APPEAL FROM SUPERIOR COURT, ZINORA MITCHELL-RANKIN, J.
Before Wagner, Chief Judge, and Terry, Steadman, Schwelb,
Farrell, King, Ruiz, and Reid, Associate Judges.
The opinion of the court was delivered by: Per Curiam:
We granted rehearing en banc without oral argument in this case to iron out remaining differences in our decisions that relate to the correct standard of appellate review in criminal cases when the trial court has failed sua sponte to instruct the jury on the limited use of evidence properly admitted for one purpose but not another. In good part the dispute is over the continuing vitality of United States v. McClain, 142 U.S.App. D.C. 213, 440 F.2d 241 (1971), a decision originally binding on divisions of this court. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). Appellant cites McClain and Lucas v. United States, 436 A.2d 1282 (D.C. 1981), for the principle that such failure to instruct at all during trial, even without request, is reversible error unless the government can demonstrate harmless error under D.C. Code § 11-721(e) (1995) and Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946) — at least in a case, such as this, where the government introduces through impeachment inherently prejudicial evidence of past violence by the defendant. The government responds that McClain has effectively been rejected by this court in decisions starting with Johnson v. United States, 387 A.2d 1084 (D.C. 1978) (en banc), which stand for the principle that "[t]he trial court has no general duty to instruct the jury sua sponte," Allen v. United States, 495 A.2d 1145, 1150 (D.C. 1985) (en banc), and that failure to give an unrequested limiting instruction with regard to any evidence is reviewable only for plain error. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (defining plain error).
We do not attempt to harmonize all of the decisions cited by the parties. *fn1 Sitting en banc, we hold that in any case — without exception — in which evidence has been properly admitted for a specific purpose and the defense has not requested an instruction limiting jury consideration of it to that use, the trial court's failure to instruct in that manner on its own initiative is reviewable only for plain error. That is the rule most in keeping with our previous en banc decisions on this issue. Allen, supra; Johnson, supra; cf. Watts v. United States, 362 A.2d 706 (D.C. 1976) (en banc) (reviewing for plain error claim of instructional error not raised in trial court). It is also the rule most in keeping with the obligation of the trial court as set forth in FED.R.EVID. 105, which states, consistently with our decisions, see Allen, supra: "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly" (emphasis added). See United States v. Rhodes, 314 U.S.App. D.C. 117, 121-22, 62 F.3d 1449, 1453-54 (1995) (holding McClain rule embodied in later D.C. Circuit decisions incompatible with FED.R.EVID. 105). And it is the rule most in keeping with the purpose for requiring [707 A2d Page 786]
such requests for a jury instruction — that is, "`our need to encourage all trial participants to seek a fair and accurate trial the first time around'" — while insuring that appellate courts intervene despite default of counsel "`in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)).
For the reasons stated by the division, whose unpublished opinion we attach as an appendix to this opinion, the failure of the trial court to instruct sua sponte on the admission of evidence for a limited purpose in this case was not plain error. We leave undisturbed the remaining portions of the division opinion as well, and reaffirm its judgment upholding the convictions.
DISTRICT OF COLUMBIA COURT OF APPEALS
TORONTO T. GILLIAM, APPELLANT,
Appeal from the Superior ...