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Sims v. United States

Court of Appeals of The District of Columbia

August 15, 2019

Arik Adani Sims, Appellant,
United States, Appellee.

          Argued November 16, 2017

          Appeal 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.

          Before Easterly and McLeese, Associate Judges, and Ferren, Senior Judge.

          Easterly, Associate Judge.

         Our 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[1]-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 reverse.

         I. Facts and Procedural History

         In the 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.

         At 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, Mr. Sims.

         Mr. 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.[2]Mr. Sims then pulled a gun from his waistband, [3] 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 waiting vehicle.

         Mr. 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 discredited.[4]

         Government 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.[5] 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, proceeded downstairs.

         Once 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.

         Overruling 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."

         Government 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[6] and asked Mr. Adams to provide him with an alibi.[7] 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 statement.[8]

         In 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.

         Mr. 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. Sims.

         The jury found Mr. Sims guilty on all counts. This appeal followed.

         II. Hearsay

         A. Admission of Hearsay as a Present Sense Impression

         Mr. 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 ...

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