Lead Opinion
In Crawford v. Washington,
I. BACKGROUND
In the early morning hours of February 9, 2003, gunshots rang out in the parking lot of Boomer’s, a saloon in Brockton, Massachusetts. At that time Robert Manoli, who was working late in his nearby office, peered out the window and saw a hat-wearing black man load a clip into a gun. As the man walked away, Manoli dialed 911 and reported his observations. The 911 operator dispatched Brockton police officers Steven Johnson and Scott Landry to the scene.
Immediately thereafter, a second 911 call came through. The caller, an anonymous woman, asked if she was talking to the Brockton police. When the 911 operator responded affirmatively, the following dialogue ensued:
Caller: Listen to me. I just seen a man with a gun in his hand. It’s at that club called Boomers. There was a shooting there just a second ago. He has on a black cap with a black leather coat. I can’t quite remember the color of his sweater. But I was just saying to my son when I was getting in the car that I didn’t come to Brock-ton to die. And when I was pulling out and backing out driving down the street, he pointed a gun at me and acted like he was shooting at my car.
Operator: Is he a black man?
Caller: Yes, he is a black man. He has on a baseball cap, he looks like he might be between the height of 5'8" and 5'10". But he’s there right now, he’s standing in between like two buildings. He’s basically on Perkins Ave., right beside [the club Boomers].1
Operator: Okay, we’re on our way down there. I’ll tell the officers to look for a guy with a black cap, black leather coat, about 5'8".
Caller: Yes, please do. [H]e has the coat unzipped. And it looked like a nine millimeter. I could be wrong but it looked like a nine.
The 911 operator relayed the augmented description of the suspect to Johnson and Landry (who were en route to Boomer’s). When the officers were about a block away, they saw a 5'8" black male, wearing a black hat and jacket, standing next to the open passenger door of a car. The man’s right hand was hidden inside his unzipped jacket, as if he were holding something.
The man spied the policemen and fled. His right hand remained inside his jacket. Officer Johnson gave chase. While he was in hot pursuit, his quarry threw away a 9 millimeter pistol. The pistol slid off a snow-covered roof and landed on the ground near Johnson’s feet. Johnson radioed his dispatcher to report the location of the gun and continued the chase.
Within a matter of seconds, Johnson tackled the fleeing man (later identified as defendant-appellant Jean Brito). Assisted by two newly arrived detectives, Johnson took the suspect into custody. The police then retrieved both the gun and the suspect’s hat (which had fallen during the chase). The police also found shell casings
On March 26, 2003, a federal grand jury indicted the appellant on one count of possession of a firearm by a convicted felon and one count of possession of a firearm by an illegal alien. See 18 U.S.C. § 922(g)(1), (g)(5)(A). The only issue at trial was whether the appellant possessed a gun (he stipulated that he was both a convicted felon and an illegal alien). The government’s case in chief consisted of Manoli’s testimony, the tape of his 911 call, and the testimony of various police officers who had been involved in the investigation. That evidence tracked the factual account set out above.
The appellant testified in his own behalf. He said that, earlier in the day, he had purchased a gold chain from two men in a bar. Shortly thereafter, two other men confronted him. One of them claimed to own the chain and demanded its return. The appellant offered to sell it to the alleged owner. The latter, who did not have sufficient funds to effect a purchase then and there, took down the appellant’s contact information.
Around 1:00 a.m., the same man showed up in Boomer’s parking lot with three compatriots. They invited the appellant to enter their car, but he refused. As the appellant turned to walk away, he heard gunshots. That prompted him to run and hide in some nearby bushes. He remained in hiding until he heard police sirens. At that point, he emerged from the bushes, only to be tackled by police officers and arrested. He denied that a chase had occurred. He also denied that he had a pistol in his possession at any time.
On cross-examination, the government sought to use the appellant’s three prior felony drug-trafficking convictions for impeachment purposes. When the appellant objected, the trial court, at sidebar, proposed that the government be allowed to inquire as to the number of felony convictions without describing the crimes. Defense counsel refused this compromise and suggested that the government be limited to asking whether the appellant had “committed a crime” on a certain date. The court rejected this approach, overruled the objection, and offered the appellant a choice: in referring to the prior convictions, the government either could use the word “felony” or could name the charge. Defense counsel refused to choose. The court then ruled that the government, in its cross-examination, could identify each charge.
Cross-examination proceeded. Defense counsel belatedly asked the court to circumscribe the government’s references to the prior convictions so that only the word “felony” would be used. The court demurred, saying that the attorney had been given that option but had failed to exercise it in a timely manner. The prosecutor then established that the appellant had been convicted on three separate occasions in 1994—once for distribution of a controlled substance and twice for possession of controlled substances with intent to distribute.
After the defense rested, the government sought to introduce the anonymous 911 tape as part of its rebuttal case. The appellant objected on hearsay and Confrontation Clause grounds. The court redacted the tape to exclude the caller’s description of the pistol and allowed the remainder of the tape into evidence under the “excited utterance” exception.
At the conclusion of the trial, the court gave a carefully phrased instruction making clear that the prior felony convictions were relevant only insofar as they bore on the appellant’s credibility. The appellant did not take exception to this, or any other, portion of the court’s charge. The jury found the appellant guilty on both counts. The district court subsequently imposed a 210-month incarcerative sentence. This appeal followed.
II. ANALYSIS
We divide our analysis into three parts, corresponding with the appellant’s three assignments of error.
A. The Anonymous 911 Tape.
The appellant’s primary contention is that the redacted tape of the second 911 call should not have been admitted into evidence as he was not able to confront and cross-examine the anonymous speaker. This contention derives from the Sixth Amendment, which provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. In Crawford, decided approximately one month after the jury verdict in this case, the Supreme Court fundamentally altered the jurisprudence of the Sixth Amendment and took a new approach to determining whether the admission, in a criminal case, of an out-of-court statement by an unavailable declarant violates an accused’s right of confrontation. See Horton v. Allen,
Pertinently, the Crawford Court decreed that, as to “testimonial” statements, the Confrontation Clause assures a procedural right to confrontation rather than a substantive guarantee of evidentiary reliability. See Crawford,
The Court limited its critique of Roberts and its freshly minted procedural right to testimonial statements, basing this limitation upon an examination of both the historical background and the text of the Confrontation Clause. See id. at 43-51,
The Court then enumerated, for illustrative purposes, a trio of formulations that came within the “core class” of testimonial statements. Id. at 51-52,
The first formulation encompasses “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” Id. at 52,
The Court went on to note that these formulations overlapped and that some statements might fall within any plausible definition of “testimonial.” Id. A statement made during grand jury testimony is an example of this phenomenon. Id. So, too, statements given in response to police interrogation would qualify under any of the Court’s stated formulations. Id. In this regard, the Court cautioned that it used the term “interrogation” in its colloquial sense, but hastened to add that a statement “knowingly given in response to structured police questioning” would qualify “under any conceivable definition” of interrogation. Id. at 53 n. 4,
Against this backdrop, the appellant asseverates that the entirety of the statements made during the anonymous 911 call should be deemed testimonial (and, thus, inadmissible) because the caller knowingly contacted the police to furnish information about a crime.
The Supreme Court’s illustrative formulations suggest that a 911 call that does nothing more than impart a factual ac
At first blush, it may seem that the anonymous 911 call at issue here fits this mold. We think not. Although the call provided a detailed report of criminal activity (including a description of the suspect and information as to his whereabouts), there is more to the story. The district court supportably found that the call qualified as an excited utterance. In this instance, that fact makes a dispositive difference.
The case law in this nascent field is muddled as to whether excited utterances may or may not be classified as testimonial hearsay. The decisions fall into three camps. We briefly describe each such line of authority.
Some courts take the view that excited utterances never can constitute testimonial hearsay. Their rationale is that, by definition, an excited utterance is made under the influence of a startling event and, thus, the declarant acts in response to that event rather than in response to interrogation or in anticipation of bearing witness. See, e.g., United States v. Brun,
A second cluster of cases holds that the excited nature of the utterance has no bearing on whether a particular statement is testimonial. These courts effectively discount the excited nature of the utterance and focus instead on the declarant’s objectively reasonable expectations. See, e.g., Arnold,
A third cadre of courts recognizes that the excited utterance inquiry and the testimonial hearsay inquiry are distinct but symbiotic; the startling event that gives rise to an excited utterance informs the Confrontation Clause analysis and often
We reject both per se approaches—-the one that automatically exempts all excited utterances from classification as testimonial hearsay and the one that effectively disregards the excited nature of an utterance. Rule 803(2) allows the admission of excited utterances based on the theory that a person speaking about a startling event, while still under the stress of experiencing or observing that event, normally does not have either the capacity or the incentive to prevaricate. See, e.g., United States v. Taveras,
We therefore reject the categorical approaches that lie at either end of the spectrum. Instead, we conclude that the excited utterance and testimonial hearsay inquiries are separate, but related. While both inquiries look to the surrounding circumstances to make determinations about the declarant’s mindset at the time of the statement, their focal points are different. The excited utterance inquiry focuses on whether the declarant was under the stress of a startling event. The testimonial hearsay inquiry focuses on whether a reasonable declarant, similarly situated (that is, excited by the stress of a startling event), would have had the capacity to appreciate the legal ramifications of her statement.
These parallel inquiries require an ad hoc, case-by-case approach. An inquiring court first should determine whether a particular hearsay statement qualifies as
We offer some general guidance for the proper application of this rule. Ordinarily, statements made to police while the de-clarant or others are still in personal danger cannot be said to have been made with consideration of their legal ramifications. Such a declarant usually speaks out of urgency and a desire to obtain a prompt response. It follows, therefore, that such statements will not normally be deemed testimonial. See Hembertt,
As a final matter, we caution against the use of an “all or nothing” approach to the admission or exclusion of 911 calls. It is entirely possible that some portions of a 911 call may qualify as excited uttérances, while others do not. Similarly, some portions may be deemed testimonial, while others may be deemed nontestimonial. This means, of course, that some parts of a single 911 call may run headlong into the Crawford bar, while others do not.
Our dictum in United States v. Luciano,
This discussion adumbrates the result in the case before us. The anonymous caller stated that she had “just” heard gunshots and seen a man with a gun, that the man had pointed the gun at her, and that the man was still in her line of sight. Her account strongly suggests that she and her son, as well as others in the vicinity, were in imminent personal peril when the call was made. The immediacy of the threat, the existence of a clear and present danger, and the fact that no substantial time had elapsed, in combination, severely erode any basis for a finding that the declarant was in a calm and reasoning state when she placed the 911 call. And, furthermore, the precision of the declar-ant’s physical description of the suspect is more consistent with a sense of urgency and a desire to obtain a prompt response—the removal of a dangerous man from the street—than with an anticipation that her call might be used proseeutorially.
These factors are sufficient to ground our decision. Based on the foregoing, we conclude that, here, the circum
The appellant’s fallback position is equally unavailing. It cannot fairly be said in the circumstances of this case that any part of the call was the product of structured police interrogation. Questions by a 911 operator that merely clarify or focus an excited caller’s statement are not interrogation in any meaningful sense of the word. See, e.g., People v. Corella, 122 Cal.App.4th 461, 469,
That ends this aspect of the matter. Because the admitted portion of the anonymous 911 call was both an excited utterance and nontestimonial in nature, the call’s introduction into evidence did not sully the appellant’s Sixth Amendment right to confrontation, notwithstanding the declarant’s unavailability for cross-examination.
B. The Prior Convictions.
The appellant also challenges the district court’s admission of evidence of his three prior convictions. The applicable rule provides that if a criminal defendant elects to testify, evidence that he has been convicted of a crime punishable by more than one year in prison “shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” Fed.R.Evid. 609(a)(1). In general-—-there are exceptions, but none is relevant here— such evidence is only admissible if the convictions in question are less than ten years old. See Fed.R.Evid. 609(b).
By its terms, Rule 609(a) demands that the trial court construct a balance. We review a trial court’s construction of this balance (i.e., its ruling admitting or excluding Rule 609 evidence) for abuse of discretion. See United States v. Powell,
The three prior convictions here at issue were all felony drug-trafficking convictions. Though somewhat remote in time from the date of the instant offenses—all three convictions occurred in 1994—they were within the ten-year window framed by Rule 609(b). The question, then, is whether the district court abused its discretion in determining that the probative value of those convictions for impeachment purposes outweighed their prejudicial effects.
The appellant suggests that our decision in United States v. Tavares,
In this instance, the appellant stipulated that he previously had been found guilty of
We turn now to the disputed ruling. Although the appellant questions how past crimes that do not directly involve dishonesty or fraud are relevant to credibility, our case law long has recognized that Rule 609 represents a valid legislative judgment that such convictions do have some probative value for impeachment purposes. See United States v. Norton,
A wide array of factors may be considered when calibrating the Rule 609 scales. Without limiting the generality of that statement, these may include (i) the impeachment value of the particular convictions; (ii) their immediacy or remoteness (even though they are within the ten-year window); (iii) the degree of potential prejudice that they portend; (iv) the importance of the defendant’s testimony; and (v) the salience of the credibility issue in the circumstances of the particular case. See, e.g., United States v. Smith,
In this case, several of these factors cut in favor of admissibility. Prior drug-trafficking crimes are generally viewed as having some bearing on veracity. See, e.g., United States v. Gant,
To be sure, other factors (e.g., remoteness) weigh against admissibility. Taking the panoply of circumstances as a whole, however, the decision to accept or reject the proffer fell well within the encincture of the district court’s discretion. Where the circumstances can fairly support a decision either to admit or to exclude particular evidence, it is not the proper province of an appellate court to second-guess the trial court’s on-the-spot judgment. Cf. Freeman v. Package Mach. Co.,
Second, the appellant, citing Powell, argues that the lower court erred in allowing the government to describe the nature of the prior felony convictions by using the title of each crime. In Poioell, we observed that the practice of allowing the government to ask about the number of felonies, but not to describe their nature, was a “fair way” to help balance probative value against prejudicial impact.
C. Sentencing.
Finally, the appellant suggests that the district court erred in sentencing him pursuant to the mandatory sentencing guidelines then in effect. See United States v. Booker, — U.S.-,
With respect to a claim of Booker error, the first two elements of the plain error test are satisfied whenever a defendant has been sentenced pursuant to a mandatory guidelines system. Antonakopoulos,
To demonstrate that a Booker error affected substantial rights, a defendant must show a “reasonable probability” that he would have received a more lenient sentence under an advisory guidelines regime. United States v. González-Mercado,
We need not tarry. We have held, with a regularity bordering on the monotonous, that a defendant cannot establish a reasonable probability of a more lenient sentence merely by showing that the district court sentenced him at the low end of the guideline sentencing range. See, e.g., United States v. Guzmán,
III. CONCLUSION
We need go no further. This is a close and difficult case, but the appellant, though ably represented, has not convinced us that any reversible error inhered in either the admission of evidence or the imposition of sentence.
Affirmed.
. The transcript used as an aid at trial excluded the bracketed words, but they are audible on the tape itself.
. The government initially had indicated an intention to offer the tape of the anonymous 911 call during its case in chief. The parties' arguments were aired fully at that time, and
. This case involves an excited utterance. The analytic framework that we suggest will, however, apply generally to statements alleged to come within other firmly rooted hearsay exceptions.
. In Luciano, the government introduced the excited utterance at a sentencing hearing. The court’s characterization of it as nontesti-monial was dictum because, as the court recognized, Crawford does not apply in sentencing proceedings. See Luciano,
. We note with approval that the trial court gave a limiting instruction indicating that the
Concurrence Opinion
concurring in part and concurring in the judgment.
I agree that the statements by the anonymous 911 caller reporting Brito’s offense were non-testimonial and therefore were admitted consistent with Crawford v. Washington,
In Crawford, the Supreme Court revised its approach to deciding when a hearsay statement may be admitted at a criminal trial without violating the Confrontation Clause’s guarantee that “the accused shall enjoy the right to be confronted with the witnesses against him.” U.S. Const. Amend. VI. Prior to Crawford, the Court permitted the admission of hearsay from an unavailable declarant so long as it “fell within a firmly rooted hearsay exception” or otherwise bore “particularized guaran
ex parte in-court testimony or its equivalent—that is material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially [;][2] extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [and][3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Id. at 51-52,
As the lead opinion observes, these formulations have engendered a “miasma of uncertainty” among lower courts trying to identify testimonial hearsay. Ante at 55; see also Crawford,
Crawford employed a historical approach to define the reach of the Confrontation Clause. See id. at 43-50,
The Court discussed typical examples of the abusive use of civil-law interrogations in early English law. Id. at 43-47,
The historical examples in Crawford all involved the government’s use of formal ex parte examinations to obtain hearsay statements that could later be used at a criminal trial. According to the Court, this historical background demonstrates that the Confrontation Clause was intended to prohibit the government’s use of these procedures where the defendant did not have an opportunity for cross-examination. See id. at 68,
To support its historical interpretation, the Court examined the Confrontation Clause’s text. Id. at 51,
It is only after this discussion that the Court set forth its three formulations of testimonial hearsay. Id. at 51-52,
Under this approach, a statement obtained by recording a 911 call is non-testimonial in most cases. The purpose of the 911 operator is to provide citizens with an avenue to obtain emergency help from municipal or state personnel. Typically, the 911 operator focuses on ascertaining the location and identity of the caller and the nature of the emergency; she does not investigate or prosecute crimes.
In the Crawford examples, testimonial statements were obtained through proceedings that had a sufficient degree of formality to put the declarant on notice that her narrative would constitute “a solemn declaration or affirmation of a fact.” Crawford,
. The Court also noted various controversial ex parte examinations conducted by English authorities in the Colonies, including the enforcement of the Stamp Act through the pres
. The Court described its three formulations as referring to a "core class of testimonial statements,” all of which "share a common nucleus” that implicates the Confrontation Clause. Id. at 51,