March 20, 2017
from the Superior Court of the District of Columbia
(CF3-1399-13) (Hon. Rhonda Reid-Winston, Trial Judge)
Herbert, with whom Nathaniel Edmonds, Jamie Gardner, Matthew
Crossman, and Danielle R.A. Susanj, were on the brief, for
Jennifer B. Loeb, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney at the time the
brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb,
and Peter Lallas, Assistant United States Attorneys, were on
the brief, for appellee.
Thompson and Beckwith, Associate Judges, and Farrell, Senior
Thompson, Associate Judge.
found appellant Joseph P. Smith guilty of first-degree
burglary, kidnapping, robbery, and threatening to kidnap or
injure a person. Appellant argues in this appeal that the
evidence was insufficient for conviction and that the trial
court erred in admitting certain testimony and physical
evidence, in refusing to give a portion of appellant's
defense theory in instructing the jury, and in failing to
intervene when the prosecutor made allegedly improper
statements during closing argument. We are satisfied that the
evidence was sufficient for conviction, but are persuaded
that appellant is entitled to relief based on what we
conclude was the erroneous admission of an item of physical
evidence. We therefore reverse and remand for a new trial.
government presented evidence at trial that on the evening of
January 27, 2013, Michael Hilliard was at home in his
apartment at 2410 Good Hope Road, S.E., when a man "with
dreadlocks, or cornrows" knocked on his door and asked
whether he had a cigarette. Mr. Hilliard testified that he
had "seen [the man] around" and had given him
cigarettes before. Mr. Hilliard told the man that he did not
and then closed the door. About half an hour later, the same
man knocked on Mr. Hilliard's door again and asked the
same question. After Mr. Hilliard again said "no, "
"somebody came rushing in, [and] pushed the door
open." Mr. Hilliard testified that a total of
"[m]aybe three" people, two of whom were wearing
ski masks, entered his apartment at that time, including
"the person with dreads." At that point, a struggle
ensued until one of the men in a ski mask tied Mr.
Hilliard's hands behind his back with wire from a
speaker. The man with dreadlocks began to move two of Mr.
Hilliard's television sets. Mr. Hilliard later discovered
that his laptop had been moved, and that his keys, MP3
player, mobile hotspot device, portable speakers, and wallet
were missing. He testified that one of the men in a ski mask
said to him, "Don't say anything [to the police]. We
know where you live." At some point after Mr. Hilliard's
hands had been tied, there was a knock at the door, and the
man with the dreadlocks went to the door, opened it, and then
closed it "real fast and said it was the police."
The man ran "out the back . . . bedroom, " and the
other two individuals also "took off running."
Police Department (MPD) Officer Filip Simic testified that,
in response to a call for an assault in progress, he knocked
on the door of Mr. Hilliard's apartment. Officer Simic
told the jury that a man "with an all dark outfit,
" "long dreads, " and "black gloves"
- a man Officer Simic identified in court as appellant -
answered the door. For about "four to five seconds,
" Officer Simic and the man "lock[ed] . . .
eyes" before the man "slammed the door in [the
Simic ran back out of the building to obtain assistance from
his fellow officers and to tell them to stay outside in case
anyone tried to escape through any of the windows. Officer
Simic testified that he saw appellant "come out [a]
window" that was about eight to ten feet above the
ground (even though another officer, Officer Jennifer Ellis,
had yelled, "[P]olice, don't jump"). After
initially testifying that she did not see in the courtroom
the man with "long dreads" who jumped out of the
window and identifying that man as appellant's
co-defendant Andrew Roberson, Officer Ellis testified that
appellant was the man she saw jump out of the apartment
window after she had yelled for him to stop.
Johnny Hernandez similarly testified that he saw "the
young man jump out the window at 2410 Good Hope Road, and saw
Officer Ellis run after the man. Officer Hernandez initially
followed the two in his vehicle, but eventually exited his
car when the man ran into a wooded area. Searching the area
with a flashlight, Officer Hernandez eventually found
appellant, lying on the ground. After placing appellant in
handcuffs, Officer Hernandez patted him down for any weapons
and asked whether he "had anything." Appellant
answered, "I have the man's . . . wallet in my . . .
back pocket." Officer Aaron Makanoff testified that he
found on appellant a number of items that belonged to
complainant Hilliard: a mobile hotspot, an MP3 player,
identification cards, and keys. Officer Makanoff testified
that when appellant was in the police scout car after his
apprehension, appellant said that the property found on him
was passed to him when "[w]e were jumping out of"
government offered into evidence and the court admitted a
pair of gloves (Government Exhibit 31) that Officer Simic
testified were the "same gloves" he saw appellant
wearing when he opened the door to Mr. Hilliard's
apartment in response to the officer's knock. Officer
Simic further testified that he received the gloves from
Officer Ernest Higginbotham and that he gave the gloves to
Officer Hernandez to put into evidence.
testified that he was never in Mr. Hilliard's apartment
and never jumped out of a window. He told the jury that on
the evening of January 27, 2013, he left his apartment to go
to a gas station on Good Hope Road to buy orange juice for
his daughter. He testified that as he was walking home from
the gas station, he heard a person say "A-homes"
and then turned and saw "a guy at the window." The
"guy" asked appellant to "help him right
quick" with "this TV." The "guy"
then "disappeared" inside and, after a short time,
appellant saw a man in a short black coat "leap from
the window." When the man landed, he ran past appellant,
and appellant noticed on the grass a wallet and what
appellant thought were a phone and an MP3 player. Appellant
testified that he picked up the items, placed them in his
pockets, "started walking, " and then "started
running" after he saw the police. Appellant testified
that he did not have gloves on that evening.
trial counsel called Mr. Hilliard during the defense case to
confirm that appellant is "not the person that entered
[Mr. Hillard's] apartment." Mr. Hilliard answered
that he had "never seen [appellant] before." Mr.
Hilliard further testified that the assailant with the
dreadlocks was much taller than he is. After defense counsel
asked Mr. Hilliard to stand side-by-side with appellant, Mr.
Hilliard agreed that "the person with dreadlocks was
substantially taller than [appellant] who just stood beside
begin our analysis with appellant's argument that there
was insufficient evidence to support his convictions. This,
of course, impacts whether the government will have the
opportunity to retry appellants if we find that any of the
asserted errors constituted reversible error. See Evans
v. United States, 122 A.3d 876, 886 (D.C. 2015)
("[W]e … address Mr. Evans's challenge to the
sufficiency of the evidence, because a ruling in Mr.
Evans's favor on that issue would bar retrial on Double
Jeopardy grounds."); Ford v. United States, 533
A.2d 617, 627 (D.C. 1987) ("When the reversal is based
on the insufficiency of the evidence, . . . a new trial is
contends that "no reasonable jury could conclude that
the government had provided sufficiently reliable evidence to
prove beyond a reasonable doubt that Mr. Smith was one of the
burglars in Mr. Hilliard's apartment on the night of the
alleged crimes." We disagree. '"In a
sufficiency challenge we view the evidence in the light most
favorable to the government, draw all reasonable inferences
in the government's favor, and defer to the
factfinder's credibility determinations."'
Medina v. United States, 61 A.3d 637, 641 (D.C.
2013) (quoting Dunn v. United States, 976 A.2d 217,
221 (D.C. 2009)). "A court must deem the proof of guilt
sufficient if, 'after viewing the evidence in the light
most favorable to the prosecution, any rational
trier of fact could have found the ...