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August 16, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Frederick H. Weisberg, Trial Judge

Rehearing Denied and Rehearing En Banc Granted January 25, 1991, Vacated by Order of the Court January 25, 1991,

Rogers, Chief Judge, and Ferren and Schwelb, Associate Judges. Opinion for the court by Chief Judge Rogers. Opinion by Associate Judge Schwelb, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Rogers

Appellant Claude Bernard Allen appeals from his convictions by a jury of manslaughter while armed and carrying a pistol without a license, D.C. Code §§ 22-2405, -3202, -3204 (1989 Repl.), on the grounds first, that his Confrontation Clause rights were violated by the admission of inadmissible hearsay evidence offered to show the state of mind of the decedent and that a cautionary instruction was insufficient to cure the harm, and second, that the prosecutor made improper use of missing witness and missing evidence inferences during closing argument. We find neither inadmissible hearsay nor abuse of discretion by the trial Judge in concluding that the jury could follow the limiting instruction. However, we conclude that the prosecutor's improper use of missing witness and missing evidence prejudiced Allen's defense, and accordingly, we reverse. *fn1


The government's evidence showed that on Sunday, November 13, 1983, Samuel Manning helped Annie Johnson, a mutual friend of Allen and Manning, and several other friends prepare for Johnson's daughter's birthday party. Annie Johnson testified that during the day Manning asked how he could contact Allen. According to Johnson, Patrick Dixon gave Allen's telephone number to Manning while warning Manning that Allen was going to kill him. Manning called Allen anyway, and invited him to come to Johnson's apartment that afternoon. Allen called back and afterwards, according to Johnson, Manning appeared "edgy," pacing in and out of the apartment. Johnson also testified that during that summer, while Manning was out of town, *fn2 Allen had been looking for him in connection with his car and some tapes which Manning had taken, and that she had heard Allen say to her husband on one occasion that he (Allen) was going to kill Manning.

Allen, accompanied by an unidentified man, arrived at the Johnson home within an hour of the second telephone call. According to Manning's girlfriend, Felicia Baldwin, Allen and Manning greeted each other as friends, and Allen told Manning not to worry about the car. Annie Johnson and two other men testified that Allen asked Manning to come outside with him "to talk . . . about something," and the two men left the apartment together." *fn3

After the two men went outside, a gunshot was heard. Annie Johnson saw Allen push Manning but did not see anything in Allen's hands. However, when she heard a second shot she saw fire coming from Allen's hand and Manning staggering. Felicia Baldwin saw Allen fire the second shot at Manning and watched Manning stagger into the apartment building, where he collapsed on the second floor. *fn4 Allen followed Manning to the front steps of the apartment building, and prepared to shoot again, but then turned and ran. Allen and the unidentified man got into the van and drove away. *fn5

Allen was arrested almost two years later, in October 1985 in Miami, Florida by the Federal Bureau of Investigation. He claimed at the time that his name was Anthony Jenkins, and denied knowing anything about Manning's killing or the search for him. On the way back to Washington, D.C., however, he hold a detective that Manning had been shot when he approached Allen's van, pulled a gun on Allen, and shot at him. Allen claimed he shot back with a .38 calibre gun and that a companion, Gerard, also shot at Manning. *fn6 An inmate at the Lorton Reformatory, Vincent Cunningham, testified that five or six months before the trial, Allen threatened Cunningham's brother and his brother's girlfriend, Felicia Baldwin, if she testified against Allen.

Appellant called three witnesses in support of his claim of self-defense. James Baldwin, Felicia's father, testified that after hearing a shot, he saw Allen and another man moving at a fast pace toward a van. Baldwin then saw Dixon fumble around Manning's waist for about five seconds and remove an object with a handle that looked like a pistol. Orlando Edwards, Annie Johnson's brother, testified that he saw Manning wrap a hanger around a gun, hook it onto himself and cover it with a sweater. Edwards heard two shots later that evening, and saw a gun in Manning's hand after Manning was shot. Raymond Johnson, Annie's estranged husband, testified that in the summer of 1983 Allen had told him that Manning had sold his car and that he was going to "kick [Manning's] butt." He denied, disputing Annie Johnson's testimony, that he had ever heard Allen threaten to kill Manning.

Allen testified that Manning had borrowed his car without permission and sold it in order to pay a drug debt. On November 13, 1983, Manning had called him to tell him he had the money to pay for the car, and invited him to the Johnson apartment. In the apartment, Allen spoke briefly with Manning, who went into a back bedroom, and afterwards the two men left the apartment, at Manning's suggestion according to appellant.

Once outside, Allen claimed that Manning accused him of having told Manning's mother that he used cocaine. Manning had become angry and threatened appellant. When Manning offered appellant the money he owed him for his car, appellant told Manning "he could take [his money] and stick it," and walked away. Manning then pulled out a gun and told appellant that he was "not going anywhere." As Allen ran, Manning fired at him. Allen found a gun in the van and warned Manning that he had a gun. When Manning continued to approach, Allen shot him. After the shooting, his companion. Gerard, kept the gun and dropped Allen off at his apartment. Shortly thereafter, after Dixon and some other men had come to his mother's house looking for him, Allen went to Florida in order to avoid being attacked by Manning's friends. Allen denied threatening Felicia Baldwin.

Allen was indicted for murder in the first degree while armed and carrying a pistol without a license, D.C. Code § 22-2401, -3201, -3204. The jury returned a verdict finding him not guilty of first-degree murder while armed but guilty of manslaughter while armed and carrying a pistol without a license.


Allen contends that the trial Judge erred in admitting the rank hearsay testimony of Annie Johnson about the statement she heard Dixon make to Manning, that Allen was going to kill him. He maintains that the admission of the statement violated his confrontation rights under the Sixth Amendment and should have been excluded because its prejudicial effect outweighed its probative value. Alternatively, he maintains that the jury could not follow the trial Judge's cautionary instruction on the limited, non-hearsay use of Dixon's statement.

In his main brief, Allen misconstrued the nature of Annie Johnson's testimony. She did not testify, as Allen contends, that Dixon had heard Allen threaten to kill Manning, but only that she heard Dixon tell Manning that appellant was coming to kill him. *fn7 The trial Judge initially struck the testimony as inadmissible hearsay and highly prejudicial, but following a bench conference he admitted it as potentially probative of Manning's state-of-mind in view of Allen's self-defense claim in his opening argument to the jury. *fn8 After denying the defense objection to the efficacy of a curative instruction and request for a mistrial, the Judge instructed the jury that he had erred in telling the jurors to strike it from their minds since the evidence was admissible "for a very limited purpose." That purpose, the Judge immediately instructed, was to show that the statement was said on November 13 in order to explain what Manning may have said or done based on what he was told. The Judge instructed the jury that the statement was not admitted to prove what Allen may or may not have intended. *fn9

Since the statement was introduced only to show that it was made, not that it was true, it was not hearsay and Allen's objection on that ground fails. The statement was offered neither as evidence that Allen had threatened Manning nor as evidence of Dixon's belief that Allen was coming to kill Manning. See Jenkins v. United States, 415 A.2d 545, 547 (D.C.1980) (defining hearsay evidence) (quoting McCORMICK, EVIDENCE, § 246 at 585 (2d ed. 1972). To that extent confrontation problems did not arise. Tennessee v. Street, 471 U.S. 409, 414, 415, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985) (prosecutor's non-hearsay use of prejudicial evidence admissible to rebut defense theory); *fn10 United States v. Peaden, 727 F.2d 1493, 1500 n. 11 (11th Cir.), cert. denied, 469 U.S. 857, 105 S. Ct. 185, 83 L. Ed. 2d 118 (1984) (value of statement offered for non-hearsay purpose is that it was said and a defendant only needs to cross-examine the person who heard it). See also Dutton v. Evans, 400 U.S. 74, 88, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (no conflict with confrontation clause when witness testified "not only as to what he had seen, but also as to what he heard"). *fn11

Furthermore, for appellant to suggest that the evidence of the statement was of limited probative value ignores the reality of his defense at trial. Clark v. United States, 412 A.2d 21, 25 (D.C.1980) (victim's state of mind of particular interest to jury in first degree murder case where defendant claims accident, suicide or self-defense). Beginning with his attorney's opening statement to the jury, Allen claimed that Manning planned to kill him and lured him to Johnson's apartment, where Manning was waiting with a handgun in a holster made from a wire hanger. The government did not dispute that Manning may have had a gun in his possession when appellant shot him. Consequently, the government had the burden to disprove that Allen acted in self-defense and why Manning may have carried a gun. Although Dixon's statement was neither direct nor indirect evidence of Manning's state of mind, it was relevant to the extent that it affected Manning's fear and his reason for carrying a gun that day. *fn12 If Annie Johnson's testimony was believed, it offered an explanation of why Manning had acted as he did later that day. That the statement does not definitively answer whether Manning carried a gun for protection or for purposes of a preemptive strike misses the point. See Reavis v. United States, 395 A.2d 75, 78 (D.C.1978) (probative evidence) (citing Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977)).

Allen's contention that the instruction was ineffective to mitigate the prejudice is based in part on a mischaracterization of the record. The Judge did not ask the jury to consider a statement by appellant that he was coming to kill Manning, but rather to receive Dixon's statement for a very limited purpose of its possible affect on Manning. While Johnson's testimony about Dixon's statement was obviously prejudicial to appellant, the prejudice was mitigated in a variety of ways: first, by the fact that Dixon's statement had a potential inference in appellant's favor, namely, that Manning armed himself and attacked first; second, by the impeachment of Annie Johnson's credibility; *fn13 third, by the evidence of other threats by appellant to kill Manning; fourth, by the absence of any mention of Dixon's statement in the prosecutor's closing argument to the jury; and fifth, by the fact that limiting the instruction avoided any mention of the substance of Dixon's statement. Furthermore, the trial Judge clearly and carefully explained the limited use of the testimony to the jury and the proper use of the statement was not complex. Accordingly, the trial Judge could reasonably conclude that the jury would be able to follow his limiting instruction. See Tennessee v. Street, supra, 471 U.S. at 414-15, 417 (where confession by accomplice carried greater potential for unfair prejudice to defendant, court concluded instructions were adequate to protect against misuse of co-defendant's confession for its truth). *fn14

In addition, the record suggests that the jury followed the instruction since it found appellant not guilty of first degree murder while armed, and convicted him of manslaughter. Thus, contrary to appellant's suggestion, the jury clearly did not consider the statement as "tantamount to a virtual confession of premeditation in . . . first degree murder." *fn15 Sherrod v. United States, 478 A.2d 644, 659 (D.C.1984) (jury is presumed, unless there is evidence to the contrary, to follow the instructions of the court) (citing Smith v. United States, 315 A.2d 163, 167 (D.C.), cert. denied, 419 U.S. 896, 95 S. Ct. 174, 42 L. Ed. 2d 139 (1974)). Accordingly, we find no abuse of discretion by the trial Judge in admitting Johnson's testimony about Dixon's statement. See Bennett v. United States, 375 A.2d 499, 503-04 (D.C.1977) (no error where potentially prejudicial non-hearsay testimony admitted without limiting instruction); Peaden, supra, 727 F.2d at 1500-02 (same).


More troubling is Allen's contention that his cross-examination by the prosecutor and the prosecutor's closing arguments improperly invited the jury to make missing witness and missing evidence inferences, and thereby, shifted the burden of proof. The law on missing witnesses and missing evidence is well settled. *fn16 Before the jury may be asked to draw the inference that a missing witness' testimony would have been unfavorable, the trial Judge must determine that the witness is able to elucidate the transaction and is peculiarly available to the party against whom the inference is made. Arnold, (supra) note 16, 511 A.2d at 415. The rule is designed to prevent the abuse of the missing witness inference and the use of half-truths, and "the validity of the missing witness inference cannot be tested solely on the basis of evidence before the jury," since "the jury is unlikely to have before it the necessary information with which to make a determination" of the witness' availability and ability to elucidate. Givens v. United States, 385 A.2d 24, 27 (D.C. 1978). In Givens, supra, the court found nonharmless error where the defendant, who asserted a claim of self defense, was never given an opportunity to prove to the trial court that the evidence before the jury relating to [a witness'] absence was incomplete and misleading," and the evidence that the defendant did the killing was abundant but the proof that defendant did not act in self defense was entirely circumstantial and hardly overwhelming. Id. at 28. The court recently re-affirmed the importance of the two-pronged findings by the trial Judge that the preconditions have been met for the use of missing evidence and missing witness arguments in (Thomas) Harris v. United States, 572 A.2d 421 (D.C. 1990), reversing the conviction, notwithstanding the absence of defense objection at trial, because the misuse of the evidence in the prosecutor's rebuttal closing argument to the jury completed the missing witness inference and the defendant's credibility was "'all important to his defense.'" Id. at 8-9 (quoting Haynes v. United States, 318 A.2d 901, 903 (quoting Haynes v. United States, 318 A.2d 901, 903 (D.C. 1974) and citing Thomas, supra, 447 A.2d at 60)).

Here, the prosecutor, over defense objection, cross examined Allen about whether he ever looked for Gerard after the shooting, whether he asked his sister to keep the van from which he claimed he had shot Manning, whether he attempted to preserve a shell casing that may have popped out after he fired the bullet that killed Manning, whether he had asked Gerard to preserve the gun that he had used to shoot Manning, and whether he and Gerard had looked, on the night of the shooting, in the van to see if there was anything that could help prove that he acted in self-defense. When the prosecutor asked Allen "That night, did you and Gerard look inside the van to see if there was anything in the van that could help prove that -- ," defense counsel objected. Nevertheless, the prosecutor continued asking the question before the Judge could rule: " -- you acted in self-defense?" The Judge stated "He doesn't have to prove it," When defense counsel asked to come to the bench, the Judge refused to let counsel do so, stating that he had overruled the objection.

The Judge also denied Allen's request for a mistrial. Although conceding that the question was "probably, notably, unartfully phrased," the Judge observed that the answer was interrupted when the objection was made. The Judge also stated that in his final jury instruction he would make clear that Allen had no such burden, and referred to the fact that the prosecutor had rephrased the question in proper form. Although the prosecutor's question was interrupted by the defense objection, the prosecutor still completed his question so the jury knew what he was after. The jury also heard the Judge overrule the objection. *fn17

In rebuttal closing argument the prosecutor told the jury, again over defense objections, 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 know his last name." Further, he argued that Allen's self-defense claim should be disbelieved because "he did nothing, nothing to preserve what would ...

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