Appeal from the Superior Court of the District of Columbia; (Hon. Frederick H. Weisberg, Trial Judge)
Before Ferren and Wagner, Associate Judges, and Kern, Senior Judge. Opinion for the court by Associate Judge Ferren. Concurring opinion by Senior Judge Kern.
The opinion of the court was delivered by: Ferren
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). *fn1 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 Batson *fn2 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.
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 non-testifying 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 Batson 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.
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. *fn3 Just before appellant pointed his gun at Richardson, the other man, Topcat, 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, Shirleen Thompson, also testified that she heard Topcat say, "No, Marvin, No."
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, No. 90-CF-406, slip op. at 13-17, 608 A.2d 733, 739 (D.C. May 5, 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., slip op. at 2. 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., slip op. at 3.
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 "the mere utterance of the name, "Tony," does not constitute hearsay." Id., slip op. at 13. 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, slip op. at 14-15 (quotations and citations omitted).
In this case we conclude that the declarant'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., slip op. at 15 ("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 Topcat say was not hearsay, appellant had no Sixth Amendment right to confront the declarant, Topcat. The jury, therefore, was free to consider the statement, "No, Marvin," as circumstantial evidence that the assailant's name might have been "Marvin." See id. at 17.