Blocker v. United States

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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 18-CF-221

                           DENZEL BLOCKER, APPELLANT,

                                         V.

                             UNITED STATES, APPELLEE.

                       Appeals from the Superior Court of the
                                District of Columbia
                                  (CF2-15164-17)

                      (Hon. Kimberly S. Knowles, Trial Judge)

(Argued February 7, 2020                                Decided October 8, 2020)

      Denise D. Green for appellant.

       Ann M. Carroll, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, Elizabeth Trosman,
Chrisellen R. Kolb, and Ryan Norman, Assistant United States Attorneys, were on
the brief, for appellee.

      Before GLICKMAN and EASTERLY, Associate Judges, and FERREN, Senior
Judge.

      FERREN, Senior Judge: A jury found appellant Denzel Blocker guilty of

unlawful possession of a firearm by a convicted felon (crime of violence) (FIP), 1




      1
          D.C. Code §§ 22-4503(a)(1), (b)(1) (2012 Repl.).
                                           2

and possession of an unregistered firearm, 2 ammunition, 3 and a large-capacity

ammunition-feeding device.4 On appeal, Blocker contends that the trial court erred

in relying on his prior robbery conviction to support the FIP charge; admitting the

firearm in evidence; and improperly instructing the jury in several ways. For the

reasons that follow, we affirm Blocker’s convictions, although we remand the

case for resentencing of the FIP conviction consistent with this opinion.



                    I. Background Facts and Trial Proceedings



      According to the government’s evidence, on September 2, 2017,

Metropolitan Police Department (MPD) Officers Nico Scott, Ramon Moe, and

Lojocano,5 assigned to the Narcotics Special Investigation Division (NSID), were

working in the 4500 block of Quarles Street, Northeast. While in the area, Officer

Scott noticed a man later identified as Blocker “ducking” between cars as if to

avoid being seen. Blocker then got into a black Dodge Charger driven by a friend,




      2
          D.C. Code § 7-2502.01(a) (2018 Repl.).
      3
          D.C. Code § 7-2506.01(a)(3) (2018 Repl.).
      4
          D.C. Code § 7-2506.01(b) (2018 Repl.).
      5
          Officer Lojocano’s first name is not in the record.
                                         3

Deandre Belt, and the car “sped off at a high rate of speed.”6 Approximately ten

minutes later, while scouting the area, Officer Scott spotted the Charger coming

toward him in the 2100 block of Benning Road, Northeast. Officer Scott then

made a U-turn onto the road in front of the oncoming Charger, in order to block it

as his co-workers, driving a marked police car, were pursuing the Charger from

behind, using lights and sirens. Blocked by Officer Scott’s vehicle, the Charger

came to a stop. Blocker jumped out of the front-passenger seat and ran up the hill

leading to the 2300 block of G Street, Northeast.



      Officers Scott and Moe ran up the hill after Blocker while other officers

pursued the Charger after it sped off again.        While the officers were chasing

Blocker, he ran into a parked car and fell down. As Blocker started to fall, both

officers saw Blocker reach with his right hand into the front of his pants, and

Officer Scott saw him “toss a hard object” away. The officers then heard the

sound of metal hitting and skidding on the pavement. Officers Scott and Moe both

testified that the sound was consistent with the sound of a gun hitting the

pavement. The officers caught up with Blocker, arrested him, and, while doing so,



      6
         Mr. Belt testified that he picked up Blocker from Blocker’s home to “run
some errands” with him, and that while Mr. Belt was driving, his Charger was
struck from behind by a police car, initiating the chase described below. Mr. Belt
was the only witness that testified to this version of events.
                                          4

both observed a handgun on the pavement within two or three feet from Blocker.

Officer Moe secured the gun.



      Trial began on December 12, 2017, and a jury found Blocker guilty on all

counts two days later. On appeal, Blocker seeks reversal of his FIP conviction

(and related charges) on the ground that: (1) the underlying predicate felony,

robbery — on appeal while Blocker was tried and convicted — was later reversed.

He also claims that the trial court erred in four other ways: (2) admitting the gun in

evidence, (3) instructing the jury that the government did not have to provide

forensic evidence to establish guilt, (4) providing other wrong instructions to the

jury, and (5) rejecting Blocker’s request to inform the jury of the defense theory of

the case.



                    II. Felon In Possession (FIP) Conviction



      Blocker offers two arguments in contesting his FIP conviction. First, he

argues that he was entitled to reversal because, after his FIP conviction, we

overturned on appeal the felony (robbery) conviction on which his FIP conviction

had been predicated. Second, Blocker maintains that even if the FIP conviction is

affirmed, it should nonetheless be remanded for resentencing because enhancement
                                            5

no longer was legally justified. Blocker, however, did not object at trial to use of

his robbery conviction to establish an essential element of FIP or as a predicate for

sentencing. Therefore, we review this conviction, including sentencing, for plain

error.7



                                   A. The Conviction



          The FIP statute prohibits any person from possessing a firearm if that person

“[h]as been convicted in any court of a crime punishable by imprisonment for a

term exceeding one year[.]”8 At the time of his arrest, Blocker had four felony

convictions: robbery, receiving stolen property (over $1000), unauthorized use of

a vehicle, and destruction of property (over $1000). Moreover, Blocker stipulated

at trial that he had “previously been convicted of a crime punishable by a term of

imprisonment exceeding one year.” Thereafter, Blocker was convicted of FIP and




          7
           Malloy v. United States, 186 A.3d 802, 814 (D.C. 2018) (permitting
reversal only if there is “[1] ‘error’ that is [2] ‘plain’ (meaning ‘clear’ or
‘obvious’), that [3] ‘affects substantial rights,’ and that, if not corrected, [4] would
result in a ‘miscarriage of justice’ (meaning conviction of an innocent defendant)
or otherwise would ‘seriously affect[ ] the fairness, integrity or public reputation of
judicial proceedings.’” (quoting Wooden v. United States, 6 A.3d 833, 834 n.5
(D.C. 2010) (brackets in original)).
          8
              § 22-4503(a)(1).
                                          6

received an enhanced forty-month sentence based on his prior robbery conviction9

then pending on appeal. Approximately six months after he was sentenced in this

case, we reversed his robbery conviction. 10



      Blocker asks for reversal of his FIP conviction because the trial court used

his robbery conviction to enhance his sentence, despite the fact that his robbery

conviction, still pending appeal, was not final. The FIP statute, D.C. Code § 22-

4503(a)(1), prohibits a person from possessing a firearm if that individual “[h]as

been convicted in any court of a crime punishable by imprisonment for a term

exceeding one year”; 11 it does not require prior conviction of a crime of violence,

such as robbery. Putting aside his robbery conviction, we note that Blocker had

been convicted of three non-violent felonies, each of which could have been used

to meet the FIP requirement of a prior felony conviction. Moreover, the indictment

itself does not specify that Blocker had been convicted of a violent felony; it stated




      9
           See infra Section II.B.
      10
          Blocker, et. al. v. United States, No. 16-CF-388, Mem. Op. & J. (D.C.
Aug. 21, 2018).
      11
           § 22-4503 (a)(1) (emphasis added).
                                          7

only that he had been convicted of “a crime.”12 Finally, the jury did not know that

Blocker had been convicted of a robbery; it knew only that he had stipulated to

conviction of “a crime punishable by a term of imprisonment exceeding one year.”

Accordingly, because any of Blocker’s other three felonies would have satisfied

the FIP requirement, the fact that his robbery conviction was reversed does not

change the ultimate outcome; Blocker was not erroneously convicted of FIP —

given that his sentence had not otherwise been contested at trial.



                                  B. The Sentence



      Blocker argues that if his FIP conviction is affirmed, he is nonetheless

entitled to a remand for resentencing because his invalid robbery conviction had

been used to justify an “illegal” sentence.



      The FIP statute states that a person who violates subsection (a)(1):

             shall be sentenced to imprisonment for not more than 10
             years and shall be sentenced to imprisonment for a
             mandatory-minimum term of 1 year, unless she or he has

      12
           The indictment charges: “On or about September 2, 2017, . . . Denzel
Blocker, previously having been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year, owned, kept, and had within his
possession and control, a firearm.” Mistakenly, Blocker states in his reply brief
that “[t]he indictment and Information in this case reference a ‘crime of violence.’”
                                            8

                 a prior conviction for a crime of violence other than
                 conspiracy, in which case she or he shall be sentenced to
                 imprisonment for not more than 15 years and shall be
                 sentenced to a mandatory-minimum term of 3 years.13



Following the jury’s guilty finding, the trial court used Blocker’s prior robbery

conviction to sentence Blocker to an enhanced forty months.            At the time of

sentencing, this was not necessarily erroneous.         We had not yet reversed his

robbery conviction; Blocker therefore still had “a prior conviction for a crime of

violence other than conspiracy,”14 and the trial court understandably considered

itself required (absent objection to the contrary) to sentence Blocker, at the very

least, to the mandatory minimum of three years.



      Blocker claims, however, that even if we do “not reverse,” he is entitled to

resentencing because (1) “the underlying predicate felony, robbery, was reversed

on direct appeal,” and (2) “the sentencing court considered a prior invalid

conviction, robbery, that was unconstitutionally secured.”




      13
           § 22-4503(b)(1) (emphasis added).
      14
           Id.
                                          9

      Blocker offers no convincing authority, and elaborates no further rationale,

establishing his ultimate argument that his            FIP conviction had been

“unconstitutionally secured.”15 His lesser, more elaborate argument is a statutory

contention that, to justify an enhanced sentence based on a “prior conviction for a

crime of violence,” the FIP statute presupposes reliance on a prior “final”

conviction. According to Blocker, FIP “cannot be interpreted” to permit

enhancement of sentences for “persons whose predicate convictions have been

vacated or reversed on appeal” or — like Blocker’s robbery conviction — were

“pending direct review” when employed to enhance a sentence. The federal cases

on which Blocker relies, however, expressly requiring finality of a prior conviction




      15
            In making his constitutional claim, Blocker cites only one case: an
Illinois intermediate appellate court decision reversing a conviction predicated on a
sentence enhancement derived from a pending conviction later vacated as
unconstitutional. See People v. Cavette, 118 N.E.3d 699 (Ill. App. Ct. 2018). This
non-binding decision from Illinois is inapposite. The predicate felony in Cavette
was based on a statute that was declared “facially unconstitutional,” id. at 703-06,
and therefore the predicate felony conviction was void at the outset. Here,
however, Blocker’s robbery conviction was reversed because of misjoinder, not a
constitutional deficiency with the statute. Finally, in his reply brief, Blocker states
that the constitutional violations he has in mind are the Fifth Amendment right to
due process and the Sixth Amendment right to a fair trial. He offers no supportive
reasoning, however, and we perceive none.
                                        10

under differently worded felon-in-possession statutes, provide no guidance as to

how our FIP statute must be read. 16



      In any event, we need not resolve Blocker’s FIP contention because he

offers still another argument for resentencing that we find persuasive: the trial

court failed to follow a mandatory sentencing procedure. He stresses that, when

considering a sentence enhancement, the prosecutor must file an “information”

pursuant to D.C. Code § 23-111(a)(1) (2012 Repl.) stating “in writing the previous

convictions to be relied on,” and then must serve a copy on the defendant or

counsel. Thereafter, the trial court, “before pronouncement of sentence,” must also

satisfy two requirements pursuant to § 23-111(b): [1] ask the defendant “whether

he affirms or denies” the convictions “alleged in the information,” and [2] inform

the defendant that “any challenge to a previous conviction which is not made

before sentence is imposed may not thereafter be raised to attack the sentence.”

      16
          See, e.g., United States v. Lippner, 676 F.2d 456, 466-67 (11th Cir. 1982)
(interpreting enhancement provision of 21 U.S.C. § 841(b)(1)(A), mandating
additional penalties where the defendant commits a federal drug offense “after one
or more prior [federal drug law] convictions . . . have become final” and holding
that the words “have become final” requires exhaustion of “all avenues of direct
attack”) (emphasis added); United States v. Meraz, 998 F.2d 182, 184 (3d Cir.
1993) (same); Williams v. United States, 651 F.2d 648 (9th Cir. 1981) (same;
holding exhaustion of appellate remedies includes petitions for writ of certiorari);
United States v. Allen, 566 F.2d 1193, 1195 (3d Cir. 1977) (holding “final”
language in statute meant conviction was not subject to direct appellate review).
                                         11

Blocker maintains that the court failed to satisfy these two requirements and that its

failure to do so entitles him “to have his case remanded for re-sentencing.”17



      The government responds to Blocker’s resentencing demand by arguing that

Blocker had failed to “object to the use of his robbery conviction” for enhancement

of his sentence, had “not shown good cause for his failure” to do so, and thus has

“waived” the argument.        The government premises waiver on an alleged

“stipulation at trial that satisfied the prior-conviction element” and, further, on an

“explicit agreement at sentencing that the enhanced mandatory-minimum term

applied.” The government does not elaborate its support for this vague waiver

argument beyond reliance on the court-initiated colloquy with counsel immediately

before sentencing: “Mr. Blocker has a prior crime of violence.           So . . . his

guideline range is 30 to 72 months, but there is a 36 month mandatory minimum.

Do both counsel agree with those calculations?” Both counsel replied “yes.”




      17
           Blocker did not expressly make his § 23-111(b) argument until his reply
brief. However, by his citing § 23-111 generally in his opening brief, the
government’s response citing § 23-111 (a) and (c) in its brief, and the
government’s apparently basing its waiver argument on § 23-111(b), we are
satisfied that the government was fully aware of, and responded to, all applicable
provisions of § 23-111. Thus, we need not penalize Blocker for failing to raise
§ 23-111(b) in his opening brief. Cf. Stockard v. Moss, 706 A.2d 561, 566 (D.C.
1997) (“It is the longstanding policy of this court not to consider arguments raised
for the first time in a reply brief.”).
                                         12

      Whatever ground this colloquy was intended to cover — and we assume that

the government intended the colloquy to satisfy § 23-111(b) or to waive it — that

colloquy did not track the language of § 23-111(b). And in any event, even if the

colloquy could be interpreted to have covered the first requirement (asking Blocker

to affirm or deny a qualifying previous conviction), it stretches the discussion too

far to say that the court satisfied the second requirement: to inform Blocker that

any “challenge to a previous conviction” must be made “before sentence,”

otherwise an “attack” thereafter would be foreclosed.              Contrary to the

government’s argument, therefore, we cannot say for sure that a “stipulation” or

“explicit agreement” at sentencing satisfied the trial court’s § 23-111(b) obligation.



      When it comes to sentence enhancement, § 23-111(b) imposes an initial

burden on the trial court, not on the defendant, to announce and establish the

ground rules for a defense challenge.          We emphasized this allocation of

responsibility in Sanders: “Because enhanced sentencing involves imprisonment

for extended periods of time, we have repeatedly mandated strict compliance with

the procedures set forth in the [D.C.] code.”18 We also stressed in Sanders that

“the ‘touchstone’ of judicial compliance with § 23-111 is notice to the


      18
          Sanders v. United States, 809 A.2d 584, 601 (D.C. 2002) (quoting
Boswell v. United States, 511 A.2d 29, 31 (D.C. 1986)).
                                         13

defendant.”19 But we added that, even “when such notice is given,” harmless error,

precluding “remand for resentencing,” is limited to “technical violations.” 20 It may

be true here that both the court and the parties (represented by well informed

counsel) had in mind, as the government puts it, that Blocker stipulated away any

§ 23-111(b) argument. But it is equally possible, indeed more likely, that the

important purpose of that two-pronged provision was unfulfilled, especially the

required warning about the time limitation on any further “attack” on the enhanced

sentence. No mere technical violation is at issue here. We therefore must remand

the case for resentencing premised on reversal of the unlawful robbery conviction

that underlay Blocker’s enhanced sentence.



                    III. Admission of the Handgun in Evidence



      Blocker next claims that the trial court erred by admitting the handgun in

evidence because “the government failed to prove beyond a reasonable doubt” that

it “was the same gun allegedly recovered from the crime scene[.]” The trial court

has broad discretion in determining the admissibility of physical evidence, which



      19
           Id.

      20
           Id. (quoting Logan v. United States, 591 A.2d 850, 852 (D.C. 1991)).
                                         14

we review for abuse of discretion. 21 “[W]hen physical evidence is in the hands of

the government, the presumption arises that it has been handled properly.” 22

Moreover, any gaps in the chain of custody “normally go to the weight of the

evidence rather than its admissibility.”23 Furthermore, “once the government has

established an unbroken chain of custody as a matter of reasonable probability,

[the] defendant must present evidence that the police tampered with or otherwise

mishandled the evidence in order to succeed with his challenge.” 24



      Here, the trial court did not abuse its discretion by admitting the handgun in

evidence; the government established an unbroken chain of custody. First, Officer

Scott testified that, as he was arresting Blocker on September 2, 2017, he

“observed in plain view a black handgun” on the pavement near Blocker. Officer

Moe, who arrived seconds after Officer Scott to help arrest Blocker, also testified

that he had seen the gun next to Blocker.

      21
          See Wonson v. United States, 144 A.3d 1, 3 (D.C. 2016); Brooks v.
United States, 993 A.2d 1090, 1094 (D.C. 2010).
      22
          Plummer v. United States, 43 A.3d 260, 272 (D.C. 2012) (internal
quotation marks and citation omitted).
      23
         Brooks, 993 A.2d at 1094 (quoting Melendez-Diaz v. Massachusetts, 557
U.S. 305, 311 n.1 (2009) (internal quotation marks omitted)).
      24
           Plummer, 43 A.3d at 272 (internal quotation marks and citation omitted).
                                          15



      Second, Officer Scott testified that the gun “was secured” and “taken back to

our branch where it was processed by the crime scene technician.” Officer Moe

expanded on this testimony, stating that he had taken a picture of the gun at the

scene of Blocker’s arrest and placed the gun in a paper bag to preserve the

evidence. Officer Moe then took the gun in the bag to the NSID25 at the 2850 New

York Avenue, Northeast station, where Officers Scott and Lojocano were present.

Moe believed that the gun was transferred over to “mobile crime,” which had

“responded to the scene” (meaning the station) “to recover the weapon.”



      Third, Officer Johnson, a crime scene technician, testified that he was the

one who had gone to the “narcotics office” on September 2 to retrieve the handgun.

He further testified that Officer Lojocano had “brought out a 45 caliber weapon to

me and I recovered it from him.” Officer Johnson also testified that he had placed

the gun in an “evidence envelope” marked with his name, badge number, and the

location where the gun was originally recovered — in this case, the 2300 block of

G Street, Northeast. He then took the gun “back to [his] lab[,] . . . placed [the gun]

in a property envelope, seal[ed] it, and forward[ed] it to the firearms examination

section.” Finally, Officer Johnson confirmed in court that the gun the government


      25
           Narcotics Special Investigation Division.
                                          16

offered in evidence was the gun he had retrieved from the NSID on September 2,

2017.



        Taken together, the steps to which these three officers testified established a

reasonable probability26 that the gun found next to Blocker was the same gun

introduced in court. Indeed, there was eyewitness testimony confirming each of

the four steps specified above. Presumably, Officer Lojocano also could have been

called to testify that he had given the gun to Officer Johnson. But, in light of the

eyewitness testimony confirming Officer Lojocano’s actions, his testimony was

unnecessary to establishing the chain of custody. As we have said, “[t]o provide

sufficient proof, the government need not ‘call to the stand every witness who may

have handled a piece of evidence[.]’”27



        In light of the forgoing testimony, and as Blocker has not shown credible

evidence that the gun was tampered with or otherwise mishandled, Blocker has not




        26
             See supra note 24 and accompanying text.
        27
          Wonson, 144 A.3d at 14 (Easterly, J., concurring) (quoting United States
v. Mejia, 597 F.3d 1329, 1335 n.4 (D.C. Cir. 2010)).
                                          17

rebutted the presumption that the government properly handled the evidence. 28

There was no error in admission of the handgun.



                              IV. Jury Instructions



      Blocker makes several arguments alleging trial court error when instructing

the jury. If the defense objects to a jury instruction at trial, we review the trial

court’s ruling for abuse of discretion.29 The “central question for this court is

whether [the instruction] is an adequate statement of the law, and whether it is

supported by evidence in the case.”30      Absent objection to the instruction, “a

conviction may be reversed only for plain error.”31




      28
           See Plummer, 43 A.3d at 272.
      29
           Koonce v. District of Columbia, 111 A.3d 1009, 1022 (D.C. 2015)
(internal quotation marks and citations omitted).
      30
          Graham v. United States, 12 A.3d 1159, 1166 (D.C. 2011) (internal
quotation marks and citations omitted).
      31
          McClain v United States, 871 A.2d 1185, 1192 (D.C. 2005) (internal
quotation marks and citations omitted); see also Super. Ct. Crim. R. 30; supra
notes 7 & 8.
                                          18



                        A. The DNA Evidence Instruction



      Blocker contends that the trial court erred when instructing the jury that the

government was not required to present scientific evidence, such as DNA or

fingerprints, in order to prove its case (the “no duty” instruction). During voir dire,

the trial court explained to the venire that the court would “be instructing the jury

that in a criminal trial there is no requirement that the [g]overnment present

forensic or scientific evidence such as DNA or fingerprints in order for them to

meet their burden. They still have the burden beyond a reasonable doubt.” Later,

the trial court read to the empaneled jury the final instructions before closing

arguments, again saying “[t]here is no requirement that the [g]overnment present

forensic or scientific evidence, such as DNA evidence or fingerprints[,] in order to

prove their case.” The court added that “[f]orensic evidence or the lack thereof is a

factor that the jury may consider in making its determination.” 32            Blocker

challenges both “no duty” instructions.




      32
           There is a dispute as to whether defense counsel preserved his objection
to the trial court’s “no duty” voir dire instruction. We need not decide whether
that objection was preserved, however, because we conclude that both of the trial
court’s “no duty” instructions were harmless error, as explained below.
                                            19

         We agree that the trial court erred when including the “no duty” instruction

during voir dire and in final instructions to the jury, because nothing the defense

had done triggered any legitimate need for those instructions favorable to the

government. The purpose of the “no duty” instruction is “to counter an inference,”

unfairly favorable to the defense, that scientific evidence which “could have been

— but was not — collected and presented to the jury” by the prosecution “would

have undermined the government's case or been favorable to the defense.”33 Thus,

for the corrective instruction to be relevant, “there must have been evidence that

the police failed to gather available [forensic] evidence or defense argument to that

effect.”34 Such evidence, unfavorable to the government, was not introduced here.



         Officer Johnson testified that the handgun had been sent for forensic testing.

But instead of arguing that the police deliberately or negligently failed to test the

gun for fingerprints or DNA, counsel’s closing argument for Blocker used the mere

absence of fingerprint or DNA evidence to Blocker’s advantage. It focused the

jury’s attention on “a gun that [the government had] no DNA match from, no

fingerprint match, no other type of forensic evidence that puts the gun in Mr.



         33
              Wheeler v. United States, 930 A.2d 232, 238 (D.C. 2007).
         34
              Id. at 238; see also Brown v. United States, 881 A.2d 586, 594 (D.C.
2005).
                                            20

Blocker's hand or against his skin.”             Accordingly, without any claim of

government deficiency, “there was no need for an instruction to counter an

unfounded inference” of government neglect.35 Thus, by giving the “no duty”

instruction — that the government had “no requirement [to] present forensic or

scientific evidence” — the trial court ran the risk of confusing the jury by

undermining the ultimate, overall instruction that “reasonable doubt” can be found

“based upon the evidence or the lack of evidence in the case.”36 In doing so, the

trial court erred.



       We conclude, however, that the error was harmless. Both while cross-

examining Officer Johnson and later during closing argument, Blocker emphasized

to the jury that the government did not produce forensic evidence tying Blocker to

the handgun. These tactics supported Blocker’s main argument that the gun was

not his. For that reason we are confident that the “no duty” instruction “did not

undermine the defense[,] because defense counsel was able to argue that the lack

of corroborative evidence weakened the government’s case.”37           Nor did the

government compound the error in closing; it did not remind the jury that the

       35
            Wheeler, 930 A.2d at 239.
       36
            Id. (internal quotation marks and citation omitted).
       37
            Brown, 881 A.2d at 595.
                                            21

government had no duty to produce forensic evidence of Blocker’s guilt.38 Under

these circumstances, the “no duty” instructions were unlikely to have “substantially

swayed” the jury’s judgment of guilt.39 Therefore, the trial court’s error was

harmless.



                        B. The Proposed “Defense Theory” Instruction



         Blocker next argues that the trial court erroneously denied his request to

include a defense theory of the case in the jury instructions. The court asked

Blocker if he wanted to include a defense theory in the instructions, to which

Blocker’s counsel replied: “Some judges don’t allow this, but the defense theory

would be that — the defense theory is that the Government has not proved their

case beyond a reasonable doubt.” The trial court responded: “I think I fall into the

category of those [judges] who don’t allow that. If it’s a factual thing, I think the

defense theory of the case is really supposed to be facts. But just that they haven’t

proven their case, that’s something obviously you can argue.”




         38
              See id.
         39
              Id.; see also McFerguson v. United States, 870 A.2d 1199, 1205 (D.C.
2005).
                                            22

       “[A] defendant is entitled to an instruction as to any recognized defense for

which there exists evidence sufficient for a reasonable jury to find in his favor.” 40

However, “a trial judge . . . retains discretion to decide the form and wording of the

instruction.”41 Moreover, “[a]s a general rule, the refusal to give an instruction

requested by a defendant is reversible error only if the instruction . . . was not

substantially covered in the charge actually delivered to the jury[.]” 42 Furthermore,

“[i]n determining whether an instruction is erroneous, we view the instructions

given to the jury as a whole.”43 Because Blocker did not object to the trial court’s

denial of his proposed defense-theory instruction, we review the claim for plain

error.44



       Although the instruction was not expressly included, as such, in the trial

court’s final instructions to the jury, those instructions reminded the jury numerous

times that the government had to prove Blocker’s guilt beyond a reasonable doubt.



       40
        Holloway v. United States, 25 A.3d 898, 902 n.6 (D.C. 2011) (quoting
Mathews v. United States, 485 U.S. 58, 63 (1988)).
       41
            Id. at 903 (internal quotation marks and citations omitted).
       42
            Id.
       43
            Wheeler, 930 A.2d at 244 (internal citation omitted).
       44
            See supra notes 7 & 8 and accompanying text.
                                         23

Because the substance of Blocker’s requested instruction was “substantially

covered in the charge actually delivered to the jury,” the trial court did not err in

denying Blocker’s request. 45



                                C. Closing Argument



      Blocker alleges prosecutorial misconduct in the government’s closing

argument, when the prosecutor: (1) posited that defense counsel might suggest, in

closing, that the police had planted the gun, and then (2) proceeded to rebut that

theory. Blocker argues that the prosecutor “creat[ed] his own defense theory of the

case” with “no evidentiary basis,” and then refuted it, forcing defense counsel “to

rebut the prosecutor’s claim.” Whereupon, says Blocker, to his severe prejudice,

“the prosecutor challenged defense counsel’s integrity and proposed that defense

counsel was lying to the jury when defense counsel claimed his defense was not a

‘police plant.’”   The question, then, is whether the prosecutor’s gun-planting

intimations amounted to misconduct.




      45
           Blades v. United States, 200 A.3d 230, 243 (D.C. 2019); see also Gray v.
United States, 549 A.2d 347, 351 (D.C. 1988) (“When we have rejected a claim
that a certain defense-requested instruction should have been given, we have done
so . . . because the instructions which the court actually gave adequately presented
the defense theory. . . .”).
                                            24

      “When evaluating a claim of improper prosecutorial argument, we first

determine whether or not the challenged argument was improper.”46               If the

argument was improper, “we then determine whether or not reversal is warranted,

considering: (1) the gravity of the improper comments; (2) their relationship to the

issue of guilt; (3) the effect of any corrective action by the trial judge; and (4) the

strength of the government's case.”47 As there was no objection at trial, we again

review Blocker’s contention for plain error. 48 We find none here.



       In his own closing in response to the prosecutor, defense counsel denied he

was arguing that the gun had been planted; he argued instead that someone else

may have seen the police chasing Blocker and tossed the gun onto the ground.

Alternatively, he added:



                 So you’ve got this fairly heavy sharp edged object that
                 the police want you to believe he pulled from his pants
                 and threw to the ground. I’m not going to suggest that the
                 police officer planted that gun there but I’m going to say
                 to you when evaluating the credibility of the police just
                 remember they have a job to do. They’re looking for
                 guns.”

      46
           Blades, 200 A.3d at 243 (internal quotation marks and citation omitted).
      47
           Id.
      48
           See supra notes 7 & 8 and accompanying text.
                                          25



Thereafter, in his rebuttal closing argument, the prosecutor responded to counsel’s

intimation of police culpability by taking the jury through the evidence to show

that no one else was in the vicinity of the police and Blocker. Referencing video

footage from the “body worn camera” on a police officer, the prosecutor

emphasized that there was “no one else around” when the police were chasing and

arresting Blocker, and that by process of elimination “the defense actually is saying

that the police planted that gun.”



      A prosecutor is limited to making “reasonable comments on the evidence”

and to urging only “such inferences from the testimony as will support the theory

of the [government’s] case.”49       Arguably, therefore, the prosecutor may have

overreached in speculating before the jury that Blocker might be arguing that the

police had planted the gun at the scene of arrest — probably a speculation that

defense counsel could not reasonably have ignored in his rebuttal (“The police . . .

have a job to do. They’re looking for guns”), followed by the government’s

prejudicial response. On the other hand, there was no objection to the prosecutor’s

argument, and we cannot say there was plain error, if only because the



      49
        Turner v. United States, 26 A.3d 738, 743 (D.C. 2011) (internal quotation
marks and citations omitted).
                                          26

government’s case undoubtedly was strong and the prosecutor’s argument was

nothing close to a grave impropriety on this record. 50



                         D. The Impeachment Instruction



       Finally, Blocker contends that the trial court improperly delivered to the jury

the written instruction for impeachment by a prior criminal offense of a testifying

defendant (“impeachment by crime — defendant”) rather than the written

instruction for impeachment by a prior criminal offense of a testifying witness

(“impeachment by crime — witness”). The parties stipulated as to Blocker’s prior

conviction for purposes of the FIP statute, but Blocker argues that the erroneous,

written instruction allowed the jury to use this stipulation to evaluate his — the

“defendant[’s]” — credibility or to “improperly infer he was in possession of a

weapon.” The government deflects the argument by disputing that the instructions

included in the record on appeal were the actual instructions given to the jury.

Because Blocker acknowledges that he did not object at trial, we review for plain

error.51




       50
            See text accompanying supra note 47.
       51
            See supra notes 7 & 8 and accompanying text.
                                         27

      We need not decide whether the trial court erred by providing the wrong

instruction to the jury, for even if there was error it was not “plain error.” Before

jury deliberations began, the trial court correctly read to the jury the “impeachment

by crime — witness” instruction as it related to Blocker’s witness.          During

deliberations, the jury never sent a note to the judge indicating confusion over the

instructions. Most importantly, Blocker never took the stand, a fact the trial court

reminded the jury of while reading the instructions.         Indeed, if the written

“impeachment by crime — defendant” instruction was accidentally given to the

jury during deliberations, the very terms of that instruction precluded the jury from

considering it because the instruction would apply only in evaluating Blocker’s

“credibility as a witness” — which he was not. “We recognize, as we have

repeatedly said, that jurors are presumed to follow instructions.” 52 Accordingly,

we conclude that any potential trial court error attributable to inclusion of the

instruction was not “plainly” so, and in any event surely did not affect Blocker’s

“substantial rights.”53




      52
           Tann v. United States, 127 A.3d 400, 459 (D.C. 2015).
      53
           See Malloy 186 A.3d at 802.
                                        28



                                      *****



      For the foregoing reasons, Blocker’s convictions are affirmed, although we

remand the case for resentencing of the FIP conviction consistent with this opinion.



                                                   So ordered.
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