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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CF-136

                          KENNETH FURR, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF3-16581-11)

                      (Hon. Russell F. Canan, Trial Judge)

(Argued March 17, 2015                                    Decided April 13, 2017)

      Fleming Terrell, Public Defender Service, with whom James Klein and
Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

       James M Perez, 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, Lara Worm, and Natalia Medina, Assistant United
States Attorneys, were on the brief, for appellee.

      Before GLICKMAN and BECKWITH, Associate Judges, and PRYOR,* Senior
Judge.

      *
        Senior Judge King was assigned to this case originally. Following his
retirement on November 23, 2016, Senior Judge Pryor was assigned to take his
place on the division. Judge Pryor has listened to the recording of the oral
argument.
                                         2

      Opinion for the court by Associate Judge GLICKMAN.

       Opinion by Associate Judge BECKWITH, concurring in part and concurring in
the judgment, at page 20.


      GLICKMAN, Associate Judge:        Kenneth Furr appeals his conviction for

assault with a dangerous weapon (“ADW”).1 He contends the trial court erred by

excluding testimony about an internal Metropolitan Police Department (“MPD”)

investigation that reportedly vindicated an officer whose testimony contradicted

the complaining witness. In addition, Furr claims the trial court plainly erred by

failing to intervene sua sponte when the prosecutor impugned that officer in her

rebuttal argument. We conclude these claims lack merit and affirm Furr’s ADW

conviction.



                                         I.



      The criminal charges in this case arose from appellant’s activities in the pre-

dawn hours of August 26, 2011. Appellant, a police officer, was off duty at the

time. In a CVS pharmacy at 400 Massachusetts Avenue, N.W., he encountered




      1
          D.C. Code § 22-402 (2012 Repl.).
                                        3

“Chloe,” a transgender female, and solicited her for sex.2 She rebuffed him.

Appellant then became embroiled in an altercation with Chloe’s friend, a man

named Wallace Patterson. MPD Officer Edward Stewart, who moonlighted at the

CVS as a private security guard, interrupted the two men and asked appellant to

leave the premises. Appellant went to his car, which was parked nearby.



      A few minutes later, Patterson left the CVS. He was accompanied by a man

whom he identified at trial as Calvin Hogue. As they walked past appellant’s car,

Patterson testified, appellant rolled down his window and shouted at him.

Patterson challenged appellant to step out of his car. According to Patterson,

appellant responded by retrieving a gun from the glove compartment and pointing

it at Patterson. Appellant did not tell Patterson he was a police officer. This

alleged conduct was the basis for appellant’s ADW conviction.



      Patterson and Hogue returned to the CVS.        They were met by Officer

Stewart, who testified that he had stepped outside the store to “make sure

everything was okay.” Patterson stated that appellant “had a gun.”3 Stewart asked


      2
        Appellant was found guilty of solicitation for prostitution based on this
conduct. He does not contest that conviction in this appeal.
      3
        The trial court admitted this statement not for its truth, but for the non-
hearsay purpose of explaining Officer Stewart’s subsequent actions.
                                          4

him whether he saw it. Here the two witnesses’ accounts diverged. Patterson

testified he told Stewart that appellant had pointed the gun at him. He expected

Stewart to “do his job” by effecting appellant’s arrest. Stewart, however, testified

that he “tr[ied] to ascertain how [Patterson] knew [appellant] had a gun, whether he

actually saw the weapon, whether the weapon was displayed, just any – what color

the weapon was, anything, but . . . [Patterson] wouldn’t give [him] that

information, and he continued to walk away.” Stewart insisted that he “never

received a report of a man pointing a gun.”          This conflict in the testimony

generated the principal issue before us in this appeal.



      After speaking with Patterson, Officer Stewart approached appellant’s car

and called for police backup, telling the dispatcher that a citizen had reported

encountering “an individual that’s armed.”          Appellant exited his car and

immediately identified himself as a police officer. Feeling “relieved,” as he put it

at trial, Stewart cancelled his request for backup. The two officers chatted for a

few minutes before Stewart returned to the CVS. Stewart saw no gun in plain view

and did not ask appellant whether he had a gun or what had just happened between

him and Patterson. Patterson, who drove back to the CVS a little later with some

companions, testified that he realized the security guard “didn’t do his job”

because he evidently had not summoned the police to arrest appellant.           The
                                          5

prosecutor’s echo of this statement in rebuttal is the subject of appellant’s second

claim on appeal.



      Patterson and his friends eventually located appellant and pursued him as he

attempted to drive off and evade them. In a violent denouement several blocks

from the CVS on Pierce Street, appellant – who did indeed have a gun – fired his

weapon at his pursuers’ car, which then crashed into appellant’s own vehicle.

Appellant continued shooting after the collision. Patterson fled as police arrived

on the scene. Appellant faced additional assault charges arising from the shooting

on Pierce Street, but he was acquitted of them at trial based on his claim of self-

defense. Thus, the only conviction at issue in this appeal is the one for ADW

based on appellant’s actions outside the CVS.



                                          II.



      Following appellant’s arrest, the MPD investigated not only his behavior,

but also the performance of Officer Stewart after he received Patterson’s report of

a gun. The inquiry reportedly concluded that Stewart acted appropriately under the

circumstances. At trial, appellant attempted to present testimony about that inquiry

from the officer who conducted it. Appellant’s primary claim on appeal is that the

trial court abused its discretion by excluding this testimony.
                                          6

                                          A.



      To find appellant guilty of an ADW outside the CVS, the jury needed to

believe Patterson’s statement that appellant pointed a gun at him; no other

evidence of the assault was presented.4        But Officer Stewart’s testimony that

Patterson never told him appellant displayed a gun contradicted Patterson and

thereby undercut the credibility of his accusation. The prosecutor tried to deal with

this problem by showing that Stewart’s need to defend his own conduct from

criticism and scrutiny supplied him with a motive to deny having learned that

Patterson saw appellant brandish a gun.



      Accordingly, in her direct examination of Stewart, the prosecutor elicited

from him the fact that the MPD had investigated whether he took “appropriate

police action” in response to Patterson’s report. Stewart confirmed that he was “no

longer under investigation” at the time of trial. The prosecutor did not ask him

about the outcome of the investigation. On cross-examination, though, declaring

that he “did not have a complainant, and . . . did not have a crime,” Stewart

testified that the MPD investigation had “exonerated” him.




      4
          Patterson’s companion Hogue was not called to testify.
                                          7

      Defense counsel then sought to inquire into “the reason they said you were

exonerated.” In response to the government’s objection, defense counsel told the

court she wanted the jurors to understand that “the police had decided [Stewart]

was correct” in his judgment of the situation.5 The court sustained the objection to

this line of inquiry, ruling that the defense had established “definitively” that the

investigation had exonerated Stewart and that the reasons articulated for that

determination were inadmissible hearsay.6



      On re-direct, the government again brought up the MPD investigation.

Stewart acknowledged that an adverse finding would have subjected him to serious

discipline or possibly termination of his employment. Stewart agreed that when

the investigator interviewed him, he was “essentially trying to establish that no

crime had occurred.” The prosecutor then asked Stewart whether “it was based on

what you told the [investigator] that . . . you were exonerated?”           The court


      5
         As counsel elaborated, “The government brought this [the MPD
investigation of Stewart] up and tried to leave it in the air as if there was something
suspicious about his behavior, and I think the defense is entitled to get out that, in
fact, what he did that night was appropriate. And so the simple – that the
conclusion was that . . . he did not have a complainant and he did not have a crime
and, therefore, he was exonerated.”
      6
        The court rejected appellant’s argument that the reasons articulated by the
MPD for “exonerating” Stewart were admissible in evidence as an admission of a
party opponent. Appellant has abandoned this argument on appeal.
                                          8

sustained a defense objection to this question, and Stewart did not answer it. The

prosecutor did not pursue the inquiry further and concluded her examination of the

witness.



      After a brief recess, however, defense counsel complained that the

prosecutor’s unanswered question inaccurately implied that Stewart was cleared in

the MPD investigation only because of his own self-serving statements. The court

agreed that the question might have conveyed that impression. The prosecutor

stated she had not intended that implication and did not oppose an appropriate

curative measure to dispel it. There ensued a colloquy in which the court and

counsel considered different curative options. The prosecutor initially proposed

that the court strike the question. Defense counsel thought that insufficient and

suggested a stipulation “list[ing] what [the investigation] involved.”            The

prosecutor commented that a written stipulation would “draw more attention to it

than is really necessary” and proposed as an alternative that Stewart simply be

recalled to the witness stand to “clarify” that the MPD investigation extended

beyond his statement. Defense counsel expressed no objection to that alternative

solution. (Counsel did not disagree with the prosecutor’s reservation about a

stipulation or continue to press for one.) The court was satisfied that “it’s just fair

to get out that there was more than just [Stewart’s] say-so that exonerated him.”
                                          9

Accordingly, cautioning that “we’re not going to get into all the subsidiary facts

that went into it,” the court elected to allow the prosecutor to recall Stewart to the

stand and ask him whether there were “other components” to the MPD

investigation besides his own interview “and whether other witness statements

were reviewed as well.”7 Stewart confirmed there were. The prosecutor accepted

the witness’s answer and moved on. Defense counsel raised no objections to this

procedure and appeared satisfied with the prosecutor’s question and the witness’s

answer. She did not request that Stewart be allowed to provide any additional or

more specific information about the breadth of the investigation.



      Later in the trial, however, the defense called MPD Lieutenant John Haines

to the stand. When Haines identified himself as the officer who had investigated

Officer Stewart’s “alleged misconduct,” the government objected and the court

asked for a proffer of the witness’s testimony. Defense counsel responded that

Haines would testify about “what things he considered” in the investigation (but

without repeating what “anyone said,” which counsel conceded would be hearsay)

      7
         Before it decided to permit this inquiry, the court inquired whether Stewart
knew about the other parts of the investigation. The prosecutor represented that
Stewart did know what else was considered because he had received the final
report of the investigation. The court then reviewed the investigation report to
confirm what Stewart knew. Defense counsel, who previously sought to ask
Stewart to testify about the articulated reasons for his exoneration, did not dispute
that Stewart knew what had been considered in addition to his own statement.
                                         10

and about “what conclusion he reached.” This testimony was necessary, counsel

stated, because Stewart, in his testimony, “was basically guessing about the things

that were considered,” while Haines “knows what was actually considered.”8 The

government disputed the relevance and admissibility of Haines’s testimony and

argued that Stewart himself had corrected any misimpression that the MPD

investigation considered only his account.



      The court agreed with the government’s objections and ruled that Haines’s

proffered testimony would not be relevant and that “whatever relevance this

witness’s testimony might have . . . is substantially outweighed by the potential for

prejudice and misleading the jury [and] confusing the issues.”



                                         B.



      “We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. An evidentiary ruling by a trial judge on the relevancy of a particular

item is a highly discretionary decision that will be upset on appeal only upon a




      8
         Defense counsel’s assertion that Stewart was “guessing” was contrary to
what the court earlier had been told about Stewart’s knowledge. See supra, note 7.
                                          11

showing of grave abuse.”9 In addition, “[t]hat the evidence may be minimally

relevant does not end our analysis. The trial judge has the discretion to exclude

relevant evidence if its probative value is substantially outweighed by the danger

of unfair prejudice.”10     We recognize that “the evaluation and weighing of

evidence for . . . potential prejudice is quintessentially a discretionary function of

the trial court, and we owe a great degree of deference to its decision.”11 In

reviewing such rulings, “we must be mindful of context” and recognize that the

trial court “virtually always is in the better position to assess the admissibility of

the evidence in the context of the particular case before it.”12



      For the following reasons, we conclude that the trial court in this case

exercised its discretion carefully and appropriately, and certainly did not abuse its

discretion, by excluding the proffered testimony of Lieutenant Haines.




      9
        Riddick v. United States, 995 A.2d 212, 216 (D.C. 2010) (internal
quotation marks and citations omitted).
      10
        Foreman v. United States, 792 A.2d 1043, 1049 (D.C. 2002) (citing
Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1998)); see also FED. R. EVID.
403.
     11
        Foreman, 792 A.2d at 1049 (internal quotation marks omitted).
      12
         Johnson v. United States, 960 A.2d 281, 294-95 (D.C. 2008) (internal
quotation marks omitted).
                                        12

      First, Lieutenant Haines’s investigation of Officer Stewart was relevant and

admissible at this trial for one purpose only: to show the existence of a motive for

Stewart to deny that Patterson told him appellant displayed a gun. Only the fact

that an investigation was pursued, with potential adverse consequences for Stewart,

was probative of this motive; not what evidence Haines considered, how

thoroughly he conducted his investigation, or what conclusions he reached.

Haines’s findings regarding what Stewart was told and whether he properly

performed his duties as a police officer in response to that information were not

admissible in evidence to prove those facts because they were based on hearsay

rather than Haines’s personal knowledge of what happened.13 Testimony about the

information on which Haines based his conclusions would likewise have been

inadmissible hearsay. Indeed, for the same reason, Stewart’s own testimony that

he was “exonerated” by Lieutenant Haines’s inquiry was not admissible to prove

he acted appropriately; rather, it was only permissible for the jury to hear about


      13
         See, e.g., Young v. United States, 63 A.3d 1033, 1044 (D.C. 2013) (“An
out-of-court statement offered in evidence to prove the truth of the matter asserted
is hearsay whether the statement is quoted verbatim or conveyed only in substance;
whether it is relayed explicitly or merely implied; whether the declarant is
identified or not.”) (footnote omitted); Evans-Reid v. District of Columbia, 930
A.2d 930, 944 (D.C. 2007) (“Statements in a police report which are based on what
the officer was told by others are just as much hearsay as if stated on the witness
stand by the officer himself. Likewise inadmissible are conclusions and
conjectures by the officer as to fault or lack of fault[.]”).
                                         13

Stewart’s vindication as a precautionary measure to ensure that the jury did not

draw an adverse inference from the mere fact that Stewart had been under

investigation.14



      Second, it would not have been appropriate to admit Haines’s testimony

under the “curative admissibility” doctrine to allay prejudice to appellant’s defense

from the prosecutor’s implication that Stewart’s exoneration was based solely on

his own statement. The doctrine of curative admissibility “provides that in certain

circumstances [one party] may inquire into evidence otherwise inadmissible, but

only after [the other party] has ‘opened the door’ with regard to this evidence.”15

Trial judges are enjoined to exercise caution and restraint before relying on the

curative admissibility rationale, because “[t]he doctrine of curative admissibility is

one dangerously prone to overuse,” and the idea that the one side might “open the

door,” is often oversimplified.16 “Opening the door is one thing. But what comes




      14
        See, e.g., Howard v. United States, 978 A.2d 1202, 1211 (D.C. 2009). It
would have been advisable for the court to instruct the jury accordingly.
      15
           Mercer, 724 A.2d at 1192 (quoting United States v. Young, 470 U.S. 1, 11
(1985)).
      16
           Id. (quoting United States v. McClain, 440 F.2d 241, 244 (D.C. Cir.
1971)).
                                         14

through the door is another. Everything cannot come through the door.”17 Rather,

“[i]ntroduction of otherwise inadmissible evidence under shield of this doctrine is

permitted ‘only to the extent necessary to remove any unfair prejudice which might

otherwise have ensued from the original evidence.’”18 In the present case, there

was no such necessity, for the posited implication of the prosecutor’s question was

not unfairly prejudicial and, in any event, Haines’s testimony was not required to

correct it. Hence the doctrine of curative admissibility was inapplicable.



      The posited harmful implication of the prosecutor’s question was that the

only evidence Lieutenant Haines considered in “exonerating” Officer Stewart was

Stewart’s own, presumably self-serving, statement. Even if the jury drew this

implication, however, it would not have resulted in unfair prejudice to appellant.

The jury simply would have inferred that Haines did not conduct a thorough

investigation, and accordingly the jury would have discounted the probative value

of Haines’s “exoneration” of Stewart and considered it only as establishing that the

MPD investigation did not result in a finding of misconduct on Stewart’s part. But

as we have explained above, that was exactly what the jury was supposed to do


      17
           Id.
      18
           Id. (quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir.
1971)).
                                         15

anyway, because Haines’s findings were based on inadmissible hearsay. Appellant

was not entitled to have the jury consider them for their truth. Thus, even if the

prosecutor’s implication led the jury to treat the MPD investigation of Stewart as

unreliable, and to attach no probative weight to his exoneration, appellant suffered

no unfair prejudice.



      Furthermore, even assuming the prosecutor’s implication was not innocuous,

Haines’s proffered testimony was not necessary to dispel the potential harm. The

court took other reasonable curative measures. At the outset of the trial, the court

had instructed the jury that it “may only consider the evidence properly admitted

during the trial,” which the court identified specifically as exhibits and sworn

testimony. The court further explained that when it sustained an objection to a

question, the jury “[was] not to guess or speculate as to what the witness might

have said [b]ecause . . . under the law . . . the question is inappropriate.” The

record provides no reason to think the jury disregarded these admonitions when the

court sustained appellant’s objection to the question the prosecutor put to Stewart.

“In the absence of any good reason to suppose otherwise, we presume the jury

followed the court’s direction.”19


      19
           Muir v. District of Columbia, 129 A.3d 265, 275 (D.C. 2016).
                                         16

      Beyond that, with appellant’s consent, and after careful and thoughtful

consideration of the proposed alternatives,20 the court settled on a suitable

evidentiary “cure”: having the government recall Stewart to the witness stand,

following the conclusion of its redirect examination and a recess, for the specific

purpose of testifying that “other components,” including “other witness

statements,” were considered in the MPD investigation of his conduct.            The

prosecutor elicited this testimony and did not attempt to challenge it. There was no

suggestion of any kind that the prosecutor disagreed with it or that the jury had any

reason to disbelieve it. On the contrary, to the jury it undoubtedly appeared that

the prosecutor was being allowed to introduce testimony deemed to be important

and truthful.21 Appellant had no objection to this curative procedure and identified

no deficiency in its implementation.22 It was entirely reasonable for the trial court

to conclude, as it did, that Stewart’s testimony sufficed to remove any unfair


      20
        It is noteworthy that defense counsel did not propose calling Lieutenant
Haines when the court was considering the curative options.
      21
           Moreover, there was nothing implausible about Stewart’s testimony. At
trial the jury received other evidence bearing on Stewart’s conduct that Lieutenant
Haines might have considered – for example, not only testimony of witnesses, but
contemporaneous video surveillance footage of the street outside the CVS which
showed Patterson’s encounter with appellant.
      22
        Later in the trial, when appellant proffered Lieutenant Haines’s testimony,
defense counsel asserted that Stewart was “basically guessing” about what Haines
had considered in the investigation. Neither Stewart’s actual testimony nor
                                                                     (continued…)
                                        17

prejudice from the prosecutor’s earlier question and that nothing further needed to

be done.



      It also was entirely reasonable for the court to conclude that any possible

relevance of Haines’s proffered testimony was substantially outweighed by “the

potential for prejudice and misleading the jury, confusing the issues.”         The

proffered testimony would have been unfairly prejudicial to the prosecution and

misleading to the jury because it would have exacerbated the risk that the jury

would treat Haines’s “exoneration” of Stewart as a reason to credit Stewart and

find that Patterson did not tell him appellant brandished a gun. A further risk was

that the proffered testimony would lead to a mini-trial over the adequacy and

fairness of Haines’s investigation of Stewart and the reasonableness of his

conclusions, which was not and should not have been the jury’s focus. The trial

court’s recognition and consideration of these dangers demonstrates that it

carefully exercised its discretion in excluding Haines’s testimony even if that

testimony had some minimal relevance or might have been permitted as an

additional curative measure.

(continued…)
anything else in the record supports that assertion, and there is no reason the jury
would have thought Stewart was “guessing.” And for the reasons we have already
given, the fact that Haines may have known what information he considered better
than Stewart did was irrelevant.
                                          18

      In sum, by excluding the proffered testimony of Lieutenant Haines, “[t]he

trial court merely prevented counsel from introducing an irrelevant, collateral, and

potentially prejudicial issue into the trial.”23 We hold that the court did not at all

abuse its discretion in so doing, let alone “gravely” abuse it.



                                          III.



      Appellant also claims the trial court plainly erred by permitting the

prosecutor to comment in rebuttal argument that Officer Stewart “didn’t do his

job.” Appellant contends this remark was improper because the prosecutor knew

the MPD had thoroughly investigated Stewart and “concluded the opposite,” viz.,

that Stewart was “doing his job” when he ceased his investigation of the report of
      23
          Grayton v. United States, 745 A.2d 274, 281 (D.C. 2000). The
concurrence errs in stating that Howard v. United States, 978 A.2d 1202 (D.C.
2009), approved testimony “similar to” the testimony from Lieutenant Haines
proffered by appellant in this case. Post at 28-29; see also post at 24 (stating that
“[t]his court approved similar – and much more extensive – testimony in
Howard”). Howard did not approve testimony about the nature of the MPD
investigation such as appellant sought to present in this case. The testimony about
an MPD investigation at issue in Howard “was limited to clarifying that the police
department routinely conducted such investigations . . . and that the investigation
concluded that the use of force in this instance was justified.” Id. at 1211. Nor is it
accurate to characterize the testimony in Howard regarding the police investigation
as “much more extensive” than in this case. Like the trial court in Howard, the
court here allowed testimony as to the conclusion of the investigation. The only
additional testimony in Howard was that the investigation was routine (a fact
neither party in this case sought to elicit).
                                        19

a man with a gun upon ascertaining the man was a police officer. Appellant

further contends the remark was improper because it was the prosecutor’s

expression of her personal opinion about Stewart’s professional conduct.



      We reject both contentions. Appellant did not object when the prosecutor

argued as follows:


            Officer Stewart told you he got a report of a man with a
            gun, and the moment that this man told him, I’m a police
            officer, he ceased investigation . . . . He had reported a
            gun . . . [I s]ubmit to you that [Officer Stewart’s]
            testimony was colored by that. He didn’t do his job
            because if he would have done his job, the rest of the
            night wouldn’t have happened.


We consider the argument unobjectionable because it was fair comment on

Stewart’s failure to investigate appellant’s encounter with Patterson and his

possible testimonial bias resulting from the MPD’s investigation of that failure.24

Lieutenant Haines’s opinion that Stewart did his job properly was neither

admissible evidence of that fact nor binding on the government in any way; it thus

did not preclude the government from arguing otherwise based on the admissible

      24
          See Irick v. United States, 565 A.2d 26, 36 (D.C. 1989) (“[T]he key
inquiry is whether the attorney is commenting on the evidence, which he may do,
or expressing a personal opinion, which is taboo. A comment will be within the
acceptable range as long as it is in the general nature of argument, and not an
outright expression of opinion.” (emphasis in original)).
                                         20

evidence at trial.25



                                        IV.



       The trial court did not abuse its discretion by excluding the proffered

testimony of Lieutenant Haines or plainly err by not intervening in the

government’s rebuttal argument. Appellant’s conviction for ADW is hereby



                                                  Affirmed.



       BECKWITH, Associate Judge, concurring in part and concurring in the

judgment: I concur in the judgment and in the court’s holding that the trial court

did not abuse its broad discretion in excluding Lieutenant Haines’s testimony about

the “exoneration” of Officer Stewart, because I agree that the trial court had, with

the arguable acquiescence of Mr. Furr’s counsel, already furnished a remedy for


       25
           Of course, appellant’s failure to object confines us to review for plain
error, which requires him to show “egregious” prosecutorial misconduct that “so
clearly prejudiced his substantial rights as to jeopardize the fairness and integrity
of his trial.” Id. at 32. Appellant does not come close to making such a showing.
       
         The record does not bear out the court’s characterization of defense
counsel as having “consent[ed]” to the trial court’s remedy. Ante at 16. Both Mr.
Furr and the prosecutor proposed remedies for the prosecutor’s problematic
unanswered question. The trial court ultimately went with one of the prosecutor’s
                                                                     (continued…)
                                          21

the prejudice stemming from the government’s questions about the misconduct

investigation and could properly have concluded that further testimony on the

matter would significantly risk “misleading the jury [and] confusing the issues.”

Ante at 17.    I write separately to express my disagreement with the court’s

suggestion that the trial court would have abused its discretion had it gone the

other way and allowed Lt. Haines’s testimony under the curative-admissibility

doctrine.26 Ante at 13–15.


      The essential problem with the court’s analysis on this point is that it fails to

fully account for the prejudice to Mr. Furr resulting from the prosecutor’s

questions about the investigation into Officer Stewart’s possible misconduct. As

the court acknowledges, Officer Stewart’s testimony that Mr. Patterson did not

report Mr. Furr pointing a gun at him was critical to Mr. Furr’s defense. Ante at 6.


(continued…)
proposed remedies, and although Mr. Furr’s counsel did not explicitly voice
opposition at that time, neither did she affirmatively consent.
      
          This issue is a collateral one, as the question properly before us is whether
the trial court abused its discretion in excluding the evidence, not the very different
question—different because a “decision-maker exercising discretion has the ability
to choose from a range of permissible conclusions”—whether it would have
abused its discretion had it admitted the evidence. Johnson v. United States, 398
A.2d 354, 361 (D.C. 1979); see id. at 362 (“[T]he appellate court, in its review
capacity, does not render its own decision of what judgment is most wise under the
circumstances presented.”). Because it is the focus of the court’s analysis,
however, see ante at 13–15, the issue warrants discussion.
                                         22

And this testimony was impeached when the prosecutor elicited testimony from

Officer Stewart that “as a result of [his] encounter with [Mr. Furr], [he was] . . .

under investigations [sic] with the Metropolitan Police Department.”             The

testimony suggested that Officer Stewart had a motive to falsely deny—both to the

MPD investigators and in court—that Mr. Patterson had reported Mr. Furr pointing

at a gun at him. Had the MPD investigators concluded that such a report had been

made, Officer Stewart’s undisputed failure to take action could have resulted in

discipline.


      In addition to this impeachment theory, which the government did not

develop in its direct questioning of Officer Stewart, there is another conclusion the

jury may have taken away from this line of questioning. The testimony about the

misconduct investigation suggested that Officer Stewart may have committed

misconduct—that is, that he had acquired evidence that Mr. Furr had pointed a gun

at Mr. Patterson yet had failed to act.       The trial court recognized this latter



      
         Only on redirect—after the defense had asked Officer Stewart about the
“exoneration” and after a bench conference on the appropriate scope of testimony
about the misconduct investigation—did the prosecutor elicit testimony that when
Officer Stewart made his statement to the MPD investigators, his goal was
“essentially . . . to establish that no crime [had] occurred.” The prosecutor at that
time had Officer Stewart explain the possible disciplinary consequences to him of
a finding of misconduct.
                                         23

implication, noting in a bench conference that “the government brought it out as if

[Officer Stewart] had done something wrong.”


      The impeachment use of the testimony about the misconduct investigation

involves a proper inference. This court has repeatedly held that evidence that a

witness is or was under investigation is admissible if probative of the witness’s

motive to testify falsely or at least shade his or her testimony. See, e.g., Smith v.

United States, 26 A.3d 248, 261 (D.C. 2011). But the non-impeachment use of the

testimony as evidence that Officer Stewart engaged in misconduct relies on an

improper inference. The fact that a person is under investigation is, like the fact

that a person has been accused, arrested, or charged with a crime, not reliable

evidence that the person committed misconduct and runs the risk of being given

undue weight by the jury. Cf. 1 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence § 4:31 (4th ed. 2016) (“Evidence of prior arrests or charges




      
          If this were not so, there would be no defensible basis for precluding
testimony about the result of the investigation and we would therefore have to
conclude that the trial court erred in excluding Lt. Haines’s testimony. To the
extent that evidence that a person is or was under investigation is competent
evidence that the person has committed misconduct, the outcome of the
investigation should also be considered competent evidence on this point, as it is
even more reliable—absent reason to believe that the investigation was bungled or
corrupted.
                                           24

should not itself be admitted . . . [because] neither one is sufficiently probative on

the basic question whether . . . any . . . underlying act occurred.”).


      Mr. Furr did not seek to have the testimony about Officer Stewart’s

misconduct investigation excluded as unfairly prejudicial or request that the trial

court give a limiting instruction. Instead, he sought to blunt the prejudicial effect

of the testimony by eliciting testimony from Officer Stewart on cross-examination

that he had been “exonerated.” The government did not object to this testimony,

but had it done so, the trial court could properly have overruled the objection under

the doctrine of “curative admissibility” or “opening the door.” Howard v. United

States, 978 A.2d 1202, 1210 (D.C. 2009); Gordon v. United States, 783 A.2d 575,

586–87 (D.C. 2001); see also 1 Mueller & Kirkpatrick, supra, § 1:12 (explaining

that even the proper admission of evidence “may open the door to counterproof

that would otherwise be excludable under various doctrines”). This is because the

testimony about Officer Stewart’s exoneration went no further than was “necessary

to remove any unfair[ly] prejudic[ial]” implication of Officer Stewart’s earlier

testimony that he was suspected of wrongdoing in connection with this case.

United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971) (citation omitted).


      This court approved similar—and much more extensive—testimony in

Howard, 978 A.2d 1202. In that case, the defendant sought to impeach a police
                                          25

officer by asking on cross-examination whether there had ever been “an internal

police investigation regarding the use of force against” the defendant. Id. at 1206.

The officer responded that there had been a “standard internal investigation.” Id.

On redirect, the trial court allowed the prosecutor to elicit testimony from the

officer “about the ‘standard procedure’ followed in police use-of-force

investigations,” which included “the fact that such investigations occur as a matter

of course,” that he “was not a subject of the investigation,” and that “the

investigation concluded that the use of force was justified.” Id. In rejecting the

defendant’s claim on appeal that this testimony was improper, this court explained

that “[b]ecause defense counsel elicited testimony on the subject in the first

instance during his cross-examination . . . , the government was entitled on redirect

to dispel any potential prejudice . . . .” Id. at 1211; see also id. (“When the

government elicits testimony on a subject during redirect examination that the

defense brought up during cross-examination, the defendant cannot well complain

of being prejudiced by a situation which he created . . . .” (internal quotation

marks, brackets, and citation omitted)). That reasoning would apply in the present

case with even stronger force, in light of Mr. Furr’s constitutional right to present a

complete defense. Cf. Williams v. United States, 642 A.2d 1317, 1322 (D.C. 1994)

(explaining that the “right [of a defendant] to question a government witness about

a current adversarial relation to law enforcement enjoys constitutional protection”
                                         26

but that the government does not have a similar right to probe whether a witness is

“fired by anti-government hostility” as a result of such an “adversarial relation”).


      Thus, Officer Stewart’s testimony about the “exoneration” was wholly

appropriate under the curative-admissibility doctrine. On redirect, however, the

prosecutor partially undermined this curative testimony, asking Officer Stewart

whether he agreed that “it was based on what [he] told the lieutenant that . . . [he

was] exonerated.” The trial court sustained an objection to this question, yet both

of the parties and the trial court recognized that the unanswered question implied

that the Officer Stewart’s exoneration was based exclusively or primarily on his

own statement. As the court summarizes, the parties and the trial court discussed


      
         The trial court recognized the prejudicial nature of the unanswered
question and the need for a cure. This court, however, asserts that at most the
unanswered question “would have [caused the jury to] infer[] that [Lt.] Haines did
not conduct a thorough investigation, . . . discount[] the probative value of [Lt.]
Haines’s ‘exoneration’ of [Officer] Stewart[,] and consider[] it only as establishing
that the MPD investigation did not result in a finding of misconduct on [Officer]
Stewart’s part.” Ante at 14. The court contends that “that was exactly what the
jury was supposed to do anyway” and that Mr. Furr “was not entitled to have . . .
the jury consider [the finding of no misconduct] for [its] truth.” Ante at 14–15.
Thus, the court concludes, Mr. Furr was not entitled to rely on the curative-
admissibility doctrine.

      The court’s analysis fails to account for the fact that the initial testimony
about the investigation implied that the MPD had good reason to believe that
Officer Stewart had engaged in misconduct. The jury could reasonably have
thought that the MPD would not have initiated an investigation unless it had
suspected wrongdoing, especially given the absence of testimony about the
                                                                      (continued…)
                                          27

several options to rectify this false impression, and the trial court ultimately

decided that Officer Stewart should be asked whether any “other components”

besides his own statement were considered in the investigation. Ante at 8–9; see

also supra note 1. In making this determination, the trial court was implicitly

relying on the curative-admissibility doctrine: Officer Stewart’s testimony about

whether the investigation considered factors other than his own statement would

not have been admissible had the government not opened the door by asking about

the investigation and by undermining the defense’s earlier curative efforts. The

trial court noted, in fact, that the government “asked the question which . . . did

raise the issue that somehow it was [Officer Stewart’s] statement alone which

constituted why his lieutenant exonerated him.”



(continued…)
relevant MPD policies. The trial court could have found that the testimony by
Officer Stewart that he was ultimately “exonerated” by the MPD—without
testimony about the investigation’s thoroughness or the evidentiary standard
applied—was insufficient to defeat such an inference. And even if the trial court
thought that the testimony had initially been sufficient in this regard, the trial court
could have found that the testimony had been rendered impotent by the
unanswered question implying that the investigation had been a sham—that the
MPD investigators had perfunctorily cleared Officer Stewart upon consideration of
his own self-serving statement. I therefore see no persuasive reason to disagree
with the trial court’s assessment that a further cure was required, especially given
that the trial court is, as this court acknowledges, “virtually always in [a] better
position [than this court] to assess the admissibility of . . . evidence in the context
of the particular case before it.” Ante at 11 (quoting Johnson v. United States, 960
A.2d 281, 294–95 (D.C. 2008)).
                                        28

      The trial court could just as properly have exercised its discretion to permit

curative testimony by Lt. Haines. Testimony by Lt. Haines about the factors

considered in the investigation would ordinarily have been irrelevant and possibly

also inadmissible on other grounds. But the trial court could have admitted the

testimony under the curative-admissibility doctrine to remedy the misimpression

created by the government’s question about whether Officer Stewart’s exoneration

was based on his own statement and to mitigate whatever remaining unfair

prejudice had resulted from the government’s initial questioning about the

investigation. If Lt. Haines’s testimony were properly circumscribed—limited, for

instance, to listing the factors considered in the investigation—it would not have

gone beyond what was necessary to remedy the prejudice. See Howard, 978 A.2d


      6
         The court says that “[t]estimony about the information on which [Lt.]
Haines based his conclusions would . . . have been inadmissible hearsay.” Ante at
12. The court does not elaborate on this point or cite relevant authority, and it is
doubtful that the hearsay rule would have been violated unless Lt. Haines had
described the content of the information or the conclusions that he drew from it.
See ante at 12 n.13.
      
           Further, although it was not expressly argued in the trial court, Lt.
Haines’s testimony about the factors considered in the investigation also could
have helped to rebut the government’s legitimate impeachment theory that Officer
Stewart had a motive to lie in order to avoid discipline. If Officer Stewart had
believed that the investigators would be considering evidence from a variety of
sources, his motive to lie would arguably have been diminished because he would
have been aware of a higher likelihood that his lies would be ineffective and of a
possibility that the lies could backfire and be used as an aggravator to justify a
harsher sanction. The real question in assessing Officer Stewart’s motive is what
                                                                    (continued…)
                                         29

at 1211 (approving testimony similar to that proffered by Mr. Furr in the present

case). Counsel for Mr. Furr did not raise this option during the discussion about

the remedy, however, and the trial court thus had no occasion to afford this

particular remedy at that time.


      Instead, based on the trial court’s ruling, the prosecutor elicited the

following testimony from Officer Stewart:

             Q. Officer Stewart, were you interviewed as part of your
             investigation with regard to your misconduct on August
             26, 2011?

             A. Yes. That morning, yes.
             Q. And are you aware as to whether there were other
             components to that investigation, and whether other
             witness statements were reviewed, as well?

             A. Yes.




(continued…)
Officer Stewart knew, but Lt. Haines’s testimony on the investigation is indirect
evidence of what Officer Stewart knew about it and could have reinforced Officer
Stewart’s testimony on the matter. This is a more attenuated theory of
admissibility than the one set forth in the text above, but it is perhaps sufficient.
The general rule is that “[i]f . . . evidence offered conduces in any reasonable
degree to establish the probability or improbability of the fact in controversy, it
should go to the jury.” Dockery v. United States, 746 A.2d 303, 307 (D.C. 2000)
(quoting Home Ins. Co. v. Weide, 78 U.S. (11 Wall.) 438, 439 (1870)). And
although there would have been a risk that the jury would use this evidence for an
improper purpose, this concern was also present—perhaps to a greater degree—in
the initial testimony elicited by the government about the investigation.
                                          30

Officer Stewart’s responses were arguably not sufficient to remedy the prejudice

generated by the prosecutor’s initial questioning about the investigation and the

prosecutor’s unanswered question about whether Officer Stewart’s exoneration

was based on his own statement.         Most importantly, the government laid no

foundation for the latter of these two questions, and it is thus probable that the jury

viewed Officer Stewart’s response that he was “aware” of “other components” as

speculative and self-serving. Given that the cure was arguably deficient, and given

Mr. Furr’s constitutional right to present a defense, the trial court could have

exercised its discretion and granted Mr. Furr’s later request to permit Lt. Haines to

testify. See Howard, 978 A.2d at 1211. Because, however, Mr. Furr’s counsel did

not express any concern about the initial cure with a contemporaneous objection

and because the cure was not wholly ineffectual, I agree with the court that the trial

court did not abuse its discretion in excluding the testimony. See ante at 15–17.


      Finally, the court’s resolution of Mr. Furr’s prosecutorial misconduct claim

warrants brief comment. See ante at 18–20. The court correctly holds that the trial

court did not plainly err in declining to respond sua sponte to the prosecutor’s

argument, during rebuttal, that Officer Stewart “didn’t do his job.”               The

prosecutor’s argument paraphrased Mr. Patterson’s testimony and thus was a fair

characterization of the trial evidence. But it also contradicted the result of the

MPD investigation into Officer Stewart’s conduct. The defense had sought to have
                                         31

evidence about this investigation admitted following the prosecutor’s initial

questioning on the subject, but the trial court had excluded this evidence at the

government’s request. Given this context, the prosecutor’s argument was not

completely “unobjectionable,” ante at 19, and the trial court would have acted

within its discretion in giving a curative instruction had the defense made a timely

objection. See Williams v. United States, 877 A.2d 125, 129 (D.C. 2005) (“[T]he

prosecution [has a] duty to guard against inviting inferences of fact by a jury

arguably contrary to evidence it has succeeded in having excluded.”).


      Notwithstanding the foregoing reservations, I concur in the court’s opinion

in all other respects and concur in the judgment.
