# Burgess v. United States

> District of Columbia Court of Appeals · May 5, 1992 · 608 A.2d 733

URL: https://www.frixlaw.com/law-library/cases/9693766

## Case

- **Full name:** Tony A. BURGESS, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** May 5, 1992
- **Citations:** 608 A.2d 733; 1992 D.C. App. LEXIS 121; 1992 WL 92600
- **Precedential status:** Published
- **Opinion:** Concurrence by Wagner
- **Judges:** Rogers, Schwelb, Wagner
- **Cited by:** 12 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/9693766

## How later opinions describe it (automated extraction)

- explaining that the present sense impression exception to the rule against hearsay was, like the excited utterance exception, “one of the four hearsay exceptions encompassed by the ancient term res gestae” and that the foundation for the trustworthiness of statements admitted …
- concluding that where the victim of a shooting called his assailant “Tony,” the victim’s statement was admissible under the present sense impression exception of Rule 803(1)
- explaining that the excited utterance and present sense impression exceptions have a common origin in “the ancient term res gestae ” and “are founded on the same policy”

## Opinion text

WAGNER, Associate Judge,
with whom SCHWELB, Associate Judge joins, concurring:
I concur in the result reached by the court affirming the judgments of conviction. However, in addressing appellant’s argument that the trial court erred in admitting testimony that the victim called his assailant, “Tony,” it is not necessary, in my view, to decide whether the remark falls within an exception to the hearsay rule. The mere utterance of the name, “Tony,” does not constitute hearsay. I write separately to explain the reasons for this conclusion. Thus, I do not join my concurring colleague in resolving the hearsay exception question because, in my opinion, it is not necessary to reach it.
The opinion of the court provides an accurate recitation of the facts, and it is only necessary to repeat a few which are pertinent to this opinion. Odily Campos, a witness for the government, testified that she drove the victim, Rodolfo Maninant, to an area where he asked her to wait when he got out of the car to speak to appellant and another man. According to Ms. Campos’ testimony, Maninant referred to one man (appellant) as “Tony” and to the other man as “Leroy” and “Rob.” Appellant challenges as reversible error only the admission of the word “Tony,” which the trial court allowed under the “present sense impression” exception to the hearsay rule. The remaining dialogue between the men, which Ms. Campos overheard and recounted at trial, is not challenged as inadmissible hearsay.
The Federal Rules of Evidence provide guidance for disposition of the issue. 1 The federal rules define a statement as an oral *740 or written assertion or nonverbal conduct which is intended as an assertion. Fed. R.Evid. 801(c). See Laumer v. United States, 409 A.2d 190, 194 (D.C.App.1979) (en banc); see also Jenkins v. United States, 415 A.2d 545, 547 (D.C.App.1980). Under the federal rules, a statement is not an assertion unless it is intended to be one. United States v. Long, 284 U.S.App.D.C. 405, 412 , 905 F.2d 1572, 1579 (quoting Fed. R.Evid. 801 Advisory Committee note), cert. denied, — U.S. -, 111 S.Ct. 365 , 112 L.Ed.2d 328 (1990); United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.1990); United States v. Zenni, 492 F.Supp. 464, 468 (E.D.Ky.1980). No distinction is made between the spoken and written word. Fed.R.Evid. 801(a) and (c); United States v. Weeks, 919 F.2d 248, 251 (5th Cir.1990). In determining what is an assertion, “the crucial distinction under Rule 801 is between intentional and unintentional messages, regardless of whether they are express or implied.” Long, 284 U.S.App.D.C. at 413 , 905 F.2d at 1580 . 2 Statements which unintentionally impart a message are regarded as having an inherent trustworthiness which diminishes significantly any need for cross-examination to test the de-clarant’s credibility. Id. Where the de-clarant does not intend to assert a fact or communicate a belief, his or her truthfulness in making a comment is not considered to be an issue. United States v. Groce, 682 F.2d 1359, 1364 (11th Cir.1982). Thus, “an unintentional message is presumptively more reliable” than an intentional one. Long, 284 U.S.App.D.C. at 413 , 905 F.2d at 1580 . Such evidence is not generally excludable under the hearsay rule, the primary purpose of which is “to exclude declarations when their veracity cannot be tested through cross-examination.” Id.
When the victim referred to appellant as “Tony,” the evidence discloses no intention on the victim’s part to introduce or otherwise identify “Tony” to anyone. The mere use of the name in the context recounted served no assertive purpose. The reference was made before the dispute arose which preceded the murder. Thus, it cannot be inferred that Maninant attempted to signal Campos that he was in danger or that he wanted to convey that he was talking to an individual named Tony. When the focus is placed upon Maninant’s intent, it is clear that he did not intend to make an assertion or to communicate to anyone the fact that the person with whom he spoke was Tony. The word “Tony” appears to have been no more than a salutation or the typical personal reference made in conversation. Under the circumstances, any message conveyed can be classified only as incidental and not intentional under the analysis in Long . Therefore, the evidence falls outside of the hearsay rule as the declarant did not intend to make an assertion. See 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 801(a)[01] (1988) (“when a person acts in a way consistent with a belief but without intending by his act to communicate that belief, one of the principal reasons for the hearsay rule — to exclude declarations the veracity of which cannot be tested by cross-examination— does not apply, because the declarant’s sincerity is not then involved”) (footnote omitted); Zenni, supra, 492 F.Supp. at 467-79 .
The federal circuits uniformly have rejected the notion that the mere use of a person’s name constitutes hearsay evidence, admissible only under an exception to the hearsay rule. In United States v. Weeks, supra, the Fifth Circuit rejected the claim that the testimony of a warden that *741 he heard other inmates call the accused “Gato,” was hearsay as the testimony “reported non-assertive oral conduct.” 919 F.2d at 251 . From this evidence, the jury could infer that the warden had personal knowledge of the name, acquired by hearing others use it in a non-assertive manner, as is often the case with names. Id. The kidnap victims had heard their kidnappers use the names, “Jimmy” and “Gato,” and the reference helped establish that the defendant, whose nickname was “Gato,” was one of the perpetrators of the crime. Id. Nevertheless, the court found no error in the admission of the evidence, since appellant, the party claiming that the use of the nickname was intended as an assertion, failed to meet his burden of establishing that an assertion was intended. Id. at 252 .
In United States v. Snow, 517 F.2d 441 (9th Cir.1975), the appellant sought reversal of his conviction of possession of an unregistered firearm on the ground that the trial court admitted as evidence a name tape bearing his name which was affixed to a briefcase in which the gun was found. In rejecting the argument that the name tape, standing alone, was a testimonial assertion, the court held that the name tape constituted “an evidentiary fact, other than an assertion ‘from which the truth of the matter asserted is desired to be inferred.’ ” Id. at 443 (quoting 1 Wigmore, § 25 (3rd ed. 1940) and emphasis added). The court concluded that the name tape was not hearsay, but circumstantial evidence. Snow, supra, 517 F.2d at 444 . “[A] name, however learned, is not really testimonial. Rather, it is a bit of circumstantial evidence.” United States v. May, 622 F.2d 1000, 1007 (9th Cir.1980); Snow, 517 F.2d at 443-44 . As such, its vitality depends upon the fact-finder drawing inferences from the use of the name, some of which may be conflicting and some of which may be explained away. Id. at 444 (citing 1 Wigmore, § 148 (3rd ed. 1940)).
Similarly, in a case in which an appellant claimed as error the admission into evidence of a glass bearing the word “Dink,” appellant’s nickname, the First Circuit, concluding that the evidence was not hearsay, found no error. United States v. Hensel, 699 F.2d 18, 31 (1st Cir.1983). The court observed that “no assertion intended by the act of putting the word on the glass was relevant to the chain of inferences the government wished the jury to draw.” Id. What the jury was asked to infer was that the appellant, Dink Hensel, “was likely to have possessed a glass with the name ‘Dink’ on it,” an inference which is “merely circumstantial.” Id. Likewise, in the instant case, the word “Tony” is merely circumstantial evidence that the assailant’s name might have been “Tony,” since the victim called him that. See id.
For the foregoing reasons, it is my view that the challenged evidence was not intended to be an assertion and falls outside of the scope of the hearsay rule. Therefore, I conclude on that basis that the trial court did not err in admitting the testimony.
. "While the Federal Rules of Evidence are not generally applicable to the Superior Court of the District of Columbia, we have had occasion to consider them as authoritative on issues of law in the District of Columbia.” See Yeager v. Greene, 502 A.2d 980 , 985 n. 13 (D.C.App.1985).
. In Long , a police officer answered the telephone of one co-defendant during the course of a search of his apartment. An unidentified caller asked for "Keith,” the appellant, and whether Keith "still had any stuff,” a "fifty” and whether "‘Mike’ could come around to pick up the ‘fifty.’ ” 284 U.S.App.D.C. at 412 , 905 F.2d at 1579 . The Circuit Court, focusing on the intent of the caller, determined that although the caller may have conveyed messages about the appellant, the caller did not intend to assert that the defendant was involved in drug dealing, and the message conveyed was incidental and unintentional. Id. at 413 , 905 F.2d at 1580 . The court found that the appellant failed to meet his burden of showing an intent to make an assertion, and therefore, found no error. Id.; see also United States v. Hensel, 699 F.2d 18, 31 (1st Cir.), cert. denied, 461 U.S. 958 , 103 S.Ct. 2431 , 77 L.Ed.2d 1317 (1983).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9693766. Public record. Not legal advice.