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Perritt v. U.S.

April 11, 1994

MICHAEL PERRITT, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Jr., Trial Judge)

Before Ferren, Acting Chief Judge,* and Terry, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Gallagher

GALLAGHER, Senior Judge: Appellant, Michael Perritt, was convicted of assault with intent to murder while armed ("AWIMWA"), D.C. Code §§ 22-503, -2403, -3202 (1989 Repl.), carrying a pistol without a license, D.C. Code § 22-3204 (a) (1989 Repl.), and possession of a firearm during a crime of violence, D.C. Code § 22-3204 (b), arising from the shooting of Robert Bell on August 10, 1991.

Appellant claims that the trial court erred by (1) improperly permitting the government to elicit testimony in its case-in-chief concerning the investigation and identification of appellant; (2) allowing the prosecutor to impeach appellant with a letter written by appellant's attorney, which was not inconsistent with appellant's testimony; and (3) allowing the prosecutor to cross-examine appellant about his employment and to present a rebuttal witness on a collateral matter. In addition, appellant contends the trial court's finding that no Jencks Act *fn1 statement of a witness existed was clearly erroneous and the court's delayed determination of the Jencks Act issue entitles him to a new trial. *fn2 We affirm.

On August 10, 1991, Bell and his girlfriend, while walking toward her grandmother's house at 1528 "S" Street, S.E., had an argument at approximately 2:00 a.m. A neighbor, residing at 1730 16th Street, came out from her door and asked the two "to keep the noise down." Bell and his girlfriend complied and began walking again. Shortly thereafter, Bell and appellant exchanged greetings, and appellant walked to the end of the block and then returned toward Bell and his girlfriend. When appellant approached, they began arguing, and appellant pulled out a gun and shot Bell seven times at close range. *fn3

After the shooting, appellant ran from the scene, and Bell's girlfriend ran toward her grandmother's house and called the police. The neighbor testified that at approximately 2:00 a.m., she heard gunshots and walked out of her house finding Bell lying outside her gate. The neighbor testified that she asked Bell if he knew who had shot him, to which he replied that he did. However, not wanting to get involved, the neighbor did not ask Bell the name of the assailant.

A police officer, who appeared at the scene after the shooting, testified that Bell said "that he was shot, and that he knew who had shot him." The officer further testified that Bell's girlfriend told him that they both knew the assailant and "that he was known as 'Little Mike.'" Another officer accompanied Bell while he was transported to the hospital. This officer testified Bell said that "Little Mike" had shot him and that the assailant lived on 19th Street.

A detective interviewed Bell while in the hospital on August 14, 1991. Bell identified "Little Mike" as his assailant and further told the detective that he had known "Little Mike" for about five years. The detective testified that based on information he had obtained from other officers, he determined that "Little Mike" was in fact Michael Perritt, the appellant.

The detective also spoke with appellant's mother to inform her that her son was a suspect and that he should report to the Seventh District to speak with the detective. Thereafter, the detective received a letter dated September 9, 1991, from appellant's attorney which asserted appellant's Fifth Amendment rights to remain silent until a custody order was obtained.

The detective testified that following receipt of this letter, he proceeded to construct a photo array which included the appellant. He attempted to obtain a photograph of appellant from his junior and senior high schools and from appellant's mother, all without success. After obtaining a photo of appellant from another source, the detective constructed a photo array of nine black and white pictures of "the Metropolitan Police Department type." On October 6, 1991, the detective showed the photo array to Bell and his girlfriend separately at Bell's house. Neither Bell nor his girlfriend knew that appellant's photo was going to be in the array. Both Bell and his girlfriend identified appellant as the man who had shot Bell. Appellant was later arrested on October 10, 1991. *fn4

Appellant contends that the government, in its case-in-chief, improperly elicited testimony from the detective regarding the investigative procedures employed in the case, claiming that the testimony was inadmissible hearsay, irrelevant and generally prejudicial to Perritt's case. Specifically, appellant objects to the following statements related by the detective in his testimony: (1) that the police paperwork listed the suspect's name as "Little Mike;" (2) that appellant's mother had told the detective that she did not have a picture of her son; and (3) that appellant's attorney had sent the detective a letter stating that she represented appellant.

It is fundamental that an out-of-court statement is not hearsay if it is offered for a purpose other than to prove the truth of the matter asserted. In this proceeding, the statements of the detective were offered to explain the investigatory process, specifically to show the detective's efforts in arranging for an opportunity for Bell and his girlfriend to identify the appellant. The statements were not offered to prove that the police listed the suspect's name as "Little Mike," or that appellant's mother had told the detective that she did not have a picture of her son, or that appellant's attorney had sent the detective a letter stating that she represented the appellant. Rather, these statements were offered to show the investigation undertaken by the MPD detective which led to the eventual identification of appellant by Bell and his girlfriend.

Evidence outlining the background of an investigation is admissible as non-hearsay. See United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987) (testimony offered not for its truth but to explain why the officers made certain preparations in anticipation of the arrest was not inadmissible hearsay); United States v. Scott, 678 F.2d 606, 612 (5th Cir.) (out-of-court statement offered for the limited purpose of explaining why a government investigation was undertaken is not hearsay), cert. denied, 459 U.S. 972, 74 L. Ed. 2d 285, 103 S. Ct. 304 (1982); United States v. Mancillas, 580 F.2d 1301, 1309 (7th Cir.) ("outlining the background of the investigation, with the evidence not being offered to prove its truth, it could be said not to be nonadmissible as hearsay"), cert. denied, 439 U.S. 958, 58 L. Ed. 2d 351, 99 S. Ct. 361 (1978).

The statements made by the detective were offered to show the investigatory process which culminated in the identification of appellant by two people present at the scene of the shooting, i.e., Bell and his girlfriend. Accordingly, the trial court did not err in determining that the detective's testimony concerning the investigation ...


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