November 16, 2017
from the Superior Court of the District of Columbia
(CF1-17480-12) (Hon. Robert E. Morin, Trial Judge).
Gabriel Diaz, Public Defender Service, with whom Samia Fam
and Jaclyn S. Frankfurt, Public Defender Service, were on the
brief, for appellant.
Giovanni B. Di Maggio, Assistant United States Attorney, with
whom Channing D. Phillips, United States Attorney at the time
the brief was filed, and Elizabeth Trosman, Elizabeth H.
Danello, Kimberley Nielsen, and Jin Park, Assistant United
States Attorneys, were on the brief, for appellee.
Easterly and McLeese, Associate Judges, and Ferren, Senior
Easterly, Associate Judge.
judicial system has a strong preference for live, sworn
witness testimony. We want factfinders to hear from witnesses
with personal knowledge of the facts and we want those
witnesses to be subject to cross-examination, one of
"the greatest legal engine[s] ever invented for the
discovery of truth." 5 Wigmore, Evidence § 1367 (J.
Chadbourn rev. 1974). Thus, our default remains a rule
against hearsay-an out-of-court statement offered
for the truth of the matter asserted-and, although we authorize
its admission in certain, defined circumstances, we resist
expansive interpretations of hearsay exceptions that would
permit them to overtake the rule. In this case, we hold that
two hearsay statements were erroneously admitted: one as a
present sense impression, the other as an adoptive admission.
Because we cannot say with fair assurance that the jury's
verdict was not substantially influenced by the cumulative
impact of these erroneously admitted hearsay statements, we
Facts and Procedural History
early hours of September 30, 2012, police responded to
reports of gunshots at a multi-unit apartment complex named
the "Sheperd Building," located at 7436 Georgia
Ave., Northwest. The police arrived at the scene to find
Lamar Fonville on the sidewalk near the front, right corner
of the building, bleeding from two gunshot wounds, one to his
head, the other to his left forearm. Moments later, he was
dead. Arik Sims was charged with his murder.
trial, the government presented evidence that, in the hours
before the shooting, Houston Brown hosted a "stripper
party" in his apartment on the second floor of the
Sheperd Building. By 2:00 a.m., the entertainment had ended
and the remaining guests, as many as 20-30 people, had moved
outside to get some air. Among them were Mr. Fonville,
government witness Leslie Isaac, and, according to Mr. Isaac,
Isaac, 61 years old at the time of trial, was the
government's sole eyewitness to the shooting to testify
at trial. He attended the party, and after about three or
four hours, he and Mr. Fonville ended up sitting outside on a
set of steps that connect Georgia Avenue to a paved walkway
between the Sheperd Building and the neighboring apartment
complex. Mr. Isaac was "feeling pretty good,"
having had "about four" beers. Mr. Sims joined them
and they all had a "pleasing conversation." After
"five to ten minutes[, ] [o]r maybe more," Mr. Sims
walked away; he returned ten to fifteen minutes later and the
three men resumed talking, "laughing and joking."
At this point, Mr. Sims loudly exclaimed, "look at that
girl." Mr. Isaac and Mr. Fonville looked in the
direction Mr. Sims had indicated.Mr. Sims then pulled a gun
from his waistband,  shot Mr. Fonville once in the back of the
head, and fired three or four shots altogether. Mr. Isaac
"jumped up" and ran, but he testified that he
happened to turn around just in time to see Mr. Sims (who was
running in the opposite direction) drop his gun on the
sidewalk, double back, grab the gun, and escape into a
Isaac was questioned by the police in the early morning hours
after the shooting. He initially told them that he had not
seen anything. But his story changed during the course of his
interview, which he said lasted "all night long."
By the time the interview ended, he claimed that he had seen
the shooting and that he had seen the shooter once before. He
said he did not know the shooter's name but had been told
by Mr. Fonville that his name was Arik. By the time of trial,
Mr. Isaac's story had evolved further: He claimed that he
had a long-standing friendship with Mr. Sims, who was almost
four decades his junior, dating back to the summer of 2011
when Mr. Sims visited his apartment daily to play video games
with Mr. Fonville, but this testimony was
witness Jawanza Setepenra was also at the scene that night
but did not see the shooting. He testified that he, Mr. Sims,
and Devin Myers had been drinking vodka at Mr. Myers's
house and drove to the party together. They arrived late. He
was unable to give a precise time, but he thought it was
"close to midnight." They parked outside the
Sheperd Building. Mr. Setepenra, who by this time was
intoxicated, left Mr. Sims and Mr. Myers outside and went up
to Mr. Brown's apartment. There was one other man there.
Mr. Setepenra did not know him, but they chatted and watched
television together. Mr. Setepenra estimated that he had been
inside between twenty to forty-five minutes when he heard
gunfire. The other man ran out of the apartment.
Mr. Setepenra "paused for a minute" and then, with
some additional stops and starts, see infra note 12,
out on the street, Mr. Setepenra saw three men (including his
television-watching companion), all in their early to
mid-twenties, standing near Mr. Fonville's body. He did
not see Mr. Sims or the car they had driven to the party.
During the next eight minutes, Mr. Setepenra called 911 three
times to assist Mr. Fonville, who was still breathing. He
explained that he made multiple calls because it seemed like
the operator "didn't comprehend what [he] was
saying, so [he] hung up" and called back.
an objection by defense counsel, the court allowed the
government to ask Mr. Setepenra if he heard someone
"state the description of the person who made this
happen." Mr. Setepenra testified that, while he was on
the phone trying to speak to 911, "[s]omeone said it was
the fat-face, light-skinned dude." The government then
asked if he "hear[d] this person also state a name
attached to that description"; he testified, "Yes[,
] . . . Arik." It is unclear where Mr. Setepenra was
when he heard this statement. He testified that, when he
exited the Sheperd Building, he walked over to Mr. Fonville
and then back to the front steps of the building. He did not
identify the speaker as one of the three people he saw
standing around Mr. Fonville. In response to the
government's questioning, Mr. Setepenra testified that he
did not know the speaker. He was not asked to provide any
other identifying information regarding this person. Mr.
Setepenra testified that he did not relay the unknown
declarant's statement to the police when he was
interviewed "right after this incident." He
explained, "I c[ould]n't say that he [Arik] did it
because somebody else said he did it."
witness Geoffrey Adams, a friend of Mr. Sims since childhood,
also did not see the shooting (he had been at work), but he
was living with Mr. Sims and Mr. Sims's mother in their
home at the time of Mr. Fonville's death. Mr. Adams
testified that, after homicide detectives interviewed Mr.
Sims, he met Mr. Sims at the house at Mr. Sims's request.
Mr. Sims's friend Devin Myers was also present at this
meeting. According to Mr. Adams, during this meeting, Mr.
Sims confessed to shooting Mr. Fonville and asked Mr.
Adams to provide him with an alibi. Mr. Adams testified that,
during this conversation, Mr. Myers interjected that Mr. Sims
had dropped the gun's magazine, or clip, as he fled the
scene and had to run back to pick it up before getting into a
waiting car. At trial, Mr. Adams could not remember Mr.
Sims's reaction to Mr. Myers's alleged
addition to the directly inculpatory evidence from this trio
of witnesses- Mr. Isaac, Mr. Setepenra, and Mr. Adams-the
government presented circumstantial evidence. Most notably,
it offered testimony from the medical examiner and physical
evidence recovered from the crime scene, including shell
casings and unfired bullets-which could have fallen out of a
dropped gun or magazine-none of which directly tied Mr. Sims
to the crime.
Sims testified in his own defense. Although he admitted he
had been at the party, he asserted that he returned home
around 12:30 a.m. to give tattoos to a few individuals and to
give his mother a dose of her medicine (an injection), which
she was required to take nightly at 2:00 a.m. One of his
customers and his mother testified for Mr. Sims and generally
corroborated this story. In addition, Mr. Sims called as
witnesses three individuals who were at the Sheperd Building
at the time of the shooting, all of whom testified that the
shooter's height, weight, and hairstyle did not match Mr.
jury found Mr. Sims guilty on all counts. This appeal
Admission of Hearsay as a Present Sense Impression
Sims first argues that the trial court reversibly erred in
permitting the government to put into evidence, through Mr.
Setepenra's testimony, the hearsay statement made by an
unknown declarant, "it was the fat-face, light-skinned
dude[, ] . . . Arik," as a present sense impression.
When confronted with a hearsay statement, a trial court
"has the legal responsibility to examine the testimony
and determine whether [a] proper foundation has been
laid" to admit the testimony under an exception to the
rule against hearsay. Mayhand v. United States, 127
A.3d 1198, 1205 (D.C. 2015) (internal quotation marks
omitted). "We commit this decision to the trial
court's exercise of sound judicial discretion,"
id. (internal quotation marks omitted), which, as we
explained in Mayhand, means "we review the
trial court's fact-finding for clear error, and we review
the court's determination that these facts permit
admission of a statement under the [asserted hearsay]
exception for abuse of discretion." Id.
"Obviously, whether the trial court ...