Allen v. US

• Citation: 579 A.2d 225
• Decision Date: 16 August 1990
• Docket Number: No. 87-1247.,87-1247.
• Parties: Claude Bernard ALLEN, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

579 A.2d 225

Claude Bernard ALLEN, Appellant, v. UNITED STATES, Appellee.

No. 87-1247.

District of Columbia Court of Appeals.

Argued January 25, 1990.

Decided August 16, 1990.

Samia Fam, Public Defender Service, appointed by this court, with whom James Klein, Public Defender Service, and Henderson Hill, Public Defender Service, were on brief, for appellant.

Steven W. Pelak, Asst. U.S. Atty., with whom Jay B. Stevens, U.S. Atty., and Helen M. Bollwerk, Asst. U.S. Atty., were on the brief, for appellee.

Before ROGERS, Chief Judge, and FERREN and SCHWELB, Associate Judges.

ROGERS, Chief Judge:

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.¹

I.

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,² 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."³

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.⁴ 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.⁵

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 told 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.⁶ 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.

II.

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, nonhearsay 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.⁷ 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.⁸ 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.⁹

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, 2082, 85 L.Ed.2d 425 (1985) (prosecutor's nonhearsay use of prejudicial evidence admissible to rebut defense theory);¹⁰ 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 nonhearsay 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, 219, 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").¹¹

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...