James A. CORBIN, Appellant, v. UNITED STATES, Appellee.
No. 13-CF-410.
District of Columbia Court of Appeals.
Argued Feb. 19, 2015. Decided July 23, 2015.
120 A.3d 588
Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Erik Ken-
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and BELSON, Senior Judge.
BLACKBURNE-RIGSBY, Associate Judge:
The central issue on appeal is one of statutory construction, namely, whether the District of Columbia‘s carjacking statute,
Following a jury trial, appellant James Corbin was found guilty of four counts resulting from two incidents that occurred on December 16, 2007. For the first incident, involving Eva Kleederman, appellant was convicted of unarmed carjacking and robbery of Ms. Kleederman‘s keys.1 For the second incident, involving Christine Cannon, appellant was convicted of unarmed carjacking and first degree theft of personal property in the car.2 Primarily, apрellant challenges the sufficiency of the evidence supporting the carjacking of Ms. Kleederman, arguing that the evidence shows that he merely attempted to take Ms. Kleederman‘s car, and that the carjacking statute under which he was charged and convicted does not proscribe attempted carjacking. We agree, and we vacate this conviction and remand for resentencing for attempted carjacking in accordance with our holding.
In addition to his sufficiency claim, appellant argues that the trial court abused its discretion by: (1) permitting the government to comment, in closing argument, on appellant‘s right to independent DNA testing under Teoume-Lessane v. United States, 931 A.2d 478 (D.C.2007), when defense counsel did not open the door to this argument, and (2) refusing to issue a proposed jury instruction on scientific research suggesting that an eyewitness‘s level of confidence does not correlate to reliable identification. We affirm the trial court‘s ruling on these claims.3
A. The Kleederman Carjacking
On the afternoon of December 16, 2007, Ms. Eva Kleederman drove her five-year-old daughter from their home in Virginia to a violin recital at a venue on Mississippi Avenue, Southeast, Washington, D.C. Ms. Kleederman testified at trial that she was unfamiliar with the arеa and became lost while following printed directions. Upon seeing a man—presumably appellant—walking nearby, Ms. Kleederman rolled down her window and asked him for directions to Mississippi Avenue. Ms. Kleederman described appellant as an African-American and a “slight person,” about five feet and six or seven inches tall, “fifty-ish,” with “salt and pepper-ish, grayish” hair and “rough ... sandpapery ... gravelly” skin on his face, possibly due to “a bad shave or pocked skin,” wearing jeans and a mid-thigh length dark green or black “parka-looking winter jacket.” When Ms. Kleederman asked him for directions, appellant opened the passenger side door of her car “in the blink of an eye” and sat in the passenger seat, stating that he lived near Mississippi Avenue and would direct her. Ms. Kleederman was shocked and told appellant that she does not take passengers, but he responded “that‘s okay. I understand. I‘m an honest person.” Although she felt alarmed, Ms. Kleederman “didn‘t want to appear biased or racist just because [she] found [her]self in ... a part of town [she] knew to be largely black” and decided to drive on, “against [her] better judgment.” Appellant directed Ms. Kleederman for about ten minutes and avoided her attempts at conversation. During the drive, Ms. Kleederman noticed a cut on appellant‘s middle or index finger that was “oozing ... gelatinous blood,” and later found some of this blood on the door and dashboard of her car.
Upon entering a wooded street in Fort Dupont Park, identified at trial as Fort Dupont Drive, Southeast, appellant instructed Ms. Kleederman to slow down, saying “I live near here.” When Ms. Kleederman slowed down, appellant began to push her toward the driver-side door, saying “get out of the car” while trying to pull the key out of the ignition. At the same time, Ms. Kleederman began to push on the car horn and scream for help. Appellant was unable to pull the key out of the ignition, but managed to wrench away all of the other keys attached to it. He then exited the car, walked around to the driver side door, and tried to pull Ms. Kleederman out. At that moment, Mr. Amin Muslim and Mr. Stanley Daniels were driving by and stopped their car to aid Ms. Kleederman, prompting appellant to run off into a wooded area separating Fort Dupont Drive from Minnesota Avenue, Southeast. Mr. Muslim gave chase into the woods while calling 911 on his phone but eventually lost sight of appellant as appellant exited the woods toward Minnesota Avenue.
Meanwhile, off-duty police officer Stephanie Poyner of the Metropolitan Washington Airports Authority Police Department was visiting her mother at her childhood home on G Street, Southeast, which intersects Minnesota Avenue just opposite the wooded area into which appellant had fled. Drawn by the sound of a woman screaming for help coming from the direction of Fort Dupont Park, Officer Poyner walked to the intersection of G
B. The Cannon Carjacking
Before dark that same evening,4 Ms. Christine Cannon and her fiancé, Mr. Ahmad Johnson, were driving home after a day of shopping, in which they had filled Mr. Johnson‘s car full of Christmas presents. Ms. Cannon, who was three or four months pregnant at the time, asked Mr. Johnson to stop for a snack, so he parked in front of the Dollar General store at a strip mall on Pennsylvania Avenue, Southeast, and Minnesota Avenue. Ms. Cannon remained in the passenger seat of the car with the car keys in the ignition. Shortly after Mr. Johnson left, Ms. Cannon saw a man—whom she identified as appellant at trial—look into the car “like [he was] scoping.” The car was unlocked and appellant swiftly entered and sat in the driver‘s seat and told Ms. Cannon to “get the f--- [expletive] out of the car.” Ms. Cannon said “no” and reached for the keys, but he hit her in her chest. Ms. Cannon attempted to open her door and call out to Mr. Johnson, but appellant pulled her door shut, saying “b----[expletive] you should have got out of the car. Now I‘m going to kill you.” Appellant kept his left hand in his jacket throughout the incident and, at some point, told her that he had a gun and would shoot her.
Appellant sped away with Ms. Cannon in the car, driving “like a maniac” on both sides of the road. Ms. Cannon tried to look back and appellant hit her in the jaw, saying “turn your a--[expletive] around.” Eventually, Ms. Cannon covertly spilled some ginger ale on her dark jeans and told appellant that she was pregnant and believed she was having a miscarriage because she was “bleeding.” The man slowed down enough to shove Ms. Cannon out of the car and then pulled away. Ms. Cannon stumbled but caught her fall, and found a ride back to the Dollar General store.
Ms. Cannon described the man who had driven the car at trial as “brown skinned,” and “not a big guy,” in his thirties to forties, with “salt and pepper hair” and an unshaved face “like a goatee” or “a full beard” that he was “trying to grow in.” He appeared to be wearing black or blue jeans, and a “black leather or black sweatshirt with leather in it,” which Ms. Cannon later referred to as a “jacket.” In identifying appellant at trial, Ms. Cannon stated that his most memorable attribute were his eyes, which told her “not to play with him” during the events in question.
C. Connecting the Crimes
Shortly after Officer Poyner left the scene of the Kleederman carjacking, she
D. The Investigation
The investigation moved slowly and was eventually suspеnded. Police officers recovered Mr. Johnson‘s car on January 4, 2008, in the possession of two individuals who were quickly ruled out as suspects. Based on an address that these individuals provided, police officers visited the residence of a suspect but were unable to obtain any evidence tying him to the crimes at issue. Officers showed photo arrays that included this suspect to Ms. Kleederman and Officer Poyner, but neither was able to make a definitive identification. Appellant was not a suspect at this time and was not included in the photo arrays. Then, in a report dated August 3, 2010, the FBI returned a positive match for appellant from swabs of the blood recovered in Ms. Kleederman‘s car, which provided cause to arrest appellant.6
E. The Trial
The government relied on appellant‘s DNA match to tie him to the Kleederman carjacking. Neither Ms. Kleederman nor Officer Poyner was able to identify appellant at trial, but Officer Poyner testified that she had no doubt that the person she observed in both incidents was the same person. Ms. Cannon was able to identify appellant, however, explaining during her testimony that appellant “stands out to me like a sore thumb because of his eyes.” Ms. Cаnnon testified that she did not notice any blood on appellant during the incident or on herself afterward.
The trial court instructed the jury on the elements of the charged crimes, explaining, with regard to the Kleederman incident, that the jury must find carjacking is an “attempt[] to take a motor vehicle from the immediate actual possession of [Ms. Kleederman] against [her] will.” Appellant was convicted and sentenced to 180 months of incarceration, comprised of separate consecutive ninety-month sentences for the carjackings of Ms. Kleederman and
II. Discussion
A. The Statutory Construction Issue: Sufficiency of the Evidence in the Kleederman Carjacking
Appellant posits that he merely attempted to take Ms. Kleederman‘s car and, consequently, that the evidence offered at trial was insufficient to convict him under the plain language of the carjacking statute,
There are two parts to this argument. The first is a sufficiency question: whether a reasonable jury could conclude beyond a reasonable doubt that appellant completed a carjacking under the statute. If he did not, we must answer a second legal question: whether the carjacking statute, as written, encompasses both attempted and completed offenses.
1. Whether appellant completed a carjacking
Appellant argues that “simply getting into someone‘s car and giving bad directions, even on purpose, is not a carjacking” in the District of Columbia, but rather an attempted carjacking. Ms. Kleederman willfully followed his “bad directions,” he argues, and the fact that she was nervous and did not use her best judgment in doing so does not override her willful compliance. In any event, appellant argues that he did not complete a carjacking because he was ultimately unsuccessful in taking the car from Ms. Kleederman‘s possession. We agree.
In order to establish that a defendant completed a carjacking under the statute, the government must prove that the dеfendant, inter alia, took “immediate actual possession” of another person‘s motor vehicle. (John) Allen v. United States, 697 A.2d 1, 2 (D.C.1997). The carjacker may but need not physically remove the vehicle from a victim‘s presence in order to “take” under the statute. Moorer v. United States, 868 A.2d 137, 141 (D.C.2005) (“Carjacking simply requires possession or control ... of the car. Neither the [carjacking] statute nor the case law requires the government to prove asportation....“). Indeed, we have held that a victim retains “immediate actual possession” as long as the car “is within such a range that the victim could, if not deterred by violence or fear, retain actual physical control over it.” Winstead v. United States, 809 A.2d 607, 610 (D.C.2002) (citation and internal quotation marks omitted). A taking occurs as soon as the carjacker, by force or violence, shifts possession and control from the victim to himself or herself, which may occur “at any point during a continuous course of assaultive conduct, not just at the starting point.” Id. at 611.
On the facts before us, appellant never took “immediate actual possession” of Ms. Kleederman‘s car, as necessary to complete a carjacking. Certainly, appellant‘s presence in the car made Ms. Kleederman nervous and fearful, but he did not threaten Ms. Kleederman or brandish any kind of weapon, and Ms. Kleederman willfully followed appellant‘s instructions while “retain[ing] actual, physical control” over her car throughout. Contra Winstead, supra, 809 A.2d at 611 (concluding that a defendant took immediate actual possession when he ordered the victim at gunpoint to
2. Whether the carjacking statute encompasses attempted unarmed carjacking
Appellant argues that the plain language of
As a preliminary matter, we have parsed the elements of the carjacking statute in the context of merger analysis on several occasions and observed that the definition of unarmed carjacking includes attempted carjacking.9 However, none of these prior
“We review issues of statutory construction de novo [,]” recognizing that our task is to “discern, and give effect to, the legislature‘s intent.” Wynn v. United States, 48 A.3d 181, 188 (D.C.2012) (citations omitted). Our “primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he [or she] has used.” Id. (quoting Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C.1983) (en banc)). Yet we will not “make a fetish out of plain meaning nor should we make a fortress out of the dictionary.” Whitfield v. United States, 99 A.3d 650, 656 (D.C.2014) (citations, internal quotation marks, and brackets omitted). We recognize that each word of a statute “may or may not extend to the outer limits
of its definitional possibilities[,]” and that “[t]he meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Wynn, supra, 48 A.3d at 188 (citations and internal quotation marks omitted). We must, therefore, seek to give these words a “sensible construction,” Clyburn v. United States, 48 A.3d 147, 151 (D.C.2012) (citation omitted), and, in so doing, we may look beyond the plain language of a statute “where there are persuasive reasons for doing so,” such as to “reveal ambiguities that the court must resolve[,]” to avoid “absurd results,” to avoid “obvious injustice[,]” or to “effectuate the legislative purpose[.]” Peoples Drug Stores, Inc., supra, 470 A.2d at 754-55 (citations and internal quotation marks omitted).
Where a criminal statute remains ambiguous after applying these Cannons of statutory interpretation, however, “it is well-established that [such] statutes should be strictly construed and that ambiguities should be resolved in favor of the defendant (i.e., the Rule of Lenity).” Whitfield, supra, 99 A.3d at 656 (citation and internal quotation marks omitted). “To be sure, the rule of lenity is a secondary Cannon of construction, and is to be invoked only where the statutory language, structure, purpose[,] and history leave the intent of the legislature in genuine doubt.” Id. (citation omitted).
At the time of the events at issue,
A person commits the offense of carjacking if, by any means, that person knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempts to do so, shall take from another person immediate actual possession of a person‘s motor vehicle.11
(emphasis added). Our analysis centers on the phrase “or attempts to do so.” A straightforward, grammatically sound reading of this language suggests that the Council intended the phrase to modify the preceding means of taking, rather than the subsequent words, “shall take.” See Peoples Drug Stores, Inc., supra, 470 A.2d at 753 (citations and internal quotation marks omitted) (“[I]n examining the statutory language, it is axiomatic that [the] words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.“). Under this reading, which appellant endorses, the statute would seem to proscribe attempts to use “force or violence,”
attempts to act “against resistance,” attempts to “sudden[ly] or stealthy seiz[e],” attempts to “snatch[],” or attempts to “put[] in fear[,]” but not attempts to take. Yet our decisions have also interpreted this phrase to refer to the subsequent language, “shall take.”12 Under this reading, which the government endorses, the statute would seem to proscribe attempts to take.
The ambiguity mostly stems from the wording and position in the sentence of the phrase “or attempts to do so.” As to its wording, the use of “or” suggests that the phrase refers backward to modify the means of taking. As to its position in the sentence, placing the phrase “or attempts to do so” before the verb “take” does not obviously suggest that the phrase mоdifies the verb. What is more, even if we switch the order of the phrase and the verb when reading the statute, the result is grammatically incorrect: “A person commits the offense of carjacking if, by any means, that person ... [shall take] or attempts to do so[.]” A grammatically correct phrase
The ambiguity remains when reading the unarmed carjacking subsection of the statute together with the armed carjacking subsection. See
commits an attempted unarmed carjacking could not be convicted under the carjacking statute, but would instead fall within the ambit of the general attempt statute,
On the other hand, a less obvious yet still reasonable reading of the same subsections could lead one to conclude that the armed carjacking subsection‘s “commits or attempts to commit” language implies a similar interpretation for the unarmed cаrjacking subsection, such that the carjacking statute proscribes attempted and completed carjacking, whether unarmed or armed. Yet this conclusion begs a question: if the Council intended this meaning, why use different language? In the absence of statutory language that clearly conveys the Council‘s intent, we turn for guidance to the legislative history of the statute. See Whitfield, supra, 99 A.3d at 656.
The Council introduced carjacking as a separate offense in the District of Columbia as part of a bill entitled “Carjacking Prevention and Bail Reform Amendment Act of 1992 Temporary Amendment Act of 1992,” seeking to address a surge in carjackings in the District of Columbia. See D.C. Bill 9-629, § 2 (Sept. 18, 1992) (hereinafter “draft version“); see also Council of D.C., Comm. on the Judiciary, Comm. Rep. on Bill 10-16, “Carjacking Prevention Amendment Act of 1993,” at 2 (Feb. 10, 1993) (hereinafter “committee report“). Noticeably absent from the draft version
(a) A person commits the offense of carjacking if by any means, that person knowingly or recklessly by force or violence, whether аgainst resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person immediate actual possession of a person‘s motor vehicle.
(b) A person convicted of carjacking shall be fined not more than $10,000 or be imprisoned for a mandatory minimum term of not less that [sic] 15 years or both.
(c) A person convicted of attempted carjacking shall be fined not more than $1,000 or be imprisoned for not more than 3 years, or both.
D.C. Bill 9-629, § 2 (Sept. 18, 1992).
The present language of the carjacking statute first appeared in an October 6, 1992, amendment to this draft version. See Amendment No. 6 to D.C. Bill 9-629, Attachment 2 (October 6, 1992) (hereinafter “amendment“). This amendment added, inter alia, the phrase “or attempts to do so” after the phrase “putting in fear” and removed the separate three-year mandatory maximum sentence for attempted carjacking in subsection (c). Id.15 The Council did not indicate why it amended
the draft bill in this way. On the one hand, we might conclude that the Council removed the three-year mandatory maximum sentence for attempted carjacking in subsection (c) in order to punish attempted carjacking under the general attempt statute, which, at the time, set the mandatory maximum sentence for attempt at one year. See
The committee report accompanying the final version of the carjacking statute is silent on any intent to punish attempted carjacking and completed carjacking equally, and the word “attempt” does not appear in the report. See Council of D.C., Comm. on the Judiciary, Comm. Rep. on Bill 10-16, “Carjacking Prevention Amendment Act of 1993” (Feb. 10, 1993).16 The
In the absence of any clear intent behind the Council‘s amendments and eventual choice of language, we cannot conclude whether it drafted the statute to encompass or exclude attempted unarmed carjacking. We perceive no clear intent with regard to attempted carjacking in the legislative history, nor can we identify any
well-founded support for the many inferences that the parties suggested in their arguments. Granted, the legislative history seems to indicate that the Council was not satisfied by proscribing only completed carjackings, yet the Council expressed no legislative intent to punish attempted and completed carjacking equally.19
We conclude that the subsection of the carjacking statute proscribing unarmed carjacking,
B. Appellant‘s Abuse of Discretion Arguments
1. The government‘s statements regarding appellant‘s right to independent DNA testing under Teoume-Lessane
Appellant next argues that the trial judge abused his discretion and impermissibly shifted the burden of proof to appellant by allowing the government to mention at trial that appellant has the right to conduct independent DNA testing under the Innocence Protection Act.21 We
have held that the government may inform the jury of a defendant‘s right to independent DNA testing to rebut defendant‘s suggestion that the government‘s procedures are biased. See Teoume-Lessane, supra, 931 A.2d at 491 (“[T]he defense‘s questions had attempted to create the impression that the FBI‘s testing had been selectively performed to skew the results by focusing only on the items most damaging to appellant, while ignoring items that could have helped to exculpate him.“). Appellant argues that he did not make a bias argument at trial, but merely questioned the reliability of DNA testing by challenging “the validity of the underlying methods and assumptions,” an argument that does not open the same door as questions about bias under Teoume-Lessane. Appellant argues that by allowing evidence of a defendant‘s right to independent DNA testing when there was no unfairly prejudicial inference to counter, the trial court allowed the jury to infer that he had failed to present independent DNA testing evidence because it would have confirmed his guilt. We agree, yet we conclude that any error on the trial court‘s part was harmless.
We review a trial court‘s decision to admit evidence, and its determination that the evidence is more probative than prejudicial, for abuse оf discretion. See id. at 491 (citations omitted). In Teoume-Lessane, and later in Gee v. United States, 54 A.3d 1249, 1255-58 (D.C.2012), this court narrowly held that the door opens to an independent-DNA-testing rebuttal when defense counsel suggests that the government used biased procedures or withheld evidence in order to obtain a conviction. See Teoume-Lessane, supra, 931 A.2d at 491 (“[D]efense‘s questions had attempted to create the impression that the FBI‘s testing had been selectively performed to skew the results by focusing only on the items most damaging to appellant, while ignoring items that could have helped to exculpate him.“); Gee, supra, 54 A.3d at 1255-57 (applying Teoume-Lessane to conclude that defense counsel unfairly suggested to the jury “that the Government was only testing that which they found a positive test and ignored other[] [portions of a piece of clothing] that presumably might have been tested and could have exculpated your client[,]” thereby “creating the impression that the government had deliberately ignored, and then had withheld from the defense, evidence that could have called into question the government‘s DNA-based case“). Thus, our inquiry must focus on defense counsel‘s statements at trial that the government contends amount to accusations of bias, thereby opening the door under Teoume-Lessane.
The government does not point to a specific statement from defеnse counsel that suggests biased procedures, nor did we find one in our review, but the govern-
Here, the trial court, citing Teoume-Lessane, stated that “[t]he government has a right to respond” with an independent-DNA-testing rebuttal when defense counsel argues that “the protocols used by this tester were likely to result in an unreliable identification of your client.” Teoume-Lessane is clear: suggestions of bias open the door. See Teoume-Lessane, supra, 931 A.2d at 491. There is a distinction between a bias attack and an attack on the competence of an expert or the validity of protocols. Biased methods carry a degree of intentionality that incompetence and unreliability do not. Defense counsel‘s suggestion during closing arguments that this was a “low priority” case and that technicians did not “show their work” are charges of incompetence and unreliability, not bias. We have not applied Teoume-Lessane to competence and reliability challenges, and we decline to do so here.
Accordingly, the trial court erred by construing the holding of Teoume-Lessane to permit the government to offer an independent-DNA-testing rebuttal when defense counsel fervently challenged the competence of DNA testing personnеl and the reliability of testing methods. Contrary to the trial judge‘s statement, the government is not required to “sit silent” when facing this challenge, but is permitted to—and, in the present case, did—rehabilitate its witness through redirect examination or additional testimony on the competence of personnel and the reliability of the challenged procedures.
Yet we also conclude that permitting the government to inform the jury of appellant‘s right to independent DNA testing in this case was harmless error. See Kotteakos v. United States, 328 U.S. 750, 765 (1946). The trial court was careful to explain that appellant‘s right did not alter the government‘s burden of proof, and this instruction was sufficient to mitigate the harm on the facts before us, where there was ample circumstantial evidence tying appellant to the Kleederman carjacking. See (Claude) Allen v. United States, 603 A.2d 1219, 1224 (D.C.1992) (en banc) (“[O]ne would presume that the jury applied the law as stated by the judge, not by the prosecutor“). Given this DNA evidence, there is no indication that, had the trial court not erred in permitting an independent-DNA-
2. Jury instructions regarding scientific research on the reliаbility of eyewitness identification
In appellant‘s only claim on appeal related to the Cannon carjacking, he argues that the trial court abused its discretion by rejecting a proposed jury instruction incorporating recent scientific research regarding eyewitness identification because the trial court “erroneously believed” that it “could not instruct the jury based on scientific research.” Appellant argues that this research was particularly relevant because Ms. Cannon‘s in-court identification provided the pivotal link between the two incidents.22
At trial, appellant‘s defense counsel proposed jury instructions on eyewitness reliability based on instructions that the state of New Jersey recently adopted at the suggestion of the Supreme Court of New Jersey in State v. Henderson, 208 N.J. 208, 27 A.3d 872, 884, 916-17, 919, 925-26 (2011) (concluding, based on expert testimony and a special master‘s report examining scientific studies on memory and eyewitness identification, that “science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques аnd identification procedures; and the many other factors that bear on the reliability of eyewitness identifications“).23 The defense counsel‘s proposed instructions cited to Henderson and several other cases in footnotes without any explanation or citation to the scientific studies cited in those cases. Instead, the instructions referred generally to the results of those studies, using phrases such as “research has shown that there are risks of making mistaken identifications” and “research has revealed that human memory is not like a video recording....”
In rejecting defense counsel‘s proposed instruction, the trial court explained to the parties that “the problem with the instruction ... is that it talks about the research. There is no evidence of research that is before the jury. I don‘t think that it‘s appropriate for me to be talking about what the research is on this issue.” Defense counsel proceeded to explain that “the research exists” and is “well established,” and the trial court responded: “I‘m comfortable with the Red Book [i]nstruction. I believe that that sets forth the appropriate considerations for the jury to take into account in assessing the strength and reliability of Ms. Cannon‘s identification.” Defense counsel noted her objection for the record, and the trial judge elaborated:
Well I think that that area is an area that could come before the jury in the
form of evidence and it could be rebutted by the government by contrary studies.24 But, I don‘t think that it‘s appropriate to just instruct the jury as to what the research has found in this evolving area of law. It would be up to them to evaluate the research if it was put before them. But, it does not appear that it will be put before them in this case. So, I will stick with the Red Book.
The trial judge issued the following jury instruction based on the model instruction in the Red Book,
A number of factors may affect the reliability of an identification of the defendant by an alleged eyewitness including the witness’ opportunity to observe the criminal acts and the person committing them including but not limited to the length of the encounter; the distance between the various parties; the lighting conditions at the time; the witness’ state of mind at the time of the offense. Secondly, any subsequent identification and the circumstances surrounding that identification including the length of time that elapsed between the crime and the identification; the witness’ state of mind when making the identification and any statements or аctions by law enforcement officers concerning the identification. Third, any failure of a witness to make an identification or a misidentification by the witness and any other factors that may have been brought to your attention by expert testimony and the remaining evidence that you conclude bear upon the reliability of the witness’ in-Court or out of Court identification of the defendant.
The trial court has “broad discretion in formulating jury instructions, and its refusal to grant a request for a particular instruction is not a ground for reversal if the court‘s charge, considered as a whole, fairly and accurately states the applicable law.” Fearwell v. United States, 886 A.2d 95, 101 (D.C.2005) (citation and internal quotation marks omitted). “[A] party is entitled to a requested instruction only if there is evidence in the record to support the request.” Id. (citation omitted). The trial court must make “an informed choice among permissible alternatives ... based upon and drawn from a firm factual foundation[,]” and thus abuses its discretion by fashioning jury instructions that are not so drawn. Nelson v. McCreary, 694 A.2d 897, 901 (D.C.1997) (citation omitted).
Appellant concedes that the trial court was not “required as a matter of law” to adopt the proposed instruction. Indeed, the parties did not introduce any expert testimony or scientific studies regarding eyewitness identification, and defense counsel was not entitled to an instruction that the record could not support. See Fearwell, supra, 886 A.2d at 101 (explaining that a party is “only” entitled to a requested instruction if the record will support it). Yet appellant contends that the trial court‘s statements indicate that it premised its decision to
In our view, the trial court‘s choice of language provides no indication that it considered itself constrained to reject the scientific research outright. The trial court did not say that it was “precluded” or “prohibited,” or that “case law clearly requires exclusion” of such scientific research. Rather, after hearing defense counsel‘s arguments, the trial court concluded that it would not be “appropriate” to instruct the jury about research on eyewitness identification that the parties had not presented to the jury. In choosing to “stick with the Red Book” instructions, the trial court recognized that the proposed instruction differed, in that it extensively referenced research in an “evolving area of law” that was not before the jury, and this difference provided reasonable cause for concern. See Johnson, supra, 398 A.2d at 364 (“[T]he determinations committed to the trial court‘s discretion are rational acts of decision-making. An informed choice among the alternatives requires that the trial court‘s determination be based upon and drawn from a firm factual foundation.“). The trial court‘s statement that this research “could come before the jury in the form of evidence and it could be rebutted by the government by contrary studies” expresses a clear discretionary preference for the adversary process and constitutes a thoughtful exercise of discretion. This record does not support appellant‘s contention that the trial judge was under the legally erroneous view that he was precluded from using the proposed instruction.25
III. Conclusion
Accordingly, we affirm appellant‘s convictions with regard to all but the carjacking of Ms. Kleederman because the еvidence in the record is insufficient to establish that appellant completed this carjacking. We therefore vacate this conviction and remand for resentencing for attempted carjacking in accordance with our holding.
So ordered.
Notes
Viewing the evidence in the light most favorable to the government and deferring to the jury‘s responsibility to weigh evidence, make credibility determinations, and draw reasonable inferences, see id. at 359, we conclude that the jury was entitled to infer that appellant “intend[ed] the natural and probable consequences of [his] acts knowingly done[,]” or in this case, to infer his intent to steal the keys attached to the ignition key, as expressed through the act of grabbing and pulling at them. See, e.g., Wilson-Bey v. United States, 903 A.2d 818, 839 n. 38 (D.C.2006) (en banc). Evidence supporting a guilty verdict need not “negate every possible inference of innocence” in order for a jury to find that the elements of a crime are proved beyond a reasonable doubt. In re D.P., 996 A.2d 1286, 1290 (D.C.2010) (citation and internal quota-
tion marks omitted). The jury was not compelled to infer from the evidence, as appellant argues, that he intended to steal the ignition key alone and not the other keys. Accordingly, we hold that the evidence in the record is sufficient to support appellant‘s conviction for a completed robbery.Whoever shall attempt to commit any crime, which attempt is not otherwise made punishable by chapter 19 of An Act to establish a code of law for the District of Columbia, approved March 3, 1901 (31 Stat. 1321), shall be punished by a fine not exceeding $1,000 or by imprisonment for not more than 180 days, or both. Except, whoever shall attempt to commit a crime of violence as defined in
(a)(2) A person convicted of carjacking shall be fined not more than $5,000 and be imprisoned for a mandatory-minimum term of not less than 7 years and a maximum term of not more than 21 years, or both.
(b)(1) A person commits the offense of armed carjacking if that person, while armed with or having readily available any pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machine gun, rifle, dirk, bowie knife, butcher knife, switch-blade knife, razor, blackjack, billy, or metallic or other false knuckles), commits or attempts to commit the offense of carjacking.
(2) A person convicted of armed carjacking shall be fined not more than $10,000 and be imprisoned for a mandatory-minimum term of not less than 15 years and a maximum term of not more than 40 years, or both. However, the court may impose a prison sentence in excess of 30 years only in accordance with
(c) Notwithstanding any other provision of law, a person convicted of carjacking shall not be released from prison prior to the expiration of 7 years from the date of the commencement of the sentence, and a person convicted of armed carjacking shall not be released from prison prior to the expiration of 15 years from the date of the commencement of the sentence.
Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than 2 years nor more than 15 years.
Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.
(emphasis added).An attempt consists of an act which is done with the intent to commit a particular crime and is reasonably adapted to the accomplishment of that end. The act must go beyond mere preparation and must carry the criminal venture forward to within dangerous proximity of the criminal end sought to be attained.
This “dangerous proximity” test, formulated by Justice Holmes, does not require that appellants have commenced the last act sufficient to produce the crime but focuses instead on the proximity of appellants’ behavior to the crime intended. Jones v. United States, 386 A.2d 308, 312 (D.C.1978) (footnote omitted). “[M]ere preparation is not an attempt, but preparation may progress to the point of attempt. Whether it has is a question of degree which can only be resolved on the basis of the facts in each individual case.” Id. at 313 n. 2. It is sufficient for the government to prove that “except for some interference,” defendant‘s “overt act done with the intent to commit a crime ... would have resulted in the commission of the crime.” Evans v. United States, 779 A.2d 891, 894 (D.C.2001).
Appellant contends that the Henderson case and the studies cited therein are legislative facts appropriate for judicial notice, citing Jones v. United States, 548 A.2d 35, 42, 45 (D.C.1988), where we assessed the reliability of a drug testing method. In Jones, we held that the trial court may, in the absence of expert testimony in the record, take judicial notice of other court opinions and scientific literature for the limited purpose of establishing “general acceptance of a scientific technique[,]” and that, to this end, “[e]xpert testimony in other cases, subject to cross-examination, can be probative[.]” Id. at 42, 45. The trial court exercised its discretion to reject the jury instructions, and there is nothing in the record that leads us to conclude that the trial court was unaware of or misinformed about our case law.