United States v. Kennedy Polidore
2012 U.S. App. LEXIS 16900
| 5th Cir. | 2012Background
- Polidore was convicted of possession with intent to distribute crack cocaine after police observed drugs in his vehicle and recovered drugs from the scene.
- Two anonymous 911 calls reported ongoing drug activity involving Polidore at 2505 Sweetgum, describing a red PT Cruiser and Polidore's activities.
- Officers, acting on the calls, observed a red PT Cruiser, approached Polidore, and recovered crack cocaine and powder cocaine (in total) from the vehicle and location.
- The government introduced the 911 recordings at trial; Polidore objected on Confrontation Clause and hearsay grounds.
- The district court admitted, and the Fifth Circuit ultimately upheld, the recordings as non-testimonial and admissible under present-sense impression hearsay exceptions.
- Polidore argues the recordings were testimonial and violated confrontation, and/or were improperly admitted hearsay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 911 recordings violate the Confrontation Clause | Polidore contends statements are testimonial and require confrontation. | Polidore argues primary purpose was to create trial testimony; improper admission. | Not testimonial; Confrontation Clause not violated. |
| Whether the 911 recordings are admissible as non-testimonial hearsay | Statements are improper hearsay or not within exceptions. | Statements fit hearsay exceptions or are not offered for truth. | Present-sense impression exception applies; admissible. |
| Whether the district court abused its discretion in admitting the 911 recordings | Admission was prejudicial and error under Rule 403. | Admissible for non-truth purposes and under present-sense exception. | No abuse of discretion; properly admitted. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial vs. non-testimonial statements; confrontation right)
- Davis v. Washington, 547 U.S. 813 (U.S. 2006) (911 calls generally non-testimonial; primary purpose inquiry)
- Hammon v. Indiana, 547 U.S. 813 (U.S. 2006) (distinguishing initial investigations from past-event testimony)
- Michigan v. Bryant, 131 S. Ct. 1143 (S. Ct. 2011) (further refining primary purpose and ongoing-emergency analysis)
- Brown v. Epps, 686 F.3d 281 (5th Cir. 2012) (quote on testimonial nature in context of 911/interrogations)
- United States v. Hadley, 431 F.3d 484 (6th Cir. 2005) (non-testimonial 911 statements in certain contexts)
- United States v. Cromer, 389 F.3d 662 (6th Cir. 2004) (statements to authorities may be accusatory; confrontation implications)