We will identify first the standard by which we will measure any such impropriety by the prosecutor in this case, next evaluate the claim that the prosecutor actually committed any impropriety in his cross-examination of Harris, and finally measure any demonstrated impropriety against that standard. When reviewing allegations that a prosecutor conducted an examination or argument improperly, we determine first whether the prosecutor's statements or actions actually were improper. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991); Hammill v. United States, 498 A.2d 551, 554 (D.C. 1985). Normally, where we find that an impropriety has occurred and that the defendant has made appropriate objection, we then determine whether we can say "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." (Phillip) Dyson v. United States, United States, 418 A.2d 127, 132 (D.C. 1980) (quoting Gaither v. United States, 134 U.S.App.D.C. 154, 172, 413 F.2d 1061, 1079 (1969) (footnote omitted) (quoting in turn Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946))).
Such an improper comment in closing or rebuttal is one which raises questions for the jury that only the non-testifying defendant could have answered. See Gray v. United States, 589 A.2d 912, 917 (D.C. 1991); Boyd v. United States, 473 A.2d 828, 833 (D.C. 1984). The prosecutor's rebuttal statement in this case was not of that quality.
They are only intended to assist you in understanding the evidence.” See Gray v. United States, 589 A.2d 912, 918 (D.C.1991) (“The trial court ... instructed the jury that counsel's statements in closing were not evidence. Juries are presumed to follow the trial court's instructions.”).
"See Gray v. United States, 589 A.2d 912, 918 (D.C1991). But even if some of the jurors, despite the lack of an aiding-and-abetting instruction, were struggling because of a perception that Hamlin was the more likely striker, our case law supports the trial court's decision not to answer the jury's first question.
The jury is presumed to follow instructions, see Clark v. United States, 593 A.2d 186, 193 (D.C. 1991) (citations omitted), and we "will not 'upset the verdict by assuming that the jury declined to do so.'" Harris v. United States, 602 A.2d 154, 165 (D.C. 1992) (en banc) (quoting Gray v. United States, 589 A.2d 912, 918 (D.C. 1991)). There is little reason to doubt the ameliorative effect of these instructions given their forcefulness and timing.
This court will not upset a verdict by assuming that the jury declined to follow the trial court's instructions. Gray v. United States, 589 A.2d 912, 918 (D.C. 1991). The judgment of the trial court is hereby affirmed.
In reviewing allegations of prosecutorial misconduct, this court first determines whether the action actually constituted misconduct and, second, weighs several factors to determine if the misconduct requires reversal of the conviction. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991). Because we find there was no prosecutorial misconduct, we need not move to the second stage of the analysis. Appellant Williams does not cite anything in the record that rises to the level of prosecutorial misconduct.
When a party alleges that a prosecutor made an improper argument, the court must initially determine "whether the prosecutor's statements or actions actually were improper." Harris v. United States, 602 A.2d 154, 159 (D.C. 1992) (en banc) (citing Gray v. United States, 589 A.2d 912, 916 (D.C. 1991); Hammill v. United States, 498 A.2d 551, 554 (D.C. 1985)). But even if the remarks were improper, a new trial is only mandated when the defendant was "substantially prejudiced" as a result of the comments.
In reviewing claims of prosecutorial misconduct, we consider first whether impermissible conduct occurred. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991). If it did, then we determine whether reversal is required based upon "the gravity of the misconduct, its relationship to the issue of guilt, the effect of any corrective action of the trial judge and the strength of the government's case." Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989). If appellant failed to object at trial, we reverse only "if the misconduct is so clearly prejudicial to [his] substantial rights as to jeopardize the fairness and integrity of [the] trial.
We disagree. See Gray v. United States, 589 A.2d 912, 917-18 (D.C. 1991); McCowan v. United States, 458 A.2d 1191, 1197 (D.C. 1983); Boyd v. United States, 473 A.2d 828, 833-34 (D.C. 1984) (citing inter alia Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). Appellant's reliance on Price v. United States, 531 A.2d 984, 990-92 (D.C. 1987), is misplaced because that case concerned cross-examination that established that appellant knew of no reason why missing witnesses could not testify at trial.