘t

perceive it to be such a mischaracterization of the record to warrant any further

remedy‖ (emphasis added). We note in addition that the remarks were embedded

in a lengthy rebuttal spanning twenty-two pages of the transcript. The trial court

―‗was in a [better] position to evaluate‘ the impact of the prosecutor‘s

objectionable comments and the likely efficacy of a curative instruction, and we

‗attach considerable significance‘ to its assessment.‖ Trotter v. United States,

121 A.3d 40, 54 (D.C. 2015).
                                         17

      Despite the prosecutor‘s misstatements, the themes of her rebuttal argument

were entirely proper, were based on reasonable inferences, and were independently

supported by other evidence in the record. Those central points were: (1) the

presence of Miller‘s DNA on the handgun and cartridges did not indicate that he

was the one who brought the pistol to the scene, but rather resulted from appellant

shooting Miller in the face at close range; (2) appellant‘s testimony that he acted in

self-defense was not credible; and (3) appellant brought to the Chicago Street

house the gun that he always kept with him.



      In the context of discussing ―Government‘s Exhibit Number 60,‖ which

reported on the testing of a portion of the gun swabs, the defense‘s DNA expert,

Ms. Jeskie, noted that in those swabs, there was ―a lot more‖ DNA from Miller

than Shepherd; thus Miller would be considered the ―major‖ contributor. The

prosecutor then asked whether ―the level of DNA from the major profile . . . [is]

more consistent with bodily fluids or places with a high concentration of DNA,‖ to

which she responded, ―it is more likely to come from a bodily fluid if it‘s a high

amount of DNA.‖ Ms. Jeskie agreed with the prosecutor that the sources of

Miller‘s DNA on the gun were ―possibly‖ his skin cells, saliva, blood, or bone

fragment (examples of ―back spatter‖), which would have been ejected from the

gunshot entrance wound.
                                          18



      We agree with appellant‘s complaint that the portion of Ms. Jeskie‘s

testimony referenced by the prosecutor was not directed to the DNA on the

cartridges. Nevertheless, Ms. Jeskie did agree with the proposition that ―the DNA

on [the] cartridges left there by Henry Miller . . . [could] equally be consistent with

being left over by [back spatter]‖ (emphasis added). Thus, while it was incorrect

for the prosecutor to say that the DNA on the cartridges was ―more likely‖ to come

from bodily fluid, the witness did agree that ―back spatter‖ could explain why

Miller‘s DNA was on the cartridges.



       The prosecutor also erred in recalling that appellant had claimed to have

both hands on the barrel of the gun, but the jury had listened to and watched

appellant‘s entire testimony, during which he clarified the exact placement of his

hands during the struggle and demonstrated what had occurred. The jurors also

asked to look at the gun, which would have helped them evaluate appellant‘s claim

of self-defense.    See Clayborne, 751 A.2d at 970 (―[J]urors do not accept

uncritically everything a prosecutor says in argument‖ and ―it lies within the sound

discretion of the judge to stay his hand and leave it to the jury to ‗detect[]

prosecutorial non sequiturs.‘‖ (citation omitted)).
                                         19

      Additionally, the prosecutor emphasized, there were many other reasons for

doubting appellant‘s credibility, such as his long list of prior convictions and his

insistence that he was not ―tired, or mad, or upset, or annoyed‖ at any point before

the shooting.   It was also ―convenient‖ that appellant could remember ―every

single hand movement . . . [and] gesture‖ before the shooting and during the

struggle for the gun, but professed an inability to remember the events following

the shooting (including his lengthy reckless flight from the police).



      Although the trial court commented that ―any reasonable person‖ would

understand that ―I always carry something with me‖ meant appellant was ―carrying

a weapon,‖ it is not at all clear that the jurors would have been familiar with the

meaning of this ―street jargon‖ even if many prosecutors, trial judges, and defense

attorneys would be. While using the term ―carry something‖ may have more

quickly led the jury to the conclusion that the ―something‖ was a gun, the jury

could readily draw the same conclusion from the actual testimony. Given the full

context – that appellant uttered ―I keep it with me‖ after he said ―I should kill her‖

(referring to his wife), but before the shooting – the jury could equally infer that

the mysterious ―it‖ appellant kept with him was the handgun he wielded shortly

after going to his truck, a weapon he still possessed when arrested in that vehicle.
                                         20

      Before closing arguments, the trial court cautioned the jury that ―[t]he

statements and the arguments of counsel during their opening and closing

arguments are not evidence.‖ Immediately before the jury‘s deliberations, the

court reiterated those principles as a remedial measure, stating that the attorneys‘

―statements and arguments . . . are not evidence‖; the evidence is ―what you

remember the evidence . . . to be‖; and ―your recollection . . . controls, not the

attorneys[‘] arguments to you.‖      ―The jury is presumed, unless the contrary

appears, to follow the instructions, and we find nothing in the record to suggest the

jury did not do so.‖ Sherrod v. United States, 478 A.2d 644, 659 (D.C. 1984)

(citation omitted).



      Finally, the evidence of appellant‘s guilt was very strong. Not only were

there three eyewitnesses who saw the events immediately before and after the

murder, but appellant was known to two of the eyewitnesses and the other was a

disinterested person. Furthermore, the jury could reasonably infer consciousness

of guilt from appellant‘s desperate flight from the police through the District and

his subsequent statement to the officers after being placed under arrest, ―What the

fuck you looking at?     I‘m in trouble.‖     As the trial judge stated, ―from my

viewpoint the government more than prove[d] its case . . . and [appellant‘s]
                                          21

testimony, quite frankly, was one of the most incredible lines of testimony I‘ve

ever heard.‖



      We recognize that ―closing arguments are seldom carefully constructed

in toto in advance, and improvisation often brings about imperfect syntax and

planning.‖ Dixon v. United States, 565 A.2d 72, 79 (D.C. 1989). Perhaps the

prosecutor‘s misstatements were the result of such improvisation. However, it is

vital for a prosecutor to choose her words carefully, as misstatements, ―whether

[made] deliberately or through negligence,‖ needlessly jeopardize convictions and

give rise to the ―significant risk . . . that the trial will go for naught.‖ Lee v.

United States, 668 A.2d 822, 832 (D.C. 1995). Nevertheless, considering the

misstatements in context, the trial court‘s remedial instruction, and the strength of

the government‘s case assures us that the trial court did not abuse its discretion.



                                  IV. Conclusion



      The judgment of the Superior Court is hereby affirmed.
