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the defendant’s use of unnecessary eyeglasses at trial.^5 This was
the first time that the appeals court considered a defendant’s
instructional challenge to a change-of-appearance instruction
issued solely because the defendant donned unnecessary eyewear
at trial.^6 The court of appeals upheld the change-of-appearance
instruction and determined that the evidence supported the
instruction because the defendant had, among other things,
donned unnecessary eyeglasses.^7 Importantly, the defendant’s
of a crime and such alteration in appearance may be considered by the jury as
“an indication of the defendant’s awareness of guilt and fear of
identification.” See comments to BARBARA BERGMAN, CRIMINAL JURY
INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA § 2.303(B) (5th ed. 2008).
The change-of-appearance instruction issued in Harris states:
You heard evidence that Donnell Harris attempted to change his
appearance to avoid being identified. It is up to you to decide that he
took these actions. If you find he did so, you may consider this
evidence as tending to show his feelings of guilt which you may in
turn consider as tending to show actual guilt. On the other hand, you
may also consider that he may have taken these actions for reasons
fully consistent with innocence in this case. If you find that Donnell
Harris attempted to change his appearance to avoid being identified,
you should consider such evidence along with all the other evidence
in this case and give it as much weight as you think it deserves.
Trial Transcript at 87–88, United States v. Harris, No. CF1-18801-07 (D.C.
Super. Ct. 2008), reprinted in Appellant’s Limited Appendix, Harris, No.
08-CF-1405.
(^5) Zoe Tillman, Glasses an Issue in Appeal over Public Defender Intern’s
Slaying, BLT: BLOG OF LEGAL TIMES (Sept. 13, 2012, 1:32 PM),
http://legaltimes.typepad.com/blt/2012/09/glasses-an-issue-in-appeal-over-
public-defender-interns-slaying.html%20/ (highlighting Donnell Harris’ use of
eyeglasses at trial, “a seemingly innocuous detail [that was] a key issue at the
heart of Harris’ appeal”).
(^6) Compare Brief for Appellee at 32, Harris, No. 08-CF-1405 (noting
that the D.C. Court of Appeals has never directly considered a defendant’s
challenge to a change-of-appearance instruction prompted solely by a
defendant’s use of eyewear at trial), with United States v. Carr, 373 F.3d
1350, 1353 (D.C. Cir. 2004) (rejecting a defendant’s instructional challenge
to a change-of-appearance instruction because the lower court considered a
combination of the defendant’s beard, weight, and eyeglasses to equate to
“profound alterations” in appearance and therefore justifying the resulting
jury instruction).
(^7) Harris, No. 08-CF-1405, at 5 (quoting the trial court, which informed