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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CF-107

CEDRICK LORENZO SHULER, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(CF1-11664-11)

(Hon. William M. Jackson, Trial Judge)

(Submitted June 6, 2014 Decided August 28, 2014) 

Thomas T. Heslep was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman,

Suzanne Grealy Curt, and David B. Goodhand, Assistant United States Attorneys, 

were on the brief for appellee.

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING, 

Senior Judge.

BLACKBURNE-RIGSBY, Associate Judge: Following a jury trial, appellant 

Cedrick Lorenzo Shuler was acquitted of the initial charge of first-degree murder 

while armed, D.C. Code §§ 22-2401, -3202 (1981) (current versions at D.C. Code 

§§ 22-2101, -4502 (2012 Repl.)), and convicted of the lesser included offense of
2

second-degree murder while armed, D.C. Code §§ 22-2403, -3202 (1981) (current 

versions at D.C. Code §§ 22-2103, -4502 (2012 Repl.)), for the February 22, 1998,

fatal shooting of Renee Best. On appeal, appellant argues that the trial court 

committed reversible error by: (1) giving a supplemental instruction on seconddegree murder for the first time during jury deliberations in response to a jury 

question; and (2) reinstructing the jury on premeditation and deliberation, 

transferred intent, and the obligation of the jury to acquit appellant of first-degree 

murder before considering second-degree.1 We affirm.

 

1 Appellant further contends that the trial court erred by failing to sua 

sponte address a ―dangerously inappropriate‖ closing argument made by the 

prosecutor. Because an objection was never made at trial with regard to these 

allegedly inappropriate remarks, the plain error standard applies — a ―stringent‖ 

standard that requires ―a showing of . . . error so clearly prejudicial to substantial 

rights as to jeopardize the very fairness and integrity of the trial.‖ McGrier v. 

United States, 597 A.2d 36, 41 (D.C. 1991) (citations and internal quotation marks 

omitted); see also Hargrove v. United States, 55 A.3d 852, 858 (D.C. 2012) (citing 

McGrier, supra, 597 A.2d at 41). Under this standard, ―reversal of a conviction 

based on improper prosecutorial argument is appropriate only in a  ̳particularly 

egregious‘ case, when  ̳a miscarriage of justice would otherwise result.‘‖ Id.

(citation omitted). Viewing the record, appellant cannot meet the strictures of 

plain error review. 
3

I. Factual Background

A. The 1998 Shooting

On February 22, 1998, in an attempt to avenge the killing of a close friend, 

Hosea Stringfield, appellant Shuler asked his friend Alvin Barnes to ―go with him 

to get,‖ i.e., kill, the alleged perpetrator, Walter Jones. They found Jones speaking 

with Renee Best, an unrelated female, off the 4600 block of Hillside Road, 

Southeast, Washington, D.C. With appellant leading the way, they walked through 

an alley past bystanding eyewitness, Ricky Black. Upon approaching Jones and 

Best, appellant inexplicably first shot Best in the face, which ultimately led to her 

death. Although appellant also shot at Jones and managed to hit him in the leg, 

Jones ultimately escaped. Afterwards, Barnes questioned appellant about why he

―shot the girl,‖ to which appellant replied: ―F*** it. It‘s over with.‖
4

B. The Trial

Thirteen years later, on June 22, 2011, a grand jury returned an indictment 

charging appellant with first-degree murder while armed for the killing of Best.

2

 

The jury trial commenced on October 1, 2012. The government‘s case relied 

primarily on the eyewitness accounts of Barnes3and Black,4due to the age of the 

murder. At the close of the government‘s case, the trial court outlined its proposed 

jury instructions on first-degree murder, and neither party asked for an instruction 

on second-degree murder.

During closing arguments, defense counsel sought to attack the credibility of 

Barnes and Black. Specifically, to further emphasize the defense‘s theory at trial

 

2

 Because of the thirteen-year delay and the statute of limitations, the only 

charge that the government could bring was that of the homicide. In the same 

indictment, Jones was also charged with the alleged murder of Stringfield, but his 

case was eventually severed from appellant‘s.

3

 Law enforcement personnel approached Barnes, who was serving a 

sentence for a separate murder at the time, believing that he had witnessed Best‘s 

murder. After consulting with his lawyer, Barnes agreed to plead guilty to Best‘s 

murder and cooperate as a government witness.

4

 Back in 1998, Black gave a signed statement to police as to what he saw

and identified a photograph of appellant as someone he saw coming through the 

alley. However, he did not hear anything more from the authorities until 2011, 

while serving an unrelated sixteen-year sentence in North Carolina. 
5

that appellant was never at the scene of the crime, defense counsel insinuated that

the eyewitness testimony of Barnes and Black placing appellant at the scene could 

not be trusted because Barnes and Black ―[were] receiving a benefit‖ and testified

―for compensation.‖

After closing arguments, the trial court proceeded to instruct the jury on the 

charge of first-degree murder while armed, with instructions on the two alternative 

theories of mens rea liability: (1) appellant intended to kill Best, or (2) the transfer 

of appellant‘s intention to kill Jones to Best under the principle of transferred 

intent.

5

 The trial court additionally instructed the jury on the ―beyond a reasonable 

doubt‖ standard and witness credibility.

 

5

 The trial court instructed the jury on the doctrine of transferred intent as 

follows:

Transferred intent connects the mental state directed 

towards an intended victim with the actual harm caused 

to another victim. Accordingly, if the government proves 

beyond a reasonable doubt that the defendant fired a shot 

specifically intending to kill . . . Jones but instead 

actually killed . . . Best, an unintended victim, then by 

operation of law the defendant‘s intent to kill is also 

transferred from . . . Jones to . . . Best. This principle 

applies whether or not the intended victim is also killed, 

injured or harmed or whether or not the intended victim 

is even identified.
6

During jury deliberations, the jury submitted numerous questions regarding 

the charge and the applicable law. A few hours into deliberations,6the jury sent 

the court its first note, which included two questions about the possibility of 

considering a lesser included offense:

Is there any chance that we could reach a verdict on a 

related, but lesser offense, or is the offense charged the 

only one we can decide?

If we conclude that Mr. Shuler had intent to commit 

serious bodily injury (but we are not convinced that he 

had intent to kill), does that satisfy the elements of the 

crime?

Based on this note, the trial court stated that it was ―inclined to give a lesser 

included of [second-degree murder] while armed‖ instruction as an answer to the 

jury‘s question, and inquired if either party objected. Defense counsel objected, 

stating that ―had [he] known that the lesser included second degree [murder 

instruction] was going to be included, it is highly possible that [he] would have 

argued some of the facts in closing argument a little different[ly] or . . . added 

something.‖ However, the government retorted: ―Well, the theory of [the 

defense‘s] case was that Mr. Shuler wasn‘t there.‖ The trial court agreed with the 

 

6

 The record does not reveal precisely how long the jury had been 

deliberating before it posed its question regarding the lesser included offense, but 

we can safely conclude that the jury had been deliberating for no more than four 

hours by the time it sent the note.
7

government, noting that ―the defendant‘s theory was that he wasn‘t even there and 

that he didn‘t do it,‖ and that defense counsel, ―on the issue of first degree 

premeditated murder[,] . . . didn‘t even argue the elements.‖ The trial court was,

therefore, unconvinced that an instruction on the ―lesser included [offense] of 

second degree murder would have changed [appellant‘s] argument.‖ With the 

government agreeing that ―the [c]ourt is correct that it has the discretion‖ to give 

the instruction, the trial court instructed the jury that they could ―go on to consider

second degree murder while armed‖ as a lesser included offense ―[i]f [they] find 

[appellant] not guilty of first degree . . . murder while armed.‖

The following day, the jury again communicated with the trial court, this 

time asking if it could ―proceed to consider‖ second-degree murder if it had not yet 

reached a verdict on first-degree murder. The trial court responded, with the 

parties‘ agreement, by sending a note to ask whether the jurors ―believe that 

they‘ve made all reasonable efforts to reach a unanimous verdict‖ on first-degree 

murder. The jury did not immediately respond to this question. However, later 

that afternoon, the jury sent another note asking:

We have a question about the meaning of the principle of 

transferred intent. If the shot that killed Renee Best was 

never intended to hit or kill [Jones], does transferred 

intent apply? The question concerns the possibility that 
8

Renee Best was shot on purpose but in an unpremeditated 

way.

While discussing with the parties about how to answer this question, the trial court 

noted: ―The principles of transferred intent apply to both first degree . . . and 

second degree murder. . . . But I don‘t know where they are, quite frankly.‖ 

Noting that the jury had yet to respond to the pending ―reasonable efforts‖ 

question, and that the question specifically mentioned the ―possibility that . . . Best 

was shot . . . in an unpremeditated way,‖ the trial court and both parties became 

concerned that the jury had begun to consider second-degree murder without 

resolving first-degree. The trial court thus called the jury back into the courtroom 

to explain that it could not answer their question regarding transferred intent until 

they answered the earlier question regarding ―reasonable efforts.‖

The next morning, the jury answered that ―they were still in deliberations 

about first degree murder.‖ However, the jury additionally informed the court that,

because their ―question about transferred intent [wa]s relevant‖ to their 

deliberations about first-degree murder, they have halted further deliberations to 

await the court‘s response to that question. At this point, the trial court believed 

that the jury was confused about the law because their transferred intent question, 

having specifically referenced the possibility that Best was shot ―in an 
9

unpremeditated way,‖ ―involved second-degree murder, which [the jury] should 

not . . . [consider] if they haven‘t resolved the issue of first-degree murder.‖ While 

discussing the issue with the parties, the trial court emphasized that it ―need[ed] to 

be careful‖ and avoid ―steering [the jurors] one way or the other,‖ and proposed 

that the ―safest way of answering their question‖ was to ―give them the 

instruction[s] again on premeditation and deliberation and on transferred intent.‖

Defense counsel ―object[ed] to any instruction,‖ arguing that any instruction

would ―steer the jury in a direction.‖ The court disagreed, noting that it ―ha[d] an 

obligation to be as helpful as [it] possibly can without . . . directing [the jurors] one 

way or the other,‖ and reiterated that the ―most neutral way . . . [to] respond is by 

giving them‖ the instructions again. In response, defense counsel stated that ―if the 

[c]ourt‘s going to give the instruction . . . [he] would ask the [c]ourt to also . . . 

instruct the jury on reasonable doubt and credibility of the witnesses‖ in order to 

―balance those instructions.‖ The trial court rejected defense counsel‘s proposal, 

noting that, because ―[the jurors] haven‘t asked . . . anything about reasonable 

doubt‖ or ―about credibility of witnesses,‖ such an instruction would ―inject[] 

something in there‖ rather than ―balance anything out.‖
10

Accordingly, the judge reinstructed the jury on the elements of first-degree 

murder and second-degree murder, as well as their obligation to acquit on the firstdegree charge before considering the second-degree charge, and clarified the 

theory of transferred intent. Approximately forty minutes later, the jury announced 

its guilty verdict on the lesser included offense of second-degree murder while 

armed. This appeal followed.

II. Discussion

A. Second-Degree Murder Instruction

―We review decisions on whether to reinstruct a jury for abuse of 

discretion.‖ Blocker v. United States, 940 A.2d 1042, 1046 (D.C. 2008) (citations 

omitted). ―[W]e have frequently recognized that the trial judge has considerable 

discretion in the matter of jury instructions[] and in responding to jurors‘ 

questions.‖ Yelverton v. United States, 904 A.2d 383, 388 (D.C. 2006) (citations 

omitted). That said, a supplemental instruction in response to a specific request 

from a deliberating jury ―must be viewed in a special light.‖ Id. (citations and 

internal quotation marks omitted). This is because the instruction has the potential 

to ―unduly emphasize one aspect of the case,‖ id. (citation and internal quotation 
11

marks omitted), and thereby ―create a significant risk that the jury would apply the 

wrong standard,‖ Owens v. United States, 90 A.3d 1118, 1123 (D.C. 2014) (citing 

Yelverton, supra, 904 A.2d at 388), or otherwise influence the jury‘s deliberations 

in a manner prejudicial to the defendant, see United States v. Welbeck, 145 F.3d 

493, 497 (2d Cir. 1998) (concluding that instructions given ―during deliberations‖ 

are ―dangerous and will often cause reversible error‖ if the circumstances ―give 

rise to unfair prejudice‖).

Usually, ―a lesser-included offense instruction is properly given as long as

(1) the lesser included offense consists of some, but not every element of the 

greater offense; and (2) the evidence is sufficient to support the lesser charge.‖7 

Jennings v. United States, 993 A.2d 1077, 1079 (D.C. 2010) (citation and internal 

quotation marks omitted). However, the circumstances under which the lesser 

included offense instruction was given in this case present an issue of first 

 

7 Appellant never opposed the lesser included offense instruction on the 

basis of insufficient evidence either at trial or on appeal. At any rate, this 

requirement ―is a minimal one: it means any evidence . . . however weak.‖

(Anthony) Shuler v. United States, 677 A.2d 1014, 1017 (D.C. 1996) (omission in 

original) (citation and quotation marks omitted). Here, as noted in Woodard v. 

United States, 738 A.2d 254, 261 (D.C. 1999), ―the jury instruction . . . was not 

improper because a reasonable jury could have concluded that the government 

failed to establish premeditation, the only element distinguishing first from seconddegree murder.‖ 
12

impression — which we review de novo, Plummer v. United States, 43 A.3d 260, 

273 (D.C. 2012) — namely, whether it was reversible error for the trial court, in 

response to a jury question, to instruct the jury on a lesser included offense not 

requested by either party prior to closing arguments.

8

In considering this issue, we 

take guidance from a factually similar case from the Second Circuit. 

In Welbeck, prior to closing arguments, the trial court instructed the jury on 

the elements of possession of a controlled substance with intent to distribute, and

neither side requested a charge on simple possession as a lesser included offense. 

145 F.3d at 495. During deliberations, however, the jury similarly sent two 

consecutive notes to the court, asking whether simple ―possession‖ is a lesser 

charge and whether they could consider the lesser charge if they were stuck on the 

 

8 Although we previously addressed closely related issues, we have never 

squarely addressed whether the trial court has the discretion to give a supplemental 

instruction under these circumstances. For example, in Bouknight v. United States, 

641 A.2d 857, 859 (D.C. 1994), we upheld a trial court‘s decision to give 

supplemental instructions to a jury during deliberations on ―an alternative theory of 

criminal liability,‖ as opposed to a ―new charge.‖ In Blocker, we further decided 

that the trial court did not abuse its discretion by withdrawing an erroneous charge 

and reinstructing the jury on a lesser included offense of that charge after 

deliberations had begun. 940 A.2d at 1046. This case is distinguishable from 

Bouknight because the supplemental instruction was on a ―new charge,‖ albeit a 

lesser included offense of the original charge. Blocker is also not on all fours 

because the trial court in this case was not acting to correct a prior erroneous 

charge. See 940 A.2d at 1048 (reasoning that, ―more importantly, the original, 

erroneous instruction could not be allowed to stand uncorrected‖). 
13

―distribution‖ element. Id. at 495–96. After discussing with both parties, the 

court, over defense counsel‘s objection, instructed the jurors that they could

convict the appellant of simple possession if they were unable to reach a verdict on 

possession with intent to distribute. Id. On appeal, the Second Circuit upheld the 

conviction, explaining that, ―while the delivery of a lesser included offense charge 

to a deliberating jury is dangerous and will often cause reversible error, it is not per

se illegal and will not justify reversal if the circumstances do not give rise to unfair 

prejudice.‖ Id. at 497.

The Second Circuit recognized that supplemental jury instructions on a

lesser included charge issued ―without notice to the defendant prior to summation‖ 

raise particular concerns, and thus concluded that such cases must be ―carefully 

scrutinize[d]‖ according to ―the facts and circumstances of each trial.‖ Id. The 

court explicitly identified two potential problems that could give rise to unfair 

prejudice to the defendant: (1) where the ―timing of the charge‖ makes it ―unfairly 

suggestive on the court‘s part,‖ or (2) where the ―defendant has somehow been 

harmed by his reasonable expectation that he faces exposure to liability only for 

the greater offense charged.‖ Id. at 497. The first problem arises if ―the theory of 

lesser-included liability was suggested to a stalled jury on the court‘s own 

initiative,‖ causing the ―stalled jury [to] regard the newly furnished theory of 
14

liability as the court‘s recommendation to resolve the impasse by agreeing to the 

lesser offense,‖ id. (citations omitted), or, in other words, if the instructions would 

lead ―a reasonable jury [to] believe that the trial court was now endorsing the new 

instructions,‖ Blocker, supra, 940 A.2d at 1048 (internal quotation marks omitted) 

(quoting State v. Thurmond, 677 N.W.2d 655, 663 (Wis. App. Ct. 2004)). The 

second problem arises ―where the supplemental instruction deprives the defendant 

of the opportunity to address effectively in summation the offense on which he is 

ultimately convicted,‖ or ―where the defendant makes strategic concessions in 

summation which are damaging in relation to the later charged lesser included 

offense.‖ Welbeck, supra, 145 F.3d at 497. The Second Circuit found that neither 

of these concerns arose in Welbeck because, with regard to the first concern, the 

―initiative for the supplemental instruction came from the jury itself,‖ which 

―preclud[es] the possibility that the timing of the charge was unfairly suggestive on 

the court‘s part,‖ and, with regard to the second concern, there is not ―any 

indication that [the appellant] was unfairly prejudiced by the late instruction.‖ Id.

We find the logic expounded in Welbeck persuasive — especially 

considering that it is well-established in this jurisdiction that on issues relating to

post-summation supplemental jury instructions, a ―reversal is not required [if] 

appellant did not suffer any real prejudice,‖ Blocker, supra, 940 A.2d at 1046. We 
15

therefore adopt the Second Circuit‘s analysis in the District of Columbia.

9

 The 

holding in Welbeck is particularly applicable here because that case dealt with facts 

substantially similar to those in this case. Accordingly, we likewise conclude that, 

in circumstances such as these, ―we will not upset a conviction absent some 

indication of prejudice in consequence of the late charge.‖ Welbeck, supra, 145 

F.3d at 498. We are confident that none of the concerns discussed in Welbeck are 

present here. 

Regarding the first potential concern, i.e., where the timing of the instruction 

renders it unduly suggestive, because the trial court gave the instruction on the 

lesser included offense as a response to a question asked by the jury early on 

during the deliberation process, there is no real danger of the jury assigning undue 

weight to the instruction or misinterpreting it as the court‘s recommendation for a 

compromise. See id. at 497 (―That concern is not present where, as here, it was the 

jury that raised the question of a lesser included offense in a note to the court.‖).

The jury had just begun deliberations, foreclosing the possibility that the ―verdict 

 

9

 The Welbeck approach, or a similar analysis, has also been applied in a 

few other jurisdictions. See, e.g., Cheely v. State, 850 P.2d 653, 662–63 (Alaska 

Ct. App. 1993) (affirming conviction on a later-charged lesser included offense 

because of an ―absence of justifiable, detrimental reliance‖ by the defendant on the 

original instruction); Thurmond, supra, 677 N.W.2d at 656 (reversing the 

conviction upon finding that the post-summation jury instructions on lesser 

included offenses were unfairly prejudicial).
16

was driven by a stalled jury‘s desire to disband rather than complete a fair 

assessment of the evidence.‖ Thurmond, supra, 677 N.W.2d at 663. Moreover,

the trial court, while giving the second-degree murder instruction, repeated its 

instruction on first-degree murder and explained that, the newly-given lesser 

included charge notwithstanding, the jury must ―first consider whether the 

defendant is guilty of first degree premeditated murder while armed.‖ Thus the 

trial court was careful not to place any improper emphasis on the new charge or act 

in a manner so as to cause ―a reasonable jury [to] believe that the trial court was 

now endorsing the new instructions.‖ Blocker, supra, 940 A.2d at 1048 (citation 

and internal quotation marks omitted). 

The second concern outlined in Welbeck — regarding whether the late 

instruction deprives appellant of the opportunity to address the charge effectively,

or damages the argument appellant did make, during closing arguments — is also 

not present here. Although appellant objected below that he would have argued 

differently during closing argument had he known that an instruction on seconddegree murder would be given, we do not find this argument persuasive. As the 

trial court noted, ―defendant‘s theory was that he wasn‘t even there and that he 

didn‘t do it,‖ and defense counsel did not present arguments regarding the elements 

of first-degree murder. A review of the record supports the trial court‘s 
17

observations. Appellant‘s theory of defense did not depend on the difference 

between the elements of first-degree and second-degree murder. It instead 

depended on appellant‘s numerous arguments regarding and extensive challenges

to the lack of credibility of the prosecution‘s key witnesses, whose testimonies 

implicated appellant and placed appellant at the scene of the crime. These 

arguments addressed the second-degree charge just as effectively as the firstdegree. Thus, in light of the theory that appellant argued throughout trial and 

during closing argument — that he was not present at the scene of the crime — the 

instruction did not deprive appellant of the opportunity to address the offense of 

which he was ultimately convicted, or damage any arguments that appellant made 

during closing argument.10 Consequently, although post-summation instructions 

on a lesser included offense are ―disfavored‖ and have the potential for unfair 

prejudice, we conclude that, under the circumstances of this case, ―[t]here was no 

unfair prejudice here, and therefore no error.‖ Welbeck, supra, 145 F.3d at 498.

Lastly, appellant claims prejudice because the trial court‘s supplemental 

instruction undermined the ―considered strategy by both sides‖ to pursue the case 

 

10

 Appellant also complained on appeal that ―no re-argument was allowed‖

after the trial court decided to give the supplemental instruction. However, 

because there was no request to reopen summations, appellant ―cannot complain 

that he was deprived of the opportunity.‖ Welbeck, supra, 145 F.3d at 496.
18

on an ―all or nothing‖ basis. This argument is also without merit. While ―the 

decision whether to request consideration of a lesser-included offense may be a

tactical one for the parties, parties do not have unfettered unilateral rights in this 

regard.‖ Mungo v. United States, 772 A.2d 240, 243–44 (D.C. 2001) (citation 

omitted). Although a trial court should generally ―refrain from instructing a jury 

on a lesser-included offense without a request from a party to do so,‖ Mungo,

supra, 772 A.2d at 243 (citing Woodard v. United States, 738 A.2d 254, 258 n.9 

(D.C. 1999)), a ―trial court‘s sua sponte suggestion of a lesser-included offense 

instruction is not error simply because the trial court acts of its own accord,‖ High 

v. United States, 972 A.2d 829, 833 (D.C. 2009). We clarified:

[A] trial court is under no duty to sit quietly and refrain 

from even mentioning a lesser included instruction until 

one of the parties requests it (assuming that one is 

warranted under the circumstances). Rather, the court 

may give a lesser included instruction if requested to do 

so or if the prosecutor or defense counsel “affirmatively 

agrees” to one when the court suggests it.

Hawthorne v. United States, 829 A.2d 948, 952 (D.C. 2003) (second emphasis 

added) (citation omitted). Hawthorne explained that ―[a]lthough the prosecutor . . . 

did not initiate the discussion about the possibility of a lesser included offense 

instruction,‖ the trial court may nonetheless give the instruction sua sponte,

because one of the parties, the prosecutor in that case, ―affirmatively agreed‖ with 
19

the trial court‘s suggestion by stating that such an instruction ―certainly seems 

appropriate[,] unless the court thinks otherwise.‖ Likewise, here, although neither 

appellant nor the government initially requested a lesser included instruction on 

second-degree murder, one of the parties — the government in this case — later 

agreed to the trial court‘s suggestion to give the instruction in response to the jury 

note, noting that ―the [c]ourt is correct that it has the discretion‖ to give the lesser 

included instruction. Woodard, supra note 7, 738 A.2d at 260. It is of no 

consequence that the trial court gave the instruction over defense counsel‘s 

objection, because, in situations where one of the parties agrees to the lesser 

included instruction but the other objects, ―[t]he test is not whether there is an 

objection from either party, but whether the evidence supports the giving of the 

instruction,‖ Glymph v. United States, 490 A.2d 1157, 1160 (D.C. 1985), and, as 

discussed supra note 7, there clearly was sufficient evidence to support an 

instruction on second-degree murder in this case. Consequently, the trial court‘s 

decision to give the instruction was not an abuse of discretion simply ―because it 

precluded [appellant] from taking the  ̳all or nothing‘ approach.‖ 

For these reasons, the trial court did not abuse its discretion by giving this

lesser included instruction in response to the jury question because appellant did 
20

not suffer ―real prejudice,‖ Blocker, supra, 940 A.2d at 1046, ―in consequence of 

the [post-summation] charge,‖ Welbeck, supra, 145 F.3d at 497. 

B. The Final Reinstruction

Additionally, appellant contends that the trial court abused its discretion by 

giving a final reinstruction to the jury on certain legal standards and principles over 

the defense‘s objection, and by rejecting defense counsel‘s proposal to ―balance‖ 

the trial court‘s reinstruction with reinstructions on reasonable doubt and 

credibility of witnesses. We discern no such abuse of discretion. See Blocker, 

supra, 940 A.2d at 1046. It is well-established ―that when a jury sends a note 

indicating its confusion with the law governing its deliberations, the trial court 

must not allow that confusion to persist; it must respond appropriately.‖ Jordan v. 

United States, 18 A.3d 703, 707 (D.C. 2011) (emphasis added) (citation and 

internal quotation marks omitted). ―This means that when a jury makes explicit its 

difficulties, a trial judge should clear them away with concrete accuracy.‖ Cox v. 

United States, 999 A.2d 63, 71 (D.C. 2010) (citation, brackets, and internal 

quotation marks omitted). The jury note in this case — asking about transferred 

intent in the context of the ―possibility‖ that Best was killed ―in an unpremeditated 

manner‖ but also maintaining that the question ―[wa]s relevant‖ to their 
21

deliberations about first-degree murder — ―clearly evinced confusion,‖ id., as to 

first-degree murder, second-degree murder, and transferred intent. Accordingly, 

the trial court did not abuse its discretion by reinstructing the jury on those legal 

issues.

Further, because the trial court‘s reinstructions were simply a neutral 

recitation of the law intended to dispel the jury‘s confusion, the trial court‘s 

instructions were balanced and did not inject the trial court into the jury‘s 

deliberations on how the law should have been applied. See Davis v. United 

States, 510 A.2d 1051, 1053 (D.C. 1986) (holding that ―the trial judge must 

prevent the poison[ing of] an otherwise healthy trial‖ by avoiding giving

―improperly balanced‖ instructions) (alteration in original) (citation and internal 

quotation marks omitted). A reinstruction is balanced where, ―by answering only 

the question that was asked . . . , the judge refrained from emphasizing the 

government‘s case in a prejudicial manner.‖ Robinson v. United States, 642 A.2d 

1306, 1311–12 (D.C. 1994). Thus, by simply recounting the elements of the 

offenses and the definition of transferred intent, the trial court limited the 

reinstruction to only addressing the jury‘s areas of confusion. Moreover, the 

record reveals that the trial court was conscious of its obligation to give a helpful 

reinstruction ―without steering [the jurors] one way or the other.‖ Contrary to 
22

appellant‘s claim, the trial court further did not err by rejecting defense counsel‘s 

proposal for additional reinstructions on reasonable doubt and credibility of 

witnesses. As the trial court observed, these reinstructions had nothing to do with

the jury‘s questions and would have resulted in the trial court ―injecting‖ itself into 

an issue the jury did not ask about. Accordingly, the trial court did not abuse its 

discretion by reinstructing the jury on the law under these circumstances.

III. Conclusion

We discern no abuse of discretion with regard to either the post-summation 

instruction on second-degree murder or the trial court‘s reinstructions. Although 

post-summation instructions on a lesser included offense have the potential for 

unfair prejudice, we conclude on appeal that ―[t]here was no unfair prejudice here, 

and therefore no error.‖ Welbeck, supra, 145 F.3d at 498. The conviction on 

appeal is hereby

Affirmed.