Little v. United States

613 A.2d 880, 1992 D.C. App. LEXIS 200, 1992 WL 187481
CourtDistrict of Columbia Court of Appeals
DecidedAugust 7, 1992
Docket90-CF-608
StatusPublished
Cited by44 cases

This text of 613 A.2d 880 (Little v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Little v. United States, 613 A.2d 880, 1992 D.C. App. LEXIS 200, 1992 WL 187481 (D.C. 1992).

Opinions

FERREN, Associate Judge:

A jury convicted appellant of assault with intent to kill while armed, D.C.Code §§ 22-501, -3202 (1989 & 1991 Supp.), carrying a pistol without a license, id. at § 22-3204(a), and one count of possession of a firearm during a crime of violence, id. at § 22-3204(b).1 Appellant argues that: (1) the trial court committed constitutional error when it permitted the government to introduce a hearsay statement, which tended to identify appellant as the gunman, in violation of his Sixth Amendment right to confrontation; (2) the trial court erred when it determined that appellant failed to establish a Batson2 prima facie case of racial discrimination by the prosecutor’s use of peremptory challenges; and (3) appellant’s conviction for possession of a firearm during a crime of violence merged with his conviction for assault with intent to kill.

I. Summary

Appellant’s merger argument is foreclosed by this court’s recent decision in Thomas v. United States, 602 A.2d 647 (1992). We therefore hold that appellant’s conviction under D.C.Code § 22-3204(b) (possession of a firearm during a crime of violence) does not merge into a conviction under D.C.Code §§ 22-501, -3202 (assault with intent to kill while armed). Second, we conclude that the critical statement, “No, Marvin,” uttered by a nontestifying witness immediately before appellant’s alleged armed assault was not a hearsay statement. Accordingly, admission of this statement through the testimony of two other witnesses did not violate appellant’s Sixth Amendment rights. Finally, we conclude that, although the trial court’s Bat-son inquiry was not entirely satisfactory, the court did not err in finding that appellant failed to make out a prima facie case of discrimination in the prosecutor’s use of peremptory challenges. We therefore affirm.

II. The Hearsay Issue

A.

The government presented evidence at trial that appellant shot a security guard, Jeffrey Richardson, in the stomach when Richardson attempted to disarm appellant, who was fighting another man later identified only as “Topcat.” Appellant denied involvement in the shooting and presented three witnesses to support his alibi and misidentification defense.

Richardson testified that on August 13, 1989, he was on duty on the grounds of 1140 N. Capitol Street, N.W. when he saw two men fighting. Although he did not know either man at the time of the incident, he later identified appellant as one of them. Appellant had a pistol in his hand. In an attempt to break up the fight, Richardson drew his gun and ordered appellant to turn over the pistol. Rather than complying with the order, appellant pointed his gun at Richardson’s face and pulled the trigger. The gun “clicked,” giving Richardson an opportunity to knock it downward. As' he did so, the gun discharged, and a bullet hit him in the abdomen. As he fell, Richardson discharged his own gun four times.3 Just before appellant pointed his gun at Richardson, the other man, Top-[882]*882cat, was able to run away. According to Richardson’s testimony, before Topcat ran away he said: “No, Marvin.” Topcat did not testify at trial. Another witness, Shir-leen Thompson, also testified that she heard Topcat say, “No, Marvin, No.”

B.

Appellant moved pretrial to suppress the statements of Richardson and Thompson that they heard Topcat say, “No, Marvin,” arguing that such testimony constituted hearsay identification of appellant which could not be admitted into evidence at trial unless the declarant, Topcat, testified. The trial court denied the motion, saying: “I think it’s not hearsay and I think if it were, it almost certainly would qualify as an excited utterance of some kind, even if the other person is not available as a witness.” We agree with the trial court that the statement was not hearsay.

Our holding is governed by the recent concurring opinion of Judge Wagner, joined by Judge Schwelb, in Burgess v. United States, 608 A.2d 733, 739 (D.C.1992). In Burgess, the government’s star witness testified that two men approached a car in which she and a companion were parked, and she heard her companion call one of the men “Tony” and the other “Leroy.” Id., 608 A.2d at 734. A few minutes later “Tony” pulled a gun, her companion walked away from the car, and she heard two gunshots. As she started to flee, her companion returned and attempted to get back into the car but fell and told her to leave. Her companion was later pronounced dead from a gunshot wound, and “Tony” was later identified as appellant Anthony Burgess. Id., 608 A.2d at 734.

A majority of the division, per the concurring opinion, held, relying on the definition of “hearsay” and federal decisions interpreting and applying FED.R.EVID. 801, that “[t]he mere utterance of the name, “Tony,” does not constitute hearsay.” Id., 608 A.2d at 739. Under the Federal Rules, “A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” FED.R.EVID. 801(a). “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” Id. at R. 801(c).

In determining what is an assertion, the crucial distinction under Rule 801 is between intentional and unintentional messages, regardless of whether they are express or implied. Statements which unintentionally impart a message are regarded as having an inherent trustworthiness which diminishes significantly any need for cross-examination to test the declarant’s credibility. Where the declarant does not intend to assert a fact or communicate a belief, his or her truthfulness in making a comment is not considered to be an issue. Thus, an unintentional message is presumptively more reliable than an intentional one. Such evidence is not generally excludable under the hearsay rule, the primary purpose of which is to exclude declarations when their veracity cannot be tested through cross-examination.

Burgess, 608 A.2d at 740 (quotations and citations omitted).

In this case we conclude that the declar-ant’s utterance of a first name (“Marvin”) was no more than a noun addressing to whom the declarant was sending his message (“No”) and that there is no evidence the declarant was intending to introduce or otherwise identify “Marvin” to anyone. See id., 608 A.2d at 740 (“The word ‘Tony’ appears to have been no more than a salutation or the typical personal reference made in conversation.”). “Under the circumstances, any message conveyed can be classified only as incidental and not intentional.... Therefore, the evidence falls outside of the hearsay rule as the declarant did not intend to make an assertion.” Id. Because the testimony of Richardson and Thompson regarding what they heard Top-cat say was not hearsay, appellant had no Sixth Amendment right to confront the de-clarant,- Topcat.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Smith v. United States
District of Columbia Court of Appeals, 2023
Beasley v. United States
District of Columbia Court of Appeals, 2019
Travis Delonte Haney v. United States
206 A.3d 854 (District of Columbia Court of Appeals, 2019)
Andre Holmon v. District of Columbia
202 A.3d 512 (District of Columbia Court of Appeals, 2019)
Bost v. United States
178 A.3d 1156 (District of Columbia Court of Appeals, 2018)
Host v. United States
178 A.3d 1156 (District of Columbia Court of Appeals, 2018)
Marvin Holmes v. United States
92 A.3d 328 (District of Columbia Court of Appeals, 2014)
John Doe No. 1 v. Susan L. Burke
91 A.3d 1031 (District of Columbia Court of Appeals, 2014)
Young v. United States
63 A.3d 1033 (District of Columbia Court of Appeals, 2013)
Simms v. United States
41 A.3d 482 (District of Columbia Court of Appeals, 2012)
Martin v. United States
991 A.2d 791 (District of Columbia Court of Appeals, 2010)
Blackson v. United States
979 A.2d 1 (District of Columbia Court of Appeals, 2009)
Commonwealth v. Vasquez
20 Mass. L. Rptr. 319 (Massachusetts Superior Court, 2005)
Stoddard v. State
887 A.2d 564 (Court of Appeals of Maryland, 2005)
Robinson v. United States
878 A.2d 1273 (District of Columbia Court of Appeals, 2005)
Card v. United States
776 A.2d 581 (District of Columbia Court of Appeals, 2001)
Durphy v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc.
698 A.2d 459 (District of Columbia Court of Appeals, 1997)
Capitol Hill Hospital v. Baucom
697 A.2d 760 (District of Columbia Court of Appeals, 1997)
Heard v. United States
686 A.2d 1026 (District of Columbia Court of Appeals, 1996)
Molovinsky v. Fair Employment Council of Greater Washington, Inc.
683 A.2d 142 (District of Columbia Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
613 A.2d 880, 1992 D.C. App. LEXIS 200, 1992 WL 187481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-united-states-dc-1992.