Allen v. United States , 579 A.2d 225 ( 1990 )

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 after-wards, 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 wire hanger. The government did not dispute that Manning may have had a gun in his possession when appellant shot him. Consequently, the government’ had the burden to disprove that Allen acted in self-defense and why Manning may have carried a gun. Although Dixon’s statement was neither direct nor indirect evidence of Manning’s state of mind, it was relevant to the extent that it affected Manning’s fear and his reason for carrying a gun that day.¹² If Annie Johnson’s testimony was believed, it offered an explanation of why Manning had acted as he did later that day. That the statement does not definitively answer whether Manning carried a gun for protection or for purposes of a preemptive strike misses the point. See Reavis v. United States, 395 A.2d 75, 78 (D.C.1978) (probative evidence) (citing Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977)).

Allen’s contention that the instruction was ineffective to mitigate the prejudice is based in part on a mischaracterization of the record. The judge did not ask the jury to consider a statement by appellant that he was coming to kill Manning, but rather to receive Dixon’s statement for a very limited purpose of its possible affect on Manning. While Johnson’s testimony about Dixon’s statement was obviously prejudicial to appellant, the prejudice was mitigated in a variety of ways: first, by the fact that Dixon’s statement had a potential inference in appellant’s favor, namely, that Manning armed himself and attacked first; second, by the impeachment of Annie Johnson’s credibility;¹³ third, by the evidence of other threats by appellant to kill Manning; fourth, by the absence of any mention of Dixon’s statement in the prosecutor’s closing argument to the jury; and fifth, by the fact that limiting the instruction avoided any mention of the substance of Dixon’s statement. Furthermore, the trial judge clearly and carefully explained the limited use of the testimony to the jury and the proper use of the statement was not complex. Accordingly, the trial judge could reasonably conclude that the jury would be able to follow his limiting instruction. See Tennessee v. Street, supra, 471 U.S. at 414-15, 417, 105 S.Ct. at 2081-82, 2088 (where confession by accomplice carried greater potential for unfair prejudice to defendant, court concluded instructions were adequate to protect against misuse of co-defendant’s confession for its truth).¹⁴

In addition, the record suggests that the jury followed the instruction since it found appellant not guilty of first degree murder while armed, and convicted him of manslaughter. Thus, contrary to appellant’s suggestion, the jury clearly did not consider the statement as “tantamount to a virtual confession of premeditation in ... first degree murder.”¹⁵ Sherrod v. United States, 478 A.2d 644, 659 (D.C.1984) (jury is presumed, unless there is evidence to the contrary, to follow the instructions of the court) (citing Smith v. United States, 315 A.2d 163, 167 (D.C.), cert. denied, 419 U.S. 896, 95 S.Ct. 174, 42 L.Ed.2d 139 (1974)). Accordingly, we find no abuse of discretion by the trial judge in admitting Johnson’s testimony about Dixon’s statement. See Bennett v. United States, 375 A.2d 499, 503-04 (D.C.1977) (no error where potentially prejudicial nonhearsay testimony admitted without limiting instruction); Peaden, supra, 727 F.2d at 1500-02 (same).

III.

More troubling is Allen’s contention that his cross-examination by the prosecutor and the prosecutor’s closing arguments improperly invited the jury to make missing witness and missing evidence inferences, and thereby, shifted the burden of proof. The law on missing witnesses and missing evidence is well settled.¹⁶ Before the jury may be asked to draw the inference that a missing witness’ testimony would have been unfavorable, the trial judge must determine that the witness is able to elucidate the transaction and is peculiarly available to the party against whom the inference is made. Arnold, supra note 16, 511 A.2d at 415. The rule is designed to prevent the abuse of the missing witness inference and the use of half-truths, and “the validity of the missing witness inference cannot be tested solely on the basis of evidence before the jury,” since “the jury is unlikely to have before it the necessary information with which to make a determination” of the witness’ availability and ability to elucidate. Givens v. United States, 385 A.2d 24, 27 (D.C.1978). In Givens, supra, the court found nonharmless error where the defendant, who asserted a claim of self defense, was never given an opportunity to prove to the trial court that the evidence before the jury relating to [a witness’] absence was incomplete and misleading,” and the evidence that the defendant did the killing was abundant but the proof that defendant did not act in self defense was entirely circumstantial and hardly overwhelming. Id. at 28. See Thomas, supra, 447 A.2d at 60 (reversing conviction where relative credibility of paramount importance); Haynes v. United States, 318 A.2d 901, 903 (D.C.1974) (reversing conviction where the defendant’s credibility was “all important to his defense”).

Here, the prosecutor, over defense objection, cross examined Allen about whether he ever looked for Gerard after the shooting, whether he asked his sister to keep the van from which he claimed he had shot Manning, whether he attempted to preserve a shell casing that may have popped out after he fired the bullet that killed Manning, whether he had asked Gerard to preserve the gun that he had used to shoot Manning, and whether he and Gerard had looked, on the night of the shooting, in the van to see if there was anything that could help prove that he acted in self-defense. When the prosecutor asked Allen “That night, did you and Gerard look inside the van to see if there was anything in the van that could help prove that — ,” defense counsel objected. Nevertheless, the prosecutor continued asking the question before the judge could rule: “ — you acted in self-defense?” The judge stated “He doesn’t have to prove it,” When defense counsel asked to come to the bench, the judge refused to let counsel do so, stating that he had overruled the objection.

The judge also denied Allen’s request for a mistrial. Although conceding that the question was “probably, notably, unartfully phrased,” the judge observed that the answer was interrupted when the objection was made. The judge also stated that in his final jury instruction he would make clear that Allen had no such burden, and referred to the fact that the prosecutor had rephrased the question in proper form. Although the prosecutor’s question was interrupted by the defense objection, the prosecutor still completed his question so the jury knew what he was after. The jury also heard the judge overrule the objection.¹⁷

In rebuttal closing argument the prosecutor told the jury, again over defense objections, that if Allen had truly acted in self-defense he would have “scoured that van to get that shell casing and to preserve the gun” and would have “tried to keep Gerard ..., or know his last name.” Further, he argued that Allen’s self-defense claim should be disbelieved because “he did nothing, nothing to preserve what would support him.” The same arguments were made by the prosecutor in his initial closing argument to the jury.

The government’s position on appeal, that the prosecutor did not focus on Allen’s failure to produce evidence at trial but only on his failure to preserve evidence after the shooting, and thereby produced no missing evidence or missing witness inferences, undermines the missing evidence and missing witness rule and misreads the record. The improper inference from the cross-examination and closing arguments was no less than that Allen’s failure to preserve evidence to introduce at trial was probative of his guilt. The prosecutor could properly ask Allen about his actions after shooting Manning and properly argue that Allen’s flight and concealment were inconsistent with his trial testimony. See Christian v. United States, 394 A.2d 1, 32-33 (D.C.1978), cert. denied, 442 U.S. 1944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979) (no error where post crime flight and concealment argued to jury); Gale v. United States, 391 A.2d 230, 235 (D.C.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979) (post crime conduct including flight, concealment and intimidation of a witness admissible); State v. Brown, 128 N.H. 606, 517 A.2d 831, 834 (1986) (claim of accidental shooting, post crime conduct). The prosecutor could not, however, ask questions that impinged upon Allen’s constitutional right to present a defense. Although the prosecutor acknowledged this during a bench conference, his strategy, as described to the trial judge, was implemented in a manner that impermissibly created evidence from the absence of evidence.¹⁸ See Arnold, supra note 16, 511 A.2d at 415 (quoting Burgess, supra note 16, 142 U.S. App.D.C. 198, 206, 440 F.2d 226, 234 (1970)).

Following a defense objection, the prosecutor had proffered at a bench conference that it was not his intention to cross examine Allen about his efforts to contact Gerard in order to suggest that Gerard’s testimony would be adverse to Allen; rather an attempt was being made to show that Allen’s actions were inconsistent with his testimony. The judge overruled the defense objection, and declined to make explicit determinations about Gerard’s availability, ruling that the prosecutor should not be precluded from asking questions about what Allen did after the shooting even if Allen could demonstrate Gerard’s unavailability.¹⁹ The judge also declined to hear a defense proffer of evidence that diligent efforts had been made to contact Gerard, stating that the defense would have an opportunity to present that evidence to the jury at a later time.

The risk inherent from the creation of evidence out of nonevidence requires that the preconditions to its admission be addressed by the judge before the potentially improper inferences are suggested to the jury. Thomas, supra, 447 A.2d at 58. In this manner the moving party is required to substantiate the factual basis for the inference and the opposing party is afforded a timely opportunity to oppose introduction. Id. (citing Simmons v. United States, 444 A.2d 962, 964 (D.C.1982)). The trial judge permitted the prosecutor to continue his line of questioning, despite a defense request for a prior ruling, see note 19, supra, because he was persuaded by the prosecutor’s proffer that his cross-examination would address Allen’s credibility, focusing on whether Allen’s conduct was consistent with his claim of self-defense. But by tying questions and assertions about Gerard, the gun, and the shell casing to Allen’s inability to prove that he acted in self-defense, the prosecutor invoked the type of nonevidence and impermissible argument that the missing evidence and missing witness rule is designed to preclude, particularly where serious efforts have been made to locate a witness or where the nonevidence shifts the burden of proof.

While there is room for the prosecutor to respond to the defense claim of self-defense — here to show Allen’s flight out of fear that he would not be believed, and concealment as indicating his consciousness of guilt, Christian, supra, 394 A.2d at 32-33, and to attack Allen’s credibility because he said and did things differently than he testified at trial,²⁰ see Streater v. United States, 478 A.2d 1055, 1058-59 (D.C.1984) (prosecutor may argue all reasonable inferences from evidence, including flight and concealment) — the prosecutor may not, in the guise of meeting its burden of proof to show no self-defense, ignore the strictures of the missing evidence and missing witness rule. What the prosecutor did here, although not as egregious as the closing argument in Givens, supra, 385 A.2d at 26 (during closing argument the prosecutor asked why the eyewitness, a friend whom the defendant saw everyday, did not testify), accomplished the same thing and, thereby, crossed the line. The prejudice to Allen was clear once the judge overruled defense objections to the prosecutor’s question about finding Gerard in order to prove self-defense and the prosecutor’s closing argument linking Allen’s inaction to proof of his self-defense claim.²¹ Although the prosecutor had the burden to rebut Allen’s self-defense claim, at these points it was clear the prosecutor was going beyond simply questions and argument about Allen's post-shooting conduct. When the prosecutor asked Allen if he had told Gerard to stay close “so he could say what really happened,” the clear inference, much as it was in Givens, supra, was so that Gerard could say in court what really happened. Similarly, in closing argument, the prosecutor’s statement that Allen did not try to keep hold of Gerard was simply and clearly an argument that he had failed to keep Gerard around so he could testify at Allen’s trial. This is not, as the government would have us conclude, citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974), a matter of giving a damaging interpretation to an ambiguous remark. The prosecutor’s intent to do more than raise a negative inference about Allen’s credibility was apparent from the prosecutor’s own words during Allen's cross examination. Nor was the prosecutor unaware of what he was doing, acknowledging beforehand that his strategy came close to raising a missing witness inference; yet in cross-examination he nevertheless referred explicitly to Allen’s failure to get evidence to prove his self-defense claim and in closing arguments hammered home the same idea by emphasizing that Allen’s failure to preserve such evidence belied his self-defense claim.

By focusing on Allen’s failure to preserve physical evidence, moreover, the prosecutor created a strawman and then used it against Allen. It was irrelevant whether Allen preserved the van, gun, or shell casing. There was no evidence Manning fired into the van or damaged it, and it was undisputed that Allen had used a gun to shoot Manning; finding a shell casing would have proved little in and of itself since it was the location of the casing that was important, to show where the shooting took place. Cf. United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975) (post-arrest silence inherently ambiguous and potentially prejudicial; cannot be used for impeachment); Walker v. United States, 402 A.2d 424, 427 (D.C.1979) (failure to tell parole officer of reason for flight insufficiently probative to permit cross-examination); Sampson v. United States, 407 A.2d 574, 576 (D.C.1979) (defendant’s omission of material fact may not be used to impeach him, unless it is omitted from defendant’s prior statement where “it would have been natural to mention” the material fact and later testified to by defendant at trial); Beale v. United States, 465 A.2d 796, 805 (D.C.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984). See also Hill v. United States, 404 A.2d 525, 531 (D.C.1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1042, 62 L.Ed.2d 770 (1980).

Accordingly, the question is whether we can “say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). This court has previously observed that “... where the defendant’s credibility is a key issue and the missing witness inference goes to that credibility, an improper argument or instruction will ordinarily require reversal.” Thomas, supra, 447 A.2d at 59. While we can readily agree with the government that there was strong evidence that Allen shot Manning, the government’s evidence of the absence of self-defense is less impressive, relying almost entirely on the credibility of the witnesses. The only non-threats evidence offered by the government is Allen’s flight to Miami after the shooting. Allen and other defense witnesses testified that Manning had a gun. Even the government’s witnesses testified that Manning had invited Allen to the apartment, was edgy, was seen with a gun, was angry with Allen and without Allen’s permission had sold his car and taken his tapes. Manning’s girlfriend, a government witness, testified that while at Johnson’s apartment Allen told Manning not to worry about the car. The resolution of whether Allen acted in self-defense in shooting Manning could only be resolved by the jury’s evaluation of witnesses’, including appellant’s, credibility-

That Allen had the opportunity to present evidence about his efforts to locate Gerard and his inability to find the gun and the shell casings, explaining he did not see the van for two months after the shooting, does not cure the harm. Cf. United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975) (defendant’s explanation of prior silence unlikely to overcome strong negative inference jury is likely to draw). Had the trial judge entertained defense counsel’s request to rule on Gerard’s availability, the judge might have found that Gerard had a Fifth Amendment privilege not to incriminate himself, since Allen claimed that Gerard also shot at Manning, drove from the scene, kept the gun, and that the gun was Gerard’s, thereby precluding use of his testimony in appellant’s trial. (John) Harris v. United States, 430 A.2d 536, 543 n. 9 (D.C.1981); Anderson v. United States, 352 A.2d 392, 394 n. 3 (D.C.1976). But even if Gerard did not have a right to invoke the Fifth Amendment, the prosecutor’s cross-examination went beyond the purpose he proffered to the trial judge and implied, not subtlety, that Allen’s nonpreservation, and necessarily his nonproduction of nonevidence, showed that he could not prove his self-defense claim The likelihood that the jury would draw negative inferences from his failures to locate Gerard and the physical evidence, much less to produce them at trial, was heightened by the prosecutor’s closing arguments urging the jury to consider this nonevidence. The effect was to undermine Allen’s credibility and shift to him a burden to substantiate his self-defense claim.²²

The final instructions informed the jury that the “law does not require the defendant to prove his innocence or to produce any evidence at all.” But the instructions, no more than the prosecutor’s argument that the government had the burden of proof to show no self defense, did not focus on the problem identified by defense counsel, nor cure the harm, since the jury was told to consider evidence in the case without identifying the proper use of Allen’s nonpreservation of a witness and physical evidence. Indeed, the trial judge’s overruling of defense objections enhanced the government’s position and weakened that of the defense. See Givens, supra, 385 A.2d at 28. Given the prosecutor’s cross examination, rebuttal closing argument, and the absence of an instruction on proper use of the evidence, unlike that given with respect to Dixon’s statement, see note 9, supra, the instructions to consider the evidence and that the government had the burden of proof were, at best, ambiguous with respect to Allen’s admissions on cross examination that he had failed to find Gerard or look for the physical evidence.

Accordingly, we hold that the error was not harmless, and that Allen’s convictions must be reversed.

Reversed.

1 . In view of our disposition we do not reach Allen’s other contentions that his convictions should be reversed because of curtailment of his testimony in violation of his constitutional right to present a defense, and admission of prior consistent statements.

2 . Allen had warned Manning, that he (Allen) "would get him,” and Manning left town thereafter.

3 . Earlier that day while in a back bedroom at the Johnson apartment, Manning had smoked marijuana with Patrick Dixon and another man. Dixon took out a gun and Manning demonstrated how a coat hanger could be used as a gun holster. After the demonstration, according to Freddie Prim, Manning placed the gun on a table in the bedroom, but kept the hanger attached to his pants.

4 . Manning fell into George Davis's apartment door; Davis did not see a gun in Manning’s hands. Annie Johnson also did not see a gun anywhere, but she saw a coathanger attached to Manning's pants as he lay in Davis’ doorway.

5 . The police found an expended .38 caliber shell or casing in front of Johnson’s building. A .38 caliber slug was removed from Manning’s body, and gunshot residue was found on Manning's sweater.

6 . On cross examination, Allen changed his story, denying that Gerard had shot at Manning.

7 . Annie Johnson's testimony about Dixon’ statement was:

[The prosecutor]: Okay. Do you know how [Manning] got [Allen's] phone number? [Annie Johnson]: From [Dixon],

[The Prosecutor]: All right. And in response to [defense counsel’s] question about [Dixon] giving the phone number, didn’t you say [Dixon] told [Manning] what [Allen’s] phone number was?

[Annie Johnson]: Right.

[The prosecutor]: Did [Dixon] say anything else to [Manning] when he gave [Manning]

[Allen's] phone number?

[Annie Johnson]: Yeah.

[The prosecutor]: What else did he say?

[Annie Johnson]. He said, man, [Allen] come to kill you.

8 . The government argued that the testimony was necessary to explain Manning’s potential possession of a gun, given appellant’s claim that Manning was the aggressor and had fired the first shot at appellant.

9 .The full instruction to the jury was:

THE COURT: Ladies and gentlemen, during the testimony of the witness, Miss Johnson, just before the lawyers came up to the bench for that rather long bench conference, you heard me tell you to strike a portion, a small portion of the witness’s testimony in response to a question that was asked. I should not have actually stricken that testimony.

The testimony was admissible but it was admissible only for a very limited purpose, and that is what I want to explain to you now.

The testimony of the witness about what she overheard [Dixon] ... say to Mr. Manning when he gave Mr. Manning the phone number, if you find that to be credible testimony and that she did hear that, and that’s up to you, was not admitted to prove in any way the truth of what [Dixon] ... may have said or not, and was not admitted to prove what Mr. Allen may or may not have intended.

It was admitted, however, if you find it to have been said, simply to show that was said to Mr. Manning on that day. And therefore, you may consider it to explain what Mr. Manning may have said or done based on what was told to him to the extent that you find Mr. Manning’s state of mind on November 13th, 1983 to be relevant to any of the issues that you're going to be asked to decide in this case including, if it is presented to you, any defense of self-defense that may be presented.

10 . See also Sargent v. Armontrout, 841 F.2d 220, 226 (8th Cir.1988); Collins v. Francis, 728 F.2d 1322, 1336 (11th Cir.), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984). Allen’s contention that the government’s reliance on Tennessee v. Street, supra, 471 U.S. 409, 105 S.Ct. 2078, is misplaced is unpersuasive. Although in Street the prosecution was permitted to introduce the codefendant's confession was a carbon copy, the basic use of the nonhearsay is comparable to that in the instant case.

11 . The defense could have satisfied its confrontation concerns by calling Dixon. That there were reasons why it might not want to do so does not mean that the government’s failure to call Dixon involved the kind of shielding that the Confrontation Clause seeks to prevent. See Tennessee v. Street, supra, 727 F.2d at 1500 n. 11.

12 . The state oí mind exception to the hearsay rule is inapplicable since Dixon’s state of mind is irrelevant to the issues in the case. United States v. Brown, 160 U.S.App.D.C. 190, 194, 490 F.2d 758, 762 (1973).

13 . In addition to the defense evidence disputing Annie Johnson’s testimony that she had heard Allen tell her husband that he was going to kill Manning, Annie Johnson admitted that she had never told Manning about the conversation, and in closing argument defense counsel attacked her credibility regarding whether Manning had a gun and her testimony about hearing Dixon’s statement.

14 . Consequently, Allen’s reliance on factually distinguishable cases, in which the hearsay statement of a co-defendant is used at trial, see Lee v. Illinois, 476 U.S. 530, 539, 106 S.Ct. 2056, 2061, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Foster v. United States, 548 A.2d 1370 (D.C.1988), is misplaced.

15 . Allen's relies on United States v. Brown, 160 U.S.App.D.C. 190, 207-09, 490 F.2d 758, 775-77 (1974) (factors for determining likelihood jury will misuse statement include its proximity to vital issue in case, corroboration, and extent it was inflammatory), and Shepard v. United States, 290 U.S. 96, 104, 106, 54 S.Ct. 22, 26, 78 L.Ed. 196 (court rejected state-of-mind theory of admissibility of statement by wife that her husband-defendant had killed her as too prejudicial because it contained assertions of fact about the ultimate issue). In the instant case, Dixon’s statement was relevant to the issue of self-defense, and did not contain the direct assertion of which Allen mistakenly complains in his main brief or matters “so explosive as could not be contained by the limiting instruction." Brown, supra, 160 U.S.App.D.C. at 207, 490 F.2d at 775. Unlike the statement in Shepard, inferences can be drawn from this statement which support either Allen’s defense or the government’s theory-

16 .See, e.g., Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893); Chappell v. United States, 519 A.2d 1257, 1259 (D.C.1987); Lawson v. United States, 514 A.2d 787, 790 (1986); Arnold v. United States, 511 A.2d 399 (D.C.1986); Thomas v. United States, 447 A.2d 52, 58 (D.C.1982); Shelton v. United States, 388 A.2d 859, 863 (D.C.1978).

17 . Defense counsel protested that the judge had not instructed the jury but simply “said that comment in a low tone of voice as if you were just talking to [the prosecutor]. There’s no evidence that the jury heard it at all." The judge disagreed with the characterization of his tone of voice, stating “I barked it out,” and declined the defense request for an instruction to be given to the jury at this time. The judge also overruled defense counsel's two objections to the question "Did you tell Gerard on the night of November 13th, that you wanted him to stay close so that he could say what really happened in the van?”

18 . The judge ruled that the prosecutor could attempt to discredit a self-defense claim by asking appellant if he had tried to find the other person. The prosecutor conceded, however, that "it does get very close to the line about missing witness, that his circumstances were such that he should have, he should have gotten a hold of Gerard, he should have found him, and he should have looked for that shell casing, it must have remained in there, so that he could establish his self-defense.” The prosecutor saw no problem in asking why Allen had not turned himself in. The judge disagreed, but still viewed the general line of questioning, about what Allen did after the shooting, to address Allen’s efforts rather than Gerard’s absence and was of the view that his instructions would make clear that Allen had no burden of proof.

19 . Defense counsel called the trial judge’s attention to Chappell, supra, 519 A.2d at 1259 (improper to cross examine in order to suggest absent witness’ testimony would be adverse in absence of prior ruling by trial court), which, in turn, referred to Lawson v. United States, 514 A.2d 787 (D.C.1986), Arnold, supra note 16, 511 A.2d at 415 and similar cases, and requested a ruling by the trial judge that the cross examination was improper. The judge stated that the prosecutor was prepared to assume, for purposes of the bench conference discussion, that Allen could demonstrate Gerard's unavailability to testify but should not be precluded from asking what Allen did after the shooting. The judge overruled the defense objection that the prejudice arising from the questioning outweighed the probative value of the evidence.

20 . Based on the instructions to the jury, it appears that this is what the trial judge had in mind when he ruled that the government could cross examine Allen about his actions after the shooting.

21 . The prosecutor asked the following series of questions during his cross-examination of Allen:

[Prosecutor]: Between November 13th and the time that you left for Florida did you see Gerard again? ******

[Q]: You didn’t look for him, did you? ******

[Q]: Between the night of the shooting and January of 1984, did you ask your sister or your brother-in-law to hold onto the van? ******

[Q]: You never asked them, did you to take a look in the van and see if they could find a shell casing? ******

[Q]: That night, did you and Gerard look inside the van to see if there was anything in the van that could help prove that ,., [defense objection] ... you acted in self defense? ******

[Q]: Did you ask Gerard to hold onto the gun?

******

[Q]: Did Gerard ask you, what do you want me to do with the gun?

******

[Q]: Between ... November 13, 1983, and the time that you left for Florida, did you ask your sister or brother-in-law about Gerard? ******

[Q]: Did you tell Gerard on the night of November 13th, that you wanted him to stay close so that he could say what really happened in the van?

******

[Q]: I’m just asking you, did you ask Gerard, that night, after you shot [Manning], did you ask him to stay in touch with me because you know what happened? [Emphasis added]

In his closing argument, the prosecutor continued to infer that Allen had failed to produce both evidence and a witness.

But [Allen] went over there with a stranger, someone nobody else knew, somebody whose last name nobody knows. He went over there with the stranger. He shot [Manning]. He walked away from him. Not only walked away from it, he fled from it. He didn’t look in the van for the cartridge case to see if it might still be there. He didn’t try to keep the gun. He didn’t try to keep hold of Gerald or Gerard. [Emphasis added]

22 . The government's reliance on Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), is unpersuasive in light of the court’s decisions carefully limiting the use of silence or omission for impeachment of a defendant. See, e.g., Walker v. United States, 402 A.2d 424 (D.C.1979) (error to cross examine defendant about failure to tell parole officer that he fled not because he was guilty but because he was on parole, where that was his trial testimony).