No. 14-CT-569

IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

MKUFU LONDON, APPELLANT,

V.

DISTRICT OF COLUMBIA, APPELLEE.

ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CRIMINAL DIVISION−TRAFFIC BRANCH

APPELLEE DISTRICT OF COLUMBIA’S MOTION FOR SUMMARY AFFIRMANCE

The Court should summarily affirm appellant Mkufu London’s conviction of

driving under the influence. There is plainly no merit to either issue he raises on appeal.

First, the evidence was plainly sufficient to support the conviction where London:

(1) while driving fell asleep with the engine running in front of a firehouse exit, blocking

its passage by fire trucks; (2) forgot to place transmission in “park”; (3) provided answers

to officers’ questions that were inconsistent and confused; (4) could not recall how he

arrived at the firehouse; (5) had red, watery eyes, and swayed and wobbled when outside

his vehicle; (6) gave off a moderate odor of alcohol on his breath; (7) admitted to having

urinated on himself; (8) exhibited six out of six clues on the horizontal gaze nystagmus

test; (9) refused to perform the walk-and-turn and one-leg stand tests, offering different

excuses for his inability to attempt the tests; (10) was unable to state his actual age; (11)

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was repeatedly mistaken when trying to name the officers who pulled him over and who

performed field sobriety testing; (12) refused a breath test, evidencing consciousness of

guilt; and (13) was impaired in the opinion of two experienced officers.

Second, applying plain-error review, this Court has no basis to reverse even if the

trial court did not sua sponte stop the prosecutor from asking one question of appellant on

cross-examination concerning other witnesses’ testimony after hearing no objection from

defense counsel. London shows no prejudice, let alone that the error was so clearly

prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.

Summary affirmance is appropriate because “the basic facts are both

uncomplicated and undisputed; and . . . the trial court’s ruling rests on a narrow and

clear-cut issue of law.” Oliver T. Carr Mgmt., Inc. v. Nat’l Delicatessen, Inc., 397 A.2d

914, 915 (D.C. 1979) (per curiam); see also Watson v. United States, 73 A.3d 130, 131

(D.C. 2013) (recognizing that “the granting of summary disposition is not an

extraordinary remedy,” but instead “an essential part of this [C]ourt’s system of case

management that allows the [C]ourt to manage its very large case load”).

If the Court denies or defers this motion, it may treat the motion as the District of

Columbia’s brief pursuant to D.C. App. 27(c).

BACKGROUND

On December 16, 2013, Mkufu London was charged by information with driving

under the influence of alcohol or a drug (“DUI”) in violation of the statute now codified

as D.C. Code § 50-2206.11 (2012), and operating a vehicle while impaired (“OWI”) in

violation of the statute now codified as D.C. Code § 50-2206.14 (2012). R. 1.

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On May 13, 2014, a jury trial commenced before Judge Jennifer Anderson. 5/13

Tr. 3. The District entered a nolle prosequi for the OWI charge. 5/13 Tr. 9.

On May 14, 2014, the jury found London guilty of DUI. R. 11. The same day,

Judge Anderson sentenced London to 360 days of incarceration, with all but 180 days

suspended, two years of supervised probation, a $300 fine, a $250 contribution to the

Victims of Crime Compensation Fund, and 60 hours of community service. R. 12. On

May 20, 2014, London filed a timely notice of appeal. R. 13.

1. The Trial Evidence.

a. The District’s case.

Around 1:00 a.m. on Sunday, December 15, 2013, Metropolitan Police

Department (“MPD”) Officer Patrick Brescia responded to a radio call seeking an

additional unit at 1342 Florida Avenue, N.E. 5/13 Tr. 76-77. There, he observed a four-

door SUV parked in front of an exit of the fire station at that address. 5/13 Tr. 79, 86.

This SUV completely blocked the exit, such that a fire truck would have been unable to

enter or exit the fire station. 5/13 Tr. 80.

Officer Brescia observed that the engine was running and a lone occupant, later

identified as London, was seated in the driver’s seat, with his head leaned down and eyes

closed, and appeared to be sleeping. 5/13 Tr. 80-81. The officer knocked on the driver’s

window a couple of times to gain London’s attention, and after several knocks London

lifted his head and opened his eyes. 5/13 Tr. 81.

Officer Brescia advised him to turn off the engine and step out of the vehicle.

5/13 Tr. 81. As London complied and began to step out, the car drifted forward because

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London had not placed its transmission in the “park” setting; he did so only upon Officer

Brescia’s reminder. 5/13 Tr. 82. Officer Brescia doubted London’s ability to drive and

requested a standardized field sobriety test officer. 5/13 Tr. 83.

MPD Officer Blaine Scott responded to the scene along with his partner, MPD

Officer Junchou Zhang. 5/13 Tr. 83, 97. Officer Scott, having been with MPD over two

and one-half years, was trained and certified in the detection of DUI, from initial

observations of a vehicle in motion through the performance of standardized field

sobriety tests (“SFSTs”), and had conducted both SFSTs and horizontal gaze nystagmus

tests (“HGN”) several hundred times. 5/13 Tr. 88-89. He also had participated as lead or

assisting officer in approximately 100 DUI investigations that had resulted in arrest. 5/13

Tr. 96. After the District’s motion, and voir dire by London’s counsel, Judge Anderson

qualified Officer Scott as an expert concerning the administration and interpretation of

HGN tests. 5/13 Tr. 95-96. Officer Junchou Zhang, a five-and-a-half-year veteran of the

department, had been involved in more than 1,000 DUI-type offenses, and had

encountered a few hundred individuals under the influence of alcohol and up to 100

individuals under the influence of drugs. 5/13 Tr. 139-40.

At the scene, Officer Scott approached London and began questioning and

observing him. 5/13 Tr. 99-100. While Officer Scott understood London’s responses to

his questions and did not have a problem understanding London’s accent, 5/13 Tr. 101,

130, London gave very confused, varied answers, changing from moment to moment,

with several inconsistencies in his story; he did not make sense and constantly changed

answers. 5/13 Tr. 101. At one point, London stated that he could not recall how he had

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arrived at the fire station or why he had parked there, saying, “I just dropped off my

girlfriend and the next thing I knew, I was here.” 5/13 Tr. 101, 141-42. Officer Scott

asked London if he had consumed any alcoholic beverages that night, and he stated that

he had not. 5/13 Tr. 115.

Officer Scott observed that London had “red watery eyes”; “appeared to be

swaying,” “wobbling in his balance” when asked “to move or walk or stand still”; and

had a “moderate odor of alcoholic beverages on his breath.” 5/13 Tr. 101-02, 142.

London’s pants were wet in the front groin and back rear areas. 5/13 Tr. 101-02. When

Officer Zhang asked London if he knew why his pants were wet, London stated, “I guess

I urinate myself.” 5/13 Tr. 141.

Officer Scott conducted SFSTs, beginning with the HGN test.1 5/13 Tr. 102. As

he started to administer the HGN test, Officer Scott had to ask London several times to

1 In Karamychev v. District of Columbia, 772 A.2d 806 (D.C. 2001), the Court explained:

The “horizontal gaze nystagmus” test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated “the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.” The “walk and turn” test requires the subject to walk heel to toe along a straight line for nine paces, pivot, and then walk back heel to toe along a straight line for another nine paces. The subject is required to count each pace aloud from one to nine. The “one leg stand” test requires the subject to stand on one leg with the other leg extended in the air for 30 seconds, while counting aloud from 1 to 30.

Id. at 808 n.3 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 585 n.1 (1990)) (citation omitted).

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stop moving his head to follow the stimulus. 5/13 Tr. 107. London replied that he could

not stop, that it was “impossible” for him to move only his eyes and not his head. 5/13

Tr. 107-08. This occurred a few times over the course of a minute or two, until finally

London was able to keep his head still. 5/13 Tr. 108. Officer Scott observed a lack of

smooth pursuit in both eyes, distinct and sustained nystagmus at maximum deviation in

both eyes, and the onset of nystagmus prior to 45 degree angle in both eyes, for a total of

six out of six clues of impairment on that test. 5/13 Tr. 109-11.

Beginning the walk-and-turn test, Officer Scott asked London if he would have

any problems walking a straight line, to which he responded he would be unable to do so.

5/13 Tr. 112. Asked if he had any medical issues, London stated that his doctor told him

his left leg was “fucked up” but his right leg was “fine.” 5/13 Tr. 112, 114. He did not

attempt the walk-and-turn test. 5/13 Tr. 112-13.

Moving to the one-leg stand test, Officer Scott asked London if he had any

medical reason for not being able to complete the test, and he responded “his legs were

once again, fucked up.” 5/13 Tr. 114. Officer Scott reminded London of his prior

statement that his right leg was fine, and advised that London could use the right leg for

the test, but he now claimed that both knees “were fucked up.” 5/13 Tr. 114. London

thus stated that he could not attempt the one-leg stand test. 5/13 Tr. 114-15.

Due to London’s changing statements about the condition of his legs, Officer Scott

continued to ask questions and London elaborated that he had been to the doctor, but

could not name the doctor and could not provide a diagnosis. 5/13 Tr. 115. London

stated that he took “natural medications” for the leg issues, and had taken that medication

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prior to driving that night. 5/13 Tr. 115-16. When asked what kind of medications, he

answered “that’s my business” and refused to answer further questions regarding

medications. 5/13 Tr. 116, 142. When Officer Scott asked London how old he was, he

stated “50-something years old” but could not provide his actual age. 5/13 Tr. 116.

London also observed a black female officer on scene, pointed to her and stated, “Oh,

that’s the one, that’s the one that pulled me over,” when it was a white male officer with a

half-foot difference in height who had first made contact at the location. 5/13 Tr. 117-18.

Based on his training, experience, and observations, Officer Scott formed the

opinion that London was impaired. 5/13 Tr. 121. Officer Scott placed London under

arrest. 5/13 Tr. 132. During cross-examination, Officer Scott testified that the results of

the HGN test alone indicated a 77 percent probability that London was intoxicated. 5/13

Tr. 127. On redirect, Officer Scott further explained that 77 percent of subjects who had

just four out of six clues in the HGN test were shown to be above .08% blood alcohol

level, and London showed all six clues on the test. 5/13 Tr. 138.

Following his arrest, London was taken to the Fifth District police station, where

Officer Zhang elected to administer the breath test. 5/13 Tr. 143-44. London was

provided the implied consent form, and indicated that he read it. 5/13 Tr. 143-44. When

Officer Zhang instructed London to review each individual question on the form, initial

each question and sign the form at the bottom, London refused. 5/13 Tr. 144.

Officer Zhang verbally asked London if he consented to the breath test, to which

London gave changing responses of “any time” and “yes, I do,” but then “no” and “no, I

don’t do any of that.” 5/13 Tr. 144. When Officer Zhang informed London if he refused

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the breath test, his driver’s license would be revoked for 12 months, London stated,

“[J]ust take it.” 5/13 Tr. 145.

Further observations Officer Zhang made of London at the police station included

bloodshot, watery eyes, and the “same odor of alcohol.” 5/13 Tr. 146. At one point,

London looked directly at Officer Zhang and stated, “I know you did an eye test and you

the one locked me up,” and Officer Zhang had to correct him that it was instead Officer

Scott. 5/13 Tr. 146.

Officer Zhang testified that based on his training and his observations of London,

including the smell of alcohol on his breath and his admission to urinating on himself,

bloodshot and watery eyes, lack of balance, refusal to take the breath test, and

misidentifying the officer who administered the SFST, it was his opinion as well that

London was under the influence of alcohol, drugs, or both. 5/13 Tr. 147.

b. Motion for judgment of acquittal and the defense’s case.

After the District rested, the defense made a motion for judgment of acquittal,

which the court denied. 5/13 Tr. 153.

London testified that he had suffered from a left leg problem for years, and he was

taking 600 milligrams of morphine for his affliction at the time of his arrest. 5/13 Tr.

157. He denied that the morphine affected his ability to drive. 5/13 Tr. 158.

London testified that he had pulled into the fire department because his “head

started to pound to me so hard, it feel like a drill.” 5/13 Tr. 159. He had “no idea” how

long he had been sleeping; he just pulled over, fell asleep “just like that. I didn’t know

exactly how long I been there.” 5/13 Tr. 159. He denied having any alcoholic beverages

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that evening or early morning prior to falling asleep. 5/13 Tr. 159. London testified that

upon exiting his vehicle, he asked the officer—whom he identified as Officer Brescia—to

use the bathroom, but that the officer did not allow him to use it. 5/13 Tr. 160.

London testified that Officer Scott “give me pen to look around,” and that he told

the officer he had just been sleeping and could not “look for the pen” with the lights and

police vehicles present. 5/13 Tr. 161. He also testified that Officer Scott administered “a

walking test” which he completed, and then the “pen test again.” 5/13 Tr. 161.

When Officer Scott told him to “lift up your legs,” he informed the officer that he

had a problem with his left leg and would not be able to lift it. 5/13 Tr. 162. The officer

then said to lift the right leg instead of the left, and London responded, “I can’t lift the left

one, how I’m going to lift the right one? I don’t have balance.” 5/13 Tr. 162.

At the police station, he was given a piece of paper and asked to sign it, but as he

attempted to read it the officer snatched it out of his hand and told him, “[D]o like I just

said.” 5/13 Tr. 163. London told the officer that if allowed to read it, he would sign, and

still claimed at trial that he did not know what the paper was. 5/13 Tr. 163-64.

On cross-examination, London denied dropping off his girlfriend before arriving

at the fire station, as well as telling the officers he was taking “natural medication.” 5/13

Tr. 166-68. He testified that he took pain medication three times a day, with the third

time being when he got home: “I just take it and go to sleep.” 5/13 Tr. 168-69. The day

of London’s arrest for DUI, he took two medications: morphine in a 600 milligram

dosage and a high blood pressure medication. 5/13 Tr. 169. London took his first dose

of morphine that day at about 7:00 a.m., his second between 1:00 and 2:00 p.m., —but he

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had not taken the third dosage that day. 5/13 Tr. 169-70. He further testified he lived

seven to eight blocks from the fire station, stating that he could “even walk from there to

my house, it’s not far,” and had parked on the side of the fire station not blocking access.

5/13 Tr. 171. He explained that he was not tired, but “just feel[ing] dizzy.” 5/13 Tr. 173.

London did acknowledge that he had fallen asleep. 5/13 Tr. 173.

Also, during cross-examination, London denied stating to officers that he did not

know how he had arrived at the station. 5/13 Tr. 173. He denied pointing out a female

officer on scene stating she was the one who had pulled him over. 5/13 Tr. 173-74.

London also denied stating to Officer Zhang at the police station that he was the one who

had administered the HGN at the scene and was also the arresting officer. 5/13 Tr. 174.

As cross-examination continued, the following exchange occurred between the

prosecutor and London:

District: He informed you your license was going to be suspended, correct?

London: No, he didn’t say that.

District: So everything that the officers have said is different from your story, correct?

London: They do say it different stories, it’s not like that.

5/13 Tr. 175. There was no objection by the defense. 5/13 Tr. 175.

c. The District’s rebuttal.

Officer Brescia testified that London did not request to use the bathroom on scene,

nor did he deny him such use on scene. 5/13 Tr. 179.

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Officer Zhang testified that he did give London the opportunity to read the implied

consent form. 5/13 Tr. 180-81. London never told the officer he was not being given the

opportunity to read it, and London appeared to understand its contents. 5/13 Tr. 180-81.

At the conclusion of the District’s rebuttal, the defense renewed its motion for

judgment of acquittal and the court denied the motion. 5/13 Tr. 182.

d. Jury instructions.

In its general closing jury instructions, the court gave the following:

Your job as the jury is to determine what the facts are. You’re the sole judges of the facts. While it’s my responsibility to decide what is admitted as evidence, you alone decide what weight, if any, to give that evidence, and you alone decide the credibility or the believability of the witnesses.

5/14 Tr. 192.

Inconsistencies or discrepancies in the testimony of a witness or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more persons witnessing an incident or transaction may see or hear it differently.

5/14 Tr. 198.

A police officer’s testimony should be evaluated by you just as any other evidence in the case. In evaluating an officer’s credibility, you should use the same guidelines that you apply to the testimony of any witness. In no event should you give greater or lesser weight to the testimony of any witness merely because he or she is the police officer.

5/14 Tr. 200.

2. Verdict.

After instructions and deliberations, the jury found London guilty of DUI. R. 11;

5/14 Tr. 225-27.

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STANDARD OF REVIEW

A conviction should be reversed for insufficiency of evidence only when the proof

is insufficient as a matter of law to persuade a reasonable and impartial trier of fact to

conclude guilt beyond a reasonable doubt. Poulnot v. District of Columbia, 608 A.2d

134, 137 (D.C. 1992). An appeal based on insufficiency of evidence will succeed only

where the government has failed to present evidence from which a reasonable mind

might fairly infer guilt beyond a reasonable doubt. In re M.I.W., 667 A.2d 573, 575

(D.C. 1995). Circumstantial evidence is not inferior to direct evidence, and no distinction

is made between direct and circumstantial evidence when assessing the government’s

proof. Bernard v. United States, 575 A.2d 1191, 1193 (D.C. 1990). The evidence, both

direct and circumstantial, must be viewed in the light most favorable to the prosecution,

giving full weight to the trier of fact to assess credibility, weigh the evidence, and draw

reasonable inferences. Poulnot, 608 A.2d at 137. “[T]he government is not required to

negate every possible inference of innocence”; instead, “it is only where the government

has produced no evidence from which a reasonable mind might fairly infer guilt beyond a

reasonable doubt” that the conviction can be reversed. Blaize v. United States, 21 A.3d

78, 82 (D.C. 2011). Further, “[w]hen two or more inferences can be reasonably deduced

from the facts the reviewing court is without power to substitute its deductions for those

of the trial court.” Kruse v. District of Columbia, 171 A.2d 752, 753 (D.C. 1961).

The usual standard of review for prosecutorial misconduct is that this Court will

“affirm a conviction unless the accused ‘suffered substantial prejudice as a result of the

[conduct].’” West v. United States, 866 A.2d 74, 81 (D.C. 2005). When no objection to

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the misconduct was made at trial, however, reversal is appropriate only for plain error.

Freeman v. United States, 495 A.2d 1183, 1188 (D.C. 1985). Under plain-error review,

an appellant has the burden of showing (1) error; (2) that the error was “clear” or

“obvious”; (3) prejudice; and (4) “either a miscarriage of justice, that is, actual

innocence; or that the trial court’s error ‘seriously affected the fairness, integrity or public

reputation of judicial proceedings.’” Lowery v. United States, 3 A.3d 1169, 1173 (D.C.

2010) (brackets omitted). “This ‘is and should be, a formidable’ burden.” Id. The error

must be “so clearly prejudicial to substantial rights as to jeopardize the very fairness and

integrity of the trial.” Freeman, 495 A.2d at 1188.

ARGUMENT

I. The Evidence Was Plainly Sufficient To Support Appellant’s Conviction Of DUI Beyond A Reasonable Doubt.

The evidence was plainly sufficient to support the jury’s verdict that London was

driving under the influence, in violation of D.C. Code § 50-2206.11, which states: “No

person shall operate or be in physical control of any vehicle in the District . . . [w]hile the

person is under the influence of alcohol or any drug or any combination thereof.” An

individual is “under the influence” when “appreciably ‘less able, either mentally or

physically or both, to exercise the clear judgment and steady hand necessary to handle as

powerful and dangerous a mechanism as a modern automobile with safety to himself and

the public.’” Taylor v. District of Columbia, 49 A.3d 1259, 1267 (D.C. 2012) (quoting

Poulnot, 608 A.2d at 137). The word “appreciably” “connotes primarily that the

impairment must be capable of being perceived by the naked senses.” Id.

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Whether the defendant was under the influence of a substance is a question of fact

to be determined from all of the circumstances by the judge or the jury. See Poulnot, 608

A.2d at 138. The defendant need not have been “drunk,” and the prosecution is not

required to prove any specific degree of intoxication. Id. “[T]he nature of the evidence

required to support a conviction for driving under the influence of a drug is not different

from the sort of evidence required to support a conviction for driving under the influence

of alcohol.” Harris v. District of Columbia, 601 A.2d 21, 28 (D.C. 1991). Rather,

“circumstantial evidence will suffice even though it does not specifically quantify the

amount of the substance ingested and relate it to the ability to drive.” Id. The

prosecution need not introduce expert testimony or chemical evidence, but rather need

only show a sufficient accumulation of a variety of possible factors to support a finding

of guilt. Id. at 26-27; Karamychev, 772 A.2d at 813.

Here, the evidence was more than sufficient to support London’s conviction of

DUI. London had parked his vehicle off the street in a fire station driveway, completely

blocking the entranceway such that a fire truck would be unable to enter or exit. 5/13 Tr.

79-80. London was found asleep in the driver’s seat with the engine running, and

responded only after the officer knocked several times on his window. 5/13 Tr. 80-81.

As London exited the vehicle, he forgot to place his car in “park,” resulting in his car

drifting forward. 5/13 Tr. 82. His answers to the officers’ questions were inconsistent

and confused. 5/13 Tr. 101. In fact, London could not recall how he arrived at the fire

station, stating, “I just dropped off my girlfriend and the next thing I knew, I was here.”

5/13 Tr. 101. London had red, watery eyes, and he was “swaying” and “wobbling” when

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outside his vehicle. 5/13 Tr. 101-02. He also gave off a moderate odor of alcohol on his

breath. 5/13 Tr. 102. And when asked whether he was aware that his pants were wet in

front and back, London stated, “I guess I urinate myself.” 5/13 Tr. 141.

Moreover, London exhibited six out of six clues on the HGN test. 5/13 Tr. 109-

11. He refused to perform the walk-and-turn and one-leg stand tests, offering different

excuses for his inability to attempt the tests. 5/13 Tr. 112-15. He cited leg issues, but

could not name his doctor or provide a diagnosis, and alleged that he took “natural

medications” but refused to expound upon his medication regimen. 5/13 Tr. 115-16.

London was unable to state his actual age, only saying he was “50-something years old.”

5/13 Tr. 116. He mistook a black female officer as “the one that pulled me over,” when,

in fact, a white male officer with a half-foot difference in height had first made contact

with London and never conducted a traffic stop. 5/13 Tr. 117-18.

After being transported to the police station, London read the implied consent

form, refused to initial each question and sign the form at the bottom, and refused to take

the breath test even after Officer Zhang indicated that his driver’s license would be

revoked if he refused, evidencing consciousness of guilt. 5/13 Tr. 144-45. At the station,

Officer Zhang continued to notice London exhibited bloodshot, watery eyes, and the

“same odor of alcohol.” 5/13 Tr. 146. Additionally, London looked directly at Officer

Zhang and misidentified him as the officer that had administered the HGN test and

arrested him. 5/13 Tr. 146. Finally, London was found to be impaired in the opinion of

Officer Zhang and Officer Scott. 5/13 Tr. 121, 147.

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This evidence was plainly sufficient to show that London was at least

“appreciably” impaired, in the sense that his impairment was “capable of being perceived

by the naked senses.” Taylor, 49 A.3d at 1267. Indeed, this Court has repeatedly

affirmed impaired driving convictions based on similar evidence. See Thomas v. District

of Columbia, 942 A.2d 645, 649 (D.C. 2008) (evidence supporting DUI conviction

included bloodshot eyes, odor of marijuana, horizontal gaze nystagmus test, leaning on

car for balance, refusal to undergo urine testing, defendant’s comment “You got me,” and

opinion testimony from trained and experienced officers that defendant was under the

influence); Anand v. District of Columbia, 801 A.2d 951, 958 (D.C. 2002) (evidence

supporting OWI conviction included watery eyes, admission to drinking, swaying during

“walking test,” refusal to take breath test, and officers’ opinion testimony that defendant

was intoxicated); Karamychev, 772 A.2d at 813 (“overwhelming” proof of guilt included

traffic violations, odor of alcohol, loud speech, balance problems, failing field sobriety

tests, refusal to take chemical tests, and experienced officer’s opinion testimony that

defendant was under the influence); Stevenson v. District of Columbia, 562 A.2d 622,

624 (D.C. 1989) (per curiam) (evidence supporting DUI conviction including speeding,

bloodshot eyes, odor of alcohol, leaning on car for balance, jumbling letters of alphabet,

admission to drinking, and refusal to take chemical test).

London appears to claim that there was insufficient evidence because no “alcohol,

drugs, empty bottles, glasses or cups, or drug paraphernalia” were found in London’s car.

However, “the government is not required to negate every possible inference of

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innocence.” Gorbey v. United States, 54 A.3d 668, 699 (D.C. 2012). Altogether, the

evidence here was more than enough for the jury to convict.

II. The Trial Court Did Not Commit Plain Error In Not Sua Sponte Stopping The Prosecutor From Asking Appellant One Question On Cross-Examination Concerning Other Witnesses’ Testimony When There Was No Objection From Defense Counsel.

Although the prosecutor mistakenly asked London about other witnesses’

testimony, that mistake does not require reversal of the judgment. While it is improper

for a prosecutor to ask one witness to “express a view or an opinion on the ultimate

credibility of another witness’ testimony,” Carter v. United States, 475 A.2d 1118, 1126

(D.C. 1984), reversal is not necessary in all such instances. Wright v. United States, 513

A.2d 804, 811 (D.C. 1986). That is especially so where, as here, there was no objection.

In assessing prosecutorial misconduct allegations, the first determination is

whether impermissible conduct occurred. Byers v. United States, 649 A.2d 279, 288

(D.C. 1994). If so, the conviction will be reversed only if the misconduct resulted in

substantial prejudice to the defendant. Freeman, 495 A.2d at 1187. In deciding whether

there is substantial prejudice, the Court “must balance the gravity of the misconduct, its

relationship to the issue of the defendant’s guilt, and any mitigating efforts made by the

trial court against the strength of the government’s case.” Id. at 1187-88. And when no

objection to the misconduct was made at trial, in order for the conviction to be reversed

the record must demonstrate plain error, error “so clearly prejudicial to substantial rights

as to jeopardize the very fairness and integrity of the trial.” Id. at 1188; see Byers, 649

A.2d at 288.

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In Freeman, this Court held that while it was improper for the prosecutor on cross-

examination to ask Freeman if he knew of any reason why two government witnesses

might by lying, this questioning did not amount to plain error where the proof of guilt

was “very strong,” even though the prosecutor’s questioning related directly to Freeman’s

misidentification defense. 495 A.2d at 1186-88. Further, prejudice from such

misconduct was lessened by the trial court’s general instruction explaining to the jury that

it is the sole judge of credibility of the witnesses. Id. at 1188.

The same reasoning applies here a fortiori. Here, as in Freeman, the District’s

case against London was very strong, as explained above. The case for affirmance is

even stronger here than in Freeman because here the prosecutor’s improper questioning

did not directly relate to the defense theory at trial that the “actions of Mr. London at the

time of his arrest were indicative of the evidence showing that he just woke up when

encountering the police and that he had an injured leg.” 5/14 Tr. 202-03. Also, lessening

any prejudice here was the trial court’s instruction to the jury that it alone decides the

credibility or the believability of the witnesses. 5/14 Tr. 192.

Also instructive is Lloyd v. United States, 64 A.3d 405 (D.C. 2013). There, the

prosecutor cross-examined Lloyd at length on whether two government witnesses

fabricated their testimony against him, including questions regarding bias, motivation to

fabricate, and witness attention, then referred to that questioning during closing

argument. Id. at 411-12. This Court held that the trial court’s failure to interrupt the

prosecutor sua sponte and terminate the line of questioning was not plain error where (1)

the improper questions and testimony of one witness had marginal relevance; (2) the trial

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court instructed the jury that statements by attorneys were not evidence and jurors were

the sole judges of the credibility of the witnesses; and (3) the improper questions

concerned issues which “were brief deviations over the course of the trial and relatively

tangential in nature.” Id. at 412-13. After reviewing the entire record, this Court held

that any prejudice from the improper questioning was relatively slight. Id. at 413. This

rationale applies here.

Lastly, in Wright, where the prosecutor cross-examined a defense witness by

summarizing the testimony of contradicting witnesses and obtaining a conclusion the

other witnesses lied or were mistaken, this Court found any error was not prejudicial,

under either a harmless-error or a plain-error standard. 513 A.2d at 811. In that case, the

Court found the defense witness to be insignificant, and the issues on which he was

improperly cross-examined were of no import and did not directly relate to the main issue

in dispute—the identity of the gunman. Id. And the trial court had instructed the jury

that the jurors were the only judges of the credibility of the witnesses. Id. Here, again, in

this case, the issue on which London was improperly cross-examined was not important,

that questioning did not directly relate to the main issues in dispute, and the trial court

instructed the jury was the only judge of witness credibility. 5/14 Tr. 192.

After reviewing the entire record in this case, the prosecutor’s one question was a

brief deviation over the course of the trial, relatively tangential in nature, and any

resulting prejudice from the improper question was relatively slight. The error in not

addressing it sua sponte did not so clearly prejudice London’s substantial rights as to

jeopardize the very fairness and integrity of the trial. See Freeman, 495 A.2d at 1188.

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London quotes cases without any standard of review or analysis, implying that one

improper question requires reversal. London Br. 17-18. This is not the law. London

cites Lloyd, but as discussed that case supports affirmance. 64 A.3d at 412-13.

London also relies on Scott v. United States, 619 A.2d 917 (D.C. 1993), and Allen

v. United States, 837 A.2d 917 (D.C. 2003), but they too are not helpful to him. In Scott,

the defense counsel objected to the prosecutor’s improper cross-examination, the review

was for harmless error, and yet this Court found no prejudice and the convictions were

affirmed. Id. at 923-25. In Allen, the prosecutor repeatedly cross-examined Allen, over

defense objection, whether he knew of any reason two police officers would lie in their

testimony against him. 837 A.2d at 918-19. Since Allen objected at trial and preserved

the issue, the review was for harmless error. Id. at 921. Moreover, as this Court noted,

“the questions were not asked merely once or twice; the prosecutor hammered at the

theme as much as seven times despite appellant’s answers that ‘I don’t know’ or ‘I don’t

know what [the officer] will [or would] do.” Id. at 921-22. These decisions provide

London no support.

CONCLUSION

The trial court’s judgment should be summarily affirmed.

Respectfully submitted, KARL A. RACINE Attorney General for the District of Columbia TODD S. KIM Solicitor General

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ROSALYN CALBERT GROCE Deputy Solicitor General CARLOS A. GUTIERREZ* Assistant Attorney General Office of the Solicitor General Office of the Attorney General 441 4th Street, NW, Suite 600S Washington, D.C. 20001 (202) 724-1309 (202) 715-7763 (fax)

April 2015 carlos.gutierrez@dc.gov

* Admitted to practice only in the State of New Mexico. Practicing in the District of Columbia under the direct supervision of Rosalyn Calbert Groce, a member of the D.C. Bar, pursuant to D.C. Court of Appeals Rule 49(c).

CERTIFICATE OF SERVICE

I certify that on April 27, 2015, this motion was served by first-class mail, postage

prepaid, to:

Ralph Robinson 8160 Skelton Circle Falls Church, VA 22042

CARLOS A. GUTIERREZ