*1 America, UNITED STATES
Plaintiff-Appellee, BOYCE, Defendant-Appellant.
Darnell
No. 13-1087. Appeals, Court of States Circuit.
Seventh
Argued Oct. 13, 2014.
Decided Feb. *2 were made they rule because of a the stress domestic bat-
while under it. affirm the tery related to We judgment. court’s district
I. BACKGROUND Portis called 911' at around 7:45 Sarah 27, 2010, police asking on March p.m. her come to her residence because child’s just “going hit her was father had operator for The crazy no reason.” asked, “Any weapons involved?” to which operator “Yes.” The responded, Portis kind, said, “A gun.” Portis asked what said, operator gun?”, “He has a then The “Hello?”, “I, I responded, think and Portis just, just.” he After the so. ‘Cause Petersen, Attorney, Of- Michelle Marie said, on,” respond- operator “Come Portis Attorney, Chica- fice the United States ed, operator again in- “Yes!” twice. The IL, Plaintiff-Appellee. go, for quired, you “Did see one?” and Portis re- Ravitz, Palles, Attorney, & Gary Ravitz operator then cautioned plied, “Yes!” IL, Chicago, Defendant-Appellant. truth, telling Portis that if she wasn’t jail. respond- could taken to Portis she POSNER, FLAUM, and Before a ed, giving descrip- “I’m After positive.” WILLIAMS, Judges. Circuit Boyce wearing, opera- was tion what WILLIAMS, where he was at the moment. Judge. Circuit tor asked “just up- she ran responded Portis during foot which an offi- After a chase neighbor’s and didn’t stairs to house” [her] Boyce gun a cer said he saw Darnell throw had her house Boyce left know whether gun yard, into a officers recovered the yet. ammunition from area and also found minutes, Officers Robert Cum- Boyce’s in A Within gun pocket. for the Eugene responded Solomon Boyce being mings and posses- convicted a felon determining Boyce After He 911 call. firearm and ammunition. sion of a they longer apartment, in the inter- lawfully possess a no maintains that he could ten min- for about five to handgun civil viewed Portis premise on the his light In our utes. Officer Solomon described rights had been restored. just as if had “appearing] emotional disagree and conclude that precedent, argument, perhaps fight, someone Boyce restoring rights his civil letter to running.” The officers then just all felonies. who was prior did not do so for complete report a case tri- went to their car to Boyce challenges also the admission at Portis, they battery. While were the moth- for domestic al of statements of Sarah car, children, sitting squad the officers saw during made their er of four of his Boyce call, had returned the outside including gun. had a calling out dis- Portis’s residence and find no abuse of discretion We Boyce to admission Solomon asked trict of the statements name. Officer court’s instead, over, away ran exception to come but under the utterance excited testimony Cummings gun, ran after him. that he saw Portis throw a Officer chase, Cummings saw During the Officer officers’ testimony recounting other the re- of his reach toward midsection covery of the area and ammuni- body, nickel-plated1 handgun, retrieve matching pocket, tion *3 garage yard. and it a into a toss over and statement on 911 call that caught up Boyce officer with soon after- Boyce gun. had -a Boyce A found ward him. found a and detained Officers guilty charged on both counts. The dis- Magnum handgun silver in the area .357 Boyce trict court concluded that had three Cummings Boyce saw throw where Officer prior violent serious drug felonies or of- a .357 bul- gun. Officers also found three that fenses mandated a minimum term of right pocket pants lets in front years’ imprisonment fifteen under they after him. arrested Act, Career Armed Criminal 18 U.S.C. 924(e)(1). § The court sentenced him to Boyce charged with one count of was imprisonment, 210 months’ two and a half in firearm being possession a felon of a years mandatory over the minimum sen- being posses- and one of a count felon Boyce appeals. tence. ammunition, sion of of violation 924(e)(1). § § U.S.C. and While 922(g)(1) trial, Boyce
he jail awaiting was in sent II. ANALYSIS requesting Portis a that recant letter Rights No A. Restoration Civil that He gun. he had a even provided language he wanted her Before we consider the admission use in a he letter wanted her to write to call, of Portis’s statements in the 911 him: Boyce’s argument address that the indict my
It
going
seems like
whole life is
against him
should
been dis
I
police
down since I called the
and lied
Boyce
missed.
contends
the district
you.
police
on
I
know that
didn’t
those
granted
court should have
his motion to
was going
actually put
gun
you.
a
on
dismiss the indictment
lack of a quali
for
before,
sorry
Like I
I am
said
so
for
fying predicate felony conviction. We re
calling
lying
them and
a
you
about
had
novo,
view that decision de
and we review
me,
but you just
and hit
misunder-
the district
findings
court’s factual
for
stand how I felt when I
and
you
saw
Greve,
clear error.
v.
United States
girl hugging
kissing....
other
So
(7th Cir.2007).
F.3d
only way
I thought
paying you
Boyce was charged
being
a felon in
back
police
get you
was to call the
of a
possession
firearm and ammunition in
again.
up
sorry.
locked
once
I’m so
§
922(g)(1).
prior
violation
18 U.S.C.
A
Boyce
Portis
spoke
also
tele-
felony
predicate
is not a
offense for a
phone
jail,
while was in
he
said
§ 922(g)(1) violation if the defendant “has
story”
“our
which they
stick
pardoned
been
rights
has had civil
re-
thing
up
Portis made the whole
be-
stored” unless the “restoration of civil
talking
cause she
mad he
had been
to rights expressly provides”
person
that the
another woman.
may
possess
not
firearms.
U.S.C.
921(a)(20).
testify
trial,
§
did
at
but the
maintains his civil
government
played recording
rights
of her 911
had
regarding
been restored
his
call
jury.
for the
In arguing
prior
felony
before
pos-
convictions
possessed
27, 2010,
a firearm on
March
sessed the
and ammunition
government
case, and,
pointed
Cummings’s
therefore,
to Officer
that he did not have a
felony. Unfortunately
Boyce,
for
we have
felony
purposes
predicate
rejected
argument
considered
922(g)(1).
rights on all
the letter restored civil
his
five state
Boyce was convicted of
felonies. We said
previous
concurrent
felonies
1991 and received
Burnett,
B. Call Admitted thought. result reflective 2 McCormick (7th ed.2013). on Evidence next turn argument We government been should say But that is not to spontaneity call allowed to introduce Portis’s 911 at exceptions in the Federal Rules of Evi- testify trial. Portis did not at trial. The necessarily dence rest on a sound founda- voice, heard though, still as the regarding tion. We have said before government played recording audio *5 reasoning present behind the sense im- (The during her 911 call the trial. pression that of with much the folk “[a]s well.) transcript received a the call as evidence, psychology of it is difficult to The district court admitted 911 this entirely seriously, take rationale since call on the basis it present was a entirely are people capable spontaneous impression sense under Federal Rule lies emotional circumstances.” See Lust 803(1) Evidence and an excited utterance 580, (7th Cir.2004) Sealy, v. 383 F.3d 588 803(2). under Federal Rule of Evidence (noting showing studies that less than one Boyce maintains that the call not fall does lie) second is (citing needed fabricate within either of exceptions. these McFarland, Douglas D. Present Sense Im- We the evidentiary review district court’s Past, pressions Live in Cannot the 28 Fla. an rulings for abuse of discretion. United 907, (2001)). U.L.Rev. 916 St. As for the (7th 761, Joy, States v. 192 F.3d 766 exception, excited utterance “The entire 1999). exception may basis the ... ques- be 803(1),
Rule tioned. While present impres- psychologists proba- the sense provides bly sion concede that exception, state- excitement minimizes the “[a] describing influencing or reflective self-interest explaining an event or the de- statements, condition, they questioned made clarant’s immediately while or after have outweighed it” this perceived might by declarant is not whether excluded 803(2) by against distorting hearsay. rule effect shock excitement Rule and upon sets exception forth for an declarant’s observation “excited and utterance,” judgement.” 2 defined the rule McCormick on “[a] as Evidence (7th ed.2013). relating statement 272 to a event or condition, made while declarant was Nonetheless, recognized have under the stress of it the excitement that issues, despite exceptions these are caused.” well-established. v. See Ferrier Duck worth, theory 545, (7th
The
underlying
present
Cir.1990);
sense
902 F.2d
547-48
impression
Illinois,
346,
“is that substantial
see also White v.
502 U.S.
356
736,
(1992)
contemporaneity
8,
of event and
112
statement
n.
S.Ct.
sonally present during the domestic without calculated during present excep the 911 call. tery impression she recounted der the Woods, questions tion, here are whether Portis’s States v. (7th Cir.2002), statements were made without calculated points out *6 her 911 call narration and whether was gun until Portis did not mention a that to constitute sufficiently contemporaneous to questioned by dispatcher the as whether impression. a sense present still Boyce any weapons. had One can without narra make statements calculated first, timing the issue while To take responses ques tion if made in to even Boyce hitting as did not call 911 Portis Thomas, 453 tions. States v. her, or nor would that been feasible Cf. Cir.2006) (7th (admitting 911 F.3d 844 do, Advisory to the Committee’s Note wise call, responses operator ques to including “recog- to Rule of Evidence 803 Federal tions, impression).1 as most, present sense if many, that in not instances nizes Here, operator the asked notably, when precise contemporaneity possible is not weapon, oper told the what kind of Portis slight lapse is allowable.” See and hence a also, Ruiz, did not ask gun.” operator 647 ator “a e.g., (upholding 249 F.3d at Portis “shortly gun; made af- a it was Boyce of statements whether had admission observations). presence. Portis’s statements to the brought up gun’s ter” first who “just” had hit that operator the questions rather answering But run “just” upstairs she had to
her and that could spontaneous a narration giving than indicate that she neighbor’s house her that statements chances the immediately after her increase the nearly called 911 answering questions, "was responding questions that a declarant argument to 1. The narrative, giving spontaneous spontaneity than a application ex- rather precludes the he was not excited not regard to the indicate ception also be made could Joy, 192 provided he the answers.” exception, exception we when an excited utterance Martin, 767; United States v. F.3d at see also next. We note that the excited will turn to 1995). context, F.3d we have stated that the fact utterance narration, and, “going crazy made and was for no were with calculated reason” and discussed, Next, as we Portis ran to another gun. that he had made Portis her battery her 911 residence the between 911 call under while the stress of ex- definitively call. We need decide by battery. citement caused the domestic mean whether these concerns call right battery, She made the after the pres- to under qualify statements fail telling operator “just” that she had run exception impression ent sense because neighbor’s to her upstairs house. Officer did, they they if still even be admis- testimony appeared Solomon’s that Portis as an sible excited utterance. The excited emotional, though just she had been in utterance a broader “allows argument fight, or further supports the subject coverage” scope matter than court’s district conclusion Portis made present impression. sense United States the call while under the stress or excite- (7th Cir.1986). Moore, startling ment of the event. is This because the Federal Rules of Evi- Boyce principally takes issue with the provide that an dence excited utterance finding district’s court that her statements “relating includes statement to” a star- related to startling particu- event. In event, 803(2), tling Fed.R.Evid. while lar, he argues gun Portis de- present impression exception lim- call scribed was not to the related “describing explaining” ited battery event, reporting. domestic she In- 803(1); Moore, Fed.R.Evid. see also stead, says, F.2d at reference to a 572. call to separate, referred earlier time For the excited utterance gun. when possessed a apply, we have said the proponent “(1) a startling must demonstrate that: We do not find an abuse of discretion (2) occurred; the declarant makes the district court’s determination that the statement under ex the stress of the the call that had event; startling citement caused seen with a was related (3) the declarant’s statement relates to battery. During domestic her call to 911 Joy, event.” F.3d at help requesting police, from told *7 The statement “need not be contempora operator Boyce the that gun had a and startling neous with the to be admis responded “Yes!” several times when the 803(2) [rjather, sible under rule ... the if operator Upon she had seen asked it. contemporaneous utterance must be with questioning replied further she that she engendered by the excitement star the “positive.” was When the dispatcher (citation tling event.” Id. at 765 inter and any asked Portis whether weapons were omitted); quotation nal marks see also involved, dispatcher the was to trying ob- Wesela, United States v. 663 tain regarding battery information the (7th Cir.2000) (stating timing of statement danger posed by the level of her assailant. not important controlling but and that Amd a in weapon, particular Portis said a what matters whether is statement made gun, so, was involved. In doing Portis “contemporaneously with the excitement provided dispatcher the with information event, resulting necessarily from the not her danger about assailant and the itself’) (citations omitted). with the event just experienced minutes before the call. Here, This description posed by event of do of the threat a battery mestic 911 man who occurred. called battered her relates to the inci- reported Boyce just that hit her produced agitated had dent which her state.
799 call, call as excited utterances under Rule stating in the 911 In to addition times, 803(2). Boyce multiple confirming then response to the Boyce stated gun,
had a in limine that Portis motion government’s Sentencing Penalty C. Enhanced Boyce had responding officers told the Proper she had her and that physically assaulted also that his sentence un Boyce argues gun a from a bedroom him take witnessed Act, der the Armed Career Criminal apartment. leaving before dresser 924(e), improper a because U.S.C. although proba- Boyce points out prior fact of his jury did find the pre- Portis while tion officer interviewed a beyond convictions reasonable doubt. As Report, there is the Presentence paring support, Boyce points Supreme to suggests it that Portis re- nothing year holding earlier this Court’s decision a to the Boyce gun seeing counted mandatory any fact that increases court’s de- probation officer. district in minimum for a crime is ele gave the account Portis sentence cision to allow event, aftermath of be- ment and must be submitted to immediate had time consider the effect beyond fore she a reasonable doubt. Al found — States, U.S. -, children might it have on the father her leyne v. United (and (2013). Boyce’s communications to Portis 2151, 2158, 186 L.Ed.2d S.Ct. her), suggest trying to influence however, change did not the rule Alleyne, underlying with the rationale consistent v. Unit announced Almendarez-Torres exception. And the excited utterance States, 118 S.Ct. ed U.S. required is not for ad- while corroboration (1998), prior a that the fact of L.Ed.2d Ruiz, F.3d at here missibility, see the in alleged not be conviction need gun a had jury beyond proven dictment Cummings’s by was corroborated Officer explicitly reasonable doubt. The Court gun testimony that he saw throw revisiting that it was not Alleyne stated in testimony of officers who other decision because its Almendarez-Torres gun and found bullets recovered the not raised it. 133 S.Ct. at parties had Boyce’s pocket. matching gun Court tells us Supreme 2160 n. 1. Until the otherwise, apply if is correct that will continue Al Even mendarez-Torres, length at arms’ while he struck and we decline to set was not so her, battery victim in Portis’s ground. if a domestic Boyce’s sentence on aside knows her assailant has ac- circumstances nearby, potential cess to III. CONCLUSION against lethal to be used
more force *8 to be in subject likely evoked would be court is judgment of the district Moore, description of her assault. See Affirmed. at 4 Weinstein Evi- (quoting 791 F.2d ¶ (1985) 803(2)[01] in ex- at dence 803-95 POSNER, concurring. Judge, Circuit subject “If plaining excited utterances: court should be I that the district agree is such would matter of the statement as disagree I with indeed event, affirmed—and by the state- likely be evoked opinion. I write admitted.”). nothing in court’s ment should Under the to concern with separately only express case, this find no abuse of facts of 803(1) (2), Rules of Evidence to Federal discretion the district court’s decision this That concern is figure which case. during the 911 admit Portis’s statements paragraph majority ship began in a of the with expressed only when she was merely amplify I to it. opinion; seek counsel said “the concern is testify, that if Ms. Portis were to she opera- with the 911 conversation young look somewhat the jury and so could major piece tor was a of the evidence infer ... that this relationship could have guilt. defendant’s What she said underage.” when started conversation, recorded, was though hear- say, it was an get because out-of-court state- To her recorded statement admitted evidence, prove government “to the truth of the into offered invoked two asserted,” 801(c)(2)— exceptions One, matter to hearsay Fed.R.Evid. rule. stat- 803(1) namely (Boyce) that the defendant had a ed in Rule captioned “present charge than rebut impression,” to sense into allows evidence “a —rather recently recent fabrication or describing formed statement or explaining motive, 801(d)(1)(B), condition, improper Fed.R.Evid. event or made while or immedi- person showing making ately perceived after the declarant it.” thing statement had said the same before The excep- other —the “excited utterance” 803(2) alleged fabrication or the formation of tion of Rule into evidence —allows improper motive. 30B Michael H. “a relating Graham, condition, Federal Practice & Procedure or made while the declarant was (interim ed.2011). 7012, pp. 128-45 But under stress of it excitement government argued and the district caused.” agreed court that Portis’s recorded state- The rationale for for a ment was as a “present admissible sense “present impression” is that if the impression” an “excited utterance.” event described and the statement describ No things, doubt it both those but time, ing it near are to each other in profound there is doubt whether either “negate[s] the likelihood of deliberate or against should be an to the rule Advisory conscious misrepresentation.” hearsay the admission evidence. Proposed Committee to 1972 *9 story what up; Boyce, she should make Deception Examination of Across Different because her testimony Communication,” would have been Modes of 63 J. Am. Soci likely to reinforce ety 208, the evidence of the let- Sci. Technology & Information of 208-09, (2012), ters that he had attempted per- to suborn 214 where read that “as we jury, and also his research, because sexual relation- with previous found
801 Against Exception to the Rule spontaneous Impression rarer than planned lies were Attributes,” Hearsay: Origins and 66 Iowa run into an I Suppose at lies.” Id. (1981), 869, long before there has a L.Rev. and he on street acquaintance it has thing— cognitive psychology; was a field of yappy little with him—a dog new empirical an me, I neither theoretical nor ba- “Isn’t he beautiful”? he asks sis; and it’s not even common sense—it’s person I’m a cat yes, though answer good psychology. folk even dog hideous. consider Advisory provide *10 p. mick on Evidence HERZOG,
ed.2013). Maureen Plaintiff- Appellant, Advisory go Committee Notes on to say excep- that while the excited utterance criticized, “it finds support
tion has been GRAPHIC PACKAGING INTERNA- cases without number.” I find that less TIONAL, INC., and ABC Insurance reassuring. than Like the Co., Defendants-Appellees. present impressions, on for excited utterances rests no firmer No. 13-1717. judicial habit, ground than in turn reflect- Appeals, United States Court of ing judicial incuriosity and reluctance to Seventh Circuit. dogmas. reconsider ancient I impression don’t want leave the Argued Oct. 2013. questioning present sense and excit- Decided Feb. hearsay exceptions ed utterance to the rule I want reduce the amount of hear-
say evidence admissible federal trials. I is
What would like see Rule 807
(“Residual Exception”) swallow much of many
Rules through and thus evidence,
the exclusions from exceptions to exclusions, Advisory and notes of the “hearsay
Committee. The rule” too
complex, being as well as archaic. Trials go rule, better with a simpler
core of proposition which would be the 807)
(essentially simplification of Rule evidence should admissible reliable, it is
when when the can limitations, strengths
understand its it will materially when enhance
likelihood of a correct outcome. Notes Rules. it, normally get One reason is in- I don’t especially “immediacy” when (though admissible interpreted the bar to it is is riddled encompass periods minutes, it exceptions) is that often no long is better as 23 as in States v. another, rumor gossip, than Blakey, which 785-86 related, closely 1979), is that it can’t be tested 16 minutes United States v. Me (E.D.N.Y. by cross-examination its jia-Velez, author. But in F.Supp. party 1994), Odom, this case either could have called and 10 minutes State testify, testimony Portis to her N.C. 341 S.E.2d 335-36 (1986). hearsay. not have been party Neither Even immediacy real is not a government, called guarantor her —the doubtless be- of truthfulness. It’s not true cause story Portis recanted her people can’t make up a lie in a short had had a after he period wrote her several spon of time. Most in fact lies are prison asking See, letters from lie for e.g., Whitty taneous. Monica T. et giving al., him and her detailed instructions on All “Not Are An Spontaneous: Lies
Notes
The Notes deriding “present Committee I am not alone hearsay convincing justification an for the to the even less impression” sense hearsay exception at in this quotation second issue majority opinion’s rule. To Inc., 580, case, rule. The the “excited utterance” Sealy, from Lust Cir.2004) cir- proffered justification “simply folk much of the —“as of evidence, may a condition produce of it is difficult to cumstances psychology temporarily ne which stills the ca- immediacy excitement this rationale [that take produces of utter- entirely pacity reflection and fabrication] the likelihood of gates entirely fabrication.” The capable are ances free of conscious seriously, people since attempt- I’ve italicized lies circum two words drain spontaneous in emotional any And even justification the further state ed content. would add stances” —I “ by something that agree person if a is so excited and new studies ‘old (which capacity reflection fabri he loses the required than one second is less ” Id., how be happen), can there Douglas a lie.’ D. doubtless quoting cate McFarland, any that his unreflective utter- Impressions confidence “Present Sense excitement, Past,” ance, is reliable? provoked by State Live in the 28 Fla. Cannot (2001); 907, psychologist need not distrust Jeffrey see also “One be U.L.Rev. Twitter, Bellin, “Facebook, an made under emotional and the Uncer observation stress; everybody accepts such statements Impres tain Future of Present Sense M. sions,” mental Robert Pa. L. 362-66 with reservation.” 160 U. Rev. (2012); Stewart, Jr., Slesinger, “Some Ob- “Perception, Hutchins & Donald I. Daniel Spon- Law Evidence: A servations on the Memory, Hearsay: Criticism Exclamations,” L.Rev. 28 Colum. Federal taneous Proposed Present Law and the (This (1928). Evidence,” is more evidence L.Rev. Rules of 1970 Utah exceptions rule Wigmore point emphati that these 27-29. made support psycholo- have folk Henry Wig- don’t even cally years ago. 3 John more, System Evi gy.) A Treatise on the at Law dence in Trials Common passage out in the pointed As (1904) (“to hearsay testimo admit p. from the McCor- majority opinion quotes was uttered at the ny simply because it treatise, for the “The entire basis mick going else was on is to something time may ... be [excited utterance] arbitrary and unreasoned introduce questioned. psychologists While test, principle”). to remove all limits of mini- that excitement probably concede of reflective self-inter- possibility from mizes It is time the law awakened its statements, influencing the declarant’s est dogmatic “present slumber. might any they questioned whether exception never had impression” distorting effect of by the outweighed It psychology. entered grounding the declarant’s upon excitement century, shock and American law in the nineteenth Waltz, judgement.” McCor- R. “The Present Sense observation Jon see