# Lyons v. United States > District of Columbia Court of Appeals · March 16, 1993 · 622 A.2d 34 URL: https://www.frixlaw.com/law-library/cases/9516547 ## Case - **Full name:** Lewis LYONS, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** March 16, 1993 - **Citations:** 622 A.2d 34; 1993 D.C. App. LEXIS 66; 1993 WL 75988 - **Precedential status:** Published - **Opinion:** Concurring in part by Wagner - **Judges:** Rogers, Ferren, Wagner - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516547 ## Opinion text WAGNER, Associate Judge, concurring in part and dissenting in part: I concur in the decision of the court reversing appellant’s convictions for the reasons set forth in Parts III. through V. of the opinion. However, I respectfully dissent from Part II.A. of the opinion. In my view, the use of an accused’s non-custodial silence as evidence is not restricted to a material omission from what purports to be a complete account of what happened. Rather, an accused’s complete silence may also be admitted as evidence where he or she fails to assert a fact under other circumstances where it would have been natural to do so. Jenkins v. Anderson, 447 U.S. 231, 238-39 , 100 S.Ct. 2124, 2129 , 65 L.Ed.2d 86 (1980); Tucker v. Francis, 723 F.2d 1504, 1510-11 (11th Cir.1984); State v. Brown, 118 N.J. 595, 613-14 , 573 A.2d 886, 895 (1990); Skipper v. Commonwealth, 195 Va. 870, 875-76 , 80 S.E.2d 401, 404 (1954); see also United States v. Kilbourne, 559 F.2d 1263, 1265 (4th Cir.), cert. denied, 434 U.S. 873 , 98 S.Ct. 220 , 54 L.Ed.2d 152 (1977); United States v. Hoosier, 542 F.2d 687, 688 (6th Cir.1976). Under this generally recognized principle, such evidence is considered “an assertion of the non-existence of the fact” and is regarded prima facie as an inconsistency. Skipper, 195 Va. at 875 , 80 S.E.2d at 404 (citing WlGMORE on Evidence § 1042 at 733 (3d ed.)). This court has sanctioned the admissibility of such evidence as probative on the issue of credibility, inter alia. Ester v. United States, 253 A.2d 537, 538 (D.C.1969). In Ester, the appellant claimed at trial that he witnessed, rather than participated in, an assault and that he was only running after the assailant when he was mistakenly identified as the perpetrator. Id. We upheld the trial court’s decision allowing the prosecutor to question Ester and to argue later about Ester’s failure to wait and tell the police prior to arrest that he only witnessed the assault. Id. A threshold requirement for admissibility in the case of complete silence, as it is with our precedents governing the admissibility of material omissions, 1 is whether it can be inferred that a reasonable person similarly situated would have come forward naturally with a statement or response. Brown, supra, 573 A.2d at 895 . In my opinion, that question must be answered in the affirmative in this case. Here, there was every reason for one in appellant’s position to offer an exculpatory, self-defense explanation to his companions that night when one of them asked him what happened. Appellant had just returned to the car following the shooting with a gun which purportedly he did not have before the shooting. It was then that appellant’s girlfriend *50 of six years first asked appellant, in the presence of another trusted friend, what happened. Moreover, both of appellant’s companions were material witnesses upon whom he would be expected to rely to support his version of the events that night. Under the circumstances, it would have been natural for appellant to share his self-defense claim with them when his girlfriend asked what happened. Whatever reason appellant might have had for not doing so does not affect the admissibility of the evidence. Of course, an accused is at liberty to offer such explanations at trial. Skipper, supra, 195 Va. at 876 , 80 S.E.2d at 404 ; see also Allen v. United States, 603 A.2d 1219 , 1223 & n. 6 (D.C.1992) (en banc). 2 It is then appropriately left to the jury to determine the plausibility of the subsequently disclosed self-defense claim in light of appellant’s conduct immediately after the shooting and any evidence offered in explanation of it. See id. at 1222-23 . 3 For the foregoing reasons, in my view, all the requirements for admissibility were met, and the inferences to be drawn from that evidence were appropriate for consideration by the jury. . See Ford v. United States, 487 A.2d 580, 587 (D.C.1984); Beale v. United States, 465 A.2d 796, 804-05 (D.C.1983), cert. denied, 465 U.S. 1030 , 104 S.Ct. 1293 , 79 L.Ed.2d 694 (1984); Hill v. United States, 404 A.2d 525, 532 (D.C.1979) (per curiam), cert. denied, 444 U.S. 1085 , 100 S.Ct. 1042 , 62 L.Ed.2d 770 (1980); Sampson v. United States, 407 A.2d 574, 576-77 (D.C.1979). . In Allen , the prosecutor sought to show that if appellant killed the victim in self-defense, it would have been logical for him to do certain things he had not done, including “telling his sister and brother-in-law about [the victim’s] death." 603 A.2d at 1222 . The majority agreed with the trial court that “the prosecutor was asking the jury to draw reasonable inferences from [appellant’s] conduct at a time when actions spoke louder than words,” and found no error in the cross examination and argument. Id. at 1223 . In that respect Allen is quite comparable to the case before the court. Other lines of cross-examination about Allen’s pre-ar-rest conduct, including his failure to preserve evidence, were also at issue. Id. at 1222-23 . The majority concluded that Allen had the opportunity to offer explanations for his failure to act in a particular way right after the incident, in view of his claim of self-defense at trial, and that the plausibility of such explanations were better left to the jury for determination. Id. at 1223 & n. 6. . See note 2, supra. Other holdings of this court in similar contexts also support this approach. See e.g., Hunter v. United States, 606 A.2d 139, 147-48 (D.C.1992); Dixon v. United States, 565 A.2d 72 , 80 n. 15 (D.C.1989). For the reasons stated above, I disagree with the majority that the principles distilled from these cases are inapplicable simply because at issue here is appellant's silence (when it can reasonably be inferred that one would speak), rather than an omission from a statement. Further, in my view, there is no reason for the jury not to be permitted to assess otherwise properly admissible evidence of pretrial silence simply because that silence followed questioning by a friend rather than by a law enforcement officer, as the majority seems to suggest in an effort to distinguish these cases. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516547. Public record. Not legal advice.