A judge's instruction to the jury on how they could weigh testimony about a defendant's possible change in appearance at trial - in this case, wearing glasses - wasn't prejudicial, the District of Columbia Court of Appeals has ruled.
A District of Columbia Superior Court jury convicted Donnell Harris in the June 2007 fatal shooting of Michael Richardson. Harris wore glasses during his trial in 2008, but the prosecutor presented witnesses who said they didn't know that Harris had worn them in the past.
At the prosecutor's request and over Harris' objection, the trial judge instructed the jury that if they decided that Harris had tried to change his appearance to avoid being identified, they could consider it as evidence of his feelings of guilt. In an October 10 per curiam opinion (PDF), the court found that the prosecutor had introduced enough evidence to support the instruction and that there was no prejudice because the glasses weren't a factor in witness identifications.
The U.S. attorney's office, through spokesman William Miller, declined to comment. Harris' lawyer, Washington solo practitioner Steven Kiersh, could not immediately be reached today for comment.
A three-judge appellate panel heard arguments on September 13 from Kiersh and Assistant U.S. Attorney John Gidez. At the time, Chief Judge Eric Washington told counsel that the glasses issue was one of the more compelling on appeal, but the opinion shows that the court ultimately wasn't convinced. Washington noted that a growing number of defendants had been showing up to trial wearing glasses; Harris' lawyer had argued he needed them to read the voluminous court filings.
"Under these circumstances, we cannot say that giving the standard change of appearance instruction was highly prejudicial to Mr. Harris," the court wrote. "Moreover, even assuming error, given the compelling evidence presented by the government, the error would be harmless."
Richardson, an intern with the D.C. Public Defender Service at the time of the shooting, was killed at a Northwest Washington diner. The prosecution theory at trial was that Harris shot Richardson during an early morning robbery.
Aside from the glasses issue, Harris also argued on appeal that prosecutors wrongly shifted the burden of proof to the defense in closing and rebuttal arguments by stating that the jury had not heard two sides to the story and that "there is no evidence of innocence to undercut the United States' evidence."
The appeals court found that the two statements were proper because, in the first instance, it rebutted the defense's opening statement that the jury would hear both sides and, in the second instance, it countered defense counsel's closing argument that "the evidence of innocence is compelling."
Associate Judge Anna Blackburne-Rigsby and Senior Judge Inez Smith Reid also heard the case.