Myrone Williams appeals his convictions of threatening to injure a person
I.
The charges grew out of the fatal shooting of appellant’s wife early in the morning of March 22, 2008. According to the government’s evidence, in early March, appellant’s son, Myrone Hamilton (age ten), heard his mother, Bernadette Hamilton, arguing with appellant at their home about divorce papers she had had served on appellant on March 4th. During the argument, Myrone heard his father say that he would “kill her and then kill hi[m]self.” At approximately 1:30 a.m., Melissa Stokes, a Detail Support Liaison with the Metropolitan Police Department (MPD), was dispatched to assist with a family disturbance report. Stokes assisted Ms. Hamilton in gathering her belongings, as well as My-rone and her older son, Tyzje, and transporting them to the nearby home of Ms. Hamilton’s mother, Renae Mickens.
Two weeks later, on March 21, Ms. Hamilton, who intended to be with a friend that evening, informed her mother that appellant would be coming to their home to gather Myrone and Tyzje so that appellant could take them to his mother’s home to stay with him overnight. Appellant picked up his sons that afternoon and took them to his mother’s home at 1503 Tanner Street, S.E. After several hours, however, he decided to take them to their paternal aunt’s house while appellant remained at his mother’s home.
Appellant’s brother, Jeffrey Mosley, testified that at approximately midnight on March 22, 2008, he was with appellant at their mother’s house and that appellant had “a gun on him,” a “nine ... [millimeter.” Mosley further testified that the gun had been “in [Mosley’s] room on the floor” and was gone when appellant left. Another government witness, MPD homicide Detective Joshua Branson, testified with reference to exhibits in evidence that at “about” 12:25 a.m. on March 22, Bernadette Hamilton placed a call to appellant’s' cell phone. Referring to that time period soon after appellant had left, Mosley testified that he saw a car outside the house that he believed was Bernadette Hamilton’s.
Around that time, several neighbors heard gunshots and looked outside to see what was happening. Lakeisha Walker, who was at her home near 15th Place and Tanner Street, S.E., looked out her window, overlooking Tanner Street, and saw the backside of a man with long “braids, cornrows, or pla[i]ts” as a hairstyle, wearing blue jeans, a white shirt, and a cap, shooting into the driver’s side of a dark-colored car.
Another government witness, Travis Archie, had not seen the shooting but heard the gunshots, knew appellant, and no more than fifteen seconds after the shots stopped saw appellant walking away from the direction of the shooting. Archie testified, as Aull had described the shooter, that appellant was dressed in a black jacket, blue jeans, and a cap.
The government also presented evidence of Bernadette Hamilton’s wounds and their source. The District of Columbia Medical Examiner, Lois Golinski, M.D., had conducted the autopsy and found twelve bullet wounds in various parts of Bernadette Hamilton’s body including her neck, vertebrae, jaw, chest, left shoulder, and left arm. MPD firearms expert Michael Mul-derig found that the nine-millimeter cartridges and the nine-millimeter bullets recovered from the scene of the crime were all from the same gun. The police did not, however, locate the gun.
II.
We consider, first, appellant’s contention that the evidence was insufficient to convict him of second-degree murder while armed and the related weapons charges (he does not challenge evidentiary sufficiency for his threats conviction). Because of a defense concession and pretrial stipulation, our decision as to whether the evidence was sufficient to support appellant’s conviction of second-degree murder while armed will resolve all weapons convictions as well.
For second-degree murder, “the government was required to prove that [appellant] (1) caused the death of the victim;
In reviewing for sufficiency of the evidence, we have often observed that this court
must view the evidence in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact. We do not distinguish between direct and circumstantial evidence, and the government is not required to negate every possible inference of innocence. Rather, it is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction.13
Based on these criteria, appellant’s sufficiency argument fails. Ample evidence supports reasonable jury findings that appellant was the shooter who caused his wife’s death, that he had the specific intent to kill her (twelve bullets while she sat in her car), and that no circumstances mitigated the charge of second-degree murder while armed.
In sum, the evidence was sufficient for conviction of second-degree murder while armed; and, given appellant’s concession as to PFCV and his pretrial stipulation as to the other weapons offenses,
III.
Appellant argues that the trial court violated his constitutional right to due process by refusing to grant his request for removal of his leg shackles without a reasoned factual finding for doing so.
At a preliminary hearing, the trial court asked a United States marshal whether appellant had been “compliant with the instructions” while in the marshal’s custody. The marshal replied, “He has not, ... he refused to get dressed.” Addressing appellant, the court said: “Mr. Williams, normally I have the cuffs taken off, but I need to make sure that the Marshals are satisfied with the proceedings. So, right now the cuffs will just stay on until we get a little closer to the trial.” The next day, a marshal informed the court that appellant had “refused to leave his eellbloek this morning.” The marshal then brought appellant to the courtroom, whereupon appellant said, “I want another attorney.” The court denied the request, adding:
My difficulty Mr. Williams is that in trial you’re entitled to make the best presentation possible. You’re entitlefd] to dress in civilian clothes if you like. You’re entitled to be without cuffs if you like. I — you’re just putting me in a difficult position, because those things can work for you.
Appellant responded, “I haven’t been violent with anybody.... I just said I’m not going upstairs,” to which the court replied, “All right” and offered him a “change into street clothes in preparation for trial.” Just before the jury was brought into the courtroom, defense counsel objected to the leg shackles:
[M]y client is sitting here at counsel table. He does have ... leg shackles on. There is an apron around ... the front of the counsel table, but I would object to my client being shackled here, ... in front of the jury. I don’t think he’s behaved ... in a violent or aggressive manner.... The jury ... would realize ... that something is going on here for there to be an apron around, so I would object, ... and ask that the shackles be removed. [Emphasis added.]
The court answered by pointing out the distinctiveness of the particular courtroom they were in, which included “huge plasma monitors” and skirts around the tables where the prosecutor as well as appellant and defense counsel were sitting — with all skirts matching “the fabric that’s on the seats in the courtroom and the jury box.”
The jury may wonder why I have all these plasma monitors in the courtroom and why the curtains are on the tables, but certainly that’s not prejudicial to your client because they wonder about that. I need for your client to satisfy us by his conduct — and today could very well be helpful to us.... And ... once we’re satisfied, then we’ll ... seriously consider granting your request, but right now your request is denied. The curtains are to hide from the jury the fact that Mr. Williams is in shackles. [Emphasis added.]
The next day, the second day of trial, defense counsel again asked whether the leg shackles could be removed. The court replied that it had “discussed the issue yesterday with the Marshal. And he is continuing to assess things with respect to a point at which we can remove the leg irons. All that I would ask is that Mr. Williams continue to cooperate with the Marshal. It will happen, but not right now.”
The issue was not raised the following trial day but came up again on the fourth (and last) day of trial, when the trial court said to defense counsel before closing arguments to the jury:
I just wanted to note for the record, ... you requested that the leg shackles be removed from Mr. Williams. And I had indicated that this was an issue that Marshals would make an assessment of. And as of today, he is not wearing the shackles.... Well, they were removed, and ... we asked Mr. Williams to continue with his compliance with instructions of the Marshals, and the shackles will stay off.
From the trial court’s comments, and defense counsel’s acknowledgment, it is clear that the shackles were not visible to the jury; and, as a further precaution, the same apron, as the trial court noted (and appellant does not dispute), surrounded the prosecutors’ table. The question, then, is whether the circumstances reflected a violation of appellant’s constitutional right to due process.
In Deck v. Missouri,
At trial, counsel’s objection to appellant’s leg shackles was limited to his concern about the first and third principles undergirding Deck: prohibition on visible shackles because of their implication that a defendant is guilty and unworthy of dignified treatment-a focus on the jurors’ perception. As we have noted, the facts do not support that concern. The jurors, the trial court explained, would not be drawn to the table skirts because they were on both tables, the fabric matched the fabric on the seats in the jury box, and the courtroom was distinctive with its plasma monitors. Thus, “the jury would have had no reason to draw any adverse inference from the appearance of the defense table.”
However, the second principle — communication with counsel and effective participation in one’s defense — is different; those concerns can affect a defendant, at least psychologically, by both concealed and revealed restraints, as case law from jurisdictions dealing with “stun belts” has recognized.
IV.
Appellant maintains that the trial court abused its discretion in admitting three kinds of evidence leading to prejudice that “substantially outweighed” any probative value:
Before trial, defense counsel filed a motion in limine to exclude from admissible evidence the fact that appellant “did not go to the funeral of the decedent which was several days after the homicide.” Counsel stressed that this fact was “not relevant”; it was “more prejudicial than probative that the ... husband of the wife who was killed didn’t appear at the funeral[,] ... [a]nd the jury may infer guilt[ ]” from that fact. Counsel argued that there were “all kinds of explanations” why his client did not attend the funeral: (1) “the day following the homicide, he was taken in for questioning by the police,” and “everybody in the family believed that he was guilty of the homicide”; (2) furthermore, “[tjhere were threats made.”
Appellant then adds that, although not expressly raised at trial, the motion in limine “encompassed all evidence regarding Williams’s conduct toward his children in the aftermath of the death of their mother,” including his failure to see them since the day before she died. Finally, appellant folds in a second argument not raised at trial: that the court abused its discretion in permitting the government to present evidence that the family dog was found in the vehicle with Bernadette Hamilton, after her death, licking her face. The dog’s behavior, appellant contends, was wholly irrelevant, inflammatory, prejudicial, and satisfies plain error review. In sum, appellant stresses that the challenged evidence was particularly harmful given the “weak” government case — weak because no one could precisely identify appellant as the shooter.
The government counters that the “evidence was directly relevant to show that appellant was not on good terms with his wife and to show consciousness of guilt.” The jury could reasonably infer, says the government, that appellant would have attended the funeral and cared for his sons had he not been responsible for her death. The government also adds that, in any event, admission of the evidence that appellant did not attend the funeral would be harmless, if error, for three reasons: (1) appellant provided the jury (through cross-examination of his sons) with the alternative, reasonable explanation that he stayed away because of the Hamilton family’s hostility to him; (2) the point was not unduly emphasized, as the government did not mention his absence from the funeral during closing argument; and (3) there was “ample ... evidence of appellant’s guilt” despite any prejudice from the funeral evidence.
As to the other two claims of unduly prejudicial evidence, the government reminds us, first, that trial counsel did not object to the evidence of appellant’s failure to stay in contact with his sons after their mother’s death. Nor did he object to evidence of the family dog’s behavior after the murder. These evidentiary contentions, says the government, are therefore limited-and we agree-to plain error review. The government then stresses that appellant’s failure to contact his sons after the murder reflects additional consciousness of guilt, and that the family dog’s behavior after the murder, in the context of appellant’s screaming “bitch” and shooting Bernadette Hamilton ten (actually twelve) times, was not particularly prejudicial.
In ruling on appellant’s motion in li-mine, the trial court rejected counsel’s argument that
there could be any number of reasons why the defendant did not go to the funeral. Including the fact[ ] that all of [the] relatives perhaps thought that it was the defendant who committed the offense. That may well be the case, but it’s compelling on these circumstances. The evidence may be consciousness of guilt that the defendant did not attend the funeral. So, that will be permitted.
The court added that it would “be prepared, during the course of the trial, to give an instruction on consciousness of guilt, if that’s what you would request. So that the jury would be limited in how they would consider such evidence.”
At trial, both of appellant’s sons testified, over objection, that their father did not attend the funeral. Defense counsel did not request the limiting instruction the court had offered. Later, the government asked each of the sons, without objection, whether he had seen or spoken with his father since their mother’s death, and each replied that he had not. Finally, during examination of evidence about the crime scene, the government elicited testimony, again without objection, that the family dog had been in the car with Bernadette Hamilton licking her face after her death. The government repeated this evidence about the dog twice during closing argument.
We review a trial court’s decision to admit or exclude evidence for abuse of discretion.
The government does not even attempt to justify admission of evidence about the family dog, other than to say that it was “not more prejudicial or shocking than the evidence” — offered by the government without objection — that “appellant, while screaming ‘bitch,’ shot [his wife] ten times as she sat in the car.” We agree with appellant that this evidence was not relevant, let alone material or probative, toward proof of some fact at issue. And even if one could postulate a smidgen of relevance, this evidence was so highly inflammatory that any probative value was “ ‘substantially outweighed by the danger of unfair prejudice.’ ”
Plain error review also does not rescue appellant’s claim of prejudicial error in admission of the evidence that appellant had not seen his sons since the day before their mother’s death. (This evidence is not embraced, by any reasonable stretch, within appellant’s motion in limine concerning the funeral.) We recognize that the government did not proffer foundational evidence to establish how it would have been possible for appellant to see his sons during the period between his arrest (March 2008) and trial (June 2009), given appellant’s confinement and the sons’ residence with their mother’s family — a family intensely hostile to their father. The very facts relevant to this alleged consciousness of guilt are elusive; thus the probative value of the evidence is questionable.
On the other hand, a father would normally and naturally want to comfort his children upon the death of their mother,
We therefore turn, finally, to appellant’s pretrial motion challenging admission of the evidence that appellant did not attend his wife’s funeral — another category of evidence admitted to show consciousness of guilt.
On the face of it — that is, when considered without regard to context — it seems evident that the failure of a criminal suspect, still at liberty, to attend the funeral of his wife after her apparent murder is inconsistent with the way an innocent person would have acted.
Whatever analytic premise we use, probative value or unfair prejudice, the inquiry shifts to context — to appellant’s proffered explanations for staying away from the funeral. In contrast with appellant’s failure to ask for exclusion of testimony that he did not see his sons after their mother’s death, his counsel, beginning with the pretrial motion in limine, vigorously attempted to keep the funeral evidence out of the case by proffering two explanations for why appellant stayed away: his anticipated discomfort in joining his estranged wife’s family, given their belief that he was the murderer, and threats against him from the family. With these proffers before the court, the government’s prima fade showing — that, in his situation, the defendant did not act in the way that an innocent person “would naturally have acted”
At trial, to rebut the perception of guilt-consciousness, counsel elicited on
Without trial court findings that the probative value of appellant’s absence (reflecting guilt-consciousness) exceeded its prejudicial impact (inflaming the jury), we cannot say as a matter of law that the funeral evidence was properly admitted, especially because “improper inferences [based on defendant’s inaction] are likely to be over-valued by juries.”
In sum, the failure to attend the funeral of one’s wife after her murder, when considered without further information, is inconsistent with the way a reasonable person would have acted.
Accordingly, the “trial court exerciser] its discretion erroneously,” and thus the question becomes whether this error is “of a magnitude to require reversal.”
Second, appellant’s brother testified that he had seen appellant leave the house within a half-hour before the shooting with “a gun on him,” a nine-millimeter, the type of weapon an expert testified had been the murder weapon, based on an analysis of the bullets and shell casings recovered at the crime scene. Third, the harm from the funeral evidence itself was mitigated. Counsel for appellant elicited on cross-examination of appellants’ sons that their mother’s family held appellant responsible for the murder. While not eliminating all the prejudice from the funeral evidence, defense counsel at least was able to lessen its impact by offering appellant’s reasonable explanation, in lieu of a guilty conscience, for staying away from the funeral.
Fourth, appellant declined the trial court’s invitation to request an instruction limiting the use the jury could make of the funeral evidence.
In the words of harmless error analysis, therefore, “we can say with fair assurance, without stripping the erroneous action from the whole, that the error did not sway the verdict.”
V.
We turn, finally, to the trial court’s rein-structions of the jury after receiving two notes indicating first a difficulty, then a deadlock, in reaching a decision on first-degree premeditated murder while armed
A.
In submitting the case to the jury initially, the trial court, without objection from counsel, gave the jurors the standard “acquittal first” instruction that they “should consider first whether the defendant is guilty of first-degree murder[;] do not consider second degree murder. If you find him not guilty of first[-]degree murder, go on to consider second degree murder.”
The jury began deliberations a little after 8:00 p.m. and was released just before 5:00 p.m. The next day, at around 12:50 p.m., the jury sent the judge a note: “If we cannot reach a unanimous decision about first[-]degree murder, should we continue to deliberate on that charge until a unanimous decision is reached, or should we take up the question of murder in the second degree?” Defense counsel asked for another “acquittal first” instruction, rather than a “reasonable efforts” instruction that would have permitted the jury to move on to consideration of second-degree murder without resolving first-degree murder.
The jury is split on 3A [first-degree premeditated murder while armed]. We have not changed our positions in the past 24 hours. We believe that we are deadlocked on that count. We have not considered 3B [second-degree murder while armed] based on your instructions as we understand them. We have reached a decision on 1, 2, 4, and 5.70
At this point, the government asked for a “reasonable efforts” instruction; the defense asked for a “mistrial” on first-degree murder, indicating counsel’s belief that the jury was deadlocked on that count. The court initially asked whether an anti-deadlock instruction would be appropriate, then immediately shifted the focus, suggesting that case law appeared to give the defendant, but not necessarily the government, a right to request a “reasonable efforts”
The court then indicated to defense counsel that it was considering a combined instruction: “an anti-deadlock instruction with reasonable efforts.... I would just add the reasonable efforts phrase ... probably towards the end.” Defense counsel reiterated his desire for a mistrial as to first-degree murder. If the court was not going to declare a mistrial, he added, “then an anti-deadlock instruction would not be appropriate” and “we would oppose [reasonable efforts].” Now agreeing with the court’s inclination, the government said that it wanted the combined anti-deadlock and reasonable efforts instruction. The trial court agreed to give it.
After the trial court gave to counsel its version of the combined instruction, defense counsel observed, “I guess I can’t voice an objection to it. It appears to take language from several of the instructions that are mentioned in the red book.” The government asked the court to “highlight” the reasonable efforts portion because the jury had “asked twice” to consider second-degree murder. The court agreed to “point it out.” Defense counsel then stated that it took “no position where [the reasonable efforts instruction is] located. We’ve objected to it.”
Shortly before 3:30 p.m. on its second full day of deliberations, the trial court instructed the jury as follows, with the regular type reflecting essentially the Winters anti-deadlock charge;
In many cases absolute certainty cannot be attained or expected. Although the verdict must be the verdict of each juror and not a mere acquiescence in the conclusion of the other jurors, you should examine the questions submitted to you with candor and with proper regard and deference with the opinions of each other. You should consider that it is desirable that the case be decided, that you are selected in the same manner and from the same source from which any future jury must be and there is no reason to suppose that the case will ever be submitted to 12 persons more intelligent, more impartial or more competent to decide it or that more or clearer evidence will be produced on one side or the other.
And with this view, it is your duty to decide the case if you can conscientiously do so. You could listen to each other’s argument with a disposition to be convinced. Thus, where there is a disagreement^] jurors for acquittal should consider whether their doubt is a reasonable one which makes no impression upon the minds of others equally honest, equally intelligent with themselves, and who have heard the same evidence^] with the same attention[,] with an equal desire to arrive at a fair verdict[,] and under the sanction of the same oath.
And on the other hand, jurors for conviction ought seriously to ask themselves whether they might not reasonably doubt the correctness of a judgment which is not concurred in by others with whom they are associated and whether they should distress the weight or sufficiency of that evidence which fails to carry a conviction in the minds of their fellow jurors.
The verdict must represent the considered judgment of each juror. As you know, in order to return a verdict it is necessary that each juror agree to that verdict. Your verdict with respect to each charge you consider must in and of itself be a unanimous verdict. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without sacrificing your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate ... to re-examine your own views and the reasons for your views [,] and to change your views [,] and to change your opinion [,] if you are convinced that it is wrong. This next sentence ... is a supplement to your previous responses that I have given to you about [the instructions for first-degree murder] and [second-degree murder]. In addition, if after making all reasonable efforts to reach a verdict on first-degreemurder, you are not able to do so, you are allowed to consider second-degree murder, but do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors only for the purpose of returning a verdict. Remember, you are not partisans or advocates for either side. You are judges, neutral judges of the facts.
Approximately one hour later, the jury reached a verdict.
B.
Appellant argues that the trial court abused its discretion in giving this instruction because it was unduly coercive — “a non-standard form of the strongest anti-deadlock instruction infused with ‘best efforts’ language that permitted the jury to consider second-degree murder without resolving the first[-]degree murder charge.”
We begin with fundamentals. As this court stated in Wilson v. United States, “[a] trial court is obligated to instruct a jury as to the proper order in which it should consider any greater and lesser included offenses that have been submitted to it.”
Then came the jurors’ second note, indicating they were “deadlocked” on
We have said on numerous occasions that “coercion of a verdict does not mean simple pressure to agree. Rather, pressure to agree is impermissibly coercive when it is likely to force a juror to abandon his [or her] honest conviction as a pure accommodation to the majority of jurors or the court.”
Appellant cites no trial court action, other than the instructions themselves, that contributed to jury coercion, so the only question remaining is whether there was undue coercion attributable to the court’s addition of the anti-deadlock language. Whereas in (Nathan) Jones we reversed a conviction because we concluded that an “acquittal first” instruction after a Winters anti-deadlock charge would likely coerce a conviction on the greater offense, appellant posits that tacking an anti-deadlock instruction onto a “reasonable efforts” instruction would likely coerce a conviction on the lesser offense.
(Nathan) Jones is not the only case in which we have considered whether a combination of instructions unduly coerced a deadlocked jury. In Carmichael,
While “a defendant is entitled to a jury in disagreement,” “it is in the public interest ... that a jury reach a verdict if it can reasonably do so.” The trial court may not coerce a verdict, but it “should give a temperate prod to a ‘hung jury’ so as to bring out a verdict.”97
Anti-deadlock instructions are available to this end.
Second, we agree with appellant’s recognition in his brief that “[b]oth jury notes expressed some eagerness to consider the lesser charge” — a statement from which he pivots to argue that an anti-deadlock instruction, reinforcing the new “reasonable efforts” language, coerced the conviction of second-degree murder. In this statement about “jury eagerness,” however, appellant downplays the fact that on each occasion the jurors faithfully reported (first implicitly, then explicitly) that they had not yet “considered” second-degree murder.
Finally, although the trial court’s new combination instruction led with the strongest (Winters) anti-deadlock language,
We can understand why, in this situation, a trial judge might have moved forward more cautiously in two steps: a “reasonable efforts” instruction followed, if necessary, by an anti-deadlock instruction. Indeed, in both Carmichael and (Nathan) Jones, the court took a two-step approach (beginning, however, with the Winters charge). Nonetheless, given reasonable perceptions that the jury had been heading toward deadlock when it sent out its first note, and that by the second, “deadlocked” note the jury had still not taken up the lesser charge, we cannot say that the trial court abused its discretionary prerogative when it decided to group the two instructions together once the jury assuredly had deadlocked. In our judgment, therefore, the overall impact from the jury’s perspective was a trial court request to “please keep trying”
We have explained why we believe the particular reinstructions under the circumstances were salutary, not coercive. And, contrary to appellant’s contention, our decision in Carmichael,
Affirmed.
Notes
. D.C.Code § 22-1810 (2001) (sentenced to twenty-eight months in prison). Hereafter, all sentences to "months” refer to prison terms, and, except as otherwise indicated, all sentences are consecutive, not concurrent, sentences.
. Id. §§ 22-2103, -4502 (Supp.2011) as a lesser-included charge of first-degree murder while armed (sentenced to 300 months).
. Id. § 22-4504(b) (sentenced to ninety-six months).
. Id. § 22-4504(a) (sentenced to twenty-eight months).
. Id. § 22-4503 (sentenced to forty-two months, to run concurrently with CPWL and consecutively to all other sentences).
Appellant also received a five-year sentence of supervised release for the murder; concurrent three-year terms of supervised release for the other convictions; and an order to pay $7,500 to the Victims of Violent Crime Compensation Fund.
. Mosley also testified, on cross-examination, that he typically drank some thirty beers a night and was drunk on the night of the shooting.
. According to Mosley, appellant wore his hair shoulder-length in a dreadlocks hairstyle.
. The parties stipulated that Bernadette Hamilton was found dead inside the car at 12:30 a.m.
. Many of the witnesses testified about the dog (identified as the family dog) resting on Ms. Hamilton's chest.
. On cross-examination, Archie admitted that he had smoked three or four marijuana joints and drunk alcohol before he heard the gunshots. He did not go to the police until several days later and, even then, provided the police with a false name, at first, because he feared being arrested himself on a warrant. Appellant's only witness, Joshua Bran-son, who was initially a government witness, merely testified that Archie had been questioned by the police after Archie’s girlfriend informed them that he had information about the murder.
.Appellant stipulated with the government that Count Five (Count Four on the Jury Verdict Form, see infra note 70), PFCV, and the lesser offense of Count Six (Count Five on the Jury Verdict Form, see infra note 70), CPWL, would be presented to the jury, and if tire jury found him guilty of either PFCV or CPWL, the court would enter a verdict against him on the greater charge of CPWL by a felon and/or UF by a felon. If the evidence was sufficient to convict appellant of second-degree murder while armed, we may reasonably conclude that the evidence was sufficient for his PFCV and CPWL (March 22) convictions, as all three convictions draw upon the same evidence of his using a firearm in the March 22nd murder.
.Mitchell v. United States,
. Coleman v. United States,
. See Mitchell,
. See supra note 6.
.Paige,
. Coleman,
. See supra note 11.
.
. Id. at 629,
.Deck,
. Id. The Court added that visible shackling not only undermines the presumption of innocence but also "the related fairness of the factfinding process.” Id.
. Id. at 631,
. Id. ("The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives.”).
. See United States v. Cooper,
. See United States v. Durham,
.See United States v. Wardell,
. See United States v. Moore,
. Appellant also argues — based in large part on the trial court's failure to make specific findings of need for the shackles — that the trial court impermissibly delegated to the marshals its responsibility for determining the need for the shackles. See State v. Dixon,
As to the lack of particularized findings, the Supreme Court in Deck did not discuss whether express findings would be required to justify leg shackles that were not visible, and at least two U.S. Courts of Appeal have indicated that this question of due process is open. See Cooper,
We need not definitively resolve the fact-finding requirements in the context of invisible restraints. On the facts here, this argument has no merit for the delegation issue because the trial court’s reasoning was clear. Recall that on one of the days before trial, appellant refused to get dressed. The next day he refused to leave his cell. On the face of things, therefore, shackling him for trial did not appear to be an extraordinary decision. On the second day of trial, after appellant requested that the shackles be removed, the trial court informed appellant that the court had "discussed the issue yesterday with the Marshal. And he is continuing to assess things with respect to a point at which we can remove the leg irons. All that I would ask is that Mr. Williams continue to cooperate with the Marshal. It will happen, but not right now.” The trial court, therefore, appeared to be gathering information from the marshal based on the marshal's first-hand observation of appellant. Moreover, a reading consistent with appellant’s argument is untenable in the context of the multiple exchanges between the trial court and appellant, in which the court clearly tried to ascertain from the marshals the level of appellant’s cooperation in order for the court to determine whether removal of the shackles was appropriate. All things considered, the trial court was sensitive not only to concerns about public safety, but also to the needs of appellant himself — encouraging him, for example, to dress suitably for trial. The court handled the matter well, consistent with appellant’s right to due process.
.(William) Johnson v. United States,
. The record, as appellant correctly observes, fails to show when the funeral took place or whether appellant was in jail at the time.
. See, e.g., Goines v. United States,
. Busey v. United States,
. Reavis v. United States,
. Dockery v. United States,
. Id. at 306-07 (internal quotation marks omitted).
. (William) Johnson v. United States,
. Lowery v. United States,
. See Allen v. United States,
. Id. (Rogers, C.J., concurring) ("Whether the introduction of nonaction by the defendant would be more prejudicial than probative may depend on the extent to which the defendant is afforded the opportunity to present, and is not prevented by law from presenting, an explanation to the jury for his noncon-duct.”).
. Lowery,
. In Mungo v. United States,
. See Burgess v. United States,
. See Smith v. United States, 777 A.2d 801, 808 (D.C.2001) (citing cases) (sustaining admission of attempted flight from preliminary hearing as evidence of guilt consciousness).
. See Haney v. United States, No. 10-CF 150,
. See, e.g., Allen v. United States,
. See United States v. Turner,
. See Smith, 777 A.2d at 808 ("flight from the scene of a crime or upon perception of law enforcement” is "the type of flighl evidence most commonly seen by courts,” but "flight evidence can include escape or attempted escape from confinement or custody").
. See Thomas v. State,
. See Snyder v. State,
. Smith, 777 A.2d at 807-08.
. The leading case creating a required chain of inferences, cited in this jurisdiction and elsewhere, is United States v. Myers,
. Smith,
. Our "evident” conclusion — without regard to context — is derived from the following chain of inferences:
(1) Failure to attend the funeral reflects defendant’s decision not to do so; (2) defendant’s decision not to do so reflects consciousness of guilt from not doing what a normal, innocent spouse would do; (3) failure to do what a normal, innocent spouse would do reflects consciousness of guilt about the murder; and (4) consciousness of guilt about the murder reflects actual guilt of the murder.
See supra note 52.
. Smith,
. Fed.R.Evid. 403; (William) Johnson v. United States,
. Allen,
. Id. at 1231 (Rogers, C.J., concurring).
. See id. (Rogers, C.J., concurring) ("The problem with drawing inferences from inaction is that in many cases there are plausible explanations for a defendant’s failure to act that do not indicate consciousness of guilt.”).
. See id. at 1233 (Rogers, C.J., concurring); supra note 40.
. See supra note 56 and accompanying text.
. (James) Johnson v. United States,
. See Smith v. United States, 777 A.2d 801, 809 n. 13 (D.C.2001) ("Defense counsel was given full opportunity to explain any arguments on this issue to the jury.”).
. Cf. Henderson v. United States,
. Ebron v. United States,
. As noted in the text, an analysis of "abuse of discretion” in this jurisdiction (pursuant to the (James) Johnson decision, supra note 62) requires us to determine whether a ruling committed to trial court discretion has been exercised "erroneously” and, if so, whether that error "is of a magnitude requiring reversal.” Only if reversal is required do we say that there has been an "abuse of discretion.” Other jurisdictions may state the analysis differently. For example, in United States v. Copeland,
. See Criminal Jury Instructions for the District of Columbia, No. 4.201 (5th ed. rev.2011).
. For the murder charged, the form provided:
3A. As to the charge of premeditated murder while armed, the jury finds the defendant:
GUILTY_NOT GUILTY_
[If the jury finds the defendant GUILTY of the above charge (# 3A), do not consider charge (# 3B). If the jury finds the defendant NOT GUILTY of the charge above (# 3A), the jury should consider the charge below (# 3B).]
3B. As to the charge of second[-]degree murder while armed, the jury finds the defendant:
GUILTY_NOT GUILTY_
. A "reasonable efforts” instruction provides, more fully: "If, after making all reasonable efforts to reach a verdict on first-degree murder, you are not able to do so, you are allowed to consider second-degree murder.” Criminal Jury Instructions for the District of Columbia, No. 4.201 B. Sometimes the instruction is called a "best efforts” instruction. See, e.g., Powell v. United States,
.According to the jury verdict form, these charges are:
1. Carrying a pistol without a license (January 1, 2008)
2. Threats
4. Possession of a firearm during a crime of violence or dangerous offense (murder)
5. Carrying a pistol without a license (March 22, 2008)
. See supra note 69.
.
In Carmichael, the trial court gave a partial verdict instruction on the theory that if the jury could not agree on the greater offense, they might return a verdict on the lesser-included offense.363 A.2d at 303 . This occurred after the report of a deadlock and a Winters [v. United States,317 A.2d 530 , 534 (D.C.1974) (en banc)] [anti-deadlock] instruction. The next morning the jury requested instruction on the lesser-included offense and partial verdict. The court rein-structed on the former, but not the latter. Citing [United States v.] Smoot, [150 U.S.App.D.C. 130 , 131-33,463 F.2d 1221 , 1222-24 (1972)], tins court rejected appellant's claim that it was coercive to instruct the jury on the lesser-included offense. We noted that it was the jury which had requested instruction on the lesser offense and that the defense did not object. Id. at 304.
We added in Powell that we did not read Carmichael "as having turned primarily” on "defense counsel's failure to object to rein-struction.” Powell,684 A.2d at 381 .
In Carmichael, where the jury received instructions on second-degree murder and involuntary manslaughter, this court explained that the "partial verdict instruction” was given in addition to the Winters anti-deadlock charge "on the theory that if the jurors could not agree on the greater offense they might be able to return a verdict on the lesser included offense.”
. Criminal Jury Instructions for the District of Columbia, No. 2.601 B (5th ed. rev.2011). The Winters charge is found in Winters, 317
. Criminal Jury Instructions for the District of Columbia, No. 2.601 A & C (5th ed. rev. 2011). The Thomas language, modeled on an American Bar Association standard, is drawn from United States v. Thomas,
. Criminal Jury Instructions for the District of Columbia, No. 4.201 B (5th ed. rev.2011).
. Wilson v. United States,
. Id. (internal quotation marks omitted). We have summarized these advantages and disadvantages in (Robert) Jones v. United States,
The advantage of the "acquittal first” instruction, for the defendant, is that where the jury fails to agree on conviction or acquittal of the greater offense, it cannot adopt the easy compromise of convicting on the lesser offense. Thus, die defendant may escape any conviction at all, even where the evidence with regard to the lesser charge is fairly strong, and the government will have to decide whether the case merits the time and expense of mounting a new trial. The disadvantage of the "acquittal first” instruction is that, faced with a choice between a conviction on the greater offense and no conviction at all, jurors who might have preferred to convict only on a lesser offense may go along with others who are willing to convict on the greater offense, especially where there is a majority in favor of conviction on the greater charge. The "reasonable efforts” instruction presents similar advantages and disadvantages in reverse. It may lessen the probability that the jury will convict on the greater offense, but it may also increase the probability that the jury will convict on the lesser charge. Determinations as to which instruction is better for defendant will vary from case to case, depending upon the strength of the government’s evidence and the defendant’s own desires.
. Id. (citations omitted) (quoting (Robert) Jones,
. See supra note 68.
. See supra text accompanying note 70.
. Although defense counsel at trial objected to anti-deadlock and “reasonable efforts’’ instructions, he did so in the context of asking for a mistrial; thus, he did not question whether the jury was deadlocked. We have said that trial courts "need not accept at face value a jury’s assertion of deadlock. Rather, the trial court has discretion to assess the totality of circumstances and require further deliberations if it doubts that the jury is ‘genuinely’ deadlocked.” Jackson,
.
. Id. at 1251.
. Carmichael v. United States,
. United States v. Smoot,
. (Nathan) Jones,
. Id. at 1254.
. Id.
. The government also relies on Powell v. United States,
More recently, we have said: "If the jury deadlocks on the greater charge, a defendant's initial preference for an 'acquittal first’ instruction may be overridden. Under those circumstances, the trial judge has discretion to give a 'reasonable efforts’ instruction over the defendant’s objection in lieu of granting a mistrial if it concludes that repeating an 'acquittal first’ instruction would be unduly coercive.” Wilson v. United States,
. Green v. United States,
. Van Dyke v. United States,
. Green,
. Id.; compare Carmichael v. United States,
. See supra note 72.
. See supra note 75.
. See, e.g., Hankins v. United States,
. Powell v. United States,
. Appellant supports his argument that the new instructions coerced the jury toward a conviction of second-degree murder while armed by contending that the jury appeared, from its notes, to have been deliberating prematurely on that charge. The notes themselves indicate that the contrary is true. The first note said, absent unanimity as to first-degree murder, "should we continue to deliberate on that charge until a unanimous decision is reached, or should we take up the question of murder in the second degree?” (Emphasis added.) The language used suggests concern about violating the court's instructions rather than implying that the jury has moved on to the lesser charge. Later, the second note said: "We have not considered 3-B [second-degree murder while armed] based on your instructions as we understand them.” (Emphasis added.) Thus, no premature consideration of box "3-B” on the verdict form is indicated. Finally, when the government mentioned several times during discussion of the second jury note that the jury had not yet considered second-degree murder, defense counsel never disagreed.
Appellant also suggests that because, in its second note, the jury reported it had “reached a decision on counts 1, 2, 4, and 5,” see note 70 and accompanying text, the jury must have reached a “compromise” verdict on second-degree murder, because a conviction of PFCV (count 4), for example, would have required, as a predicate, a finding that appellant had committed at least second-degree murder. This argument goes too far. The jurors were not instructed that they could not consider PFCV without first addressing the murder charges. It is therefore possible that they could have found possession of a firearm during an unresolved crime of violence without deliberating and voting on the second-degree murder charge in full, with some jurors premising PFCV on first-degree murder and others premising PFCV on an assumption that in time, when permitted full consideration of the lesser as well as greater offense, they would decide the degree of murder that took place. In any event, a decision on PFCV could not be final until the murder charge itself was finally resolved, and we are not persuaded that the indirect evidence of a compromise verdict that appellant suggests should trump the jury’s express statement that it had not yet considered second-degree murder.
. See supra note 73.
. See supra note 74.
. See supra note 69.
. Van Dyke v. United States,
. Carmichael v. United States,
. Appellant raises another argument, for the first time, in his reply brief, contending that the "trial court erred in permitting the prosecutor to argue to the jury facts not in evidence, and to distort evidence regarding motive, identity, and weapons possession.” Normally, we do not consider arguments raised for the first time in a reply brief. See, e.g., Levelle, Inc. v. D.C. Alcoholic Bev. Control Bd.,
Seeking plain error review, appellant contends that during opening statement and closing and rebuttal arguments, the government distorted the evidence of appellant's threats on the life of Bernadette Hamilton during the argument about divorce papers on or about March 4, 2008. Their son, Myrone, testified at trial that, while he was upstairs, he heard his parents arguing downstairs over divorce papers and heard appellant say that he would "kill [Ms. Hamilton] and then kill [him]self,” whereupon Myrone saw his father retrieve from upstairs a "black thing” (Myrone identified it as a "knife”) and walk downstairs and out the door. Appellant maintains that, in stressing this testimony to the jury, the government distorted the evidence because the defense had impeached Myrone with a videotaped interview "soon after the murder.” In