Allen v. United States

603 A.2d 1219, 1992 D.C. App. LEXIS 58, 1992 WL 39306

• Court: District of Columbia Court of Appeals
• Decided: February 28, 1992
• Docket: 87-1247
• Status: Published

Opinions

Opinion for the court by Associate Judge SCHWELB.

Concurring opinion by Chief Judge ROGERS, with whom Associate Judges PERREN and TERRY join, at p. 1229.

Concurring opinion by Associate Judge TERRY at p. 1239.

SCHWELB, Associate Judge:

Rejecting his claim of self-defense, a jury convicted Allen of manslaughter while armed and of carrying a pistol without a license. D.C.Code §§ 22-2405, -3202, -3204 (1989). A division of this court, with one judge dissenting, reversed his conviction, holding that the prosecutor’s alleged use of missing evidence and missing witness inferences during cross-examination of the defendant, and thereafter in closing argument, was improper, that the prosecutor had shifted the burden of proof, and that Allen was thereby unfairly prejudiced. Allen v. United States, 579 A.2d 225 (D.C. 1990) (Allen I). The United States filed a petition for rehearing en banc and, on January 25, 1991, this court vacated the division opinion, Allen II, 584 A.2d 604 (D.C. 1991) (per curiam) (en banc), and the case was subsequently reheard by the full court. Finding no reversible error, we now affirm.

I

THE EVIDENCE

The facts are described in considerable detail in the majority and dissenting opinions in Allen I, supra, 579 A.2d at 226-28, 236-38, and we confine our exposition of them accordingly.

On November 13, 1983, Allen shot and killed Samuel Manning. The incident was apparently the culmination of a dispute over Manning’s alleged misappropriation during the previous summer of Allen’s car, and of some subsequent ramifications of that quarrel. Shortly thereafter, Allen fled to Florida, where he lived under an assumed name.¹ When he was apprehended in Miami almost two years after Manning’s death, Allen told the FBI that his name was Anthony Jenkins and that he knew nothing about the killing of Manning. On the way back to Washington, D.C., he advised Detective Queen of the Metropolitan Police Department that “the guy you’re looking for is in Washington, D.C.” After being advised of his rights, however, he told Detective Queen that Manning had pulled a gun on him and that he shot back with a .38 caliber pistol.²

At trial, the prosecution presented evidence which, if credited, tended to show, among other things, that Allen had shot Manning, fled to Florida, concealed his identity, lied to the police as to who he was, and subsequently threatened a government witness. In response, Allen took the witness stand on his own behalf. He acknowledged that he had shot Manning, but claimed that he acted in self-defense after Manning pulled a handgun on him. The prosecution’s theory, in refuting that claim, was that Allen’s conduct was not consistent with his proffered defense. The government focused on Allen’s flight and on what he did and did not do at the scene. The prosecutor pressed Allen on cross-examination as to any attempt that he may have made to ensure that Gerard, a friend of Allen’s who was with him at the time of the shooting, would be available to testify, and that any favorable physical evidence would be preserved. The prosecutor also argued these points to the jury. Counsel for Allen objected to the prosecution's approach on the ground that the prosecution’s tactics were in violation of the missing witness and missing evidence rules and that the prosecution was shifting the burden of proof.

The prosecutor acknowledged at one point that he had come “very close to the line about missing witness.” The judge, however, overruled Allen’s missing witness, missing evidence, and burden-shifting objections. Allen was ultimately acquitted of murder while armed, but convicted of manslaughter while armed and of carrying a pistol without a license. This appeal followed.

II

LEGAL DISCUSSION

A. The Missing Witness and Missing Evidence Inference.

Allen, as we have noted, admitted at trial that he killed Manning, but claimed to have done so to protect his own life. Once he had introduced that issue into the case, the government was required to prove beyond a reasonable doubt that Allen had not acted in self-defense. Bynum v. United States, 133 U.S.App.D.C. 4, 5, 408 F.2d 1207, 1208, cert. denied, 394 U.S. 935, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1968). Manning was dead, and his version of the encounter was not available to the jury. In order to contest Allen’s proffered justification, the prosecutor was obliged to probe Allen’s account to determine if it was consistent with the claim of self-defense. The prosecutor attempted to demonstrate that although Allen’s words at trial supported the claim of innocence, his conduct at the time of Manning’s death did not.

A principal issue at trial concerned Allen’s state of mind. The question presented to the jury was whether Allen shot and killed Manning with criminal intent or in self-defense. Allen’s intent could not “be proved directly, because there is no way of fathoming and scrutinizing the operations of the human mind.” Allen v. United States, 136 U.S.App.D.C. 381, 383 n. 1, 420 F.2d 223, 225 n. 1 (1969). Instead, his state of mind could best be inferred from the surrounding circumstances. Id. at 383, 420 F.2d at 225; see also Criminal Jury Instructions for the District of Columbia, No. 3.02 (3d ed.1978).

It cannot be gainsaid that, in probing Allen’s conduct to determine whether it matched Allen’s claimed state of mind, the prosecutor incidentally brought to the jury’s attention Allen’s failure to undertake efforts to collect or preserve evidence arguably relevant to self-defense, an issue as to which the government, not Allen, bore the burden of proof. We are of the opinion, however, that the trial judge acted reasonably in permitting the prosecutor to do so. The division majority thought that the government’s position that the prosecutor’s questioning was permissible “undermines the missing evidence and missing witness rule.” 579 A.2d at 232. Our view is the exact converse; Allen’s attempt to extend the missing evidence doctrine to reach the facts here undermines the prosecution’s right to conduct a thorough exploration and exposition of relevant facts, and therefore impairs the even-handed balance that is essential to adversarial litigation.³

Over defense objection, the judge permitted the prosecutor to cross-examine Allen in detail about his conduct after Manning’s death. Did Allen look for Gerard after the shooting? Did he ask his sister to keep the van from which he said he had shot Manning? Did he attempt to preserve a shell casing which may have “popped out” after he fired the fatal shot? Did he and Gerard search the van to see if there was anything in it that could support his claim that he had acted in self-defense? Did he ask Gerard to preserve the weapon with which he (Allen) had killed Manning? Did he request Gerard to keep in touch “so he could say what really happened in the van?” In his rebuttal argument, the prosecutor reemphasized that if Allen had truly acted in self-defense he would have “scoured that van to get that shell casing and to preserve the gun” and would have “tried to keep Gerard or Gerald, or know his last name.” He argued that Allen “did nothing, nothing to preserve what would support him.” A similar theme appeared in the prosecutor’s initial argument as well.

Allen contends that “the inference the government was urging was that appellant’s failure to produce the gun, the shell casing or Gerard created the presumption that the [evidence] if produced would be unfavorable.” We cannot agree that the prosecutor was urging such a presumption, either directly or implicitly. Rather, the prosecutor’s focus was on the plausibility of Allen’s claim of self-defense in light of his pre-arrest conduct, and not on any missing witness or missing evidence inference.

During cross-examination, the prosecutor sought to show that if Allen had killed Manning justifiably in self-defense, then it would have been logical for him to do what he could to enable the authorities to find out what really happened. Specifically, the prosecutor suggested that an innocent man would have kept the pistol, searched the car for clues, told his sister and brother-in-law about Manning’s death, attempted with their help to preserve the van and its contents, and requested Gerard to stay in touch. Similarly, in his closing argument, the prosecutor focused on what Allen did after the killing. He did not argue or even mention Gerard’s absence from the trial. As the trial judge put it, such cross-examination⁴ “shows the jury something about whether [Allen’s] conduct is consistent with [that of] a man who tells the story he’s telling here today.”

The missing witness and missing evidence rules focus on the impact on the jury of the defendant’s nonproduction of evidence at trial. To put it in the vernacular, the prosecutor — or, indeed, any attorney— should not be allowed to mislead the jury by trying to make something out of nothing. We are of the opinion, however, that this wise policy is not significantly implicated here. The government was not making something out of nothing. Rather, as the trial judge recognized, the prosecutor was asking the jury to draw reasonable inferences from Allen’s conduct at a time when actions spoke louder than words.

Allen maintains, not implausibly, that there were legitimate reasons for his failure to preserve evidence immediately after the killing.⁵ He had every opportunity, however, to explain these reasons to the jury.⁶ The overall character of Allen’s conduct at the time — his failure to report Manning’s death or to preserve the scene for investigators, his flight, and his assumption of an assumed identity — were all relevant to an informed assessment of his state of mind. The prosecutor’s concentration on this theme during cross-examination and in closing argument did not, in our view, run afoul of the missing witness or missing evidence doctrine.

It is axiomatic that the trial judge, who is on the scene and has an opportunity to obtain a “feel” for the case which is not available to an appellate court reviewing a paper record, is invested with wide latitude in determining the permissible limits of cross-examination, see Springer v. United States, 388 A.2d 846, 854 (D.C.1978), and of closing argument, Irick v. United States, 565 A.2d 26, 32 (D.C.1989). Allen has failed to show abuse of that discretion.

B. Shifting the Burden of Proof.

Allen contends that the prosecutor imper-missibly shifted the burden of proof to him with respect to the issue of self-defense. He says that this occurred both during cross-examination and in closing argument. We disagree.

Early in his instructions, the judge explained the presumption of innocence. He told the jury that the government had the burden to prove Allen’s guilt beyond a reasonable doubt. He specifically stated that this burden of proof never shifts. He again referred to the requirement of proof beyond a reasonable doubt on each occasion that he explained the elements of a particular offense.⁷ Addressing the question of self-defense, the judge said:

The defendant is not required to prove that he acted in self defense. Where evidence of self-defense is present, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the government has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, it is your duty to find him not guilty. And that applies to all the levels of homicide that you may consider, depending on what you find as the facts of this case.

Given the clarity of these instructions and the ease with which any reasonable person could understand them, we think it a pro-pos to invoke here Justice Holmes’ observation for the Court in Graham v. United States, 231 U.S. 474, 481, 34 S.Ct. 148, 152, 58 L.Ed. 319 (1913) that “[i]t would be absurd to upset a verdict upon a speculation that the jury did not do their duty and follow the instructions of the court.” See also Coates v. United States, 558 A.2d 1148, 1150 (D.C.1989).

The judge also instructed the jurors that “it is your duty to accept the law as I state it to you.” Accordingly, even if the prosecutor had argued that Allen had the burden of proof with respect to self-defense, one would presume that the jury applied the law as stated by the judge, not by the prosecutor. See Boyde v. California, 494 U.S. 370, 385, 110 S.Ct. 1190, 1200, 108 L.Ed.2d 316 (1990). In any event, the prosecutor presented no such contention.⁸ On the contrary, he began his rebuttal argument by agreeing that

[defense counsel] is right. The government has to prove and you have to be satisfied beyond a reasonable doubt as to every element of the offenses of first-degree murder or of second-degree murder or voluntary manslaughter while armed. And you have to be satisfied beyond a reasonable doubt, if there’s evidence of self-defense, that he didn’t act in self-defense.

(Emphasis added.) Since the judge, the prosecutor and the defense attorney⁹ were all in agreement on this undisputed point of law, we are at a loss to understand how the jurors could possibly have been misled as to which party had the burden of proof. Probative evidence¹⁰ should not be excluded because of “crabbed notions of relevance or excessive mistrust of juries.” Riordan v. Kempiners, 831 F.2d 690, 698 (7th Cir.1987) (Posner, J.).

It is, of course, true that the prosecutor had the burden of proof with respect to the issue of self-defense and that his cross-examination and closing argument revealed the lack of evidence presented by the defense on that subject. That is by no means equivalent, however, to an attempt to “shift” the burden.¹¹ In McCowan v. United States, 458 A.2d 1191, 1197 (D.C. 1983), this court resolved an issue similar to the one presented here as follows:

Appellant also claims that the prosecutor erroneously represented to the jury during argument that he bore a burden of proof regarding his inability to explain his whereabouts on July 8. Our reading of the record indicates, to the contrary, that the prosecutor’s argument was directed at the unreasonableness of appellant’s limited attempts to ascertain his whereabouts. It did not assert, explicitly or implicitly, that appellant was burdened with proving his whereabouts. Cf. Whalen v. United States, 379 A.2d 1152, 1165 (D.C.1977) (prosecutor’s closing is proper where it refers to appellant's inability, prior to trial, to explain his whereabouts to a co-worker and does not refer to appellant’s failure to testify at trial), rev d on other grounds, 445 U.S. 684 [100 S.Ct. 1432, 63 L.Ed.2d 715]. ******

The court, moreover, instructed the jury several times that appellant bore no burden of proof. We presume the jury understood and followed those instructions.

(Citations omitted.) See also United States v. Sensi, 279 U.S.App.D.C. 42, 53-54, 879 F.2d 888, 899-900 (1989) (prosecutor’s comment that defendant’s testimony was corroborated only by witnesses that he “never produced at this trial” did not shift the burden of proof); United States v. Johnson, 713 F.2d 633, 651 (11th Cir.1983), (prosecutor’s emphasis on defense’s failure to produce evidence to rebut reasonable inference from government’s evidence was proper where prosecutor acknowledged that government bore burden of proof and trial judge so instructed), cert. denied, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984); United States v. Glantz, 810 F.2d 316, 321 (1st Cir.) (prosecutor may comment on defendant’s failure to produce evidence supporting his theory of the case and may attack the weak evidentiary foundation on which the defense rests),¹² cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987); United States v. Gotchis, 803 F.2d 74, 79-81 (2d Cir.1986) (prosecutor’s comment that the defendant could have produced but did not produce evidence that he was a cocaine user and that drugs in his possession were not for distribution did not suggest that the defendant had an obligation to produce those witnesses or shift the burden of proof).¹³

C. Lack of Prejudice.

Moreover, we are satisfied that Allen was not substantially prejudiced by the prosecutorial actions of which he complains. In assessing cases of alleged prose-cutorial impropriety, we consider its gravity, its relationship to the guilt or innocence of the accused, the effect of any corrective action, and the strength of the government’s case. See McGrier v. United States, 597 A.2d 36, 41 (D.C.1991). Our appraisal of these factors persuades us that even if the prosecutor’s cross-examination and closing argument had been improper, reversal would not be warranted.

For the reasons previously described in this opinion, we do not think that there was any prosecutorial impropriety at all; a for-tiori, it was not shown to be grave. Moreover, any relation to the issue of guilt or innocence was attenuated. The challenged cross-examination and arguments constituted only a small part of the record in a week-long, spiritedly contested trial. Allen acknowledges that it was proper for the prosecutor to cross-examine him about his flight, his assumed identity, his false statements to the authorities, and his alleged threats to witnesses. It is difficult to escape the conclusion that a reasonable juror would view these aspects of Allen’s conduct after the killing far more gravely than his alleged failure to preserve evidence, which Allen was given the opportunity to, and did, explain.

Moreover, subsequent developments at the trial effectively dissipated any conceivable prejudice. The trial judge permitted Allen to present evidence regarding his efforts to locate Gerard. Allen also explained his inability to find the pistol and the shell casings, pointing out that he did not see the van for approximately two months after the shooting. Thus, on a subject which Allen himself views as collateral or even bogus, see note 5, supra, the jury heard not only the prosecutor’s questions and arguments, but also Allen’s sworn testimony.¹⁴ Since the trial judge instructed the jury that the testimony of the witnesses was evidence, but that the questions and arguments of counsel were not,¹⁵ we find it difficult to discern how Allen could have been prejudiced.

Finally, by any reasonable standard, the prosecution case was a formidable one. Allen did not argue in his brief, nor could he persuasively have done so, that the evidence against him was weak or marginal. The government’s summary is instructive:

Prior to the shooting, appellant had said he intended to kill Manning. Two eyewitnesses testified about the shooting and related that it occurred in a manner entirely different from that described by appellant. The evidence also showed that appellant fled the scene immediately following the killing and shortly thereafter telephoned Johnson’s apartment to ask about Manning. When he was told that he had killed Manning and that the police were there, appellant hung up. Appellant later fled the District of Columbia to Miami, Florida, and attempted to establish a new identity. When he was finally apprehended in Florida, he denied being Claude Allen and denied knowing anything about the killing of ManningJ¹⁶] Then, while awaiting trial in the District of Columbia, appellant threatened to harm one of the eyewitnesses and her boyfriend if she testified against appellant.

Allen was substantially impeached. He contradicted himself on a number of issues. In particular, he told an officer that Gerard shot at Manning, but later testified that Gerard did not. His credibility was further undermined by his admission that he obtained false papers, including a false birth certificate, from an unidentified lawyer for $150. Given these facts and the powerful inference of consciousness of guilt arising from his false protestations of innocence following his apprehension, it is most unlikely that the challenged prosecutorial actions affected the jury’s verdict.¹⁷

In Thomas v. United States, 447 A.2d 52, 59 (D.C.1982), this court stated that “where the defendant’s credibility is a key issue and the missing witness inference goes to that credibility, an improper argument or instruction will ordinarily require reversal.” We have, however, appropriately retained some flexibility in this regard. In Lemon v. United States, 564 A.2d 1368 (D.C.1989), for example, the prosecutor made what we characterized as almost a “complete” missing witness argument. Moreover, he did so in part with respect to witnesses who were in the courthouse and available to testify for either side. Nevertheless, we affirmed the defendant’s conviction because the evidence against him was compelling and because

[t]he absence from the witness stand of all but one of the persons who were supposed to have been with [the defendant] on the night of the crime would have been obvious to the jury no matter what the prosecutor said, and the judge correctly instructed the jury that the government had the burden of proof beyond a reasonable doubt and that the defendant had no obligation to prove anything.

Id. at 1376.

Where, as in our view here, the factors enumerated in McGrier and Lemon point to affirmance, we should not assume too readily that jurors were misled by some arguably “close to the line” prosecutorial comment. In the final analysis, courts should generally place their trust in the ability of jurors to apply their common sense and good judgment to the case at hand and to base their verdict on the evidence rather than on assertedly improper arguments by attorneys. “Jurors are quite capable of detecting prosecutorial non sé-quitos.” Mills, supra, 599 A.2d at 786. Professor McCormick has stated, and we agree, that “[i]t is wiser to hold that if an argument on failure to produce proof is fallacious, the remedy is the usual one, namely the answering argument and the jury’s good sense.” McCormick, supra, § 272 at 807-08.

Proportionality is of consummate importance in judicious adjudication. The Mikado’s “object all sublime” to let the punishment fit the crime may be as readily applied to prosecutorial errors as to the misdeeds of those who transgress our criminal statutes. A relatively minor impropriety by the prosecution which is- unlikely to cause substantial prejudice to the accused should not result in the drastic consequence of setting aside a conviction.

In determining whether reversal is proportionate to the alleged violation in this case, we do well to be guided by the wisdom of Judge Learned Hand. In United States v. Cotter, 60 F.2d 689 (2d Cir.1932), the appellant demanded that his conviction be reversed because the prosecutor illogically invoked the missing witness principle in closing argument. In his opinion for the court affirming the conviction, Judge Hand wrote that

[a] judge is not required to intervene here any more than in any other issue of fact. He must indeed, as he always must, keep the prosecution in a criminal case within bounds ... just as he must keep passion out of the debate and hold the parties to the issues. But he is not charged with correcting their non se-quiturs; the jury are to find these for themselves. arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.

Id. at 692 (emphasis added).

Nor is Judge Hand’s assessment obsolete; as we recently stated in Mills, supra, 599 A.2d at 786 (quoting Boyde, supra, 494 U.S. at 384, 110 S.Ct. at 1200),

In this case, as we have noted, the judge made it crystal clear that the defendant did not have to prove anything.

“There being no appreciable possibility that the [prosecutor’s allegedly improper tactics] contributed to [Allen’s] conviction, it would be a waste of time and resources, and might imperil justice, to try him all over again.” Helm v. United States, 555 A.2d 465, 469 (D.C.1989). “It is not always so easy for the government to reassemble its witnesses and evidence for a return match, or for witnesses to remember what happened many years ago.” Id. at 469 n. 9.¹⁸ Moreover, “the addition of an old case to an overloaded docket requires the deferral of newer ones, in some of which presumptively innocent defendants may be in pretrial detention.” Scott v. United States, 559 A.2d 745, 766 (D.C.1989) (en banc) (concurring opinion). Finally, appellate reversal of a conviction for an alleged error which has played no role in bringing about the judgment — and that, in our view, is exactly what Allen is seeking here— “encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).

Perfection is a rare commodity. Courts should treat as a meaningful guide to judicial analysis, rather than as mere rhetorical flourish, the Supreme Court’s oft-repeated directive that a criminal defendant has a right to a fair trial, not to a perfect one. See, e.g. Ross v. Oklahoma, 487 U.S. 81, 91, 108 S.Ct. 2273, 2280, 101 L.Ed.2d 80 (1988).¹⁹ Allen received all of the protections to which he was entitled, and his conviction must be and it is hereby

Affirmed. 20

1 . Allen claimed that he concealed his identity because he feared for his life as a result of threats from Manning’s associates. As noted in the text below, however, he also made false statements to law enforcement officials as to who he really was.

2 . On June 6, 1986, after having been indicted for first degree murder while armed and carrying a pistol without a license, Allen entered a plea of guilty to second degree murder and to the weapons offense. The record of that plea proceeding is not before us, but Allen evidently made no claim of self-defense, for he was required to admit his guilt before the plea could be accepted. Sentencing was scheduled for July 17, 1986.

While awaiting sentence, Allen wrote two letters to the trial judge. In each, he explained that he was on drugs at the time of the crime and that he was very sorry for what he had done. On each occasion, he asked the judge to be merciful. He mentioned in the first of these letters that ‘1 was on drugs and I see that my life was in danger", apparently from the drugs. He said nothing in either communication about Manning having pulled a handgun on him.

On July 28, 1986, through his prior counsel, Allen filed a motion to withdraw his plea of guilty. He asserted that "the decedent, Mr. Samuel Manning, did in fact have a gun on his person on November 13, 1983, and was in fact attempting to use it against the defendant." Over the government’s objection, the trial judge granted Allen’s motion to withdraw his plea, and the case went to trial on September 10, 1987, nearly four years after Manning’s death.

On September 8, 1987, two days before the trial began, Allen attempted once again to enter a plea of guilty, but the judge declined to accept it because Allen did not unequivocally admit his guilt.

3 . “When a defendant in a criminal trial takes the stand the scope of cross-examination is very broad.” United States v. Raper, 219 U.S.App.D.C. 243, 248, 676 F.2d 841, 846 (1982). Indeed, as the trial judge instructed the jury in Raper, "when you put [the defendant] on [the stand], the prosecutor can ask him anything that might have any relevance to the case. And that includes what color eyes his grandmother’s cow has, if it shedfs] any light on the issues of this case.” Id. at 248, 676 F.2d at 846. Obviously, this does not mean that the cross-examination can embrace privileged or otherwise objectionable matters. The importance of providing the prosecutor with a fair opportunity to cross-examine a testifying defendant, however, militates against applying here what we regard as an unwarranted extension of the missing witness and missing evidence doctrine.

4 . And, by analogy, such argument.

5 . Allen argues as follows in his Reply Brief: The van or condition of the van would have proved nothing since there was no testimony that Manning fired into the van or damaged it in any way. Preserving the gun or shell casing would have been equally meaningless since there was no dispute that the defendant used a gun to kill the decedent. The only question was why. It was the location of the shell casing, not the shell casing itself, that was important, as proof of where the shooting occurred. Thus, it would have been useless for appellant to search the van for a shell casing because having a shell casing in court does not prove where it came from, or that it was the same shell casing. The jury would still have to take appellant's word on that. Moreover, it is wholly unreasonable to expect that after the shooting, appellant could predict that, in a future trial, the location of the shooting would be in dispute and that an ejected shell casing may help prove the location. It takes lawyers and police technicians years of education and training to learn about the significance of such details.

Gerard could have elucidated the transaction had he been available. However, it is wholly unreasonable to think that after being involved in the emotionally wrenching experience of having to kill his best friend, appellant, who has no legal expertise, would immediately start keeping a list of witnesses for possible future use in court. Nor was there any reason to believe that Gerard would want to cooperate with appellant in such trial preparation or that appellant would have any reason to think he could not find Gerard if he needed him in the future.

6 .Cf. Dixon v. United States, 565 A.2d 72, 80 n. 15 (D.C.1989):

It may be appropriate to observe that the prosecutor’s having argued [an allegedly improper theme] did not preclude defense counsel from arguing the contrary. In fact, defense counsel did so, forcefully and in detail. Like many other issues, this one was appropriately left to the jury to decide after each side had its say.

Accord, Mills v. United States, 599 A.2d 775, 786 (D.C.1991).

7 . Since the judge instructed on a number of lesser included offenses, the jurors heard this several times.

8 . On one occasion, the prosecutor, in what the judge later characterized as a "slip of the tongue,” asked Allen if he and Gerard had searched the van to determine if there was anything in it that could help prove that he acted in self-defense. The question was interrupted by an objection. The judge stated that "he doesn’t have to prove it.” Later, contradicting a defense contention that the jury had not heard this remark, the judge stated that "I barked it out.” The judge’s description of his tone of voice amounted to a judicial finding that the jurors heard him correct the prosecutor's statement and that the problem was therefore resolved on the spot. Since there is no evidence to the contrary, the judge’s finding is binding on us.

9 . As one might expect, defense counsel energetically emphasized to the jury that the government had the burden to prove guilt beyond a reasonable doubt on all issues, specifically including the issue of self-defense.

10 . And arguments based on reasonable inferences from such evidence.

11 . A prosecutor may comment on the failure of the defense, as opposed to the defendant, to counter or explain the evidence. United States v. Borchardt, 809 F.2d 1115, 1119 (5th Cir.1987). When a defendant testifies, as Allen did, on the merits of the case, the prosecutor may also comment on his failure to explain or deny incriminating facts already in evidence. McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 255, 74 L.Ed.2d 199 (1982).

12 . Since the judge instructed the jury, and the prosecutor acknowledged, that the government bore the burden of proof as to self-defense, and since McCowan and the other cases cited permit comment on omissions from, and the perceived weakness of, the defense case, we cannot agree with Allen’s claim that the judge did not focus on the problem identified by defense counsel. The court’s instruction as to which party had the burden applied to any situation that arose, whether defense counsel "identified” it or not.

13 . Since, in the present case, the prosecutor’s reference was to what Allen failed to preserve at the time of Manning’s death, rather than to what he failed to present to the court, the reasoning of Sensi, Johnson, Glantz and Gotchis applies a -fortiori.

14 . The division majority cited United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1980) for the proposition that permitting the defendant to explain post-arrest silence will not cure the infringement of his constitutional privilege against self-incrimination occasioned by the prosecutor’s questioning of him on that subject. That decision turned on the applicability of "grave constitutional overtones,” id. at 180 n. 7, 95 S.Ct. at 2138 n. 7, which are not present here.

15 . As Judge Fahy stated for the court in Burgess v. United States, 142 U.S.App.D.C. 198, 207, 440 F.2d 226, 235 (1970),

[ajrgument of counsel is on quite a different legal level from an instruction of the court granting to the jury the right to draw the inference of unfavorable testimony. Such an instruction has the weight of law, even when it only permits and does not require the inference, whereas counsel’s argument is only that.

16 . “False exculpatory statements made to law enforcement officers constitute independent circumstantial evidence of guilty consciousness." Irick, supra, 565 A.2d at 30 n. 8 (citations omitted). As we recently stated in Mills, supra note 6, 599 A.2d at 783-84 (quoting John Henry Wig-more, Evidence in Triáis at Common Law, § 278 at 133) (James A. Chadbourn Rev.Ed.1979),

[i]t has always been understood — the inference, indeed, is one of the simplest in human experience — that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.

(Emphasis as in Mills).

17 . In fact, Allen was acquitted of murder while armed but convicted of manslaughter while armed.

18 . In the present case, these difficulties are compounded by delays occasioned not only by Allen’s flight and concealment, but also by his original plea of guilty to second degree murder and to carrying a pistol without a license, later withdrawn. It is now more than six and half years since Manning’s death.

19 . As the Court stated in United States v. Mechanik, 475 U.S. 66, 72, 106 S.Ct. 938, 942-43, 89 L.Ed.2d 50 (1986),

[t]he reversal of a conviction entails substantial social costs; it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences

_The ‘[pjassage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible’ ... Thus, while reversal ‘may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,' ... and thereby ‘cost society the right to punish admitted offenders’.... These [and other] societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial.

(Citations omitted).

20 .Acting on their own initiative, our concurring colleagues have proposed some quite detailed guidelines for trial judges regarding the proper scope of cross-examination and closing argument where an inference of consciousness of guilt has been raised. No question regarding such an inference was argued before the trial judge. An examination of the questions presented and of the argument headings in the briefs in this court reveals no mention whatever of consciousness of guilt issues. On the contrary, Allen’s objection to the prosecutor’s actions, both in the trial court and in this court, related exclusively to his alleged violation of missing evidence and missing witness principles and his alleged shifting of the burden of proof. In our order granting the government’s petition for rehearing en banc, we explicitly directed counsel to be prepared to address at argument the question "whether the prosecutor’s cross examination of the defendant and the prosecutor’s closing argument improperly invited the jury to make missing witness and missing evidence inferences.” Allen II, 584 A.2d at 604 (emphasis added). Although there was some brief incidental discussion of consciousness of guilt inferences in the petition and in argument before the full court, neither party was asked to propose guidelines on the subject, and neither did so.

Under these circumstances, we do not think that this is an appropriate occasion to provide unsolicited guidance to the trial court on an issue different from the one which the parties briefed and which we agreed to decide. Cf. Barrera v. United States, 599 A.2d 1119, 1137-38 (D.C.1991) (opinion of Farrell, J., concurring on behalf of a majority of the division). Our colleagues' views as to what it may or may not behoove trial judges to do when such a question arises have not been tested by "the fires of adversary presentation.” United States v. Crawley, 837 F.2d 291, 293 (7th Cir.1988). Moreover, an issue is ripe for adjudication only when the parties’ rights may be immediately affected by it. Smith v. Smith, 310 A.2d 229, 231 (D.C. 1973). There is no indication that trial judges have had any particular difficulty with consciousness of guilt evidence, or that en banc treatment of it is warranted. Moreover, in his discussion of a defendant’s conduct as reflecting consciousness of guilt, Dean Wigmore has stated that

[t]his sort of evidence is admitted because there is a certain degree of uniformity in its meaning, but the variations from uniformity are so frequent, and depend so much upon personal character and local circumstances that no fixed rules should be laid down. Repeated judicial warnings tell us that the evidence is merely to be estimated as best we can in the light of our knowledge of human nature in general and of the accused in particular.

II Wigmore, supra, § 273, at 117 (emphasis in original). Agreeing with Dean Wigmore, we decline to issue en banc guidelines which are plainly not required to decide this case, see Smith, supra, 310 A.2d at 231, and which, if Wigmore is right, ought never to be promulgated at all.

Allen has also raised several other claims of error, unrelated to the missing evidence and missing witness issues. For the reasons stated by the division, we conclude that evidence of an out-of-court declarant’s statement to Manning that Allen was coming to kill him was not inadmissible hearsay and was properly received. Allen I, supra, 579 A.2d at 228-30. We further hold that the judge did not abuse his discretion in excluding proffered evidence as to certain violent incidents that allegedly occurred in Florida months after Manning’s death, see German v. United States, 525 A.2d 596, 609 (D.C. 1987), or in permitting the prosecutor to cross-examine a defense investigator in a manner that allegedly resulted in the disclosure of prior consistent statements by two prosecution witnesses. See District of Columbia v. Bethel, 567 A.2d 1331, 1336 (D.C.1990); Moss v. United States, 368 A.2d 1131, 1134 (D.C.1977); Coltrane v. United States, 135 U.S.App.D.C. 295, 304, 418 F.2d 1131, 1140 (1969). Even if these determinations by the trial judge had been erroneous, which they were not, we are satisfied that any error would have been harmless.