United States v. Joseph Arnold

grant instructions REMAND Airport Au- for the judgment summary

thority. America, STATES

UNITED Plaintiff-Appellee, ARNOLD, Defendant-Appellant. Joseph

No. 04-5384. Appeals, United States Court Circuit. Sixth 9, 2005. March Submitted: 21, 2005. Filed: June Decided and trial, proof his that the submitted

during constitutionally suffi- jury verdict, guilty to sustain cient excluding committed error the.court sought to intro- whom the witness defense of the impeach, to the statements duce herein, For the reasons stated accuser. Court REVERSES REMANDS entry judgment acquit- case for a the tal.

BACKGROUND September a.m.

At about 7:43 (J.A. 197), a called the 911 at woman Memphis, in emergency telephone number Tennessee, that her mother’s report threatened her boyfriend—Arnold—had call, Tennessee, At the gun. a the end Brooks, Memphis, C. Robert Tamica Gordon identified herself as caller for Appellant. (Audio (“Gordon”). Recording tape: 911 Pritchard, United N. Assistant David 2002) (Ct.Ex. 9).) approxi At (Sept. Tennessee, for Memphis, Attorney, States a.m., officers were mately police local 8:00 Appellee. Memphis to a address dispatched SUTTON, upset point Circuit young MOORE a woman Before: found CARMAN, difficulty speaking. Judge.* having she was Judges; 112-113.) (J.A. The officers later at CARMAN, J., opinion delivered the woman’s name was that the young learned MOORE, J., court, joined. in which the (J.A. 122.) Although at Tamica Gordon. during the trial testified 907-19), no witness SUTTON, a delivered (pp. J. such, police met young woman dissenting opinion. separate who the same woman also apparently OPINION call. the 911 made CARMAN, Judge. that Arnold told officers Gordon threatened on her” and gun “pulled 5, 2003, Defendant/Appel- November On 114.) (J.A. described at Gordon her. kill (“Arnold”), was con- lant, Arnold Joseph (J.A. at handgun.” “blaсk gun as in by jury trial the United after a victed 127.) gun did not indicate She Dis- Court for the Western District States (J.A. at characteristics. any special had of a fire- possession trict Tennessee 151.) gestures, hand Based on Gordon’s appealed felon. Arnold arm a convicted inferred was describ she officers appeal, On to this court. his conviction 127.) (J.A. at. weapon. ing a semiautomatic . com- that the Court argues District conversation,1 be- During a brief allowing the out-of-court error mitted (J.A. 115.) time A short at gan to calm. introduced of his accuser 115) (LA. Carman, and five thirty at tween seconds Gregory United W. *The Honorable Trade, sitting by (J.A. 146). Court of International at States designation. minutes the officers between initial conversation lasted be- young apparently woman and the arrived, pulled up government argued after the officers a car that Gordon’s state- to the address where Gordon and officers police ments were admissible as (Id.) A conversing. (J.A. 39.) woman was driv excited utterances. at car, ing passen and a man was After a hearing presence out of the (J.A. 116.) at As car ger pulled seat. jury, the District Court ruled that a (J.A. again. excited up, Gordon became at tape redacted 911 as an admissible 115.) pointed at the car and told the She (J.A. 64-65) excited utterance at but not as that the man it was the same officers (J.A. 63). present impression sense (Id.) pointed man had at her. who The District Court also ruled that Gor- According responding to one officer’s testi don’s statements to the scene said, him, mony, Gordоn that’s “[T]hat’s of Arnold’s arrest were admissible as excit- me, guy pulled gun Joseph (J.A. 78-79.) issuing ed utterances. at (Id.) Arnold, him.” that’s stated, ruling, his judge District “[i]t car, to the The officers “went asked upset would not me if the of Appeals Court step patted out and him [Arnold] down determination, overturned this it wouldn’t (J.A. 117.) weapons.” for at No weapons (J.A. 80.) bother me.” at (Id.) cooperative were found. Arnold was attempt and did not to elude the Op police Standards Review (J.A. 126.) run away. at The officers then All evidentiary rulings, including asked and received consent from the challenge constitutionality, those that are (Gordon’s mother) car’s owner to search by appellate reviewed court under the (J.A. 129.) 117, at the automobile. Under “abuse discretion” standard. U.S. v. automobile, passenger of the seat cert, Schreane, 548, (2003), 331 F.3d 564 loaded, black, officers found a semiauto- denied, 973, 448, 540 U.S. 124 157 S.Ct. handgun matic with a bullet the cham- (2003). L.Ed.2d 323 See also Gen. Elec. (J.A. 118-19.) ber. at The in a was Joiner, 136, 141, v.Co. 522 U.S. 118 S.Ct. plastic clear bag when the it. located 512, (1997) (“We 139 L.Ed.2d 508 have (J.A. 142.) fingerprints at There were no held that proper abuse discretion is the (J.A. gun, on the and it was not stolen. at standard of review aof district court’s 130-31.) prosecution The submitted no evidentiary rulings.”). This will Court find Arnold, gun belonged evidence that the an abuse of discretion when there is and Arnold did not admit that the gun “definite and firm conviction that court (J.A. 131). his. at below committed a clear judgment error of government subpoenaed The Gordon for in' the upon conclusion it reached a weigh (J.A. trial, appear. but she did not at ing Schreane, of the relevant factors.” 28-29.) The District Court issued a war- (quoting F.3d at 564 Super Sulky, Inc. v. arrest, rant for Gordon’s but she could not Ass’n, 733, Trotting U.S. 174 F.3d produced during before or trial. Cir.1999)). Abuse of discretion also re government The moved at trial to intro- sults when the “lower court relies on clear duce a tape alleged of the 911 call to have ly fact, findings erroneous or when it been made Gordon and statements she improperly applies the law or an uses erro later made to the at police. the scene of legal Heavrin, neous standard.” U.S. (J.A. 38-39.) Arnold’s gov- arrest. at The (6th Cir.2003) 723, (quotation argued ernment tape the 911 omitted). and citation admissible exceptions under two to the hearsay rule: pres- excited utterance and As to Arnold’s contention that (J.A. 38.) ent impression. sense proof The jury submitted to the was not The out-of-court Gor- 1. to sustain constitutionally sufficient admitted; erroneously don were assess verdict, must this Court guilty in the the evidence “whether, viewing offered was constitutional- proof after 2. The (cid:127) conviction; prosecution, to the to sustain ly favorable insufficient light most found of fact could have trier any rational beyond crime elements

the essential should have been Defense counsel Samuels, 308 doubt.” U.S. a reasonable impeach- permitted' present cert, denied, (6th Cir.2002), 662, 666 F.3d ment witness. 1335, 1225, 154 L.Ed.2d 123 S.Ct. 537 U.S. ii.) (Arnold argu- Each of these Br. at (2003) (quoting original) (emphasis in turn. ments will be examined Virginia, 443 Jackson v. Statements I.Gordon’s Out-Of-Court (1979)). On 61 L.Ed.2d Erroneously Admitted. Were whether court must “determine appeal, the admitted three Court out- District reasonably sup could the record under into evidence of-court statements beyond a reasonable finding guilt port a exception the excited utterance Jackson, 99 S.Ct. 443 U.S. doubt.” hearsay rule: assessing sufficiency 2781. In call; recording its of the 911

evidence, tape not 1. A court does substitute the jury and draws that of the judgment po- for Gordon made to 2. The statements jury’s the verdict. arrival; in favor of inferences upon their lice officers Nonetheless, at 446. 250 F.3d Salgado, po- to Gordon made 3. The statements evidence”2 be “substantial there must arrived. when Arnold lice officers the upon which of the crime the elements follow, this Court reasons that For the guilt the defendant’s jury determine could was ad- of the statements finds that none U.S., v. a reasonable doubt. Burks beyond of law. as a matter missible 2141, 17, 1, 57 L.Ed.2d 98 S.Ct. 437 U.S. required admit spontaneity A. The Orrico, 113, 117 (1978); 599 F.2d v. U.S. an utterance 911 call as excited the Cir.1979). (6th finds that the If this Court proved. was not a de to sustain was insufficient evidence call the 911 Court admitted The District conviction, re case be the must fendant’s exception “excited utterance” under the the lower court direction to versed with 803(2). An Fed.R.Evid. Burks, hearsay the rule. acquittal. judgment enter relat- is a “statement “excited utterance” 2141.3 at 98 S.Ct. U.S. condition made startling event or ing to a the stress was under while the declarant Discussion by the event or condi- excitement caused that his con- Arnold asserts- appeal, On Id. tion.” any, or for be overturned viction should utterance” for the “excited The basis combination, that oc- of three errors example, is such еxception, trial:

curred at precludes a Jeopardy Clause 3. The greater than a "Double is evidence 2. Substantial Orrico, reviewing court has trial once second "mere scintilla.” Cir.1979). rele- legally "It means such insufficient.” evidence found the might Hence, Burks, as a reasonable mind vant evidence S.Ct. 2141. 437 U.S. evidence It is accept support conclusion. acquittal be if judgment must entered basis of fact affording a substantial insufficient. Id. legally is evidence reasonably can be fact in issue which the Id. inferred.” given (1984). are under circum- 79 L.Ed.2d 217 This Court has possibility previously stances that eliminate the recognized length that “the fabrication, confabulation, coaching, or time between the event and the statement” and that is a critical —if therefore not the most important— circumstances factor surrounding making determining whether state- state- ment Id. spontaneous. ment provide sufficient assurance 1057-1058. trustworthy and that This Court does suggest superfluous. cross-examination be would the 911 call did not relate to event v. Wright, Idaho 805, 820, startling 497 U.S. enough to cause nervous excite- (1990). Further, ment. 111 L.Ed.2d 638 we do not doubt that presumably upset Gordon4 —was caller — In order for a statement to be ad when Nevertheless, the call was made. utterance,” mitted as an “excited three the record reveals no evidence as to when elements must be satisfied: alleged incident between Gordon and 1. There must an event startling Arnold occurred. The District Court ac- enough excitement; nervous cause (J.A. knowledged (“I as much. at 56 don’t 2. The statement must be made ‍​‌‌​​‌​‌​​‌‌‌​‌​‌​‌‌‌​​‌‌​‌‌‌​‌​​​​​‌‌​‌​‌​‌​‌​‌‍before frame.”).) know the time Consequently, there is time to contrive or misre- the District Court lacked present; and with which to determine whether 3. The statement must be made while call was made before there was time to person is under the stress of the contrive or misrepresent. Without such excitement caused the event. evidence, a finding that the 911 call satis- Haggins Warden, Fort Pillow State fied spontaneity element for it to be Farm, 1050, Cir.1983), 715 F.2d 1057 considered an “excited was utterance” cert, denied, 1071, 980, 464 U.S. 104 pure S.Ct. supposition.5 The District Court (citation 4. arrival, Arnold’s Gor of within moments the statements to B. Gordon’s initial to the identifying Arnold don’s statements spontaneity required lack the police time to she had made before police were utterances. excited to be considered upon Based misrepresent. contrive or the statements when that the 911 call Gordon’s state For the same reasons conclude made, could District Court utter- the an excited not be could considered the of under the she still stress po- that ance, initial statement Gordon’s finding an excit- support the elapsed A be- record the time that plicit evidence (J.A. perfect” may be "less than ed startling the utterance event and statement. the tween cannpt 64), evidence be devoid together but it oth- time lapsed amount of The elapsed the between concerning time that courts to determine er factors allowed of- startling the statement alleged event and malting person the statеment whether present utterance. excited fered as event. Dis- under the stress The still matter, the evidence Court lacked such the District present matter had no in the trict Court before made the 911 call was that to conclude determine whether upon which or to contrive opportunity had an the caller under stress caller remained the 911 Therefore, be cannot the- misrepresent. call had alleged and whether she time event utterance. an excited considered misrepresent. contrive startling event when the statements Accordingly, identi- Id. requires exclu Crawford fying police Arnold to the were made. sion of some hearsay statements Nevertheless, for the reasons that follow in previously were hearsay admissible under I.D., infra, Section Gordon’s statements exception rules. See 5 Jack B. Weinstein identifying were not al, et Weinstein’s Federal Evidence admissible. (2d ed.2004). § 802.05[3][e] Supreme While the did not Court estab- D. if Even Gordon’s out-of-court state- comprehensive lish a definition for the ments met the “excited utterance” “testimonial,” term it did provide some criteria, they and, were testimonial guidance on its-meaning. The Supreme therefore, inadmissible. “testimony” Court noted that typically Supreme The U.S. Court re “solemn declaration or affirmation made cently ruled that out-of-court statements purpose for the of establishing or proving that are “testimonial” and by made (internal some fact.” Id. at 1364 quotation present witness not at trial are admissi omitted). and citation “Whatever else the only ble if the declarant is unavailable covers, term [testimonial] it applies at a and the prior defendant had a opportuni prior minimum to testimony at a prelimi- ty to cross-examine. v. Wash Crawford nary hearing, before a grand jury, or at a ington, 36, 68, 124 S.Ct. trial; former and to police interroga- (2004). 158 L.Ed.2d 177 According tions.” Id. at 1374. Testimonial state- to Crawford, the Sixth Amendment’s may include, ments also but are not limited Confrontation requires Clause such safe to, affidavits, examinations, custodial con- guards on the use of out-of-court testimo fessions, depositions, prior testimony with- ny. Crawford, (“Ad 124 S.Ct. at 1370 out benefit cross-examination, mitting statements by deemed reliable “statements that declarants would reason- judge is fundamentally at odds with the ably expect to be used prosecutorially.” right confrontation.”). The Sixth (internal Id. at 1364 quotation and citation “commands, Amendment that evi omitted). reliable, dence be but reliability assessed a particular manner: test Although the record does not establish ing in the crucible of cross-examination.” trial, Gordon was “unavailable”7 at Supreme The Court noted question that it used posed by prosecutor during Gor- ''interrogation” term colloquial, in "its rather contempt hearing don’s ap- for her failure to than legal, technical Crawford, sense.” pear (J.A. 254.) at Arnold's trial. 124 S.Ct. at Supreme n. 4. Court agreed that pressure she had been under recognized term has "various defini- her mother about her involvement in Arnold's specifically tions” and left open. the definition However, case. when asked whether that Id. pressure was the reason for her failure to "No, appear, no, no, responded, 7. Gordon The suggests dissent that the Confrontation analysis may things Clause was some going not be on with my available to Ar- me that nold responsible if he was for really (J.A. Gordon's fail- didn’t mom even know about.” appear ure to at his majority trial. The as- 254.) majority The finds no reason to dis- serts that the of support facts this case do not testimony count Gordon’s certainly and no position. the dissent’s impute any possible reason to to pres- Arnold Firstly, there is no evidence in the record may sure the placed mother have on Gordon. any Arnold had put any influence over or Secondly, although was decided Crawford pressure appear on Gordon not to at Arnold's case, after the parties trial in this briefed only trial. The possible pressure reference to appeal. on prosecution case The had an appear Gordon not to may trial Arnold’s opportunity to raise in brief its the rule of be inferred self-serving response to a to an a casual remark who makes person More to present. was not clear she Crawford, not.” acquaintance does is clear that record point, occasions, three Gor- to cross-exam- On opportunity all an S.Ct. at not have did her out-of-court concerning government to don made statements ine Thus, to this Court it is left indi- This fact alone police.9 statements. officials: the Gordon’s testimonial; whether to determine the stаtements were cates that under the rubric “testimonial” were this conclusion. support further details in- so, the statements If Crawford. inci- alleged to the only As witness admissible. reasonably expect dent, Gordon could (“OED”) Dictionary English The Oxford prosecute be used to statements would her “serving as evi as “testimonial” defines (testimonial statements Id. See Arnold. or “verbal proof;” as dence; conducive would that declarants “statements include evidence;” as “[s]ome- and documentary prosecutori- to be used reasonably expect XVII or evidence.” proof as thing serving of the Although purpose ally”). one (2d Dictionary 832 English The Oxford assistance, it may been secure call have eds., & E.S.C. Weiner ed., Simpson J.A. reasonably also could that Gordon remains 1989). defines The OED Press Clarendon in a be used expect the statements documentary or “testimony” “[p]ersonal as addition, state- In Gordon’s future trial. fact of a support or attestation evidence pur- for the made declarations ments were hence, evidence statement; any or form some “establishing proving or pose added). (emphasis at 833 ‘proof.” Id. or omitted). citation and (quotation fact.” Id. defines “testimonial” Similarly, Webster’s entire ex- to this antithetical It would be as evidence: that serves “something as suggest government amination were the Third New Internation Webster’s proof.” made the statements that Gordon Language English Dictionary al than to establish other reason (Merriam-Webster Inc. (Unabridged) Further, Gor- incident occurrеd. alleged 1993). “Testimony” is authenti “firsthand proof statements were don’s evidence;” “something fact: cation of a of a matter, authentication firsthand sign: proof;” that serves as outward acknowledgments. fact, open profession.” acknowledgment: open “an Id.8 consid- previously has jurisdiction This Cromer, issue. See ered this three out- are Gordon’s At issue Cromer, Cir.2004). which F.3d 662 (2) (1) call, the 911 of-court statements: is- fully briefed when Crawford at the police the initial statement whether sued, the court considered (3) address, the statements Memphis of .a testimony admission trial court’s contemporaneously to the police made concerning informa- officer witness The Craw on the scene. Arnold’s arrival informant confidential provided by a tion who “accuser that an court stated ford Clause. the Confrontation violated government makes a formal inquiry decisive stated that court a sense that testimony in bears officers words, testi- ‘bear those who other so. cused—in wrongdoing. It failed to do forfeiture Webster, Dictio- An mony.’ N. American it now. Accordingly, we need consider (1828).”). Language English nary lexicographic sources of relevant 8. A review Bu- Communications Supreme Memphis Court’s Police with the U.S. 9. The is consistent appro- dispatches and 911 calls See receives issue. Craw- reau jurisprudence own (J.A. field. in (''[The priate calls to officers Confrontation ford, at 1364 124 S.Ct. at.92-93.) ac- against the applies to ‘witnesses’ Clause] 904 should be “whether a person reasonable II. The Was Constitutionally In- Proof pоsition declarant’s would anticipate to Sustain a Conviction. sufficient his being against used the ac- Arnold was possession convicted of of a cused investigating and prosecuting the by firearm a convicted felon in violation of crime.” Id. -at 675. The court further (J.A. § 18 15.) U.S.C. 922(g)(1). at The stated “statement made knowingly elements of a violation of 18 U.S.C. to the authorities that describes criminal (1) § 922(g)(1) are the defendant had a activity is almost always testimonial.” Id. prior (2) felony conviction, the defendant (quotation omitted). and citation The possessed firearm, (3) the firearm Cromer court found two of the three state- traveled or affected interstate com

ments at issue to be testimonial.10 Accord- Moreno, merce. U.S. v. 362, 933 F.2d 372 ingly, the court found that the trial court (6th n. 1 Cir.1991), denied, cert. 502 U.S. plain by committed error allowing po- 895, 265, 112 S.Ct. 116 218.(1991) L.Ed.2d lice officer’s testimony reversed the (internal quotation omitted). and citation conviction. Id. at'679. On appeal, Arnold challenges only pos We see no reason for deviating from the session element. Cromer holding. As in Cromer and as this Court has supra, stated Gordon could rea- Evidence of either actual or sonably expect that her statements would possession constructive of a firearm is suf prosecute used Further, Arnold. her ficient to sustain the verdict. Id. at 373. statements, which were made knowingly to possession Actual exists a tangible when authorities, described criminal activity. object is in the possession immediate After full consideration of the record be- control of party. pos Constructive fore us and for the preceding reasons, this session exists a person when does not Court holds that Gordon’s out-of-court have actual possession but instead know statements were testimonial. ingly has the power and the intention at When out-of-court statements are testi- a given time to exercise dominion and monial, safeguards the Sixth object, control over an either directly or Amendment’s Confrontation Clause must through others. Thus, be observed. to be admissible Craven, U.S. v. 1329, 1333 trial, Gordon must have been unavailable Cir.1973), denied, 866, cert. 414 U.S. trial, and Arnold must prior have had a (1973). S.Ct. 38 L.Ed.2d 85 “Both opportunity to cross-examine con- actual and possession constructive may be cerning the Crawford, statements. proved by either direct or circumstantial S.Ct. at It 1374. is sufficient that Arnold evidence.” Id. government may prove did not have an opportunity to cross-exam- possession constructive by presenting evi ine Gordon about the statements for this person dence that the has dominion Court over to find that Gordon’s testimonial premises where the firearm out-of-court was locat statements were inadmissible Kincaide, ed. trial. U.S. v. Therefore, F.3d District Court (6th Cir.1998), denied, committed reversible error cert. allowing the statements to be (1999) (cita introduced during Ar- L.Ed.2d 86 nold’s trial. Accordingly, omitted). tion However, Arnold’s convic- presence where a tion must be reversed. weapon found, more, without is insuffi- 10. The third statement did not ground violate rather information than for the truth Confrontation Clause because it did not Cromer, con- of the mattеr asserted. 389 F.3d at hearsay tain presented for back- find found, of fact could rational trier no or “knowledge, power, to establish dent constructively possessing fire of guilty the over Arnold control” exerdse intention to 103, 107- F.2d firearm. Birmley, 529 a v. arm. U.S. Cir.1976). (6th facts, insuffi- these there is light In of trier which a rational upon cient evidence statements out-of-court

A. Gordon’s actu- possession infer of fact could be and cannot inadmissible were —either by Ar- the firearm constructive —of al or the on support conviction to used Arnold’s Accordingly, conviction nold. possession. of actual basis set aside. must be per- Arnold’s found on weapons were No statements out-of-court son. Gordon’s admissible, state- if Gordon’s C.Even at trial presented only evidence were the of insufficient evidence ments were a actually possessed firearm. Arnold that to affirm convic- possession actual be statements to rules those This Court tion. Thus, no there is inadmissible. ad- if Gordon’s were any Even of possession to actual to link Arnold missible, insufficient tie therefore, they were upon and, no basis firearm told the gun of fact could convict seized to Arnold. rational trier which hand- Arnold with “black she saw police actual possession. of 127.) (J.A. find a police did at gun.” posses- The evidence constructive B. automobile which handgun in the black insufficient affirm is also sion fifty passenger. Given that was Arnold conviction. police11 estimation percent —of —the suffi black, whether was description now consider are handguns We find Arnold guilty overly existed to cient evidence and broad overcome generic too a firearm possession constructive doubt fact finder’s reasonable any rational recovered gun based on weap- was the same weapon found that the riding. Ar was Arnold car in which wielding. saw allegedly on Gordon car, car and the driving the not nold was others Further, this Court and no to him. There registered was not uncorroborated, out-of- that have held do Arnold exercised indication on insufficient bases are court statements Fur the vehicle. control over minion or See U.S. a conviction. which to sustain the record ther, evidence on there is no Cir.1979) Orrico, F.2d 118-19 gun, knew Arnold even suggest rec past and statement inconsistent (prior passenger located under which was Webb, recorded); State ollection view, car. inwas plain seat and out (out-of-court (Utah 1989) 1108, 1115 P.2d registered addition, not was minor); v.U.S. non-testifying Arnold, fingerprints his (D.N.M. 1302, 1311 Bahe, F.Supp.2d presence Arnold’s weapon. found statement). Al 1998) inconsistent (prior weapon is insufficient vicinity of the in the in the hearsay evidence type of though the Birmley, 529 conviction. See basis (presumed) from the cases differs cited. of Ar no evidence With F.2d at 107-08. bar, we case at utterances excited knowledge gun’s location nold’s treated should they reason see no dominion that he no evidence exercised evidentiary more differently or accorded was in which it the vehicle control over "probably half are black cross-examination, who answerеd police officer 11. On (Id.) how about are silver.” questioned half scene 128.) (J.A. He handguns many are black.

weight ously than the statements importance cited noted the of the notions Orrico, (adopt cases. See 599 F.2d at 118 upon judicial of fairness which system our analysis ing prior regard court’s with is based. among Foremost them is the prior past inconsistent statement to recol “principle that man should be allowed recorded). lection The statements share to be convicted on the basis of unsworn identity being common out-of-court testimony.” U.S. v. 548 F.2d Shoupe, that, acknowledged statements but for ex (6th Cir.1977) (citations omitted). To ceptions to the ‍​‌‌​​‌​‌​​‌‌‌​‌​‌​‌‌‌​​‌‌​‌‌‌​‌​​​​​‌‌​‌​‌​‌​‌​‌‍otherwise standard rule of end, agree we with the rule iterated hearsay evidence, excluding would be ex Orrico: cluded from trial. They may [out-of-court statements] This case is similar to a recent case used to corroborate evidence which oth- by decided this Court. McKenzie v. inconclusive, erwise may would be fill in Smith, Cir.2003); gaps the Government’s reconstruction denied, cert. 540 U.S. 124 S.Ct. events, may provide valuable detail (2004). 157 L.Ed.2d 1057 McKenzie was which would otherwise have been lost convicted of assault commit intent through lapse of memory. But the Gov- pn murder based the out-of-court state having ernment offered such statements ment of a minor any physical and absent as the sole evidence of a central element him linking evidence to the any crime or charged, crime we hold that the eyewitness testimony. The trial court Government has failed to sustain its bur- ruled that the minor victim’s out-of-court proving guilt den'of beyond a reasonable implicating McKenzie was ad doubt. missible as an excited utterance and re Orrico, 599 F.2d at 119. fused to allow introduction a subsequent Gordon’s out-of-court statements are the contradictory lengthy statement. After a only linking evidence Arnold to an alleged appellate history, appellate court ruled criminal possession by of a firearm “given circumstances of the child’s act— convicted felon. physical out-of-court statement There was no and the lack of evidence, corroborating linking we -upon weapon hold— record as a petitioner’s eyewitness whole—that no testimony. on Based conviction is not supported by constitution foregoing analysis, Gordon’s out-of-court ally sufficient evidence.” Id. at 728. statements alone support cannot convic- tion. We conclude that Gordon’s out-of-

As to the use'of out-of-court statements court statements were insufficient bases conviction, as the basis for this Court has upon which to sustain Arnold’s conviction. previously stated that Accordingly, Arnold’s conviction must be ... when such evidence is only reversed. source of support for the allega- central tions of the charge, especially when the III. Counsel Should Have Been Defense all, barely, if at meet Permitted to Impeach- Present an minimal requirements of admissibility, ment Witness.

we do not believe that a substantial fac- tual basis as to each element of the trial, During sought defense сounsel crime providing support for a conclusion introduce evidence that subsequent to Ar- guilt beyond reasonable doubt has nold’s arrest Gordon had made statements been offered the Government. indicating she had not seen Arnold with a Orrico, 118; Bake, 599 F.2d at see day also of the alleged incident. F.Supp.2d (J.A. 66-67.) at 1309. previ- This Court has The trial court refused to hear- ruling that was evidence the Conclusion admit (J.A. exception. no there was for which say reasons, hold that we foregoing For the 67-68.) at were in- statements out-of-court Gordon’s Further, we hold hearsay. admissible of Evidence Rules The Federal insufficient introduced evidence there was impeachment of the introduction permit Ac- conviction. trial to sustain Arnold’s at hearsay, to exception not as an testimony, REMAND and we REVERSE cordingly, of course. a matter as but judgment acquittal. a of entry for of statement, or a state- hearsay aWhen 801(d)(2)(C), (D), Rule in ment defined SUTTON, dissenting. Judge, Circuit evidence, in (E), admitted has been' may be declarant credibility differently. handle this case I would sup- attacked, may be and attacked if decision Supreme Court’s Prior to be which would any by evidence ported, 36, 124 541 U.S. Washington, Crawford if the de- purposes those admissible (2004), L.Ed.2d 177 S.Ct. as a witness.... had testified clarant to court allowed the Government district showing pieces of introduce four evidence rule, of this the basis 806. On Fed.R.Evid. of a possession a felon in was that Arnold state- subsequent inconsistent and prior (1) call made recording of a 911 a be introduced firearm: to should be allowеd ments Arnold indicating that state- Gordon the out-of-court Tamica impeach trial to (2) gun; Carver testi- See her with of the declarant. had ments threatened U.S., what regarding 164 U.S. mony by police officers (1897) (“As declarations these at the they arrived L.Ed. them when Gordon told de- we think the necessarily parte, (3) ex call; testimony are the 911 after scene soon the benefit entitled fendant regarding what officers by police by the may have lost want advantage he at the suddenly arrived said when cross-examination.”); opportunity for (4) found scene; and advisory commit- Fed.R.Evid. 806 also see (where Arnold seat passenger under the Rules) (“His (1972 [the Proposed shortly officers Once one after the 911 concludes the 911 call is call does not an excited utterance. I cannot agree satisfy not requirements the of the excited- on either front. utterance exception rule, hearsay the as does, the majority is no more necessary The 911 Call. In concluding to decide excited whether utterance exception the Confrontation does not apply call, to the 911 majority Clause also bars the makes three admission of this evi “One, essential points. length ‘the of time dence than it is to decide whether another between the event and the statement’ is a constitutional provision does so. rea critical—if not the importánt most —factor son courts traditionally interpret statutes, in determining whether the statement was rules and regulations administrative before spontaneous.” Supra at 900 (quоting construing the Constitution is to avoid the Warden, Haggins Fort Pillow State constitutional question, not to up. tee it Farm, (6th Cir.1983)). 1057 See Auth., Ashwander v. Valley Tennessee Two, “the district court lacked evi- 288, 341, 297 56 S.Ct. 80 L.Ed. dence with which to determine whether (1936) (Brandeis, J., 688 concurring). The [call] was made before there was majority’s interpretation threshold of Rule time to contrive misrepresent.” or Supra 803(2) of the Federal Rules of Evidence Three, at 900. in the absence of evidence thus quite makes it unnecessary to decide as to when pointed this difficult Confrontation Clause ques Gordon—the adrenaline-producing event— tion. That this was a case submitted call is not an excited utterance. the briefs without and the benefit of oral (“[T]he Supra at 899-900. record reveals argument my doubles conviction that we no evidence as to when alleged incident should sidestep not between Gordon canon of interpre Arnold occurred.... Without evidence, such tation. a finding that the 911 call satisfied the spontaneity element out, As it moreover, turns both con- for toit be considered an ‘excited utter- stitutional 803(2) question Rule pure ance’ was supposition.”). question are unnecessary the majority’s IWhile have some sympathy for this disposition of this case. For as the court train analysis, it is not consistent with concludes in section II.C of its opinion, our precedents. Haggins As explains, evi- supra 905-06, even if all of Gordon’s dence that a “length brief lapsed time” admissible, there still “between the event and the statement” would be insufficient evidence to convict (and may abe sufficient perhaps the most Arnold of being a felon possession of a telling) reason labeling a statement an true, If firearm. that is one does not need excited utterance but it is not necessary with either deal the statements’ admissi- one. 803(2) bility under Rule or their admissi- One of the most relevant factors de- bility under the Confrontation Clause. termining spontaneity length is the Cir.2001) utterance (applying the excited the state- event between the

time made several important exception to statements most “Probably the ment. separate this de- of three entering into the last factors hours after many .... Per- three-day period); factor beatings time over a spousal is the termination might be Green, of thumb Fed.Appx. rule an accurate haps States v. United between (6th Cir.2005) time interval where the (applying the excit enough long and the statement event exception statements made ed utterance thought, the state- reflective permit event); startling after three hours absence in the be excluded will ment Tobaja, Fed.Appx. States United not declarant did that the proof some Cir.2004) (“While the record does pro- thought in reflective engage fact the exact time interval clearly establish still the declarant Testimony cess. startling and the con event between ‘distraught’ and ‘nervous’ appeared statement, demonstrate that it does tested reasonable basis was a that there outermost, interval, could at its not this emotionalfly] upset continuing be] [to Even as have exceeded eleven hours.... important It is will suffice.” often ... time interval was suming that question “the ultimate that [ ] remember enough for long [declar eleven hours the result the statement whether is statement, that to have contrived ant] it was a or whether thought reflective nevertheless, was, to conclude reasonable exciting to the reaction spontaneous emotional state excited that [declarant’s] Thus, into court must take event.” that that at the she made time affect that could other factors account States v. see also United persisted.”); spontaneity. Cir.1998) (1st 22, Cruz, (apply F.3d 30 156 (6th Cir. at 1057-58 715 F.2d Haggins, exception to utterance ing excited added) 1983) (quoting McCor (emphasis spousal when made at 8 a.m. statements Evidence Law of of the Handbook mick’s a.m.); Morgan v. Fore at 4 beating ceased (2d ed.1972)); id. 1058 705-06 § 297 at Cir.1988) (4th tich, (ap 947 846 F.2d startling (“The between lapse time exception to excited utterance plying the out-of-court statement al and the event hours after the three statements made in the dispositive not though relevant event). startling 803(2).”). also See of Rule application fairly court be may the district Nor Schreane, 331 F.3d States United with the to deal for its efforts faulted Cir.2003) (6th minor (quoting, with 564 regarding precise absence language from alterations, emphasized at Gordon. wielded when Arnold Haggins). his exercised one, permissibly For sole immediacy is not Proving that to discuss the right not Amendment Fifth admissibility, Hag- evidentiary proxy for Gordon, prompting perhaps event and the admission permitted itself gins latеr), (more that on from Arnold child who four-year-old by a the event. For testify about available . hour more than an the statements made that could another, did all court the district who was still suffer incident but after to ascertain in trying of it be asked from it. cases Other the trauma ing of this absence the assault timing of courts, court, from other well as as The court listened evidence. more direct of state admission permitted the have times, five JA call tape to the star well after the made ments Gordon’s 41, 49, 52, whether to determine within traumatic but well tling event the star- when itself established language See, States e.g., United of it. range clearly deter- occurred and tling event n. Baggett, contemporanei- that there was some mined seems to-have reached the same conclu- ty between the event and the call—at one police] sion: “[The will over there as point determining that Gordon stated “he’s can, they just soon as ok? You kind of be me,” fixing fixing to shoot not that he “was him, watching for ok?” me,” listening shoot JA 52. And while evidence, Notwithstanding this if our tape, the court repeatedly noted court specific demanded a finding as to the “very that Gordon seemed excited.” JA moment of the startling event and the 50, 52. The court then reasoned fol- as lapse time the startling between event lows: statement, and the out-of-court I might I what So think we seem to have here is support majority’s assessment of this occurred, an event say, I must issue. Yet we held that the exception have slightly less than immediately thereafter may aрply solely based “testimony slightly immediately more than after. appeared declarant still nervous or It was a little more than immediate.... distraught there was a reasonable question is then sufficiently was it basis for continuing emotionally] [to be] in time for ability misrepre- close her upset,” 1058; Haggins, F.2d at Schre

sent facts to be overridden the excite- ane, F.3d ment of what conclusion that had occurred. And the tape, eliminates an perfect, unyielding requirement while not in terms of of a the information submitted to the showing court timeline precisely how ago long terms of timing, when ap- listened to the threatening event precise occurred or pears and, to support finding it does ly how much time there was for contri support a finding that the three ele- vance. The district court made this exact present.... ments are The thing second finding, a finding supported by evidence is that the statement that she made that, in words of Haggins, “will often to have appears been made before there suffice.” 715 F.2d at 1058. Until the en was time to misrepresent. contrive or banc court modify sees fit to this prece appears That to be the case. ap- She dent, may which indeed be appropriate, I excited, pears clearly under the stress would to it adhere and thus would hold and the influence of the that event she that the district court did not abuse its undergone. had The record is less than discretion concluding in that 911 Gordon’s case, perfect in this tape but the itself call was an excited utterance. See Gen. strongly supports a in finding favor of Joiner, Elec. 136, 141, Co. v. 522 U.S. 118 the government. 512, (1997) 139 L.Ed.2d 508 JA 63-64. (“[A]buse of discretion is proper stan One other aspect of tape sup- the 911 dard of review of a district court’s eviden ports the district court’s that it conclusion tiary rulings.”); United States v. Beverly, happened immediately after Arnold threat- (6th 516, Cir.2004) (applying Gordon. ened After she states that “he’s abuse of discretion standard of review me,” fixing to shoot she adds: I got “so in excited exception); utterance Baggett, 251 my left, car and I [inaudible] and went (same). F.3d at n. 1 around the corner from the house.” On Nor, contrary majority’s to the conclu- language, basis of this quite it is rea- sion, 4, supra at 900 n. does it matter at sonable infer that placed the call point immediately tape whether the 911 after Arnold’s threat admit- prompt- ed ted proper her to leave the house and that without foundation. she did As the so a car parked around the Federal corner Rules Evidence themselves from the house. dispatcher, notably, clear, The make may objec- waive this emotional of the same part admissible as 103(a), he in which tion, see Fed.R.Evid. overall Gordon’s captured trauma that fact did. top officers. On responding soon to officers statement Gordon’s the de arrival of that, unexpected next majority call. the 911 after crime could the scene of fendant at in court erred the district that concludes event trigger startling itself suffice to officers finding Gordon’s Beverly, response. verbal and excited Cf. call responded thеy after soon showing a (holding at 539-40 F.3d I again utterance. an excited constituted rob husband the declarant’s photograph min- or six five An additional disagree. startling event sufficient bing a bank was minutes, see su- (JA 114), fifteen not utes utterance); United an excited to evoke call and the 911 900, lapsed between pra (6th Scott, Cir. Fed.Appx. 317 States And the the scene. on arrival the officers’ excit 2003) introduction of (upholding its dis- exercised permissibly court district course by police officer ed utterance finding precedents our under cretion States foot); United chasing suspect and of very excited still that Gordon 92-5120, 978 F.2d No. Taylor, arrived the officers when crying *2, U.S.App. still consti- 1992 WL her statement concluding 1992) Cir. Nov. JA 79-80 at *3 See utterance. LEXIS tuted excited ut excited or mis- (“[T]he ability to contrive the introduction (upholding witness’s ap- officers entered exist. She armed to not when .appears terance made represent warrant). Ei testimony, officer’s a search to, on the to execute based home pears cir- part the facts as Gordon’s way, whether overwhelmed ther to be inci- offi cumstances, responding a result of fearful narrative spontaneous as at the excited, very emotional Arnold’s sudden dent, highly or as a reaction to cers to an event exposed scene, agree has been I time. She arrival on reasonably would startling and court did majority which district ex- great nervous anybody precedents have under our cause its discretion abuse way, in citement, respond could аnd she did this statement concluding that last in been 803(2). to have appear does not and there under Rule be admitted id. at misrepresent.”); or time to contrive B. by the (“The excitement degree of 80-81 substance, seri- I would really beyond to be matter of witness As appears another is dif we have left claim ... so Clause all question, ous handle Confrontation issue, is there the dis before must be made addressing ferently. statement misrepresentation, pre- aof context time for contrivance so court did trict understandably there is finds that sufficient Quite court world. Crawford determination.”). now, support that it wrongly reasoned quite then and hearsay a modern applicability that the after to officers statement Gordon’s utterances) freed (here, excited exception up to the suddenly pulled next challenge under the evidence the offi- minute of police Within a car. with accordance Clause Confrontation pulled it arrival, Arnold in car cers’ 56, S.Ct. Roberts, 100 448 U.S. v. Ohio car, point at which next to up ma (1980). As the 597 2531, 65 L.Ed.2d her statements last made long that is no recognizes, correctly jority “That’s utterances: as excited admitted See analysis. method er an accurate pulled him, guy that’s the who 61, 1354 124 U.S. Crawford, 541 115. Arnold, him.” JA me, that’s Joseph in- are (“Where statements testimonial this statement court found The district volved, we do not think the Framers meant to leave the Sixth Amendment’s The 911 My objection Call. first to the

protection vagaries to the of the rules of majority’s analysis is its conclusion that all evidence.”). Crawford, Under when the 911 сalls are testimonial. In United States prosecution seeks to introduce “testimoni Cromer, v. Cir.2004), F.3d 662 al” against a criminal defen suggested court the following test for as dant, when in the words of the Sixth certaining whether a statement is testimo Amendment the nial being subject “accused” is or not: person “whether reasonable Const, him,” against ‍​‌‌​​‌​‌​​‌‌‌​‌​‌​‌‌‌​​‌‌​‌‌‌​‌​​​​​‌‌​‌​‌​‌​‌​‌‍position “witnesses declarant’s would anticipate his being VI, against used amend. the ac defendant generally will cused in investigating and prosecuting right have to confront those witnesses— crime.” Id. at 675. I am hard pressed to regard without modern-day what understand how person” a “reasonable test (or State) Federal Rules of Evidence have prompts the conclusion that all 911 calls say about the But matter. see Craw are Surely testimonial. a victim’s fear- ford, 6, 541 U.S. at 56 n. 124 S.Ct. 1354 induced statement to a 911 dispatcher that (acknowledging hearsay exception for he being through chased the house dying may. present declarations an excep an assailant is nothing more than a fervent tion to the Confrontation Clause “on his cry for help, not a “solemn declaration or torical grounds” if but so “it is sui generis”)-, affirmation made purpose for the of estab 8, id. at 58 n. 124 S.Ct. 1354 cf . lishing or proving some fact” ain court of (observing that any tradition of admitting . Crawford, law 51, 541 U.S. at 124 S.Ct. spontaneous applied declarations at most Arave, 1354. See Leavitt to statements made “immediat[ely] upon (9th Cir.2004) n. 22 (holding that a received”) the hurt (quoting Thompson v. victim’s fearful statements to dispatch Trevanion, Skin. Eng. Rep. ers and responding officers were not testi (KB.1694)). In re-calibrating the Con monial); People Conyers, 4 Misc.3d frontation analysis, Clause however, Craw N.Y.S.2d 276 (N.Y.Sup.2004) does not alter the forfeiture-by- ford (holding that 911 calls were not testimonial exception wrongdoing Clause, which court, because was clear to the “having applies when the criminal defendant is re panicked heard the and terrified scream of sponsible for the unavailability. witness’s ], Conyers[ Ms. that her in plac intention 62, See 541 at 124 S.Ct. 1354 (accept ing the 911 calls stop was to the assault in ing the rule as an “exception progress to the Con not to the legal consider frontation Clause” ramifications of herself as a “essentially equita witness in a future grounds”). State, ble proceeding”); Pitts v. 272 Ga.App. 182, 1, (2005) (hold 612 S.E.2d 5 Crawford, then, prompts two inquiries ing that victim’s statements on 911 call that parties had no reason to debate were not they testimonial because below, that the district court had no reason made while the incident was ongoing, be to consider and that district court had cause the purpose stop was to a crime and no reason to make factfindings about: because the statements were made without Were Gordon’s three statements “testimo- premeditation or afterthought); State v. nial” in nature? And if the even state- (Minn.Ct. Wright, 295, 686 N.W.2d testimonial, ments were was Arnold re- App.2004), granted, review 2004 Minn. sponsible for Gordon’s unavailability? (Minn. Let 23, 2004) LEXIS 750 Nov. (holding me consider each in turn. that 911 call “moments after the criminal affidavits, testimony, or depositions, prior of the event” the stress and under offense Cоrolla, at 51- testimonial); Crawford, 541 U.S. People v. confessions.” was not 770, citations Cal.Rptr.3d (quotations and 124 S.Ct. 1354 Cal.App.4th (same); omitted). Akhil (2004) generally see First Clause Amar, Reed Confrontation not overcome these majority The does Fried Reply A to Principles: Professor modern-day dictio- objections by invoking (The (1998) man, L.J. 86 Geo. “testimonial,” supra at nary definitions only encompasses “Clause Confrontation with “evi- “testimonial” equate by tak testify either who those ‘witnesses’ in a only question If the Confron- dence.” government- or via person the stand ing govern- case is tation Clause whether affidavits, video depositions, prepared “evidence,” there to introduce ment wishes like.”). tapes, and suspense as to whether will be little Doubtless, poorly are judges equipped as to great suspense Clause applies or crime- psychologists arm-chair play to to make a what it means non-testimonial (and perhaps experts appellate trauma how do I understand Neither statement. to poorly equipped more judges are even turn on whether the 911 inquiry this could so). unduly spec- not seem But it does do alleged only “the witness to caller is mind that the state of to conclude ulative case, at 903. this Supra incident.” As imminent with an callers faced of few 911 the emotion fear will be frequently the collected will bear of violence threat difficult, say if not impossible, makes Court has ascribed features in a case is the 911 caller criminal namely, a “solemn “testimonial” evidence— or affirma- making “solemn declaration for the affirmation made or declaration 51, 124 S.Ct. Crawford, tion.” 541 U.S. at some establishing proving purpose of in- generally will And that fear 1354. Crawford, 541 U.S. in court law. fact” diminish when the wit- than crease rather only ad- 51, 124 1354. One can at the number of To the extent ness is alone. caller of mind of a 911 presence mire the inquiry this to a crime affects witnesses events, that is way. At all feels that who that an isolated individ- all, it to me seems court we here: district not what have apt to make non-testimonial ual is more point “upset to the that Gordon found one. accompanied than an difficulty speaking.” having that she realize, disagree I thing, It is one Supra issue; it an assessment of your colleagues’ made individuals do statements Nor alternative, propose quite another con by the threat that are overcome who far that it is proves instance which in this analogy types apt fronts them bear to inter than to write a Constitution easier has deemed that the Court of statements call, view, my pret one. emer in nature. Such testimonial calls, treated-as should be indeed most 911 invariably hardly can be said calls gency does emergency An call non-testimonial. testimony in-court parte to to amount “ex definitions naturally satisfy the Court’s is, mate equivalent or its functional —that because evidence—either of “testimonial” affidavits, custodial examina rial such as or affirma declaration it not a “solemn is tions, testimony that the defendant prior establishing purpose tion made for cross-examine, or similar unable to id., law, in a fact” court proving or some would that declarants pretrial that “de not a statement it is or because prosecutori to used reasonably expect be to be reasonably expect would clarants in extrajudicial statements contained ally; 51-52, 124 id. at materials, proseeutorially,” as used testimonial such formalized case, it, 1354. As in this a 911 call to admissibility S.Ct. denied to consider the generally plea help, will be a for not an in the call the aftermath of Crawford. pros- effort to establish a record for future issue, In considering this I cannot resist A represents ecution. 911 call a back- commenting on the nexus between the “ex an ward-looking response emergency to inquiry cited utterance” and the “testimo already or a contempo- has occurred nial” inquiry. When a district court finds response emergency raneous to that is that a 911 call to a startling “relate[s] occurring, forward-looking not a statement event or condition made while the declar about a criminal prosecution may or ant was under the stress of excitement may not poor occur. Such calls also bear by caused the event or condition”—when analogies to the kinds of testimonial state- in other judge words the trial finds that ments the Court has said will tradi- qualifies the call as an excited utterance tionally qualify- -“affidavits, depositions, — 803(2) under Rule of the Federal Rules confessions,” testimony, or prior id. 51- Evidence-—-it often would seem to be the 52, 124 S.Ct. 1354. Add to these consider- case that the call is not testimonial in following ations the realities —that call very nature. It is imagine difficult to frequently is made in the context of real or “solemn” excited utterance or even a semi- perceived emergencies, that the call is fre- Any solemn excited utterance. quently by operators answered who are that takes on qualities that the Court by not employed law enforcement and that has ascribed to the definition of testimonial when by the call is answered law enforce- (a ...,” “solemn declaration ment personnel by that' fact is no means 1354) Crawford, 541 U.S. at 124 S.Ct. clear to the caller—and seems to me agreed-upon or to forms of testimonial evi qualifies that the 911 call that as testimoni- (“affidavits,, dence depositions, prior testi al exception, evidence will be the not the confessions,” mony, 51-52, or id. at rule. 1354) would seem to depart from the likely While this will mean that approach prerequisites establishing an excited admissible, most 911 calls will be it does respect utterance. To the one set of re not mean that all of them will be admitted. quirements would seem disrespect may There well be situations where the end, other. In the the number of “solemn” 911 call is not far removed from a delibera statements that happen also to “relate to a tive statement investigating officers startling event or condition made while the where, to a phrase borrow from Professors declarant was under the stress of excite McCormack, Friedman and it amounts to ment caused the event or condition” nothing less than “dial-in testimony.” may something approaching a null set. Richard D. Friedman Bridget & McCor n While this additional consideration mack, Testimony, Dial-I 150 U. Pa. (2002). rejection tension with L.Rev. 1171 District court judges Crawford’s regime, Roberts it is not clear that equipped are well Craw- determine on a case- by-case inquiry makes the basis whether such an forbidden one. exception ford True, ought apply, Roberts equipped we are well linked Confrontation general inquiry ensure that run Clause to whether testimony of cases testimony” eligible “dial-in being is not for admission an accept- admitted. under To hearsay also, the extent there is ed exception. doubt this case True Craw- about whether Gordon’s 911 call linkage should be broke that in concluding that ford testimonial, I would preferred give have to “we do not think the Framers meant to the district court an opportunity, so far protection leave the Sixth Amendment’s to

915 State, testimonial); 676, Moody v. 277 Ga. 541 of evidence.” of the rules vagaries (2004) 350, 61, 124 reaching (finding But in vic 594 353-54 S.E.2d conclusion, only did so the Court officer investigating statement to tim’s in are statements testimonial testimonial); “[w]here “shortly State v. after” event had no addressed —it Id. It never volved.” (2004) Bell, 1, 93, 116 359 N.C. 603 S.E.2d Rules of to address—-whether reason officer (finding investigating statement to insight on whether could offer Evidence made to fur testimonial because “was not. Be was “testimonial” statement investigation of the [the officer’s] ther make a state very qualities cause (Tex. State, crime”); Lee v. 143 S.W.3d distantly utterance” seem ment an “excited to officer at App.2004) (finding statement “solemn dec qualities removed from was ar scene of incident after declarant that “declarants larations” or statements testimonial). rested prose- used reasonably expect to be would say, far as to as go But I would not so that the to believe eutorially,” it is difficult does, 903, that the majority supra at lower courts preclude meant to Court govern was made to fact that a statement 803(2) fact- Rule considering whether the that the officials indicates ment on whether a conclusion bear findings and itself That not testimonial. will statements were Nor, in or not. is testimonial Leavitt, 803(2) Roberts, always be the case. See will the Rule contrast to Cir.2004) (9th that a invariably (holding conclusive. District analysis at 830 n. under utterances may dispatch admit excited courts statements to 911 victim’s fearful 803(2) courts appellate should Rule not testi responding officers were ers and stan uphold under an abuse-of-discretion Newland, monial); v. 6 A.D.3d People un they uphold but that should dard (N.Y.App.Div.2004) 775 N.Y.S.2d challenge and Clause der a Confrontation brief, informal (finding nontestimonial accompanies it. review that the de novo conducting a made to an officer' remark o case, rate, I conclude In this would n structured investigation because field or at a call was not testimonial that the 911 the inter occurred and police questioning issue to the I would remand the minimum civil-law to action bore no resemblance in the consideration сourt for its district which the Confrontation against abuses in the aftermath Craw first instance Hammon protect); Clause was written ford. State, (Ind.Ct.App. 809 N.E.2d (1) to two other Gordon’s statements — (“[W]hen 2004) arrive at the scene of police after the 911 call immediately officers request response in an incident (2) suddenly pulled officers after informally question begin assistance in which Gordon police car up next immediately thereafter nearby ing those investigating sitting. Statements happened, what has order to determine from a step removed represent officers thereto are given response statements consciously to call; they be made will ‘in police else Whatever not ‘testimonial.’ officers; my they fre view be, not believe might we do terrogation’ in nature. testimonial quently will be investiga preliminary applies that word calls, a more they present contrast to 911 of a at the scene asked tory questions to the kinds state meaningful analogy occurred.”). shortly after it has crime generally has held ments that the Court instance, factfindings made In this See, e.g., in nature. will be testimonial with its in connection district court by the Nielsen, F.3d States United 803(2) these two rulings suggest that Cir.2004) Rule to an offi (finding statement exception represent warrant during of search cer execution proves the rule. the district court’s to a witness to exercise the fifth amend- - view, by Gordon was “overwhelmed ment privilege. circumstances, facts fearful and as a result Taylor, Steele v. incident, excited, highly very emo- Cir.1982) cases, (1) (colleсting including tional at the time.” JA 79-80. While Reynolds States, v. United 98 U.S. directly statements made and con- most (2) (1879); Case, L.Ed. 244 Lord Morley’s sciously to investigating officers will be (3) 770(1666); 6 State Trials Harrison’s testimonial, reality that Gordon was Case, (4) (1692); State Trials 851 and by still overcome assault in threatened Regina Scaife, Rep. (Q.B. 117 Rev. suggests they case were not “sol- 1851)); 804(b)(6) (al see also Fed.R.Evid. emn or declarations” statements that “de- lowing “a against statement offered par a reasonably clarants would expect to be ty that engaged has acquiesced used I prosecutorially.” thus either would to, wrongdoing did, that was intended and uphold the admission of both statements as procure unavailability of the declarant non-testimonial in nature or remand the witness”) (enacted Steele). as a after case to the district court to consider the

question in the first instance. recently Our court confirmed that forfeiture ‍​‌‌​​‌​‌​​‌‌‌​‌​‌​‌‌‌​​‌‌​‌‌‌​‌​​​​​‌‌​‌​‌​‌​‌​‌‍doctrine remains alive and well 2. in the aftermath of Crawford, concluding n

In additio question whether it applies even if the defendant’s these -statements were non-testimonial wrongdoing by was not motivated effort nature, heightens impor Crawford to keep an individual off of the witness tance of exception another to the Confron stand. tation Clause—the rule of by forfeiture There no requirement defen- wrongdoing. doctrine, Under this a defen dant prevents who a witness from testi- dant may not sustain a Confrontation fying against him through his own objection if Clause the defendant is re wrongdoing only forfeits right his sponsible for the unavailability declarant’s where, confront witness in procuring at explained: trial. As we have the witness’s unavailability, he intended Employing either a concept implicit prevent the witness from testifying. waiver of -confrontation or principle Though the Federal Rules of Evidence that a person profit should not by his may contain such a requirement, see own wrong, English and American 804(b)(6), Fed.R.Evid. right secured courts have consistently relaxed the by the Sixth Amendment does not de- hearsay rule when the wrong- defendant on, pend in the recent words of the fully causes the witness’s unavailability. Court, Supreme “the vagaries of the The theory of the cases appears to be Rules of Evidence.” Crawford, 124 that the disclosure of relevant informa- Supreme Court’s tion at public trial paramount is a recent affirmation of “essentially eq- interest, and significant interference uitable grounds” for the rule of forfei- interest, with that other than by exercis- ture strongly suggests that the rule’s

ing legal right object the trial applicability does not hinge on the itself, wrongful is a act. Wrongful con- wrongdoer’s Defendant, motive. The obviously duct includes the use of force regardless of threats, whether he intended to but has also held to been prevent persuasion include witness testifying control a de- fendant, wrongful against not, him or nondisclosure of would benefit information, defendant’s direction through his own wrongdoing if such a of significant percentage used Confrontation could not be witness’s forfeiture, arisen, sadly him, disputes the rule of have are which Clause against arise, not equity, doеs in principles on to continue to the context of apt based permit: and other domestic-distur domestic-abuse situations, family where members bance Garcia-Meza, 403 F.3d States United prompted police investigation who have (6th Cir.2005). 364, 370-71 call) (usually through a 911 later become hearing contempt-of-court At Gordon’s testify. to In these situa “unavailable” testify, govern appear to failing for tions, palpable risk that there is suggesting that introduced evidence ment of domestic violence that same threats mother, girl was Arnold’s who Gordon’s the 911 call were later used to prompted assault, pressured of the friend at the time family testifying. member from dissuade Arnold. testify against not Gordon McCormack, supra, & See also Friedman posed hearing, government During the 1174-75; Friedman, Gordon, D. Con Richard you following question; “Ms. pressure Chutzpa, bit of and the a little getting been have frontation Definition. (1997) family in trial November L.Rev. 506 prior to the 31 Isr. your mother specifically members about— these circumstances and on this Under this, in all is that fair being involved about record, I would remand the case to scant response, say?” JA hearing to hold a the district court later con yes. While Gordon answered played a whether Arnold impermissibly explain did not pressure that this tended testify. not to role in Gordon’s decision prosecutor’s call the decision not to her parties court Neither the district nor unavailability testify, report her office to had a reason to consid- in the first instance incorrigible cynic to not be an one need exception of this applicability er the (with mother whether Gordon’s question Reynolds, See Confrontation Clause. in her played a role Arnold’s support) (“[T]he question wrongfully [of at 145 testify at Ar not to daughter’s decision unavailability] becomes procuring witness Mayes, trial. States nold’s See United fact, to be settled as practically one of Cir.1975) (holding F.2d secondary the admission of preliminary to declar procured the the defendant Steele, evidence.”); (citing his counsel ad unavailability ant’s when proposition). They Reynolds his Fifth to invoke vised the declarant opportunity now. given should be self-incrimina right against Amendment that the attor tion and there was evidence C. defendant, of the ney had the interests that, declarant, concluding substance, in I mind and cannot a final matter of As any direct evidence defendant’s despite sufficiency-of-the majority’s agree with the involvement, it “must assume defen majority own concludes ruling. The evidence actions); counsel’s his dant concurred” all of this is irrelevant alternatively that . Potamitis, 739 v see also United States if of Gordon’s state- even all three because Cir.1984) (2d (applying F.2d 788-89 admissible, there still would ments were when defendant’s father forfeiture doctrine Arnold’s to sustain insufficient evidence into,not appear intimidated two witnesses accordingly case and conviction in this trial) ing for jeopar- . double re-prosecution is barred . conclu- II.C. This dy. supra section See excep- significance of this Nor can the recom- policy preсedent has no sion be over- tion to the Confrontation Clause A mend it. stated the aftermath Crawford. - cases, challenges sufficiency assuredly but if some not most Otherwise, just one element of the felon- point cases. what is the charge: Did he

in-possession-of-a-firearm admitting it? Just to corroborate the non- If in possess a firearm? we assume ad- hearsay surely And evidence? when three dressing argument pieces that all four evidence, pieces hearsay up by of backed admitted, properly of as we evidence evidence, piece non-hearsay one of all must, jury plainly then a could conclude direction, point unconditionally the same beyond pos- doubt that he a reasonable cumulatively may that evidence support all, gun. After Gordon told a sessed the conviction. 911 caller that Arnold threatened her with quartet upon of cases which the gun; police they a told the after ar- she Orrico, majority v. relies — United States rived at the crime scene that Arnold (6th Cir.1979), 599 F.2d 113 McKenzie v. “pulled a threatened to gun on her” and Smith, (6th Cir.2003), State handgun; kill a her with black when Ar- (Utah Webb, 1989), 779 P.2d 1108 and suddenly nold returned to scene of the Bahe, United States v. F.Supp.2d car, pointed crime in a him and (D.N.M.1998) say nothing to the con — him, police guy told the “That’s that’s the trary. pieces None them involves four me, Arnold, pulled gun Joseph

who on evidence; corroborating none of them him,” 115; that’s JA then the found facts; remotely involves similar and none handgun a black passenger under the seat “uncorroborated, of them declares sitting. of the car where Arnold was out-of-court statements are insufficient virtually every Even if individual on bases which to sustain a conviction.” type America owned the same of black Supra at 905. seat, handgun found under Arnold’s car Orrico held that “under the circum surely cumulatively this evidence would case,” stances of this 599 F.2d at suffice to possessed show a past admitted as recollection statement, handgun. properly The first if recorded, all, which if “barely, met the admitted, should suffice itself to sustain minimal requirements admissibility,” id. this element of the crime. The second were not sufficient sustain a recovery handgun statement and the of the majority conviction. While the no “see[s] under Arnold’s car seat remove con- reason that [excited should be utterances] sufficiency ceivable doubt about differently” treated from statements ad evidence. And the third recorded, past mitted as recollections su (“That’s him, guy pulled that’s the who pra at no why. they offers reason me, Arnold, him.”) Joseph that’s same, should be treated the and all above leaves wondering me what else there is to why it offers reason sup no a conviction say. ported by pieces four (hearsay There thing say: is one more Prece- alike) and.non-hearsay can meaningful dent refuge majority’s offers no for the ly compared to Orrico. ruling specifically and for its across-the- “given McKenzie held that circum- “uncorroborated, board conclusion that stances” of the: excited utterance admitted out-of-court stаtements are insufficient defendant, against 326 F.3d at bases on which to sustain a conviction.” supported by conviction was not Supra at 905. If a district court sufficient permissi- evidence, circumstances, however, bly hearsay evidence. Those admits that evidence may provide requisite parallel course evi- have no identifiable to this case. course, dence to convict. always, Not The excited utterance McKenzie was testi competent not a declarant that of Bloch; ROSEN; Michael Sanford time of the statement

fy, at the who Levine, Plaintiffs-Appel Mark old, normal appear “did years three ' Cross-Appellants, lees suffered from / psychologically” Condition.” deranged abnormal “acutely one-year- held that likewise Id. Webb GOETZ, Jr., Commissioner, M.D. Ten (“Ow, bum” of court statements old’s out Department of Finance nessee “Ow, prove daddy”) did not alone bum Administration, Defendant-Appel aggra to establish required rea the mens lant/Cross-Appellee. at 1115. 779 P.2d vated sexual abuse. 05-5633, 05-5779. Nos. Bake, that it the court cautioned And Appeals, United States Court of per a se rule adopting intention of “has no Sixth Circuit. incon- sufficiency prior of a regarding the conviction, support sistent statement Argued: May 2005. that evidence this Court conclude nor will May 2005. Decided and Filed: rigid insufficient based on in this case is F.Supp.2d a rule.” 40 of such application only that It then concluded 1310-11. state- prior

the declarant’s inconsistent .her) (that the defendant had abused ment to convict provided insufficient evidence live, it conflicted with her in-court because (that testimony the defendant had her). Id. abused that a analysis, final I would hold jury rational could conclude uncontra- showing that the defen- dicted evidence victim, that the pointed gun dant at the identified as the man who defendant was gun that a was found pointed the the defendant’s car seat suffices under guilty of establish that the defendant was being possession gun. a felon in Court notes tape omitted) also that the added). This 911 (emphasis The Dis- appears to have lacking proper been admitted trict present Court in the matter had no foundation. Not one by witness Arnold’s means trial which to answer the "ultimate question.” confirmed that Gordon was the female whose The District Court could over- tape voice is heard on come spontaneity the of the 911 the call. element of the excited 901(b)(5). analysis Fed.R.Evid. utterance because it had no evidence upon which to conclude that the caller had no 5. The dissent makes much of the 911 caller's time to reflect contrive. or during excited state call as the evidence that The dissent also cited several cases in the call was made alleged in time close to the which courts quite have found that long support threat. proposition, For of this (hours the period moments) opposed to as of time quotes lengthy dissent paragraph from the may pass startling between the event and an Haggins opinion. (Haggins involved the ad- excited majority utterance. The notеs that missibility by four-year- statements made lapse the "time in most excited utterance old child alleged rape. after an forcible usually cases is a few seconds or a few min 1050.) majority F.2d Taveras, does not Hag- 532, read (1st utes.” U.S. v. fact, gins light in the Cir.2004) (citations same the as dissent. In omitted). The Taveras language the following quoted that and longer em- court referred lapses, like those phasized by only proves Cruz, the (1st dissent the Cir.1998), im- found U.S.v. 156 F.3d 22 portance lapse dissent, the of time in a determining by a case cited the as cir "extreme whether a an excited is utterance: cumstances.” Id. remember, however, “It important principle, In majority that the does not take 'the question ultimate is whether the state- issue by with the cases cited dissent. the However, ment was the thought result of reflective readily those distinguish- cases are whether it spontaneous was a reaction to the able from the facts of this case. cases In all ” exciting Haggins, dissent, event.' by 715 F.2d at 1058 cited the the trial courts ex- had excited utter- lice be considered not know cannot and did known not have could I.A., supra. the ances. See assurance that Section there was sufficient statement, began approxi- initial which trustworthy call was the 911 content of the call, minutes after mately fifteen the would be su- that cross-examination the substance to reiterate seemed 110 Gordon 497 U.S. Wright, perfluous. the record reveals Again, the 911 call. any informa- provide did not that Gordon pro Clause The Confrontation alleged police about when tion to prosecutions, in all criminal vides Despite Arnold incident with occurred. confronted right to be has the accused during the interview her state excited him. U.S. against the witnesses was com- police, the District Court Const, has VI. Cross-examination amend. concerning pletely without legal en “greatest recognized as been alleged between the elapsed time that discovery of ever invented gine being made. event and the statements Illinois, 502 U.S. truth.” White Thus, conclud- the District Court erred ‍​‌‌​​‌​‌​​‌‌‌​‌​‌​‌‌‌​​‌‌​‌‌‌​‌​​​​​‌‌​‌​‌​‌​‌​‌‍(1992). 112 S.Ct. L.Ed.2d initial statements to ing that Gordon’s hearsay to the rule exceptions Because police excited utterances. supercede de permitted may not be as his confront accuser right to fendant’s statements when C. Gordon’s by the Sixth Amendment guaranteed satisfy the excited appear to arrived Constitution, use of the United States criteria. utterance closely scrutinized. must be exceptions of his at the scene arrived When Arnold there can proof spontaneity, Without of Gordon presence arrest and in the were not the statements no assurance became excited police, misrepresent and did not contrived man who as the identified him situation. ap These had her. threatened Court This Court finds District for the satisfy the criteria District pear determining that the call erred ut them excited to have considered Court Therefore, call was the 911 spontaneous. may have The arrival Arnold terances. utter- excited matter of law-—an not—as a to cause startling enough been еvent hearsay. and, thus, inadmissible ance made Having been nervous excitement.

Notes

notes tee at the car arrived sitting) of a credibility should declarant’s] out-of-court agree crime. All scene impeachment subject in fairness admitted permissibly court district testi- had fact though he support as with found connection gun, which fied.”). everyone virtually And search. consensual (1) court) disagrees (the parties and tri- about misgivings has This Court with happened have should what about incon- allow evidence court’s failure to al as pieces evidence—whether three other im- tend to that would statements sistent (the excited-ut- matter of evidence law 911 call Gordon’s the earlier peach rule) or hearsay exception terance However, we need police. (the Confrontation law constitutional to what—if determination as reach (2) Clause) sufficient about whether their —and a result of occurred as any —error convict, assuming even exists evidence insufficiency on the ruling Our exclusion. properly pieces of evidence all four moot Arnold renders against procedural one I have admitted. trial regarding the of error question majori- qualms three substantive testi- impeachment refusal to allow court’s of these issues. McKenzie, ty’s resolution F.3d mony. See I. II. A. As a procedure, matter of the majority unnecessarily reaches the vexing most is substance, As a matter of the majority sue in the case—whether the Confronta concludes that the 911 call is not an excit- permits tion Clause the introduction of 911 803(2) ed utterance under Rule and con- calls in general or in particular. this one cludes that Gordon’s initial statement

Case Details

Case Name: United States v. Joseph Arnold

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 21, 2005

Citation: 410 F.3d 895

Docket Number: 04-5384

Court Abbreviation: 6th Cir.