Burgess v. United States

words, Washington his house went back to BURGESS, gave money. Tony Appellant, him some He told the A. Washington’s

jury that while he was in any kind company, drug transactions of STATES, Appellee. UNITED acquittal having occurred. Motions of No. 90-CF-406. prosecution argued that been testimony given by showed that Appeals. of Columbia Court District his code- appellant had aided and abetted Argued Sept. 1991. illegal fendant in sale of cocaine. The 5,May Decided jury court left this factual issue for guilty returned decide. Verdicts of were

against men.1 both opinion, the court did not err

In our appellant’s acquittal motions for denying permit the was sufficient to evidence jury infer that had aided and Stevenson codefendant in the sale to the

abetted his government relied undercover officer. The policeman on the of the transaction, also the who witnessed the detective, qualified of a as an expert, jury informed the that it was who practice for street narcotics deal

common pair, in concert as a one man ers to act delivering drugs to customers and the holding

other the cash. While we of a presence that mere at the scene noted crime is insufficient to establish criminal participation, “proof presence plus a crime conduct which de

scene of signedly encourages or a crime facilitates guilty partic support will an inference of ipation as an aider and abettor.” Jefferson (D.C.

1983). Evidence of such conduct was of province it fered here. As was within question of credi jury to resolve the testimony, bility posed by conflicting supported by sub find the verdict we evidence. stantial Affirmed. before us. appeal the codefendant 1. The

I government’s presented case was

principally through testimony of two witnesses, Odily Campos and Carl Johnson. According evening Campos, to Ms. on the Dome, January she at the Circle, nightclub Dupont near where she saw Tell Rodolfo a friend from high school whom she had not seen for two years. They nightclub left the and went Place, Meeting with some friends Campos on K restaurant Street. restaurant, brought her car to the and af- eating, group ter the had finished Maninant Campos asked for a ride to a friend’s Campos agreed, they and left the house. approximately restaurant 4:30 a.m. passenger sat in the front seat Maninant giving Campos. directions to drive, After a short Maninant and Cam- Sullivan, appointed by Frederick this J. pos horseshoe-shaped structure arrived at a court, appellant. for of townhouses in the Sursum Corda area Washington. Maninant direct- Northwest Rowan, Atty., J. Patrick Asst. U.S. Campos ed to drive around the townhouses Stephens, Atty., Jay whom B. U.S. and stop Terrace and L Place. and to near First McLeese, III, Fisher, Roy John R. W. and stopped, approached After the car two men Jeffries, Attys., M. were on June Asst. U.S. car, began passenger side of the and brief, appellee. Campos talking to Maninant. heard Mani- one of the men and the nant call ROGERS, Judge, Before Chief and “Leroy.” Maninant asked for other man WAGNER, SCHWELB and Associate cocaine, Tony and asked Maninant $200. Judges. car, Tony got out of the Maninant if he had the thousand asked PER CURIAM: Maninant re- dollars that he owed him. money, whereupon plied he had the that Appellant Tony Burgess appeals A. his not find Tony searched him but did by principal on the convictions1 Campos, who money. Maninant said that grounds that the trial abused his sister, money. his had the he claimed was (1) limiting by bias cross-exami- discretion to the car and told Maninant came back witness, (2) nation of a sister Campos Tony tell that she was his the decedent admitting money. and had “Tony.” We find no called assailant judge in of discretion Tony upset, abuse told Maninant that became cross-examination; proffered limiting up,” gun. drew a Man- he had “fucked ahead, unduly prejudicial “go while of shoot me.” Tony told inant kill find no “I don’t want to Tony responded limited relevance to bias. We also came up.” Tony then you, you in the admission of the fucked abuse of discretion car, and side of the Accordingly, we af- around to the driver’s statement. decedent’s door, open the which she Campos to told firm. weapon, (1989), dangerous degree assault with a Appellant second was convicted of - 22-2403, armed, D.C.Code § murder while parking his car into a lot head and a.m. he had driven pointed He at her did.2 her she had the thousand Terrace in Sursum Corda where asked off First Campos responded that she was dollars. Derrick saw Maninant appellant. he met not have female, Maninant’s sister she did in a car with a parking lot Tony the door and money. slammed drug transaction. apparent in engaged again asking once went back to afraid of Maninant and was Derrick knew money. Maninant said that if he had the earlier Maninant him two months because change. did, get he he needed to but porch and Derrick’s front had urinated on According to Der- pointed gun a at him.4 walking away from the Maninant started Maninant, then rick, appellant went over car, Campos then Tony him. and followed Derrick if he could Tony Leroy then came and asked gunshots. heard back two trying to Derrick something her As she was to eat. ran towards car. take him for flee, passenger door to Campos opened the station on Greyhound bus then drove to car, in the Maninant told Northeast, let Maninant but Street, appellant where First fell. Mani- get her to out of the area and played something eat and Derrick had Washington Hospi- nant was later taken to half an games. After about some video dead pronounced he was tal Center where hour, to Sursum Corda. they returned at 7:20 a.m. off, parked his dropped appellant Derrick house, something had in front of his car Johnson, lived at 1151 First Carl who and then went to bed. Northwest, eat in his home Terrace, First Terrace behind Place, minutes later he Approximately he at 4:30 fifteen and L testified that awoke time his January gunshots. a.m. on 1988. At that heard house. La- son Derrick had come into the testified, Derrick, as had Appellant also morning told him that ter that his wife Campos’ version of and contradicted some kind of car accident there had been returning to upon He claimed that events. to the door outside. Carl Johnson went Corda, sitting in saw Sursum he running, pursuing one and saw two men He and another man. a car with a woman men recognized He one of the the other. “Tony,” and he Maninant call out heard trial, him in appellant, and at identified he saw Maninant gun heard shots. When ran, men the courtroom. As both Carl did, him, As he moving he ran too. toward appellant up catch to the oth- Johnson saw door- standing he Mrs. Johnson saw man, gun shoot him twice pull er out a he had He denied that way of her house. Johnson, According to in the head.3 Carl shot Maninant. events occurred between 6:00 these a.m., asleep. Derrick was 6:15 when his son II de- testified for the Derrick Johnson contention, that the trial Appellant’s first that he had been with fense. He claimed his bias judge impermissibly curtailed January approxi- appellant on Johnson, does of Carl cross-examination hours, minutes be- until fifteen mately two Appellant require extended discussion. 5:00 not shooting. approximately At fore the Derrick, judge allow 22-502, would not but the trial carrying pistol a without id. permit appel- license, judge would not The trial also it. 22-3204. §id. about Carl Johnson lant to cross-examine put had the decedent whether he knew that get good did not Campos claimed that she life. contract on Derrick’s him at Tony, not describe and could look at trial. proffered counsel had to trial defense 4.Prior the alter- Derrick about intended to ask that he admitted Carl Johnson cross-examination 3. On had on that Maninant cation and the contract given description of the although he had that Initially, all excluded Derrick's life. crime hours of the within assailant Later, after regarding the altercation. evidence concluding identify appellant name as he did not opened prosecution had attempted to cross- Appellant also murderer. cross-examination, judge per- during knowledge door his Johnson about Carl examine about the to ask on redirect mitted and the Derrick his son between an altercation incident, gun not the contract. pulled a which Maninant decedent in gunshots. prior contends that the trial erred in re- his room There was stricting cross-examination of Carl Johnson Derrick was at time regarding knowledge altercation police investigation of an of a or that focus son, Derrick, Maninant and his between Johnson had reason to think at the Carl put and the fact that Maninant had a “con- he time of trial that was. See Best v. Appellant on his main- tract” son’s life. (D.C.App. proba- 1974) (the tains that this would be testimony rather time of trial tive of bias since it reveal that Carl would than the time of the offense is the time at suspect good Johnson had reason to examined). bias is to be Nor was murder, implicated his son would be anticipated testimony link Derrick there and, therefore, he identified Hence, murder.5 the foundation for suspicion away order to shift from his son. theory appellant’s bias was flawed because suggest for proffer the failed to a motive defendant’s Sixth Consistent with a Carl Johnson to lie.6 rights, always proper Amendment bias is subject for cross-examination. See Porter assuming proffered Even 561 A.2d United bias, testimony was relevant to the trial Nonetheless, (D.C.App.1989). in re judge did not abuse his discretion right explore to is not without the [bias] fusing permit on this to cross-examination party posing question the its limits. The issue since the would have been proffer must to the court some facts highly prejudicial. The evidence that Mani- support genuine belief that the previously pulled on Der nant had asserted, is biased in the manner witness allegedly put rick out a contract on specific personal that there is a bias tended to ‘invite Derrick’s life “would have witness, part of the and that the the guy/bad disposition upon good based [a] ” questions probative of proposed bias. comparison.’ guy Hawkins (D.C.App.1983), 1033 n. 1052, 104 denied, 464 S.Ct. rt. U.S. ce proffered Defense counsel (1984). might jury 79 L.Ed.2d 193 probing knowl questions Carl Johnson’s evidence, as the used this as well edge hostility of the between Maninant and incident, prior to infer that evidence of the iden his son would show that Carl Johnson a bad man who deserved Maninant was appellant suspect as in order to tified the addressing the got, rather than what he exculpate Appellant’s his son. counsel did by the of the evidence offered merits however, proffer, that Carl Johnson Hence, guilt. the government prove to his report gave the time he his of the knew at properly conclude that the judge trial could police, note murder to the see prejudicial than would be more evidence an altercation between that there had been probative. Maninant and his son. Nor did defense Furthermore, eventually jury the heard counsel indicate that Carl Johnson believed Derrick prior the incident between that his son was about or had reason to believe 4, supra, hence note in murder. Carl see going implicated to be the the prejudice no from gone appellant suffered that his son had Johnson testified theory testimony and initially ported defense that his judge critical trial indicated that 5. The question- ruling is merit- on whether to allow the were tainted to his identification of father, Derrick had told his explained was whether that his fear Carl Johnson less. Johnson, prior incident with Carl about family that he had not identi- was the reason Maninant, noting prejudicial nature the extreme police. spoke when he first fied (that got decedent what he brief, Contrary appellant’s contention in his deserved). judge concluded that there Later the proffer Derrick or evidence that there was no inferring bias since no basis for was nonetheless about the altercation had told his father testify Derrick Carl would both Derrick and shooting. coun- prior Defense shooting. at the time of was at home suggesting that he was explicitly disclaimed sel killing. in the was involved that Derrick Appellant's that Carl Johnson’s fail- contention sup- give police appellant’s name ure to judge’s rulings about the altercation. present missible under the sense rule, nothing There is suggest judge the record to and the trial agreed. If, as that defense ar- counsel would not have been now gues, addressing Maninant’s of the shooter permitted argue the facts of the incident all, then there jury and ask the to draw rea- admitting error the statement for sonable inferences. opinion Judge its truth.1 Wagner, However, joined by Judge Schwelb. at tri- Ill parties al the and the trial treated Appellant also contends that the tri my statement as and in view al in admitting erred the testimony judge correctly applied present Campos that she heard Maninant call the impression exception sense embodied man him “Tony.” who shot As noted in 803(1).2 concurring opinions, the two disagree.7 we concerning Statements events which the Accordingly, we affirm judgments observing declarant is at the time he or she conviction. makes the declaration fall within the hear- ROGERS, Judge, concurring: Chief say exception present impres- pretrial proceedings, In the defense coun- sion.3 See E. Cleary, McCormick on Evi- objected grounds sel on hearsay to the 298, (3rd 1984). at 860 ed. dence, § Fed. prosecutor’s request permission 803(1) excepts hearsay from the R.Evid. bring during out direct examination of the statements, although hearsay, rule “de- government’s witness, first Campos, what scribing explaining or an event or condition she had heard say addressing Mainant perceiving made while the declarant was prosecutor one of the two condition, men. The ar- the event immediately or or gued statement was ad- thereafter.” —nied, -, 365, by 7. appellant Two additional claims raised U.S. 112 L.Ed.2d (1990) merit little discussion. (telephone by We find no abuse of 328 conversation related limiting officer, discretion direct telephone who answered the dur- govern- examination of Derrick Johnson. The illegal drugs, apartment search of where dispute ment did not that Derrick knew Mani- speak the caller asked to to "Keith”—the co- nant; or that Maninant was at Sursum Corda at upon being defendant’s first name—and then 15, approximately January 5:00 a.m. on “stuff,” told "Keith” still had asked if someone Thus, evidence that had a contract on "fifty;” pick up could come around to not, contends, appellant Derrick’s life would intended). hearsay because no assertion give "strength and certitude to Derrick John- being son’s identification of Maninant as in- (1) hearsay 2. This court has defined as an asser- alleged drug approxi- volved in an transaction court, (2) tion of fact or belief made out of mately one hour before the murder.” (3) prove offered to the truth of the matter Appellant's claim that there was insufficient States, 415, asserted. See Jenkins v. United 545, A.2d “ ” degree evidence to convict him of second mur- (D.C.1980). 547 carries no con- ’[AJssert’ armed, dangerous der while assault with a strong being positive of or ... [but] notation license, weapon, carrying pistol without a so, e.g. simply say something means to that See, States, e.g., is meritless. McAdoo v. United happened that an event or that a condition exist- 412, (standard (D.C.App.1986) A.2d 515 427 of § ed.” E. Cleary, McCormick Evidence, on evidence). review of claim of insufficient Cam- Here, 1984) added). (3d (emphasis ed. 729-30 pos person testified that a whom Maninant conclusion, judge’s trial that the statement Tony pulled talking called while “Tony” meets the definition of Maninant, and later shot him. Carl Johnson by uttering the name of based on his view that appellant testified that he saw chase Maninant stating that a one of the men Maninant him; and then shoot he identified existed, i.e., Tony. he had observed condition government court. The introduced evidence that there was no record that had a acknowledges appeal appellant 3. On carry gun. license to into evidence trial allowed the statement present impression exception to under the sense appeal, government

1.In its brief on main rule, hearsay on the but his brief focuses tains that the statement was not be exception state of mind nothing cause "there is to indicate that the dece argue appeal does not It dent intended his statement as assertion.” Long, U.S.App.D.C. admissible under the state the statement was relies on United States v. 284 405, 412-13, 1572, 1579-80, exception. 905 F.2d cert. de- mind 738 present

Historically, impres sense 968 (1974) (noting sion is one of hearsay rule similarities between excited hearsay exceptions encompassed contemporaneous the four utterance and declaration (1) (present impression)). is no by the ancient term state sense There gestae: res basis, condition, (2) therefore, present principled on which to rec- bodily ments of state ognize exceptions, these three not the present emo ments of mental states and impression exception tions, (3) utterances, (4) present sense excited state exceptions hearsay rule since all four present impression. ments of sense See policy. on the same founded v. United 358 A.2d Steadman (D.C.1976); Smith, Watts v. Furthermore, statements admitted under (D.C.1967); District Wabisky v. impression in- present possess other Inc., U.S.App. Transit Sys. Columbia reliability spontaneity. dicia of besides See (1962); D.C. F.2d Laumer v. United McCormick, supra, 288, at 835. Recent § (look (D.C.App.1979) relia to indicia of vague, general ly, gestae term res has bility recognize to determine frequently, used less and courts have been concerning hearsay exception). Statements begun exceptions to refer to the individual observing at events that the declarant is ly. at 836. McCormick, supra, § time he or she the declaration makes court has to dis While this had occasion advantage contemporaneity have the exceptions,4 first three gestae cuss the res the event statement. See United referred to sense im present and has Narciso, F.Supp. States pression exception,5 yet has for the court (E.D.Mich.1977); advisory mally recognize exception.6 the fourth note; McCormick, committee (“since 860; the concerns at [statement] exception present impression The sense being at time of the observations made the rule rooted in our to is well caused it is safe from error statement law. The of this court common decisions memory”). the by a defect of declarant's the term admitted gestae have used res and Also, the made con because statement is general statements under this doctrine. with there temporaneously the observation Watts, supra, e.g., 226 A.2d at 162. Narciso, su little room for fabrication. is present impression, of sense Statements 285; F.Supp. 446 at su McCormick, pra, (1) bodily of condi present like statements exception pra, at 860. Nor does the tion, (2) emo present mental states and perceived of suffer from the deficiencies tions, (3) utterances, possess and excited exception utterance in the sense the excited degree spontaneity of is the founda of excite made in a state that statements their Nichol tion of trustworthiness. See may impair accuracy the of observa ment son, (excited A.2d utter supra, 368 at 564 803(1)(advisory com tion. See Fed.R.Evid. trustworthy they are made ances because note) excited (discussing criticism of mittee reflection); opportunity without rule). utterance 228, 298, at & supra, 836 McCormick, §§ un- (statements made the indicia of trustworthiness spontaneously Given 860 present exception, there derlying the sense present opportunity less of for fabrica Leonard, adopt princi- to tion); no reason not it and also v. is see United States States, recognize twenty-eight A.2d 186 6.At least states 4. See Mitchell v. United 569 cert, impression exception hear- present condition), sense (D.C.App.) (present bodily de State, say (Md.1986) (listing — A.2d 979 rule. Booth U.S. -, nied, 112 L.Ed.2d 111 S.Ct. states). jurisdictions Some (1990); 532 520, Gezmu contemporaneity delete the require precise and (state mind); 1977) (D.C.App. Nichol "immediately found in thereafter” words (D.C.App. son v. United Appeals at rule. 980. The Court federal utterance). 1977) (excited pre- Maryland observed "because the present reliability sense of a statement of sumed Columbia, 407 A.2d v. District 5. See Pratt spontaneity, impression from fact of flows (D.C.App.1979); Wabisky, su- n. 6 see also utter- interval between observation the time F.2d at 318. pra, 114 very be short.” Id. at 981. ance must 803(1), pies underlying person by Compos which When the described Fed.R.Evid. Tony, nothing embody the concerns of the common law addressed as he said to indi- he respect spontaneity contempor with to cate that was not. aneity.7 Accordingly, could WAGNER, Judge, Associate whom 803(1)

properly look to Fed.R.Evid. SCHWELB, Judge joins, Associate Laumer, guidance, see 409 A.2d at concurring: (look reliability to indicia of to deter recognize hearsay excep mine whether to I in the concur result reached tion), my in correctly applied view affirming judgments court of convic- present exception However, sense addressing appellant’s tion. in statement. argument See United States v. Dela that the trial court erred in ad- (10th Cir.1985) plane, mitting testimony that the victim called (statement assailant, in telephone “Tony,” necessary, my conversation “Mi it is not in view, chael’s to decide the remark falls present back” admissible under impression), sense within an cert. 479 U.S. name, (1986); The mere utterance of the 93 L.Ed.2d 54 Tard, sepa- I hearsay. does not constitute write F.Supp.

Brown v. (D.N.J.1982) (statement rately explain to the reasons for this con- telephone in con Thus, join my concurring I apartment versation that man clusion. do not to fix colleague resolving hearsay excep- present air conditioner admitted under because, question my opinion, 803(1) tion it impression). re necessary (1) (2) reach it. quires a describing statement or condition, (3) explaining an event or made provides opinion The of the court an ac- perceiving while declarant was facts, curate recitation of the and it is condition, immediately event or or there necessary repeat perti- few which being after. event or condition ex Campos, opinion. Odily nent to this a wit- plained at the being time it was observed government, testified that she ness for the was, found, as the trial that Mani- victim, drove the Rodolfo to an words, saying, many nant was in so area where he asked her to wait when he Tony. speaking I’m Tony.” “there’s got speak the car to out of “Tony” The statement described whom According Campos’ to Ms. another man. had seen. There is no contention testimony, Maninant referred to one man contemporane that the statement was not (appellant) “Tony” and to the other man as ous with the event Maninant was describ Appellant chal- “Leroy” as and “Rob.” ing. lenges only error the admis- as reversible “Tony,” which the trial sion word Apart itself, from the statement there “present im- under the court allowed also were other indicia of its trustworthi- hearsay pression” Laumer, supra, ness. 409 A.2d at 200 See men, remaining dialogue The between (look trustworthiness); to indicia of Brown Campos recount- which Ms. overheard and Tard, supra, F.Supp. at v. 552 1351. Carl trial, challenged inadmissible ed at as Johnson testified that he knew hearsay. (who gone to school with two of his children), Tony, provide name is whose first The Federal Rules Evidence morning disposition in of the issue.1 The guidance him in the area on the saw a statement as an oral him the decedent. federal rules define question and saw shoot 431, States, are not the Federal Rules of Evidence Butler v. United 481 A.2d 439 1. "While 7. See (D.C.App.1984) (adopting approach Superior generally applicable of Fed. Court of 801(d)(2)(E), co-conspirator exception), Columbia, to had occasion we have District R.Evid. 1398, denied, cert. 470 U.S. 105 S.Ct. 84 law on issues of them as authoritative consider Laumer, (1985); L.Ed.2d 786 409 Yeager v. in the District of Columbia.” 804(b)(3) (adopting approach of Fed.R.Evid. 190 Greene, (D.C.App.1985). n. 13 502 A.2d 985 interest). against penal for statements See also note; 803(1) advisory committee Fed.R.Evid. supra, § 298 at 861-62. McCormick, 740

or written assertion or nonverbal conduct the victim to When referred as is intended as which an assertion. evidence discloses intention Fed. part the victim’s or to introduce other See Laumer v. United 801(c). R.Evid. identify anyone. The wise mere (D.C.App.1979) 409 A.2d 194 (en of the name in banc); use the context recounted see also v. Jenkins United purpose. served no assertive The refer (D.C.App.1980). dispute ence was made before arose rules, Under the federal not a statement is Thus, preceded the which murder. it can an unless it assertion is intended to be one. attempted not be inferred that Maninant U.S.App.D.C. United States v. Long, signal Campos danger in that he was or (quoting 905 F.2d Fed. he to convey that wanted that he was talk note), Advisory R.Evid. Committee — Tony. to an individual named When U.S. -, cert. placed upon intent, focus is Maninant’s (1990); 112 L.Ed.2d 328 v. United States that he it is clear did not intend to make an Lewis, (5th Cir.1990); 902 F.2d anyone assertion or to communicate to Zenni, F.Supp. v. States person spoke fact that the he with whom (E.D.Ky.1980). is made No distinction Tony. “Tony” appears word spoken between the word. and written no more or been than salutation 801(a) (c); United States personal in typical reference made conver Weeks, Cir.1990). (5th 919 F.2d circumstances, any sation. Under mes assertion, determining In what an “the is sage conveyed can be classified crucial distinction is under Rule 801 be and not under incidental intentional intentional and mes tween unintentional Therefore, analysis Long. the evidence sages, regardless they are ex falls outside of the rule as the press implied.” or Long, not an declarant did intend to make asser F.2d at at 1580.2 Statements 4 J. M. tion. See Weinstein & Berger, unintentionally message which impart a ¶ 801(a)[01] (1988) Weinstein’s Evidence having regarded as an inherent trustwor (“when person way acts consistent significantly thiness which diminishes intending by a belief but without need for the de- cross-examination to test belief, act to communicate that one credibility. clarant’s the de- Id. Where principal reasons for the rule—to clarant does not intend assert a fact or veracity of exclude declarations the belief, communicate a his or her truthful tested cross-examination— cannot be making is con ness comment not apply, the declarant’s does not because sidered to be issue. United States involved”) (footnote sincerity is then Groce, Cir.1982). (11th Zenni, omitted); F.Supp. supra, 492 Thus, message pre “an unintentional 467-79. sumptively more inten reliable” than an uniformly have Long, U.S.App.D.C. one. at federal re- tional The circuits at 1580. is not the notion mere use a jected 905 F.2d Such evidence that the hearsay hearsay evi- generally person’s excludable under the name constitutes rule, primary purpose dence, “to an the of which is admissible under veracity hearsay In States v. exclude declarations when their United Weeks, rejected the through supra, tested the Circuit cannot be cross-examina Fifth the of a warden that Id. claim that tion.” Long, that the defen the tele- the caller did not intend to assert In officer answered 2. drug dealing, during and the phone was involved in of one co-defendant the course dant conveyed apartment. message and uninten call- was incidental a search of his An unidentified "Keith,” at 1580. The court appellant, the and whether tional. Id. at 905 F.2d er asked for stuff,” meet his "fifty” failed to bur and whether found that the Keith "still assertion, showing an pick up ‘fif- an intent to make could come around to the den of "‘Mike’ ” therefore, Id.; see error. also ty.’ F.2d at 1579. found no at (1st Court, Hensel, focusing of the States v. 699 F.2d Circuit on the intent caller, Cir.), may although cert. 461 U.S. determined that the caller (1983). messages conveyed appellant, the 77 L.Ed.2d have about (1st Cir.1983). he heard other inmates call the accused The court “Gato,” was as the “re- observed that “no assertion intended the ported non-assertive oral conduct.” 919 putting glass act of the word on the was evidence, F.2d at From jury 251. this relevant chain of inferences the could infer personal that the warden had jury wished the to draw.” Id. name, knowledge acquired by of the hear- asked infer What was that manner, others use it in a non-assertive appellant, Hensel, Dink likely “was as is often the case names. Id. The possessed glass with the name kidnap kidnappers victims had heard their it,” “merely ‘Dink’on an inference which is names, “Gato,” use “Jimmy” Likewise, circumstantial.” Id. in the in- helped reference establish that the de- case, “Tony” merely stant the word cir- fendant, “Gato,” whose nickname was cumstantial evidence that the assailant’s perpetrators one of the of the crime. Id. might name have been since the Nevertheless, the court found no error him that. victim called See id. evidence, appel- admission of the since reasons, foregoing my For the it is view lant, party claiming that the use of the challenged in- evidence was not assertion, nickname was intended as an tended to be an assertion and falls outside failed to meet his establishing burden of scope of the rule. There- that an assertion was intended. 252. fore, I conclude on that basis that the trial In Snow, United States v. 517 F.2d 441 admitting court did not err in the testimo- (9th Cir.1975), appellant sought rever ny. sal of possession his conviction of unregistered ground firearm on the

the trial court admitted as a name evidence

tape bearing his name which was affixed to briefcase which the In was found. rejecting argument tape, that the name alone, assertion,

standing awas testimonial tape the court held that the name constitut fact, evidentiary ed “an other than an PLUMMER, In the Matter of Donald assertion ‘from which the truth of the mat ” Appellant. ter asserted is desired to be inferred.’ (3rd (quoting Id. at 443 ed. Wigmore, 86-FM-1697, 87-FM-1239, 87-FM- Nos. 1940) added). emphasis The court con and 88-FM-1565. 88-FM-642 tape cluded that the name was not Appeals. District of Columbia Court Snow, circumstantial evidence. name, 517 F.2d at 444. however “[A] Argued 1991. Jan. learned, Rather, really testimonial. May Decided it is a bit of circumstantial evidence.” May, F.2d United States v.

(9th Cir.1980); Snow, 517 F.2d at 443-44. such, vitality depends upon As its the fact- drawing finder inferences from the use of name, may some conflict of which be may explained ing and some of which be (citing 1 away. at 444 Wigmore, (3rd 1940)). ed.

Similarly, in which an a case admission into evi- claimed as error the “Dink,” glass bearing the word dence of a nickname, Circuit, con- the First appellant’s cluding was not that the evidence Hensel, found no error. United States

Case Details

Case Name: Burgess v. United States

Court Name: District of Columbia Court of Appeals

Date Published: May 5, 1992

Citation: 608 A.2d 733

Docket Number: 90-CF-406

Court Abbreviation: D.C.