United States v. Lawrence

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

11-18-2003

USA v. Lawrence

Precedential or Non-Precedential: Precedential

Docket No. 02-3340

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PRECEDENTIAL

Filed November 13, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3340

UNITED STATES OF AMERICA

v.

DION LAWRENCE,

Appellant

On Appeal from the District Court

of the Virgin Islands

(Criminal Action No. 00-CR-00654)

District Judge: Hon. Thomas K. Moore

Argued: April 29, 2003

Before: ROTH, McKEE and COWEN, Circuit Judges.

(Opinion Filed: November 13, 2003)

KIRSTEN GETTYS DOWNS, ESQ.

(Argued)

Assistant Federal Public Defender

THURSTON T. McKELVIN, ESQ.

Federal Public Defender

P.O. Box 1327, 51B Kongens Gade

Charlotte Amalie, St. Thomas,

USVI 00804

Attorney for Appellant

2

SARAH L. WEYLER, ESQ. (Argued)

Assistant United States Attorney

DAVID M. NISSMAN, ESQ.

United States Attorney

U.S. Courthouse,

5500 Veterans Building,

Suite 260

Charlotte Amalie, St. Thomas,

USVI 00802-6924

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

Dion Lawrence challenges his conviction for first degree

murder and related charges arising out of a fatal shooting

on the island of St. Thomas, U.S. Virgin Islands. Lawrence

argues that photographic arrays shown to government

witnesses were unduly suggestive, that the trial court erred

in granting the government’s motion in limine to exclude

evidence that the victim identified someone else as his

assailant, and that the evidence was insufficient to prove

the premeditation required for first degree murder. In

addition, in a matter of first impression in this circuit,

Lawrence argues that the government failed to establish

that the weapon involved was not an antique and therefore

not a “firearm” within the meaning of 18 U.S.C. §§ 922(g)

and 924(c)(1), (j)(1). For the reasons set forth below, we

reject each of Lawrence’s arguments, and we will affirm his

convictions on the charges set forth in the indictment.

I. BACKGROUND

Lawrence was convicted of murder in the first degree in

violation of 14 Virgin Islands Code (V.I.C.) § 922(a)(1);

possession of a firearm as an illegal alien in violation of 18

U.S.C. § 922(g); and use of a firearm during and in relation

to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)

and (j)(1). The convictions stemmed from the April 22, 2000

shooting of George “Josh” Hodge, Jr.

3

On the day of the shooting, Hodge was in the Boat Bar

on Coki Point Beach, St. Thomas, sitting a few feet away

from Kenneth Harrigan. Hodge was wearing several gold

necklaces that day, as was his custom. Harrigan later

testified that a man known to him as “Trini” approached

and asked for some marijuana. Harrigan told Trini he had

none, and a few minutes later Trini walked away. However,

he returned about 15 minutes later and asked Harrigan for

some rolling paper, which Harrigan gave him. Trini then

“rolled” a “cigarette” of tobacco and marijuana and smoked

it. When he finished, Trini told Harrigan: “This is nothing

personal. Don’t take this personal.” Trini then grabbed

Hodge by the belt saying: “It’s you I come for.” Trini then

pulled out a gun and shot Hodge. As Harrigan ran from the

scene, he saw Trini fire a second shot, and then heard a

third shot before leaving the scene and seeing Trini run

away.

Karl Frederiksen and Tynisha Martin were on the beach

about 50 feet from Harrigan and Hodge, facing away from

them when the shooting occurred. Frederiksen saw a man

he knew as “Tall Boy” talking and smoking near Hodge.

Frederiksen was looking in the direction of the Boat Bar at

the time of the shooting because he heard Hodge yelling,

and saw Tall Boy with at least one of Hodge’s gold

necklaces in his hand and a gun in his other hand.

Frederiksen heard three shots, and saw Hodge hold on to

his gold chains before falling to the ground. He then saw

Tall Boy run away through some bushes with a stocking

cap pulled over his face. Fredericksen then went to see if

she could help Hodge.

Hodge spoke only briefly to a police officer who arrived on

the scene. He told the officer that the shooter grabbed his

gold Gucci chain and shot him. However, he gave no

description, and said nothing else that was helpful to the

ensuing investigation. When Hodge arrived at the hospital,

doctors learned that he was paralyzed from the neck down

and unable to speak due to his injuries and a subsequent

tracheotomy.

Berenice Hodge, the victim’s sister, arrived at the hospital

the following day — April 23, 2000. Hodge tried to

communicate with his sister, but communication was

4

exceedingly difficult because of Hodge’s injuries, resulting

paralysis and tracheotomy. He did, however, manage to say

“Ogami,” and when she repeated “Ogami” back to Hodge, he

would nod his head “yes.” Hodge also said “T.” Berenice

Hodge later informed two members of the Virgin Islands

Police Department, including Sergeant Curtis Griffin, what

her brother had said.

Hodge began to withdraw and become non-responsive

after his first week of hospitalization. On May 20, 2000, he

began bleeding through his nasogastric tube. That same

day Police Officer Cordell Rhymer showed Hodge a

photographic array assisted by a nurse. The nurses had

developed a method of non-verbal communication with

Hodge whereby he would blink and/or nod in response to

questions. When Rhymer showed Hodge the photograph

array, the nurse recorded on Hodge’s chart that he blinked

and nodded as if to select the fourth photograph. That was

a picture of Dale “Ogami” Benjamin. Ogami was apparently

on the beach when the shooting occurred. The defendant’s

photograph was not in the array.

On May 24, 2000, doctors had to operate on Hodge to

control massive bleeding in his stomach. During the

operation, the doctors determined that Hodge had an

abscess in his abdomen and pockets of infection in other

areas of his body. However, the peritonitis they had

previously diagnosed appeared contained, and his condition

improved enough for the hospital to make plans to apply for

Medicare coverage for him on May 25. That day, several

other police officers had Hodge again view a photo array.

This time, Lawrence’s picture was included as the fifth of

the six pictures in the array. The officers asked Hodge if his

assailant was pictured in the array, and they relied upon

his non-verbal interactions to interpret his response.

The government subsequently argued that Hodge’s blinks

and nods in response to that inquiry were unresponsive to

the officers’ questions. However, the defendant would

subsequently argue that Hodge’s blinks and nods

amounted to an identification of the person depicted in

photograph number two as the assailant.

Hodge finally lost his battle to stay alive on May 30, 2000

5

after showing early signs of pneumonia and failing to

respond to treatment for multiple organ failure. Thereafter,

on May 31, 2000, Harrigan and Martin were separately

shown the same array of photographs that Hodge viewed on

May 25. Both identified Lawrence’s picture as being a

photograph of the person who shot Hodge. On a

subsequent day, Frederiksen also identified the defendant

as the shooter from the same array.1

As noted above, the photo array consisted of six pictures,

and the pictures were all on the same page. The

characteristics of those depicted in the array were based on

information the police had previously gathered from

Harrigan about the shooter. The picture of the defendant

differed slightly from the other pictures in the array

because (1) it was an informal picture taken by a friend,

not a “mug shot,” so that the angle was different; (2) the

defendant wore a gold chain while the others pictured did

not; (3) the defendant was the only person not wearing a

shirt; and (4) the defendant was pictured with a more

pronounced smile than anyone else.2

The defendant was arrested around June 13, 2000. One

of the men arrested at the same time had a gold Gucci

chain. Lawrence claimed the chain was his and asked

police to give it to his wife. Berenice Hodge later testified

that this chain was similar to chains worn by the victim.

Prior to trial, Lawrence filed a motion to suppress the

photographic identifications by Harrigan, Frederiksen and

Martin. He also asked the court to bar any in-court

identification by any of those witnesses. Lawrence argued

that the array was impermissibly suggestive and that any

1. The officer showing the photo array had each identifying witness sign

his/her signature under the picture he/she selected as depicting the

shooter. However, police used computer generated duplicate copies of the

photo array so that no witness saw the signature of any other witness on

any of the photos. In addition, no witness was told whether anyone else

had identified any of the pictures in the photo array.

2. Although the defendant argues that he was the only one smiling in the

photo array, the district court viewed the photo array and found that

others were “showing teeth” though it does appear that the defendant’s

smile was more pronounced than anyone else’s in the photo array.

6

subsequent in-court identification would therefore be

tainted by the substantial likelihood of misidentification.

Following a hearing in which the district court viewed the

photo array and heard testimony regarding the

circumstances surrounding the photographic

identifications, the court denied the suppression motion.

The court ruled that the array was not impermissibly

suggestive because the individuals depicted in it had

reasonably similar facial features and characteristics. The

court also concluded that since each of the identifying

witnesses had an unobstructed opportunity to observe the

shooter before the incident without distraction, and since

Frederiksen and Harrigan both knew Lawrence before the

shooting, the likelihood of a misidentification from any

undue suggestion of the photo array was very remote.

The government also filed a motion in limine to preclude

the defendant from admitting testimony regarding Hodge’s

reference to “Ogami” when Hodge was shown the

photographic array on May 20, and Hodge’s identification of

another person as the shooter in an array including

Lawrence on May 25.3 The government argued that the

“identifications” constituted hearsay, and that they were

also so ambiguous as to be meaningless. Lawrence

responded by insisting that the identifications constituted

dying declarations that were an exception to the hearsay

rule. He also argued that the identifications met the

standard of materiality under the residual hearsay

exception.

The court granted the government’s motion and ruled

that Lawrence could not elicit evidence of Hodge’s reference

to “Ogami.” The court held that neither identification

constituted a dying declaration because the evidence did

not establish that Hodge believed he was dying at the time

of the declarations.4 The court also ruled that the videotape

3. The defendant’s motions to compel discovery and to dismiss the

indictment were also considered at this hearing.

4. The court actually granted the government’s motion pending

additional evidence regarding the circumstances and probative value of

Hodge’s reference to Ogami. However, during the trial the court

reaffirmed the ruling and prevented the defendant from alluding to

Hodge’s “identification” of Ogami.

7

recording of police presenting the photo array to Hodge on

May 25 was too unreliable to be received into evidence.

After viewing the recording during the hearing, the court

reasoned that Hodge was uncommunicative and confused,

and that any response he may have made to the photo

array was too ambiguous to suggest that he was attempting

to identify the shooter. The court also concluded that the

May 20 identification in the presence of Officer Rhymer was

not probative either because it was not clear whether Hodge

was asked to identify his shooter or just identify persons

who may have been on the scene and witnessed the

shooting. Although Ogami was apparently present when

Hodge was shot, there was no evidence to suggest he was

the shooter except for the inference Lawrence tried to force

from Hodge’s inconclusive reaction to the photo array.

When Lawrence filed his witness list a few days before

the trial, the government filed another motion to preclude

several witnesses from testifying about Hodge’s responses

to the photographic arrays shown on May 20 and May 25.

The government argued that the court had already

prohibited the potential “identifications” Hodge purportedly

made, and the same reasoning that compelled that ruling

should preclude Lawrence’s attempt to elicit the same

testimony from others who were present when Hodge was

shown the photo array. The court agreed and granted the

government’s motion.

Nevertheless, during cross-examination of a government

witness and again during Lawrence’s case-in-chief, defense

counsel tried to elicit what Berenice Hodge said her brother

told her at the hospital the day after the shooting. The

court rejected the defendant’s claim that these statements

constituted excited utterances and ruled that they were

hearsay that was not admissible as an “excited utterance”

under Fed. R. Evid. 803(2).

Finally, during its case-in chief, the government

presented testimony from an expert from the FBI crime

laboratory who testified that bullet casings recovered from

the scene of the shooting were from a .38 caliber firearm.

However, he conceded on cross-examination that this type

of bullet could have been fired from a firearm that had been

8

manufactured before 1898.5 The government introduced the

testimony of a second expert who also conceded on cross

examination that the weapon that fired the .38 caliber

bullet associated with the recovered casings could have

been manufactured before 1898.

II. DISCUSSION

A. The Identifications

Lawrence argues that the district court erred in not

suppressing evidence of the photographic arrays and the

subsequent in-court identifications of the three government

witnesses to the shooting. He claims that the array was

unduly suggestive and prejudicial because: the photographs

were displayed all on one page rather than serially, it was

reproduced and shown to each witness with varying

degrees of color distortion and shading; and Lawrence was

the only one smiling, bare chested, and wearing jewelry. As

noted, the witnesses said that Hodge’s assailant stole some

gold chains and that Lawrence had similar jewelry when he

was arrested months after the shooting.

We review the district court’s denial of Lawrence’s

suppression motion for an abuse of discretion. In re Merrit

Logan, Inc., 901 F.2d 349, 359 (3d Cir. 1990) (“The

admission or exclusion of evidence is a matter particularly

suited to the broad discretion of the trial judge.”).

A due process violation can result when an identification

procedure is so suggestive that it undermines the reliability

of the resulting identification. Allowing a jury to consider an

identification that is tainted by such a procedure can

constitute reversible error entitling the defendant to a new

trial. Foster v. California, 394 U.S. 440, 442 (1969); see also

Neil v. Biggers, 409 U.S. 188, 196 (1972) (pre-trial

identification of a defendant is inadmissible at trial if the

identification was made at a confrontation that “was so

suggestive and conductive to irreparable mistaken

identification that the defendant was denied due process of

law.”). Accordingly, showing a witness a photographic array

5. We will explain the relevance of the 1898 date of manufacture below.

9

can constitute a denial of due process when police attempt

to emphasize the photograph of a given suspect, or when

the circumstances surrounding the array unduly suggest

who an identifying witness should select. Simmons v. U.S.,

390 U.S. 377, 383 (1968). In evaluating the suggestiveness

of a photographic array we examine the totality of the

circumstances to determine whether the array’s

suggestiveness denied the defendant due process. Neil, 409

U.S. at 199. However, the defendant has the burden of

proving that the identification procedure was impermissibly

suggestive. Reese v. Fulcomer, 946 F.2d 247, 259 (3d Cir.

1991).

Here, the district court examined the entire array to

determine if it was unduly suggestive and concluded that

the defendant’s photograph did not stand out and that the

circumstances under which the array was presented did

not suggest his identity to any of the witnesses. Although

the array has not been made a part of the record on appeal,

it is evident from the defendant’s claims of error that the

court did not abuse its discretion.

We can reject out of hand Lawrence’s attempt to suggest

that using an array consisting of six photographs

reproduced on a single page as opposed to presenting

individual pictures to witnesses serially would somehow

prejudice a defendant. To the contrary, it appears to us

that showing all of the photographs at once can be a very

fair way to proceed depending on all circumstances

surrounding the identification. Clearly, if the police had

shown each photograph separately, an issue would arise

about the defendant’s place in the array. If his was the first

photo shown, a defendant might argue that showing

his/her photo first was unfair. Similarly, a defendant could

argue that it is unfair to show his/her photo last, after a

witness has been unable to identify anyone else.6

Moreover, it is undisputed that the distinguishing factors

Lawrence argues regarding his photograph can, for the

most part, be attributed to the fact that police had to use

6. We of course, take no position on the merits of such arguments. We

merely state them in order to demonstrate the weakness of Lawrence’s

attempt to find fault with presenting photos all at once.

10

a personal photo of him. The other photos were “mug

shots,” and Lawrence states that their appearance

suggested as much to the witnesses. However, we fail to see

how that would prejudice a defendant. On the contrary,

common sense suggests that a witness is less likely to

identify a personal photo than one appearing to be a “mug

shot” that would suggest a prior police record when

witnesses are asked to select a picture of a murderer.

Although the defendant’s photograph was apparently the

only one depicting an individual not wearing a shirt and

wearing jewelry and these factors may have made it “stand

out,” they are not sufficient, given the totality of

circumstances here, to deny Lawrence due process because

the circumstances establish the reliability of the

identifications. As noted above, each of the government’s

witnesses had a clear, unobstructed opportunity to observe

the shooting, and Harrigan even spoke to the assailant

immediately before the shooting. All three witnesses had an

opportunity to view the assailant at close range and

nothing suggests that any of them had any trouble seeing

the shooting. There was also an adequate opportunity to

observe the shooter before any suggestion of violence when

witnesses would not have been distracted or frightened,

and powers of observation would not have been

compromised by the fear or excitement that a shooting

might generate. Harrigan and Fredericksen both had an

opportunity to observe the assailant in the calm

atmosphere that prevailed before the shooting. Most

importantly, however, both of those witnesses knew

Lawrence and had seen him on multiple occasions before

the shooting. Given the totality of those circumstances, the

district court clearly did not abuse its discretion in

admitting the photographic identifications or allowing the

witnesses to identify Lawrence in court.

B. The Court’s Exclusion of Hodge’s Purported

Identifications

Lawrence claims that the district court also deprived him

of due process of law because it excluded the videotape of

Hodge’s response to the array of photographs he viewed on

May 25, 2000. Second, he argues that the court erred in

11

excluding Berenice Hodge’s testimony about the victim’s

statements to her on April 23, 2000. In a related claim,

Lawrence argues that the court also erred by failing to

explain that ruling. Finally, Lawrence argues that the court

deprived him of his Sixth Amendment right to confront

witnesses against him by preventing him from using

Berenice Hodge’s testimony as impeachment evidence on

cross-examination of a government witness.

We review the district court’s exclusion of evidence for an

abuse of discretion just as we reviewed the court’s refusal

to suppress evidence. In re Merrit Logan, Inc., 901 F.2d at

359. We will address each claim in turn.

1. The May 25, 2000 Videotape

Lawrence argues that Hodge’s response when shown the

photo array on May 25 was admissible either as a dying

declaration or under the residual hearsay exception. We

disagree.

A declarant’s statement identifying his/her assailant can

be admitted as an exception to the hearsay rule if the

declarant believes that he/she is facing imminent death.

However, in order for this “dying declaration” to be

admissible, the declarant “must have spoken with the

consciousness of a swift and certain doom.” Shepard v.

U.S., 290 U.S. 96, 100 (1933). Here, the district court

concluded that Lawrence had not established that either of

Hodge’s “identifications” were made while Hodge believed

death was imminent. The record supports that finding.

Hodge’s medical treatment was rigorous and undertaken

with the expectation that he would survive. Hodge was

never told by medical staff or police that he was going to

die. Although Hodge had to realize that he had extremely

serious injuries, doctors had been discussing the care he

would need following his release from the hospital and the

subsequent rehabilitation that everyone thought he would

have to undergo. Moreover, when Hodge finally succumbed

to his injuries on May 30, he had just recovered from major

surgery and appeared on the way to recovery.

Moreover, he was shown the first array five days before

he died. In addition, it is uncontested that not only did no

12

one tell Hodge he was going to die because his death was

not expected, the nursing staff purposely tried to manifest

an upbeat attitude around him to help keep his spirits up.

Thus, the court correctly concluded that the evidence

simply did not allow the foundation necessary to admit

Hodge’s purported identification of “Ogami” as a dying

declaration.

Similarly, the response Hodge gave on May 25 lacks the

necessary indicia of credibility to be admitted under the

residual exception to the hearsay rule embodied in Fed. R.

Evid. 807. That Rule states:

A statement not specifically covered by Rule 803 or 804

but having equivalent circumstantial guarantees of

trustworthiness, is not excluded by the hearsay rule, if

the court determines that (A) the statement is offered

as evidence of a material fact; (B) the statement is more

probative on the point for which it is offered than any

other evidence which the proponent can procure

through reasonable efforts; and (C) the general

purposes of these rules and the interests of justice will

best be served by admission of the statement into

evidence.

We have stated that “[t]he residual hearsay exception is

to be used only rarely, and in exceptional circumstances,

and is meant to apply only when certain exceptional

guarantees of trustworthiness exist and when high degrees

of probativeness and necessity are present.” Bohler-

Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79,

112 (3d Cir. 2001) (internal citations omitted).

The district court viewed the videotape and concluded

that the blinks and nods Hodge allegedly made “in

response” to the photo array were simply too ambiguous to

constitute a meaningful statement. This means that

Hodge’s response to this array lacked the “circumstantial

guarantees of trustworthiness” necessary to be equivalent

to those categorized in the exceptions set forth in the

hearsay exceptions specified in Rules 803 and 804 of the

Federal Rules of Evidence. Accordingly, his response could

not meet the requirements embodied in Rule 807.

13

Lawrence devotes a paragraph of his brief arguing that

“the refusal to admit defense evidence tending to inculpate

a third party has been found to be reversible error as long

as there is some connection between the suspected third

party and the crime with which the defendant is charged.”

Appellant’s Brief at 43. Lawrence cites United States v.

Stevens, 935 F.2d 1380, 1404-05 (3d Cir. 1991); and

Pettijohn v. Hall, 599 F.2d 476, 478 (1st Cir. 1979) to

support that proposition. Both Stevens and Pettijohn held

that a district court’s refusal to admit a second

identification for the factfinder to compare with a prior

identification was reversible error. However, it is not at all

clear that Hodge was actually identifying his assailant here.

The district court correctly concluded that it was just as

likely that Hodge was trying to tell police that “Ogami,”

whose photograph was included in the first array he was

shown, was at the scene when the shooting occurred.

Although it may have been preferable for the court to admit

that evidence for the jury’s consideration, we can not say

that the court abused its discretion in not doing so given

the strength of the identifications by Harrigan, Frederiksen

and Martin, and the ambiguity of Hodge’s response.

2. Hodge’s Statement to His Sister The Day

After the Shooting

Lawrence also argues that the district court erred in not

admitting testimony by Berenice Hodge about the

decedent’s statements to her the day after the shooting. He

claims that the evidence was admissible as an excited

utterance. When Berenice Hodge first saw her brother at

the hospital, he was having trouble speaking, but he kept

repeating “Ogami” to his sister. When she repeated “Ogami”

back to him, he nodded his head “yes.” Hodge also said “T”

during this exchange.

The district court initially rejected Lawrence’s claim of an

excited utterance when defense counsel first tried to elicit

the testimony during cross-examination of Sergeant Curtis

Griffin, asking him if Berenice Hodge identified any

suspects during his interview of her. After the government

objected, a conference occurred at side bar. R. 774-75A.

During that conference the court stated that testimony

14

regarding what the witness told Berenice Hodge was double

hearsay and therefore inadmissible.7 However, defense

counsel contended that the statement should be admitted

as an excited utterance. The court rejected the argument.

Later, defense counsel tried again to admit this evidence

during its case-in-chief. However, the court again rejected

the claim explaining: “An excited utterance would be if [the

victim] talked to the [police officer at the scene of the

shooting] and said, ‘So and so shot me.’ ” The court noted

that the statement Lawrence was trying to elicit was a

7. The relevant court proceedings were as follows:

Defense counsel: Did you interview the victim’s sister —

Sergeant Griffin: Yes.

Defense counsel: — during your investigation?

Sergeant Griffin: Yes.

Defense counsel: And during that interview, did an identified

individual named —

Government counsel: Objection, Your Honor.

The Court: All right. Come to side-bar.

(Side-bar discussion)

Defense counsel: Your Honor, it is my intention to elicit from this

witness that another person’s name was identified in connection to

this crime, and not through the photo identification, but through

the interview with his sister.

The Court: Where did she get the information?

Defense counsel: She got it from the victim. I’m not going to ask him

where she got it from.

Government counsel: That makes it triple hearsay, Judge.

The Court: Double hearsay.

Defense counsel: It is not the individual where the information came

from. I don’t have to tell where the identified individual —

The Court: You can ask him if he has investigated other suspects.

You’re not going to get in the back door — the information was

hearsay. The name would be definitely hearsay, it seems to me.

R.774A-75A.

15

statement Hodge made to his sister after he was taken to

the hospital. His sister was the first family member to

speak with him.

We agree that Hodge’s statement to his sister was not an

excited utterance under Fed. R. Evid. 803(2). That rule

allows hearsay to be admitted as an exception to the

hearsay rule if a declarant makes a statement relating to a

startling event while under the stress of excitement caused

by the event. However, the proffered statement must be

made as a result of and while the declarant’s utterance is

the direct result of the exciting event. See Fed R. Evid.

803(2), Advisory Committee’s Note. The district court

believed that too much time elapsed between the shooting

and the subsequent statement at the hospital to allow

Hodge’s mention of Ogami to qualify as an excited

utterance. The fact that Hodge waited until he was

speaking to a family member to utter the declaration

supports the court’s conclusion. It strongly suggests that

the statement was more the product of deliberation than an

overpowering and exciting event. Had the same statement

been uttered to the police at the scene under different

circumstances, it may well have constituted an excited

utterance. However, that is not what happened. Rather,

Hodge waited until the following day before he made the

disputed declaration.8 Accordingly, the district court did not

abuse its discretion in refusing to admit it.

It must also be noted that if the court allowed defense

counsel to introduce this exchange with Berenice Hodge,

the government would have been able to also elicit

testimony that Hodge also whispered “T” in the same

exchange that he said “Ogami.” We fail to see how “Ogami”

can qualify as an excited utterance, but not “T.” That would

open the door to arguing that Hodge was attempting to

identify Lawrence. There is evidence that Lawrence is

8. We do not, of course, suggest that a statement that otherwise qualifies

as an excited utterance exception to the hearsay rule ceases to become

admissible simply because it is not made at the scene of the exciting

event. However, common sense suggests that the lapse of time, and

change of scene is relevant to determining the extent to which a

statement is spontaneous or the result of deliberation.

16

known as “Trini,” and “Tall Boy.” Given the totality of the

evidence here, the jury may well have concluded that Hodge

was referring to the defendant when he uttered “T.”

Accordingly, not only did the district court’s ruling not deny

Lawrence a fair trial, it is likely that it quite properly closed

a door that a skilled prosecutor would otherwise have been

likely to walk through.

3. Lawrence’s Sixth Amendment Right

Was Not Violated

Lawrence also insists that the district court deprived him

of his Sixth Amendment right to confront witnesses by

excluding any reference to Berenice Hodge’s testimony

during cross-examination of police officers. Berenice Hodge

had told the police that her brother told her about Ogami

and “T” being involved. Lawrence argues that he sought to

introduce this evidence to contradict the testimony of other

government witnesses that only one person was responsible

for the fatal shooting. He argues that this testimony might

have changed the jury’s mind about key government

witnesses’ credibility, and it should therefore have been

admitted.

The Sixth Amendment guarantees a defendant’s right to

confront witnesses. Cross-examination is an integral part of

that right and concomitantly, it is an important ingredient

in the fact-finding process. Davis v. Alaska, 415 U.S. 308,

315-16 (1974); Chambers v. Mississippi, 410 U.S. 284, 295

(1973). Accordingly, significant restrictions on a defendant’s

cross-examination of witnesses can amount to a violation of

the rights guaranteed under the Sixth Amendment.

Chambers, 410 U.S. at 295. However, the right to cross-

examine is neither absolute nor unbounded. Rather, it is

“tempered by the practical aspects of conducting a criminal

trial,” and “a reasonable limitation on cross-examination

will [therefore] not necessarily violate the Sixth

Amendment.” 27 James Wm. Moore et al., Moore’s Federal

Practice ¶ 643.02 (3d ed. 2003); see also Chambers, 410

U.S. at 295.

Moreover, the right to cross-examine does not allow a

litigant to elicit testimony that is otherwise inadmissible.

17

Thus, hearsay evidence is not purged of those qualities that

make it hearsay merely because it is elicited on cross-

examination as opposed to direct examination. Fed. R.

Evid. 802 bars hearsay testimony from trial unless it fits

within one of the recognized exceptions that bear sufficient

indicia of reliability to merit the fact-finder’s consideration.

Here, the district court reasonably limited cross-

examination of police officers to prevent them from relating

that Berenice Hodge had told them about her brother’s

purported “identification” of “Ogami.” Lawrence wanted to

use those statements on cross-examination to develop the

existence of other suspects to the shooting and thereby

challenge the witnesses’ stated belief that a single person

was responsible for Hodge’s death. We have already

explained why the district court did not abuse its discretion

in precluding Berenice Hodge from testifying about those

statements. Her statements to police officers informing

them of what her brother said are inadmissible for all the

same reasons. In addition, her testimony about what the

victim told her constitutes double hearsay and the court

correctly concluded that it was not admissible under any

exception to the hearsay rule.

C. The Evidence Was Sufficient to Sustain a

Conviction for First Degree Murder

Lawrence contends that the evidence was not sufficient to

prove premeditation, and he therefore should not have been

convicted of murder in the first degree. The argument is

patently frivolous and we need only address it briefly.

14 V.I.C. § 922 defines first degree murder as a deliberate

killing with premeditation. A premeditated killing is defined

as “one which has been planned and reflected upon by the

accused and is committed in a cool state of the blood, not

in sudden passion engendered by just cause of

provocation.” Government of the Virgin Islands v. Roldan,

612 F.2d 775, 781 (3d Cir. 1979), cert. denied, 446 U.S.

920 (1980) (internal citations omitted). However,

premeditation does not “require[ ] . . . that the accused

shall have brooded over his plan to kill or entertained it for

any considerable period of time. Although the mental

processes involved must take place prior to the killing, a

18

brief moment of thought may be sufficient to form a fixed,

deliberate design to kill.” Id. Moreover, since it is impossible

to photograph the mental processes of a killer, and since it

is folly to expect that a killing will be explained by a killer’s

explanation of any specific intent accompanying the act,

circumstantial evidence is usually the only possible proof of

the mental processes involved. Government of the Virgin

Islands v. Charles, 72 F.3d 401, 410 (3d Cir. 1995).

Here, the assailant specifically told Hodge, “It’s you I

come for,” and then shot him three times. One of those

bullets struck Hodge in the throat area, and one struck him

in the abdomen. Moreover, one of the shots was fired as

Hodge was stumbling backward in an apparent attempt to

flee. All of the shots were fired at extremely close range

from a .38. It can not seriously be argued that a reasonable

jury could not have been convinced beyond a reasonable

doubt that the shooter intended to kill Hodge given that

testimony.

D. The Evidence Was Sufficient to Prove

the Weapon Was a “Firearm”

Lawrence’s final contention is that the evidence was

insufficient to establish that the weapon involved was a

“firearm” for purposes of 18 U.S.C. §§ 922 and 924. He

relies on the fact that § 922 specifically excludes firearms

manufactured before 1898 from the definition of “firearms”

included under §§ 922 and 924. See 18 U.S.C. § 921(a)(3),

(a)(16) (2003).9 He notes that, not only did the government

9. 18 U.S.C. § 921(a)(3) defines the term “firearm” as it is used in 18

U.S.C. §§ 922 and 924(c) as:

(A) any weapon (including a starter gun) which will or is designed to

or may readily be converted to expel a projectile by the action of an

explosive; (B) the frame or receiver of such a weapon; (C) any firearm

muffler or firearm silencer; or (D) any destructive device. Such term

does not include an antique firearm.

The term “antique firearm,” as it is used in 18 U.S.C. § 921(a)(3), is

defined in Section 921(a)(16) as:

(A) any firearm (including any firearm with a matchlock, flintlock,

percussion cap, or similar type of ignition system) manufactured in

or before 1898; or

19

fail to introduce any evidence to establish that the gun that

was used was manufactured after 1898, but that the

government’s own experts specifically acknowledged the

possibility that the bullet fragments recovered from the

scene were fired by a weapon manufactured before that

date. Therefore, says the defendant, his convictions on

counts two and three cannot stand.10

The government argues that the exception for antique

firearms in § 921 does not establish an additional element

that it must prove, but instead provides an affirmative

defense with the burden of proof on the defendant. Only

after the defendant presents some evidence that the firearm

was an antique, the government argues, does it have to

prove that the firearm was not an antique beyond a

reasonable doubt. Here, the defense presented no evidence

that the gun in question was an antique beyond raising the

possibility through the government’s experts. Although a

fact can certainly be established though cross-examination

as opposed to direct testimony, more is required than

(B) any replica of any firearm described in subparagraph (A) if such

replica—

(I) is not designed or redesigned for using rimfire or conventional

centerfire fixed ammunition, or (ii) uses rimfire or conventional

centerfire fixed ammunition which is no longer manufactured in the

United States and which is not readily available in the ordinary

channels of commercial trade; or (C) any muzzle loading rifle, muzzle

loading shotgun, or muzzle loading pistol, which is designed to use

black powder, or a black powder substitute, and which cannot use

fixed ammunition. For purposes of this subparagraph, the term

“antique firearm” shall not include any weapon which incorporates

a firearm frame or receiver, any firearm which is converted into a

muzzle loading weapon, or any muzzle loading weapon which can be

readily converted to fire fixed ammunition by replacing the barrel,

bolt, breechblock, or any combination thereof.

(emphasis added in both quotes).

10. The government experts testified that the bullet fragments found in

Josh Hodge could have been expelled from a number of firearms,

including one antique firearm, the Top Break, manufactured by Iver

Johnson.

20

raising the specter of an ephemeral mathematical

possibility to create an issue of fact. Thus, the government

contends that Lawrence never established the affirmative

defense of the date of manufacture for it to rebut.

We agree that the government can not be expected to

engage in the litigational equivalent of shadow boxing by

jabbing and striking at shadowy inferences that may arise

from the ethers of testimony. Yet, Lawrence’s position as to

the government’s burden of establishing the date of

manufacture of a weapon that was never recovered would

lead us down that road. Every circuit court of appeals that

has considered this issue has agreed that establishing that

a weapon is an “antique firearm” for purposes of §§ 921 and

922 is an affirmative defense that must initially be raised

by sufficient evidence to justify shifting a burden of proof to

the government.

In United States v. Mayo, 705 F.2d 62, 73-76 (2d Cir.

1983), the court examined the legislative history of

§ 921(a)(3) and concluded that it allowed a defendant to

raise the affirmative defense that he/she used an antique

firearm when charged with violating 18 U.S.C. § 922. The

court held that this did not create an additional element for

the government to prove in order to win a conviction under

the applicable statutes. Rather, using the Supreme Court’s

definition of an affirmative defense as a bar to a crime that

“does not serve to negative any facts of the crime,” the

Mayo Court found that the language in § 921 established

an affirmative defense because one weapon could satisfy

both the broad definition of firearm in § 921(a)(3) as well as

the narrow exception for antique firearms in § 921(a)(16).

Id. at 75 (quoting Patterson v. New York, 432 U.S. 197,

206-07 (1977)). This legislative scheme reflects Congress’s

policy of controlling the traffic in firearms, which is “a

significant factor in the prevalence of lawlessness and

violent crime in the United States.” Id. at 75-76 (internal

citations omitted). Yet, in enacting this scheme, Congress

clearly did not want to penalize or burden legitimate

collectors of firearms or restrict their access to valuable

antiques. However, requiring the government to prove that

a given weapon was manufactured after a given date when

the weapon has not been recovered would make law

21

enforcement more difficult and thwart the policy of

controlling the illegal firearms market. Id. at 76.

The court in United States v. Laroche, 723 F.2d 1541,

1543 (11th Cir. 1984) reached the same conclusion. There,

Laroche challenged his convictions under §§ 922 and 924

because the government failed to prove that the firearms

involved were not antique firearms as defined by § 921. He

claimed this statutory exception was an element of the

offense that the government was required to disprove. Id.

The court disagreed and followed the analysis of Mayo

instead. See also U.S. v. Williams, 979 F.2d 186, 187 (11th

Cir. 1992) (per curiam) (stating that the antique weapons

exception in § 921 is an affirmative defense that must be

raised by the defendant before the burden of disproving an

antique weapon shifts to the government, citing Laroche).

The Court of Appeals for the Sixth Circuit followed

Laroche and Mayo in United States v. Smith, 981 F.2d 887,

891-92 (6th Cir. 1992). There the court held that the

defense contained in § 921 was an affirmative one that is

waived if not raised by the defendant. Since Smith had not

raised that defense at either his plea or sentencing, the

court held that he had waived it and the government was

under no obligation to establish that the weapon involved

was manufactured after 1898.

These cases were followed by the Court of Appeals for the

Eighth Circuit in United States v. Washington, 17 F.3d 230,

232 (8th Cir. 1994). The court there concluded that the

government did not have to establish that the weapon

involved was manufactured after 1898 because the

defendant presented no evidence about this issue. Id.

We agree. Based on the text of the statute, and the

Congress’s purpose of deterring trafficking in firearms while

protecting the interests of legitimate antique weapons

collectors, we hold that the exemption for antique firearms

contained in § 921(a)(16) is an affirmative defense that

must be raised by defendant and supported by some

evidence before the government has to prove the contrary

beyond a reasonable doubt.

Here, Lawrence established only the possibility that the

firearm that fired the bullets that killed Hodge could have

22

been manufactured before 1898. Since it was never

recovered, there was no way of determining when it was

manufactured. Accordingly, the evidence established only

that the gun was manufactured at some point before it was

used to kill Hodge; that is hardly a remarkable revelation.

However, there was no evidence to suggest that the firearm

actually was manufactured before 1898. This was not

enough to carry his burden of raising the affirmative

defense, which requires “sufficient evidence to raise the

exception as an issue.” Laroche, 723 F.2d at 1543; see also

U.S. v. Washington, 17 F.3d at 232. Accordingly, we hold

that the evidence was sufficient to sustain his convictions

under counts two and three of the indictment.

Conclusion

For the reasons set forth above, we will affirm the

judgment of the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit