gument, and the defense attorney --an able advocate during the trial as a whole--was not as assertive as he might have been at the critical time, never again pushing his motion to strike or requesting clarifying instructions, and never moving for a mistrial. From the perspective of the judge, who (unlike his appellate counterparts) did not have briefs or transcripts or extensive time for reflection or collegial consultation, the defense attorney's rejection of the judge's suggested resolution and his subsequent silence may understandably have indicated that counsel had abandoned the point.
Nevertheless, we conclude that, on the central issue of the case, the jury should have been told, when the prosecutor argued the "reasonable person" test and the defense objected, that the ultimate issue was Thomas' state of mind, and that what a reasonable man would have foreseen, while relevant as to what Thomas would have foreseen, was not conclusive. Indeed, the trial judge himself evidently agreed with this view, and expressed himself ready to strike the offending remarks. Whether he affirmatively changed his mind about doing so, or whether the point was accidentally abandoned after defense counsel declined a lesser remedy,'  is not clear from the record. Moreover, assuming arguendo that defense counsel's challenge to the jury to listen to the judge's charge and compare it with the prosecutor's statement about the reasonable person standard, followed by a correct charge, cured that prosecutorial misstatement standing alone, see Cross v. United States, supra  --an
[14 We think it reasonable to infer from the sequence of events that defense counsel construed the judge's switch to the lesser remedy as an effective denial of the motion ta strike, and thought it futile to raise the subject again.]
[15 Since defense counsel maintained that his client was an intelligent man, the "reasonable person" standard as applied]
issue we need not decide -we do not think that the prosecutor's related but more extreme legal theory (that Thomas' surprise that the column was damaged was irrelevant) was ever sufficiently countered by the court. In effect, this critically important and misleading proposition was left hanging. We also conclude, given the close connection in time and content between the prosecutor's assertion of the "reasonable person" standard and her contention that Thomas' professed "surprise is irrelevant," as well as the judge's direction to defer objections until the prosecutor had finished, that a "plain error" analysis should not be applied to the "surprise is irrelevant" issue despite defense counsel's failure to challenge those specific words. Indeed, we understand the prosecutor to acknowledge as much at oral argument.
But even if one deems defense counsel's objection to have been too short-lived and to tentative, the conviction nevertheless cannot stand. In cases in which the danger of prejudice is substantial, "mild judicial action" in response to an improper argument by the prosecutor is insufficient. King v. United States, 125 U.S. App. D.C. 318, 331, 372 F.2d 383, 396 (1967). When counsel misstates the law, the better practice is for the court to intervene promptly and to correct the misstatement, especially where, as here, the judge has discouraged the interruption of closing argument by counsel. See (Duane) Dyson v. United States, 450 A.2d 432, 442 n.9 (D.C. 1982). An attempt to prejudice the jury should be condemned sua sponte by the trial court in the presence of the jury, United States v. Jenkins, 140 U.S. App. D.C. 392, 397, 436 F.2d 140, 145 (1970) (prosecutor called to Thomas had an evidentiary basis. If Thomas was reasonably intelligent, then arguably there was no difference between what he could foresee and what a reasonably intelligent person would foresee.
defendant a hoodlum), and we think that the same holds true where the prosecutor seriously misstates the law. The Supreme Court has recently emphasized the importance of prompt and decisive action by the trial judge where counsel has made an improper argument to the jury. United States v. Young, 470 U.S. 1, 9 (1984). So have we. Hammill v. United States, 498 A.2d 55l, 555 (D.C. 1985); Hawthorne v. United States, 476 A.2d 164, 172 (D.C. 1984).
In the present case, the prosecutor's misstatement went to the heart of the only real issue in the trial. Defense counsel objected, and after the judge initially indicated that he would take comparatively strong corrective action, he offered a less decisive remedy, which the defense declined. The result was that, aside from the standard "redbook" instructions, no corrective action was taken at all. Although the trial court has no general duty to instruct the jury sua sponte, Allen v. United States, 495 A.2d 1145, 1150 (D.C. 1985) (en banc),  we hold that on these facts, in spite of defense counsel's relative passivity, the judge was obliged to counteract in some effective fashion the prosecutor's critical misstatement of the law.
It may very well be that the result of the trial would have been the same even if the prosecutor had not misstated the law, or if the judge had stricken or otherwise dealt more rigorously with her misstatements. We cannot say this with "fair assurance," Kotteakos, supra,
[16 Cf. Corrado v. United States, 93 U.S. App. D.C. 183, 193, 200 F.2d 112, 722 (1953), cert. denied. 341 U.S. 1018 (1954) "It was the judge's duty to instruct the jury correctly, regardless of what theory any party might urge upon him in offering instructions."]
however, and accordingly reverse Thomas' conviction and remand the case for a new trial." 
[17 There continues to be confusion in Criminal Jury Instruction 4.43 between the first sentence of the quotation on p. 10, supra. which apparently requires an evil purpose, and the paragraph that follows, which does not. See Charles, supra. We suggest that the instruction be revised in conformity with the quotation from Perkins on p. 8, supra, where it is stated that either a bad intent or wanton conduct with conscious awareness of the risk is required.]
The trial judge also instructed the jury, in conformity with the first part of Criminal Jury Instruction 3.01, that "some criminal offenses require only a general intent. And where this is so, and it ia shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act." The judge never expressly stated that the criminal offenses to which this proposition applies include malicious destruction of property, but this was perhaps implicit.
There was no objection to this instruction, and we certainly do not hold that it was "plain error" to give it. We suggest, however, that even if "general intent" language can be theoretically reconciled with the concept of malice, it is more likely to confuse lay jurors than to enlighten them. An appropriate adaptation of Criminal Jury Instruction 3.02 (proof of intent). which the judge also gave, is of course entirely appropriate.
Dissenting Opinion Next Section
US APP 84-1728 Intro