United States v. Joseph Arnold

he went in got the house and pistol, BOGGS, Before MARTIN, Chief Judge; pulled it out guess on me. I fixing he’s BATCHELDER, DAUGHTREY, me, shoot got my so I car and [inaudi- MOORE, COLE, CLAY, GILMAN, left. I’m right ble] around the corner from ROGERS, SUTTON, COOK, the house.” Gordon identified her moth- McKEAGUE, GRIFFIN, Circuit boyfriend Arnold, er’s Joseph a convict- Judges.* ed murderer recently whom State had released from prison. SUTTON, J., opinion delivered court, BOGGS, C.J., in which About five minutes after dispatcher BATCHELDER, DAUGHTREY, told three officers about Gordon’s Gibbons, *The Julia Honorable S. Circuit decision of the case. Judge, part took no in the consideration or View, jury single call, guilty found Arnold arrived 1012 Oak the officers charge. that Gordon had address residential operator. Gordon exit- provided to the 911 officers, approached

ed her car II. “hysterical,” “visibly shaken and “crying,” challenges sufficiency that Arnold had upset,” and exclaimed trying kill pulled gun regard just on her and was with one ele evidence the gun possess her. 112-14. She described Did a fire JA ment of crime: he pieces JA 127. handgun.” jury as “black arm? The heard several that, ... in the “view[ed] when arrived, Arnold Soon after the officers government,” to light most favorable the the in a car driven and returned to scene that. just would allow to conclude Unit mother. Gordon owned be- Morrow, 222, F.2d ed visibly again, exclaiming, came anxious (6th Cir.1992) (en banc); Jackson v. see him, guy the pulled that’s the that “that’s 2781, Virginia, 443 U.S. me, Arnold, that’s him.” gun Joseph on (1979); 61 L.Ed.2d 560 see also United told officers that JA 115. She also the Aarons, 188, 189 n. 1 States v. 718 F.2d him.” got gun “he’s a on JA 116. Arnold (6th Cir.1983) (“Where sufficiency the car, police patted the him exited the and us, the properly evidence is before we carrying down determine if he was a to that first it is consider issue because deter weapon. pat-down pro- When the did the Jeopardy minative of whether” Double weapon, duce a the officers asked Gordon’s prevents “the appellant Clause [from] permission to the mother for search car. retried.”). be[ing] consented, She and the officers found a clear, a handgun plastic bag black inside trial, jury At the learned that Tamica directly passenger under the seat where emergency called and the Gordon told sitting. Arnold had been operator just that Arnold had threatened jury charged being gun. A with her with a officers at grand Arnold When arrived scene, they visibly a possession a firearm. See 18 the a shak- felon encountered Gordon, 922(g)(1). explained § did not en who that she had U.S.C. When Gordon just Arnold, appear testify argument trial in re- been with Arnold’s government boyfriend, the he sponse subpoena, to a dis- mother’s and that had (1) gun. “Joseph trict that a Ar- court ruled the threatened her with nold,” officers, recording a “pulled gun could admit redacted she told the a (without [me], the on he going call reference Arnold said he was kill [me]. murderer) thought as a convicted He arguing [I] Gordon’s two was he was going scene under the “excited to kill JA 114. [me].” hearsay a exception gun utterance” rule “stated that ... saw him with she (2) hand,” this applicability well- his JA and “that she observed hearsay exception the weapon,” established authorized him cock JA 143. Gordon weapon “a introduction of evidence under the described Arnold’s black 127,140. JA handgun.” Confrontation Clause. The district court “[B]ecause it,” way also to admit a said that he JA 127— declined statement from she cocked slide,” private investigator “pulled hired Arnold he id.—and back investiga- way gun, effect that Gordon had told the she because described tor, incident, gun after eight months the officers concluded that the was id., and gun. handgun, she not see Arnold did with semiautomatic it, “there would abe round chambered” in “possession Because proved by be JA 133. direct or evidence,” circumstantial Craven, States v. arrived,

Soon after the officers Gordon’s Cir.1973), we cannot overturn the jury’s pulled up mother in a car with Arnold decision merely because it had to draw sitting passenger seat. “[A]s the reasonable inferences to find Arnold car pulled up, got excited, [Gordon] back guilty. true, It is for example, that she started crying pointing at the car [and] government did not that, offer evidence him, saying that’s guy that’s the after Arnold threatened Gordon with a me, pulled gun on Joseph Arnold, gun, someone saw him take the gun, wipe him[,] that’s ... got he’s him.” fingerprints it, his place off in a JA 115-16. approached When officers plastic bag and stick it seat in under his on, Arnold and him “asked what going Gordon’s mother’s car. But jury ... he basically said that they argu- were told enough that, to know after Gordon left ing.” JA 117. obtaining permission After the house to call op car, to search the found a officers portunity to take these steps, and “any plastic loaded, bag containing black, a sem- rational trier of fact” reasonably could in handgun iautomatic with a round in its fer that he did. See United States v. directly chamber Moore, under passenger (2d seat Cir.2000) 208 F.3d of the car. (upholding felon-in-possession conviction even though “no witnesses saw or heard light evidence, east “any [the throw a handgun defendant] into the fact,” Jackson, rational trier of 443 U.S. at bedroom it], [where closet officers found could conclude beyond a and there were no fingerprints identifiable reasonable doubt that possessed Arnold found on the that gun was recovered” be the gun the officers found below his seat. cause “such necessary evidence was not for jury The Gordon, evidence heard that a reasonable jury to conclude that [the mother and Arnold were at home that had possession defendant] been in morning, that Arnold and Gordon began gun that was recovered by police” arguing during and that argument Ar- when officers testified they that had seen nold retrieved a gun and it pointed the defendant earlier possessing gun a Gordon as she fled to call They color); the same size and see also United learned that gun Gordon described the Crowe, (6th States v. 291 F.3d 886-87 officers as a black handgun. They heard Cir.2002) (upholding conviction carry way that Arnold weapon cocked the ing a during firearm a drug trafficking indicated to the officers that a it was load- though crime even testifying officer “could ed semiautomatic and that it had a round only see a portion object” small he of ammunition in its chamber. And the identified as firearm a and he “could not jury when, later, learned that moments a state for sure object whether the ... was car containing scene, Arnold arrived at the a handgun real only toy” or a because gun found a from inches evidence need not every “remove reason passenger seat where sitting. Arnold was (in hypothesis able except that of guilt”) gun in every way matched Gordon’s ternal quotation omitted); marks United black; description: it was it was semiauto- Austin, States v. 133 Fed.Appx. matic; loaded; it was and it (6th Cir.2005) had a round in (upholding felon-in-posses its chamber. And it was easy within found sion arresting conviction where officer ob reach of Arnold. served weapon defendant “with a from that object long black “holding a plate- a defendant through away, ten feet eight he saw “that shotgun” and like a hall- looked fled down window, [he] before

glass object to the throw the defendant] “in a [the found later and officers way” flee began to defendant] ground [the [the down which hallway can in trash “testi residence”; officer another ran”). from defendant] the residence investigating upon that fied trials, jury did criminal in all As apprehended, defendant] after [the it But inferences. these draw have to in the rifle and chrome a black she found con- these have reached reasonably could Thomas, States yard”); United front we the case when clusions—and (6th Cir.1974); see 1149, 1150 over our inferences jury’s respect the must Daniels, Fed. also own. Cir.2006) (af 409, 410, 412-13 Appx. not drawn these had jury if the Even over conviction felon-in-possession firming little to moreover, inferences, Arnold testified challenge; one officer sufficiency the uncontradieted gain from ground throw to the he saw defendant jury. The other before remained a hand “possibly object, metallic” a “silver have reasonably could jury conclusion effect”; something to that cocked possessed, drawn locate attempted to unsuccessfully officer black, loaded, semiautomatic pointed de the defendant was object after Gordon, some- disposed handgun searched tained; officer later another and, car, minutes left where, into got pistol” caliber a “.25 and found area with another later, the scene returned to description). the first officer’s matching semiautomatic, weapon with black, loaded his beneath stowed round a chambered evi the linkage between doubt the No traditional a That is not seat. passenger stronger had even been would have dence charge, felon-in-possession a defense unique char other some described Gordon that Arnold the defense not and was or, de yet, gun better of the acteristic argued that Arnold jury. the presented Point, 9 “a Hi millime gun as the scribed awith Gordon never threatened he had no other pointed to has ter.” But Arnold (closing argu- 226-27 period. JA gun, have should that Gordon gun feature that, if he even ment). argue not He did not recalled, Arnold does to his credit and that gun awith had threatened sufficieney-of-the-evidence argue that the successfully to hide managed he morning, Process Clause the Due requirement officers found gun the and the gun, that name out the a witness “make compels later seat passenger under his directly model, the model the weapon, of [a] brand weapon. a different morning was number, gun’s number” serial [ ]or the See with it. threatens an assailant arguments which Regardless Moore, (upholding at 413 felon-in- 208 F.3d argu- of which regardless did make though the wit even conviction possession make, point is critical he did not ments a possess who defendant saw nesses have different drawn jury could handgun” did silver black and evidence, “large our this from inferences brand, model, num or serial describe jury’s choice when the is to affirm mandate reason jury could noting ber it was here. one—which rational was a the witnesses gun that the Barnett, 516, conclude ably 398 F.3d v. States See United police recovered gun and the Cir.2005) felon-in-pos- described (affirming (6th same”). Numerous one and chal- “were sufficiency over conviction session not unlike evidence hold that cases that he saw testified lenge; one officer presented eyewitness testi sufficiency.” favor of Id. at 108. And that here — mony describing a actually pos firearm “other incriminating evidence” was incrim- by sessed defendant a inating matches indeed: Minutes before the defen- firearm later police— recovered dant found with handgun under the sufficiently connects gun described to car seat which was riding, he he was gun found. And indeed most of actually these seen possessing gun matching cases involve far connections more attenu description of the one found under his See, Barnett, ated than the e.g., one here. just seat—and course not possessing it 522; Crowe, 887; at F.3d 291 F.3d at but using it to threaten someone. Black, 668, United v. States 525 F.2d Nor do the cases cited the dissent (6th Cir.1975); see also United States alter this conclusion. In some of the cited Smith, (6th 97, 79 Fed.Appx. Cir.2003); cases, the sole connection between the de States, Whitis 94-6333, v. United No. 1995 fendant gun and the gun’s was the proxim 462423, *1, *2, *4, WL at 1995 U.S.App. ity to the defendant. See Birmley, 529 (6th *3, *6, LEXIS *11 Aug. Cir. 107; F.2d at see also United States v. 3, 1995); Smith, No. 90- Whitfield, (D.C.Cir. *3, 1991 WL 1991 1980). shown, But as we have this not a U.S.App. LEXIS at *7 Cir. case in which the “record devoid [was] 18,1991). Sept. any ... evidence” other than the defen All of dant’s presence this mere in a suffices to resolve car with aspect weap on. Cochran, of the case. The United States v. defendant charged F.3d 1128, 1133(6th Cir.1994). with possessing a handgun, gov- and the proved ernment actually possessed he cases, some of the cited handgun identified in the indictment— evidence connecting the defendant to the based on evidence that the victim him saw (other than proximity) was that threaten her with a handgun be- minutes defendant at point some in time distant fore the police a handgun discovered under and in place some other possessed seat, Arnold’s car one that met de- one instance the pos- defendant —in scription gave the victim gun. gun sessed a “more years than two before government did not at trial argue he that offense,” the charged ... United v. States constructively possessed gun, the it is Hishaw, (10th 565, 235 F.3d Cir.2000), 573 quite why: understandable It had no rea- and in another instance the defendant had son to so. do committed “two offenses involving guns” at some point unidentified in past, United Yet even if we treat prosecu this Kelso, 680, (9th States v. 942 F.2d tion arising under a constructive-posses Cir.1991). Here, however, the defendant theory, sion does, as the that ” dissent does threatened the gun victim with a minutes help not Arnold. alone “Presence near a before a gun found under his car gun, enough, true does not “show the req seat, gun and that same matched the de- uisite knowledge, power, or to intention scription gun defendant to used exercise control gun over” the to prove threaten the victim. possession. constructive v. Birmley, (6th 529 F.2d 107-08 Cir. cases, And in some of the cited 1976) added). (emphasis But that not proffered evidence connecting the defen- what we have here. (aside Here we have dant gun “other to from proximity) was evidence, incriminating coupled with pres to deemed be too attenuated. See United ence, ... tip [that] in (6th serve[s] scale States v. Beverly, 750 F.2d (evidence caused the event condi

Cir.1984) that excitement showed exception, a satisfy party a standing close to waste tion.” To defendant “was “First, guns, there things. which contained two show three basket must one of the point touched startling enough had at to cause [he] some be an event must not show the evidence did guns”; Second, but nervous excitement. state the waste placed were guns when made there is time to must be before ment Blue, basket); v. 957 F.2d United States And, third, misrepresent. contrive or Cir.1992) (4th (holding that 107-08 person must be made while the statement “barely” “supporting] fell short facts of the excitement is under the stress when possession” finding of constructive Haggins the event.” War caused defen- gun passenger found under officer Farm, den, State Fort Pillow observing defendant’s seat after dant’s Cir.1983). (6th inqui All three reaching as if were dip [he] ... “shoulder question”: bear on “the ultimate ries seat”). But in both those under the result of the statement was “[W]hether cases, eye- no emphasized the courts it thought or whether reflective testimony connected witness exciting spontaneous reaction evidentiary gap that the the defendant—an (internal quotation Id. at 1058 event.” through case closes this record omitted). apply abuse-of-dis marks We Beverly, victim. See statements applica district court’s cretion review (explaining government’s at 36 F.2d tion of the rule. See United States testimony include from did not evidence Cir.2004). Beverly, 369 F.3d anyone who defendant “with saw (“The Blue, hand”); 957 F.2d at 108 his Call. testimony no ... introduced readily satisfy first operator the 911 had been seen with the that [defendant] of the test. As to the prongs and third analysis, one gun.”). In the final whether by a requirement, being first threatened resting at this verdict as on chooses to look wielding murderer a semi-auto convicted posses- or constructive possession actual startling handgun amounts to a matic sion, legitimately the fact remains prompt least nervous event would of possession— ample rests individual, if average in the excitement requires uphold us evidence that to the third outright require trauma. As verdict. ment, plainly remained anxiety during the 911 call. state III. call, operator Throughout the had to challenges also the admissi “quit yelling” tell to “calm down” of out-of-court statements—the bility three difficulty understanding her and often had call, po statements to 911 Gordon’s initial help. for pleas frantic at the crime upon lice their arrival officers the. supports The record also district statement to officers scene Gordon’s call finding place court’s that the took soon upon Arnold’s return to scene—under Gordon—“slightly threatened after Arnold exception to the the excited-utterance threat, 803(2) immediately” than after more hearsay rule. Under Rule Evidence, district words—which satis- court’s court Rules of Federal The court fies the second factor. district the truth admit out-of-court statements for tape of the 911 call five listened they matter when “relat[e] asserted times, fixing said “he’s noted startling event or condition made me,” fixing not he “was was under the stress of shoot while declarant

185 me,” added), (emphasis shoot JA 52 exception may “[tjesti- be solely based ultimately mony concluded that there was an that the declarant appeared still ner- immediacy to her vous or distraught statements. Arnold and that there awas challenge does not basis continuing district court’s fac- reasonable [to be] emotionally] upset,” Haggins, tual conclusions regarding meaning 715 F.2d at (internal 1058 quotation omitted); tape. marks Schreane, see United States v. 331 F.3d Case law supports view that Gordon (6th 548, Cir.2003), 564 a conclusion that made the statement “before there [was] unyielding eliminates an requirement of a time to misrepresent.” contrive or Hag time line showing precisely when the gins, 715 F.2d at 1057. Haggins, for ex threatening event precisely occurred or ample, upheld the admission of statements how time much there was for contrivance. four-year-old child made more than The court district made finding, this exact an hour after the incident but while the a finding supported by that, child was suffering still the trauma from it. of Haggins, words “will often suffice.” upheld Other cases have admission (internal 715 F.2d 1058 quotation marks statements that also were made after the omitted). startling event but well within the trau dissent, though Arnold, raises See, range matic of it. e.g., United the concern that the uncorroborated con- 1087, (6th Baggett, 251 F.3d 1090 & 1n. tent of an excited utterance should not be Cir.2001) (applying the excited-utterance permitted by itself to establish the star- exception to statements made several tling nature of an event. But this issue hours after the last of several spousal need not detain us because considerable beatings over a three-day period); see also non-hearsay evidence corroborated the United States McCullough, 150 Fed. (1) anxiety-inducing nature of this event: (6th Cir.2005) Appx. (applying 911; (2) act of calling Gordon’s the fear exception to statements made ... “not and excitement exhibited by the tenor and longer than two-and-a-half hours” after tone of call; voice during Gordon’s the 911 witnessing arrest); companion’s (3) distraught Gordon’s demeanor person- Green, States v. 125 Fed.Appx. ally observed Officers Brandon and (6th Cir.2005) exception (applying state Newberry upon scene; their arrival at the ments made hours after startling three (4) Gordon’s upon renewed excitement see- event); see also United States v. Alexan (5) ing return; match- der, (D.C.Cir.2003) 331 F.3d (ap ing description found underneath plying exception to statements 15 to made the passenger seat in which Arnold was event); minutes after the startling sitting. short, dispute, This is not one Cruz, (1st United States v. 156 F.3d “very few cases” which this “knot- Cir.1998) (applying exception to state ty problem” theoretical has raised its head. ments made four hours startling after the See 2 § McCormick on Evidence event); Tocco, United States v. 2006) ed. (“Fortunately, only very few (2d Cir.1998) (applying exception cases actually knotty need confront th[e] to statements made within three hours of problem theoretical indepen- [of whether event). startling the dent corroborating evidence of startling Contrary to suggestion, Arnold’s our events necessary] is if the courts view cases do not precise demand a showing of what independent constitutes lapse the of time between the startling broadly, they as should where the circum- event and the out-of-court statement. The stances and content of the statement indi- 186 said, him,” she “[T]hat’s utterance. trustworthiness.”) (internal cited footnote

cate me, a pulled who guy the “that’s omitted). Arnold, 115. that’s him.” JA Joseph upon to officers statement Gordon’s this admitted permissibly court district the When scene. the arrival at their same emotional part statement soon after the scene at arrived officers earlier Gordon’s captured that trauma her call, exited Gordon 911 learning of the that, top of On to the officers. statement officers, “crying,” approached car and of the victim’s appearance unexpected upset,” and “visibly shaken “hysterical,” to suffices estab independently assailant threatened had Arnold exclaimed that and by an under startling followed a event lish many For 112-14. gun. a JA with her See response. standably excited verbal had court district the same reasons 540; United F.3d at Beverly, 369 cf. call, it had the 911 authority to admit (6th 317, Scott, Fed.Appx. States re- It this statement. admit authority to No. Taylor, Cir.2003); had startling event a that the case mained *1, at 92-5120, 1992 WL be- passed had The time occurred. *3 Cir. at LEXIS U.S.App. and the call the 911 end of tween 1992). not court did The district Nov. 21 min- to the scene—5 arrival on officers’ admitting the state its discretion abuse testimony that utes, officers’ on the based ment. “about 8:00” them contacted dispatch 71,112, 8:00,” JA view of the excited-utter- little bit before The dissent’s or “a responses. have occurred could few dispatch prompts (meaning question ance Arnold, con- dissent, the 911 First, though call not the end of any time between to 8:00) place failed to arrived five court they that the district and and tends 7:45 give government. Gordon proof not on the minutes the burden of six later' —did had court, making what this rul- misrepresent time Yet the district sufficient Alexander, F.3d at “the allow elements ing, See concluded happened. startling by nature of exception have been demonstrated (“Considering the too, we, And allegedly JA government.” occurrence—Alexander something’ govern- ‘do both to the burden on placed threatened have that, [up]’ apart- (noting at 184 supra to ‘mess See ment. [declarant] 15 to minutes excited utter- as an passage a statement qualify ment —the ance, things”). district court show three party “a must hardly suggests admitting the 911 its discretion abused that, Second, instead claims dissent call.”). frantic And as shown Gordon’s me,” Gordon fixing to saying “he’s shoot their upon arriv- officers to the me,” Dissent at “he finna shoot said Ar- visibly agitated al, remained she he “’s” between eliminating the thereby its not abuse court did threat. The nold’s (which finds to the dissent be finna admitting the statement. discretion to”). But “fixing Arnold term slang fac- court’s the district challenged has not to officers statement told the that Gordon po tual determination up to the next pulled when me,” and fixing to shoot arrival, operator “he’s after the officers’ car. Soon lice be- properly is issue accordingly 5 min say from 30 seconds to is which rate, clearly it Nor, scene, fore us. car they reached the after utes case, clearly the even somewhat case, or up next pulled Arnold in with interprets properly the dissent car, made point at which anxiety with rapidity and tape given as an ex- admitted last of her statements — which spoke during 53-54, the 911 call. 541 U.S. at 124 S.Ct. 1354 (empha- added). difficulty This reinforces not our deci- sis sion to defer to the district court’s inter- rule, announcing this chose Crawford pretation of tape but also our decision provide not to a “comprehensive” defini indeed it was an excited utterance. tion of hearsay, 68, “testimonial” id. at City See Anderson v. City, Bessemer of 1354, S.Ct. but it did guidance offer initial 564, 573-74, 1504, 470 U.S. 105 S.Ct. meaning of the term. The Court (1985). L.Ed.2d 518 explained “testimony” involves “‘[a] solemn declaration or affirmation made for

IV. purpose of establishing proving 51, some fact.’” Id. at 124 S.Ct. 1354 A. (quoting 2 Webster, N. An American Dic trial, At challenged Arnold also (1828)). tionary the English Language of admissibility of these three un And it explained that hearsay testimonial der the Confrontation Clause of the Sixth at a minimum includes “a formal statement Quite then, Amendment. understandably by “[a]n officers” accuser” quite now, wrongly the district court re affidavit, the form of an a deposition, jected challenges these ground on the prior testimony 51-52, or the like. Id. at applicability hearsay a traditional 124 S.Ct. 1354. expla While these initial (in exception to each statement in nations Crawford, sufficed to resolve which stance, the excited-utterance exception) involved statements during made a station- freed the challenge evidence from under house interrogation, the Court reviewed the Confrontation Clause accordance two consolidated cases last Term that re Roberts, 56, with Ohio v. 448 U.S. 100 quired it to give further definition to the (1980). S.Ct. In light L.Ed.2d line between testimonial nontestimoni Supreme intervening Court’s deci - hearsay. al See Davis v. Washington, sion v. Washington, 541 U.S. Crawford U.S.-, 165 L.Ed.2d 224 (2004), S.Ct. 158 L.Ed.2d 177 (2006). longer is no an accurate mode nontestimonial,” “Statements are analysis. Davis See id. at 124 S.Ct. 1354. explained, “when made the course of Crawford, Under when the prosecution police interrogation under seeks to circumstances introduce “testimonial” state objectively indicating that against defendant, primary ments criminal when purpose of the interrogation in the is to enable words of the Sixth Amendment the police assistance to meet an being subjected ongoing “accused” is emer- to “witnesses Const, him,” against gency. They VI, are testimonial when the cir- U.S. amend. generally defendant cumstances right objectively has a indicate that there confront those is no such regard ongoing emergency, witnesses—without what (or State) the modern-day primary purpose interrogation Federal Rules say Evidence have to about prove past potential- the matter. establish or events Clause, ly Confrontation prosecution.” thus relevant to later criminal Crawford establishes, bars the “admission of testi Id. 2273-74. applied Davis this defini- monial statements of a witness who did tion to types two recurring witness appear at trial unless he was unavail statements: operators statements to 911 testify, able to and the defendant had had and statements to the at the scene a prior opportunity for cross-examination.” of the crime. conclusion different The Court reached initial least the and at ...

“A 911 call case, stemmed which also the second in in with connection conducted interrogation con- and which dispute a domestic from held, ordinarily call,” “is the Court a 911 in- to Amy statements Hammon’s cerned ‘establis[hj or to primarily designed not home af- at her officers vestigating police fact, to describe past but prov[e]’ some “reported to a responded police ter the as- police requiring current circumstances (inter- at 2272 Id. disturbance.” domestic reaching this 2276. In Id. at sistance.” omitted). charac- The quotation marks nal four distinc- conclusion, the Court noted was “much of these statements terization and the it the 911 call before between tions held, resolve, because Court- easier” The in issue at interrogation Crawford. from much different” they “were not speaking “was accuser, McCottry, Michelle at 2278. Id. Crawford. actually hap- they were events as about investigation “an from interrogation arose af- “hours” describing events pening," not conduct”; past criminal possibly into “[A]ny reasonable Id. they occurred. ter “[tjhere progress”; emergency was no McCottry recognize listener would they ar- when the officers Hammon told Crawford) (unlike facing an on- was Sylvia fine”; when an “things were rived make her to emergency,” prompting going eventually questioned Hammon officer physical bona fide help against “a call for challenged and elicited time second nature of what “[T]he threat.” Id. statements, seeking to deter- was not “he ” demon- Davis answered asked and but rather happening,’ ... mine ‘what were “the elicited statements strated ”; separated police happened’ ‘what present necessary to be able resolve during the husband Hammon from her (as simply than to learn rather inter- emergency, him from prohibited and interview in the happened place what had interview “took Crawford) vening; and the were the events described “striking” time after some And there was past.” Id. circumstances, the Id. these over.” Under formality” of the in the level “difference held, to the offi- answers Hammon’s Court statements, “respond- with Crawford two to testimonial amounted questions cers’ station calmly” at ing statements. taking officer questions officer’s conclusion, “McCottry’s while the Court reaching the answers notes about virtually any ‘ini- “that rejected theory provided over were frantic answers crime scene” will be inquiries’ tial not in an environment phone, same at 2279. At the Id. nontestimonial. at 2276- ... safe.” Id. tranquil, even cautioned, “holding] the time, it was not 77. at the scene questions no opposite—that McCottry’s in- “[T]he circumstances We answers. yield nontestimonial will concluded, “objec- terrogation,” the Court dis- already observed of domestic have primary purpose was tively its indicate ... investigate called to putes that officers ongo- to meet police assistance enable they dealing are with need to know whom She thus Id. ing emergency.” situation, the threat in order to assess witness; was not as a she acting danger “was safety, possible their own (internal acknowledged quota- Id. The Court testifying.” Id. victim.” potential omitted). begins plea “Such interrogation that an marks brackets tion added, “may testimony into once help may exigencies,” turn the Court often non- produce inquiries’ call have that ‘initial of the 911 mean emergency purposes like But in cases statements. testimonial Id. been satisfied. one, where [Hammon’s] statements Id. The 911 operator’s handling of the call cry were for help provi- neither nor the shows she trying was to ] “elicitf sion of enabling information officers imme- ... statements necessary to be able to diately to situation, end threatening present (em- resolve the emergency,” id. they fact that given were alleged at an phasis omitted), by attempting compose to crime scene and were inquiries’ ‘initial and seeking Gordon to understand the immaterial.” Id. gravity of peril she faced. Gordon’s frantic responses provided “were over the As Davis’s assessment of phone, in an environment that was not call and the on-the-scene statements indi tranquil, or even ... safe” because she had cates, the line between testimonial and just left the and house had no reason to nontestimonial statements will always know whether Arnold was following her or be clear. if Even bona fide 911 calls fre not. Id. at 2277. The fear that the dis- quently will contain at least some nontesti- trict court in noted Gordon’s voice commu- monial (assuming statements the emergen nicated she scarcely concerned cy is real and the threat ongoing) and even with testifying to anything but simply was if a victim’s police statements to at seeking protection from a man a gun with scene of the crime frequently will contain who had killed before and who had threat- testimonial statements (assuming the ened again. to kill primary The purpose emergency dissipated), has that will not and effect of operator’s question- always case, be the boundary difficult ing crisis, was to resolve the with the disputes will continue to emerge. Each questions and coming of, answers spite victim statement thus must be on assessed of, not because the possibility of a later its own terms and in own its context criminal trial. determine which on side of the line it falls. Nor had “exigency of the moment 1. ended,” ... id. at before Gordon The 911 Call. Gordon’s statements to made the 911 call. While Gordon left the the 911 emergency operator offer a close house and entered her car around the analogy McCottry’s corner before making the 911 call rather Davis, Davis. As in we assume for the than trying to make the call in Arnold’s argument sake of inquiries presence, that did not make emergen- 911 operator amount to “acts of po- cy less real or pressing. less It is one lice.” 126 S.Ct. at 2274 n. 2. And as in thing for the assailant to start “runnin[g]” Davis, we do not doubt that Gordon after his victim calls leave a car sought protection from an ongoing emer- give and to the victim an opportunity to gency. When Gordon fled from gun- door, lock the all of which happened wielding assailant, the defendant remained Davis and all of which suggested that the (in large and remained present responses to operator have tense) “fixing to shoot” her. See id. into evolved testimonial hearsay. Id. at 2276 (“McCottry was speaking about It is thing another for the events they were actually happening, to flee victim the house and for the assail- events.”) rather than (in- describing past ant still to “fixing be to shoot” her. quotation ternal marks and brackets Davis, omit- the assailant left the in a scene car ted). tape call itself makes because he knew the on were their clear that Gordon had made “a way, call for and there thus no think reason to help against bona physical [a] fide threat.” that he would be back—factors that mark- ... [them], crying ... towards faced. the victim peril

edly diminished pulled residence, screaming, Joseph said [and] left by contrast her, going he was said [and] and called corner around the went officers tried call, 114. The kill her.” JA she made she At the time police. slow gather [to] to herself her “tell[ ] Arnold know whether to had no reason 115. down.” JA follow- or was stayed in the residence had he had know is that she did ing her. What initial state- that Gordon’s the fact While her; he was threatened just had gun; a he in thus not and unprompted was ment was still “some- vicinity; there still in the does not interrogation response police to nearby, gun” awith body runnin’ around Davis, inquiry, by itself answer Thomas, reality at least n. this S.Ct. at Cir.2006) (internal quotation was nontesti- that the statement suggests an omitted); short there marks So, too, that the does the distress monial. Davis, progress,” “emergency voice, present in her described officers at 2278. ef- the officers’ emergency, tense of targeted ques- the 911 calm her and the whether forts to we consider Nor need the nature of hearsay over the officers as to tioning of into testimonial call evolved threat, that the suggested dura- all of which nearly two-minute course of its stage he reached the argument; had not engagement no such tion. Arnold makes emergency inquiry into an retrospective entire call should contends could ar- exigen- reasonable officer gone by. No suppressed because have been victim was still began. at a scene while the before the call rive cy dissipated had a recent “crying” about “screaming” and who had life an threat individual to likely in the vicini- who was and still upon to officers Gordon’s statement emergency perceiving that ty without While crime scene. arrival at the their that Gordon nothing And still existed. that on-the-scene be the case often them, certainly nothing about the and told ques- response officers’ them, allayed have way told it to she would pres- because the tions will be testimonial continuing to Gordon of a threat concerns will alleviate ence of the officers nothing of safety, say public and those cases. is not one of emergency, this safety. officer after interval time the brief Neither of the officers nor the arrival the 911 call the officers few moments During the Arnold emergency. remained ended the moreover, Gordon, primary spoke to that Gordon not know large; he did objectively, of the purpose, measured (or the 911; for all Gordon had called descrip- “a they asked her —for question officers) remained armed knew to avert the gun,” JA 133—was tion of the immediately in front and in the residence hand, develop a backward- not to crisis at nearby vicinity. in the or at of them least Contrary to looking record of the crime. dissent, partial the contention Gordon and exchange between the encounter did not transform pri- question that the officers also suggests officers Asking interrogation. meeting emer- into testimonial on marily were focused represented the gun the victim to describe hand, a case for preparing gency at authenticity of exploring way one arrived trial. As soon as claim, words of deter- way one other her a her chance to ask they before was real. emergency car, mining “walked whether exited her question, Gordon suspect asking questions clarifying the extent of having And learned who armed, having learned that he was emergency and obtaining information they surely permitted to determine were necessary to resolve it. Hammon in com- carrying and weapon what kind of he was parison arriving told the officers that it was loaded—information that whether “things were ... fine and there was no preempting has more to do with the com- person”; immediate threat to her she worry- than mission of future crimes with spoke “actively with separat- officers while ing prosecution completed about the ed from the defendant” who had been de- officers would not want this ones. What tained and was with other officers in a information —either to measure the threat room; “deliberately different she recount- threat public or measure the ed, in response police questioning, how Davis, themselves? 126 S.Ct. at 2276 Cf potentially past criminal began events and (911 operator’s questions regarding assail- progressed”; and then she summarized all identity objectively ant’s aimed at address- of this in an affidavit for the officers. Id. ing emergency dispatched because “the of- ongoing-emergency at 2278. The ques- might” they then “know whether ficers tioning poor analogy in the former offers a felon”). encountering would be violent structured, questioning to the distress-free And what officer under these circum- in the latter. yielded prosecu- stances would have to the building tor’s concern of a case for trial 3.

rather than to law enforcement’s first and pressing impulse protecting most Gordon’s statement to officers when danger? individual from suddenly Arnold returned to the scene. Nor does the fact that Gordon made her Gordon’s statement to the officers when to investigating police statement officers Arnold returned to the scene bears even by on the scene itself establish that -it was testimony less resemblance to than her creating testimonial. Davis disclaimed initial statement to the ex- officers. Her any such rule. 126 S.Ct. at 2279. Officers him, guy clamation—“that’s that’s the it investigating disputes, domestic ob- pulled prompted on me”—was served, know they “need to whom are deal- parte questioning by ex the officers but situation, ing with order assess the reappearance. Arnold’s sudden When safety, possible the threat to their own and she not described Arnold as her as- danger potential to the victim.... Such added that agot sailant but also “he’s exigencies may often that initial in- mean him,” no can doubt that JA one quiries produce nontestimonial state- risky and the faced a situ- officers (internal marks, quotation ments.” Id. sought ation or that Gordon to obtain their omitted). emphasis brackets and protection. pre- This was not statement statements also stand in marked contrast ” ‘witness,’ all, court. pared for “No after Amy on-the-spot Hammon’s testimonial “goes proclaim emergency court to into Here, by in Davis. all ac- Davis, help.” and seek 126 S.Ct. at 2277. counts, sought only bring officers The thus “was not ‘a weaker statement (by reassuring initial calm to the situation trial,” testimony’ substitute for live at id. victim) and to understand the threat to Inadi, (quoting States v. 475 U.S. public safety (by and their own learn- 394, 106 S.Ct. 89 L.Ed.2d 390 ing Arnold had loaded semiautomat- (1986)), evidentiary independent but had they ic handgun). To the extent made all, inquiries they apart any value from “court- strayed separate never from arrived, Nor, officers once the ],” It nontestimo- id. analogue[ room nothing did “consistent case that Gordon nial. emergency.” Dissent ongoing with an evidentiary court’s with the district As the officers up That she rushed whether the questions ruling, the dissent initially upset she and was so proof allocated the burden district court 73, surely bespeaks speak,” “couldn’t JA on the Confrontation to the threatened— of one who feels the conduct again has not raised Clause issue. the cir- blame her under and who could it. issue, he has waived accordingly by remaining And near cumstances? event, not, have point does house, otherwise. She hardly she showed reveals, analysis traction. As the above house, got after she out of called 911 met its burden of government has operator told her and the that Gordon’s statements proving there as “would be over soon officers nontes- at the scene were operator watching for them.” they can” and to “be timonial. Staying the house thus offered near “past used tense” Noting that Gordon contact with the making route to quickest call, during the 911 points at several verbs her car at the staying And near officers. no there was the dissent contends gave immediate-depar- her an same time emergency when Gor- longer ongoing an option ture if Arnold found her before the offi- the 911 call and when don made officers did. But the entire on the scene. cers arrived with, and takes begins conversation 911 B. of, present-tense in the context place follow-up question: That leaves a While help: police.” “I need plea for plainly Clause restricts Confrontation discrete “past tense” statements described statements, the admission of testimonial what, objec- contributing to from an facts any restrictions place does it continue to ongoing perspective, tive constituted on the admission of nontestimonial state- protection. It emergency requiring police question open, ments? left the Crawford to characterize improve does not matters 61, 1354, 124 and in the 541 S.Ct. U.S. as “he finna shoot Gordon’s statement from the we absence of direction Court future Even if “finna ... connotéis] me.” apply to the Roberts test to have continued action,” Dissent at suggests, as the dissent Crawford, types these of statements since 8,n. the future action of Arnold 210 Johnson, see, 440 e.g., United States v. shooting desperately that Gordon (6th 832, Cir.2006); F.3d 843-44 United Doubtless, sought “heavy to avoid. (6th Franklin, 537, 546 v. 415 F.3d “footsteps pounding pave- breathing,” Cir.2005); Gibson, United States 215, ment,” like, and the Dissent at would Cir.2005). F.3d But not make our work easier. these are question. The Con- ongoing mínimums of an emer- Davis answers irreducible call, Clause, “solely explains, Davis is gency. Her 911 her frantic behavior frontation hearsay,” with testimonial during and after the call and the nature of concerned (internal (a quotation marks gun-wielding assailant who S.Ct. the threat omitted), jail meaning that the admissibil- just been released from after conviction, whether the “fixing ity question setting to murder who was (or State) area) in the statement satisfies the Federal shoot” her and who was still every (noting of Evidence. See id. all sufficed to show that Gordon had Rules Clause’s “focus on testi- safety. reason to fear for her Confrontation record, fairly lawyer On this Arnold’s did hearsay” “must be said monial ‘core,’ objection merely preserve its but its that Rule 806 mark out not (internal quotation marks and permits the introduction of the evidence perimeter”) omitted); see also Whorton purposes. brackets for a trial impeachment When - -, U.S. Bockting, hearsay court refuses admit evidence on (2007) (“[T]he L.Ed.2d 1 Con explain grounds, counsel must whether application” no frontation Clause has hearsay exception applies here, for exam — state “out-of-court nontestimonial ple, by pointing by stating to Rule 806 or ment[s].”). have concluded Because we impeach that the evidence is offered for these three statements were nontesti- purposes preserve ment order to —in because Arnold has not shown monial and Otherwise, appeal. issue district vio that the admission of opportunity court has no consider Evidence, lated the Federal Rules of the meaning exception opportu and no jury properly permitted court district nity applicability. to address its Plain- them. to consider applies. error review thus Fed.R.Evid. 103(a)(2), 103(d); see, e.g., United States v.

V. (6th Cir.2006) Seymour, 468 F.3d (applying plain-error review to exclusion of lastly argues the district alleged ground court committed reversible error refus- evidence because for ad below); ing private to admit the statement of a mission was not raised investigator hired Arnold in which Gor- Humphrey, States v. 377-78 (6th Cir.2002) investigator, eight don told the months (applying plain-error review incident, that in counsel’s words after hearsay alleged evidence that excluded with a [Arnold] “she never saw ly “could have been admitted as business day.” disagree. JA 67. We not record” because “defense counsel did trial”); specific exception raise this trial, beginning At the Arnold’s v. F.2d Phillips, United States lawyer told the district court that he (6th Cir.1989) (applying plain-error review put private investigator on wished ground evidence because the excluded statements, the stand to introduce includ- (bias) admissibility was not raised be for Gordon, signed by to the ing an affidavit Millen, low); 594 F.2d United States jury. response, the district court told (“In (6th Cir.1979) the face of proposed Arnold’s counsel that evi- pres failure to government’s complete “just hearsay.” reply, Id. In dence was argu ent to the District a reasoned Court argue generally Arnold’s counsel did not admissibility ment for the of this evidence exception hearsay ap- that an rule grounds ... speculate we decline to about specifically plied; argue he did ”); admissibility for .... Barrier v. Rules of Rule 806 of the Federal Evidence cf. Am., Inc., N. Pilkington evidence, permitted the introduction of (6th Cir.2005) of (holding 748-49 that offer asserted, truth not for the of matter 103(a)(2) satisfy Rule evidence failed to impeachment purposes; but for and at one the trial court excluded the because when response to one of the court’s point, attorney hearsay grounds, evidence on “just hearsay,” that it Ar- “argue that the evidence should be said, did not lawyer merely just laying “I’m nold’s 801(d)(2)(D) of the admitted under Rule your it out consideration on the there for end, Federal Rules of Evidence as statements go path front so we don’t down this against the inter- employees on. made and take valuable time” later Id. response to a failing appear of court scope within the Pilkington and ests of plaintiffs’ is the which employment, day their government subpoena on first appeal”). position new the con- Arnold’s trial. The record from hearing, part which is included as tempt error, a defendant must plain To show case, in this shows that Arnold’s the record (2) “(1) error, following: establish the (3) spoke to private investigator that affects substantial plain, is Cotton, 535 U.S. rights.” eight United States months after obtained the affidavit 625, 631, 152 L.Ed.2d 860 contempt hearing, At the Arnold’s arrest. (2002) (internal marks quotation two-and-a-half months af- which occurred omitted). If these three condi- brackets trial, Gordon testified under oath ter met, appellate “an court tions are “positive,” that she was JA and “abso- to notice a its discretion then exercise sure,” 245, that lutely JA she saw (4) error, only if the error forfeited but gun. Acknowledging that she said with fairness, seriously integrity, affects she met with Ar- something else when judicial proceedings.” public reputation explained private investigator, nold’s she Id. investiga- that the statements to Arnold’s the first and second Arnold satisfies namely product “pressure,” tor were the plain-error test. As the prongs of the pressure “telling from her mom me per- acknowledges, Rule 806 (Arnold) boyfriend that her wasn’t” the introduction of this statement mits That holding. JA 273. Gordon thrice (though not for its impeachment purposes police possessed that Arnold told the truth), plain. See U.S. and the error gun, that she made these statements when 51-52; Fed.R.Evid. 806. Supp. Br. contrive, no time to that the

she had decide whether the We need not found a under the seat of the car prong the third evidence satisfies sitting, which Arnold was made a she satisfy plain-error because it does not test eight different statement months later pieces fourth At issue are two prong. pressure after from her mother and signed by Gordon of evidence: an affidavit eventually that she retracted even that private Arnold’s investi and witnessed contempt statement under oath the made Gor gator and an oral statement all that the hearing, show exclusion investigator. private don to Arnold’s testimony private investigator of Arnold’s pieces apparently of evidence While both “particularly egre- was not the kind of “never saw are to the effect that Gordon justify gious” finding mistake that would (we day” say “ap Arnold with a Young, error. 470 plain of United States the affidavit was never parently” because evidence, 1, 15, 1038, though govern into entered 105 S.Ct. 84 L.Ed.2d U.S. much), says it ment concedes that as their (1985) (internal omitted). quotation marks “seriously affect[ ] exclusion did not responses partial Brief dissent fairness, integrity, public reputation” of point and the dissent on this are in order. Cotton, proceedings in this case. partial The dissent concludes that we need 1781. After the U.S. S.Ct. trial, contempt action for not reach the issue because the defense Gordon faced a admitted.”) (internal quotation investigator be marks formally proffered the never omitted); also, e.g., see United States But the That be true. a witness. (7th Cir.2005) Moore, 425 F.3d argument this did not make government require this circuit does not (“Although odd to hold appeal, seems litigants proof to make formal offers responsible procedural for one defendant excluded, when evidence is the record (not making proffer) a formal mistake equivalent: grounds must show the for equally made an when the has admissibility, proponent must inform (not challeng- procedural mistake serious opposing the court and counsel what he proffer). a formal ing the absence of evidence, expects prove by the excluded our cases questions The dissent whether the significance and he must demonstrate proposing more of counsel in evi- require (internal testimony.”) quo- of the excluded 103(a)(2) Rule re- dence than Evidence omitted); Polys tation marks v. Trans- point may interesting be an quires. Airlines, Inc., Colorado Cir.1991) for resolution in anoth- one but is best left (“[Mjerely telling comes to the appeal er case. As this proposed testimony court the content of Rather, court, proof. ... parties argued have the case not offer proponent explain expects must what it requirements satisfying the context party grounds show and the for which the cases, not in the context of overrul- of our believes the evidence to be admissible so ing prior those cases. As we read those trial court is on notice decisions, moreover, they require do not purpose for which the evidence is offered proffer proponent of evidence base remedy the while there is still time to evidence; they re- upon specific rule situation.”) (internal marks, quotation quire proponent only to inform the omitted). ellipses brackets and why proposed trial court so, example, for should be admitted — It remains unclear whether Evi also that the investi- explained Arnold’s counsel operates by dence Rule 103 itself this gator’s testimony should be admitted Corp. v. Rai situation. Beech Aircraft Gordon, that would have impeach sufficed. ney, 488 U.S. any have we been able to find cases— Nor (1988), reasoned L.Ed.2d 445 Court concluding circuit from court— 103(a)(2) Rule 46 work that Rule and Civil only requirement preserving error require proof offers of to make together identify the content of setting is to the content of the evi apparent time, proposed evidence. At the same grounds for its admis dence but also numerous cases from other circuits em- 439; 174, Id. at see also sion. requirement brace our modest Kasper Mary Hosp., v. Nazareth Saint of explain why the evidence proponent Cir.1998) (7th (The 1170, F.3d 1175-76 135 v. “should be admitted.” United States however, “must, only make proponent (5th Cir.1995) Scott, 1389, 1397 48 F.3d is that judge clear to the what (“Excluded sufficiently pre- 103(a)(2), evidence is Fed.R.Evid. present, he wants to trial court served for review when the has ground believing his ... for but also Fed. been informed as to what counsel intends the evidence should be admitted. 46.”). Rule 51 mirrors why show the evidence and it should R.Civ.P. Criminal 196 not the case. 51 is not the time and this is Fed.R.Crim.P. adviso

Civil Rule see (“This prac joined by par- not been rule is The issue has ry committee’s note ties, appellate Rule 46 and it no court to our knowl- tically identical with” Civil and practice argument. of trial which edge addresses “a matter has embraced criminal in civil and should be the same avoiding confu in the interest of cases VI. sion.”), courts have embraced similar and reasons, For these we affirm. context, in the criminal see

reasoning Muniz, F.2d United States CLAY, Judge, concurring part in Circuit (9th Cir.1982) (“Federal Rule of Criminal dissenting part. in requires party to state the Procedure 51 upon which the evidence specific grounds concurring join Judge opinion I Griffin’s admissible.”); States v. Freder in in part dissenting part in its entire- (8th Cir.1979) icks, 262, 264 599 F.2d ty respect section II of the except with (“Federal Rule of Criminal Procedure 51 potential im- opinion, which holds that the requires party to make known to the peachment respect evidence with to the grounds upon which specific trial court the excluded. private investigator properly admissibility urged.”); of evidence is respect to district court’s refusal With Wright Alan & Ken see also Charles private investigator’s state- to admit the Graham, Jr., Federal Practice and neth W. him ment that Tamica Gordon told she §2d Procedure: Evidence on Joseph never seen Arnold with (2005) (“[I]n considering the elements of day join I question, section IV proof, we shall consider not offer I Judge dissenting opinion. Moore’s 103(a)(2) language of Rule but the and remand for a would therefore reverse implications of Rule 46 and Civil Criminal Judges new trial as would Griffin and 51.”). Rule Moore. dissent,

The one case cited Unit- GRIFFIN, Judge, concurring in Circuit Ganier, ed part dissenting part. Cir.2006), does not alter this conclusion. There, ease, in contrast to this no one I, II, join I and III of the Sections testimony proposed indicated “that majority opinion and in the result of Sec- under was not admissible the Federal portion tion V and that of Section IV that Evidence,” id. at as the trial Rules rejects challenge defendant’s constitutional there, in

judge did here. And contrast to admissibility complainant Tamica to the case, government adequately “the call, telephone initial 30- grounds admissibility made the known for statement, narrative second on-the-scene simply by arguing to the court statement, spontaneous and her later should not be excluded for failure to com- him, guy pulled “that’s that’s the ply ground with” the one exclusion me, Arnold, Joseph that’s him.” identified at trial —Federal Rule of Crimi- However, respectfully I from the dissent 16(a)(1)(G). (emphasis nal Procedure Id. majority’s analysis constitutional and dis- added). position pertaining complainant’s

Lastly, hearsay response while the dissent’s observation statements made interplay police interrogation. about the between Federal Rules Because these errors 103(a)(1) 103(a)(2) harmless, of I Evidence were not would reverse and for a new trial. point, deserve consideration some now remand when circum- They are testimonial the I. objectively indicate that there is stances Tamica holds that all of majority The ongoing emergency, no such and that to the hearsay statements made primary purpose interrogation the alleged crime scene were police at the prove past po- events is establish and, therefore, not sub- “nontestimonial” tentially prose- to later criminal relevant of confrontation ject right to defendant’s cution.1 I the Amendment. guaranteed by Sixth as disagree. holding interrogations refers to 1. Our of the Sixth The Confrontation Clause below, because, explained the statements “In all criminal provides: Amendment presently prod- in the cases before us are the interrogations ucts of in some cir- accused shall ... be con- —which prosecutions, generate re- cumstances tend to testimonial against with the witnesses fronted however, imply, sponses. not to This is Washington, 541 him....” In Crawford any made in the absence of inter- 158 L.Ed.2d 177 S.Ct. U.S. rogation necessarily The are nontestimonial. willing exempt Framers were no more that, (2004), held con- Supreme Court volunteered testimo- from cross-examination the Confrontation Clause sistent with ny open-ended questions or answers to than statements made guarantee, “testimonial” they exempt detailed were to answers to in- testify not at trial by a declarant who does (Part against terrogation. the evidence Sir Raleigh Walter was a letter from Lord Cob- only if against an accused' are admissible plainly ham that was not result sus- unavailable and the ac- the declarant Case, Raleigh's questioning. tained 2 How. prior opportunity cused was afforded (1603).) even St. Tr. And of course Although cross examination. Craw- exists, interrogation it is in the final when 'statements, analysis the declarant’s not the a definition Court did not formulate ford interrogator’s questions, that the Confronta- statements, emphasized for “testimonial” requires to evaluate. tion Clause us under advocated definition Davis, at 2273-74. In because the 911 “[sjtatements Id. officers in police taken response ongoing call made in to an interrogations” are testimoni- the course of and in connection with the emergency, 52, 124 al Id. at S.Ct. 1354. statements. assistance, portions police need for Recently, Washington, Davis v. nontesti- the 911 call at issue were deemed U.S.-, 165 L.Ed.2d monial. (2006), case, Hammon and its consolidated Indiana, provided Supreme Court dichotomy adopted by Supreme guidance regard pa- further with to the opposite result in Davis led to the Court deemed “testimo- rameters of statements In Ham- Hammon case. companion Davis, First, in held that nial.” the Court mon, responded late-night to a police telephone call was complainant’s at the of a domestic disturbance report therefore, and, subject nontestimonial Hammon. Amy Hershel and home of Clause of Sixth scene, Confrontation en- Upon arriving at the admissibili- upholding Amendment. Amy, frightened” countered a “somewhat call, the stated: ty of the 911 Court initially told porch, on the front who alone “nothing investigating officers nontestimonial when Statements are Amy gave 126 S.Ct. at 2272. police interroga- the matter.” made the course of house, police permission in- to enter objectively tion under circumstances unit gas heating noticed a purpose of the where an officer dicating primary that the broken living pieces room with police assis- interrogation is to enable ground in front of it and flame emergency. glass on the ongoing tance to meet an heating comparison unpersuasive. unit. to Davis the front of emitting from kitchen, in taken when Hershel, in the told statements Davis were Id. who was alone, McCottry complainant] in was and his wife had been [the that he (as Amy “everything only unprotected by police was fine not argument, an but protected), apparently “never became Hammon was but argument and the now” Amy danger in immediate from Davis. She point, At physical.” Id. aid, and, telling story not about seeking while Hershel was was inside come back house, past. MeCottry’s present-tense an in a area of kept separate Amy’s Amy immediacy; and then had her showed officer interviewed battery was delivered at sign past fill affidavit. narrative of events out and affidavit, Amy alleged danger that her husband some remove in time from the furnace, Amy floor And after an- shoved her she described. broke chest, questions, in the the officer’s he had glass, into the broken hit her swered affidavit, order, he and threw down. her execute testified, establish events that have “[t]o domes- charged The State Hershel with previously.” App. occurred No. 05- violating proba- his battery tic and with 5705, at 18. subpoenaed, but she did Amy tion. Although necessarily reject we subsequent at appear her husband’s Supreme implication Indiana Court’s The trial court admitted the bench trial. virtually any inquiries” “initial at testimony who and of the officer affidavit the crime scene will not be testimonial questioned her over defense counsel’s ob- opposite ... we do not hold the jection opportunity for cross ex- that the —that questions yield no at the scene will non- improperly amination of the declarant already testimonial answers. We have precluded. judge The trial thereafter disputes of domestic that “[o]f- observed guilty charges, found Hershel on both ... investigate ficers called need ultimately af- Supreme the Indiana Court they dealing with in know whom are that, firmed, concluding pertinent part situation, order to assess the the threat although Amy’s affidavit was testimonial safety, possible danger to their own admitted, wrongly its admission was potential victim.” Hiibel Sixth [v. beyond a reasonable doubt. harmless Nevada, Judicial District Court of certiorari, granting After the United U.S., County], Humboldt the defen- Supreme Court reversed (2004)]. L.Ed.2d 292 [159 S.Ct. fur- convictions and remanded for dant’s exigencies may Such mean that often Amy Ham- holding ther proceedings, inquiries” produce “initial nontestimonial past mon’s statements were accusations of one, statements. But cases like this events, emanating help” not “cries for Amy’s where statements were neither a and, thus, ongoing emergency, from an cry help provision nor the of infor- Consequently, were testimonial in nature. enabling immediately mation officers held, cir- particular the Court under these situation, threatening end a the fact that cumstances, op- that the Sixth Amendment they given alleged were at an crime Amy’s erated to exclude affidavit: im- inquiries” scene and were “initial Both Indiana and the United States as Crawford, supra, material. Cf. n. argue amicus curiae this case 3, 124 S.Ct. 1354 L.Ed.2d [158 177].6 should be resolved much like Davis. comparison For the reasons we find the are, investigations themselves Police course, compelling, we find the way impugned by in no our charac- Crawford terization of their fruits as testimonial. In- statement, call, like the 911 was nontesti- vestigations past prevent crimes future monial for the reasons that it was not the necessary harms and lead to arrests. While product police interrogation, but rather prosecutors may hope inculpatory "non- gathered, a “cry help” testimonial” evidence is this is es- made while the declarant sentially beyond police saying Their control. perceived an emergency and the need for emergency that an exists cannot make it be police immediate assistance. way so. The gov- Confrontation Clause in no conduct, police erns of, because it trial use addition, In majority properly af- of, investigatory parte not the collection ex firms the admission of spontane- testimonial statements which offends that him, ous statement “that’s guy that’s the provision. police But neither can conduct me, pulled gun Arnold, on Joseph Clause; govern the Confrontation testimonial they are statements what are. him,” that’s ground on the that her excla- mation prompted parte at the ex Id. officers, questioning of the but rather Crawford, the wake of our courts and, defendant’s sudden reappearance inquiry must undertake a two-step before thus, was nontestimonial. admitting or excluding hearsay evidence subject that is to a Confrontation However, Clause I respectfully disagree with First, challenge. it must be determined majority’s analysis and resolution of whether hearsay evidence is admissible complainant’s on-the-scene statements under the applicable rules of evidence. response made in interrogation. Second, if the evidence is admissible under What have started as an emergency rules, it must be determined whether police response to a 911 call evolved into a hearsay statement is testimonial or standard police interrogation past of a nontestimonial. The Confrontation Clause crime. Between five and fifteen minutes bars the “admission of testimonial state received, after the 911 call was three police ments of a witness appear who did not at officers given arrived address and trial unless he was testify, unavailable to (Gordon), observed a young woman who and the defendant had had a prior oppor was near parked house, a car outside the tunity for cross Crawford, examination.” crying visibly shaken. Although Offi- 53-54, 124 U.S. S.Ct. 1354. cer Brandon estimated that the initial con- versation between Gordon and the officers majority recognizes principles these seconds, approximately lasted Officer correctly applies them to complain- Newberry testified that investigating ant’s 911 call and to her initial 30-second officers had a conversation with regard narrative. Gordon With to Gordon’s initial minutes,” lasting “a few statement, “maybe five min- 30-second Officer Brandon tes- utes” before defendant tified arrived on the that as soon as she arrived at the scene, noted, scene. As previously Gordon “... told young woman walked to- me, pulled officers that Arnold gun wards a crying and she was and she was during on her an argument and had screaming, she said Joseph pulled threatened to kill her. her, During on her conver- she said going he was to kill officers, sation with the began her. arguing He was thought and she he down, calm and the attempted officers going to kill her. pulled gun He elicit description her.” from the This initial exchange lasted complainant. testified, As Officer “[mjaybe most,” Brandon 30 seconds at during which time Officer Brandon telling “was got [W]hen we there ... we was [sic] gather herself and slow down.” I trying get a description gun, agree with majority this initial and she said it was a gun, black a black Davis, in which testimonial descrip- very vague which is

handgun, an response an initial to trying to decide tion, “evolve” from [sic] and we was semiauto- a revolver or emergency: it was whether gun would the revolver which be matic a say to that conversation This is not have cowboy would you think a like de- interrogation to which as begins out, but revolv- you spin can it where emergency assis- the need for termine gun, most a semiautomatic er—I mean cannot, Supreme as the Indiana tance you pull where of are chambered them it, “evolve into testimonial put Court a ham- This is called back. the hammer statements,” [Hammon State] back, mer, and made the it she you pull [(Ind.2005)], [444], once at 457 N.E.2d that, means that he did which motion achieved. In this purpose that has been chambered, let a round there would be case, example, operator after the a semiautomatic us was know needed ad- information to gained the nar- of handgun. So kind black moment, the of the exigency dress the it down. rowed (when to have ended emergency appears by questions posed response In to these away premises). from the Davis drove alleged- weapon regarding the officers McCottry to be operator then told The Arnold, described by ly possessed battery pose quiet, proceeded and further handgun. gun as black She readily It could be main- questions. how defendant to the officers described on, that, point McCot- tained from in doorway gun his in the with stood testimonial, not statements were tr/s Based on Gor- gun. hand cocked and police question- “structured unlike the gun showing gestures don’s how hand Crawford, that occurred ing” cocked, the officers concluded U.S., n. 1354 [158 at S.Ct. handgun that was a black semi-automatic presents great no L.Ed.2d This 177]. it. chambered in would have a round as, for Fifth Amendment problem. Just view, descrip- my complainant’s officers can will purposes, “police in nature was testimonial tion of instinctively distinguish almost between in pos- the felon proving and material necessary to secure their own questions against defen- charge a firearm session of safety public of the safety or the pro- safely in the dant. Once Gordon solely testi- questions designed to elicit officers, custody police three tective of the suspect,” New monial evidence from Ac- perceived emergency had ceased. 649, 658-659, Quarles, York v. 467 U.S. responses point, after cordingly, (1984), L.Ed.2d 550 regarding questions police asked recognize point trial will courts testimonial therefore past were events which, purposes, Amendment for Sixth right to confronta- subject to defendant’s interrogations response statements Amend- by the Sixth guaranteed tion as Through in limine become testimonial. ment. they should redact exclude procedure, argument “safety The of the officers” that have statement portions posed by majority persuasive. testimonial, do, for ex- they become might be knew defendant The portions unduly prejudicial ample, with description of the Obtaining a armed. admissible evidence. otherwise investigation. crime weapon was standard complete jury did not hear Davis’s call, have although it well heard the sce- present appears case be were portions. We some testimonial Supreme nario Court envisioned Arsdall, case.” Van only McCottry’s early prosecution’s classify asked 684, 106 as- 475 S.Ct. 1431. identifying Davis as her U.S. sailant, Washing- agree and we with Here, respect at least with to the de- they were not Supreme ton Court gun, the error is not harm- scription concluded That court also testimonial. beyond Although less a reasonable doubt. that, the call were parts even if later there was circumstantial evidence connect- testimonial, was harm- their admission ing gun, prosecution’s defendant to a beyond a reasonable doubt. Davis less strengthened considerably by the case was holding, and we challenge does not description complainant’s match of the of it to be correct. therefore assume black, semi-automatic, the firearm to the handgun loaded found under the seat in Davis, at 2277-78. S.Ct. in which defendant had been the vehicle Here, past-tense Although complainant sitting. weapon, protec- made in the describing the that de- previously operator told the 911 and, police officers presence tive of three gun a and fendant had threatened her with presence, conversely, out of defendant’s their arrival police upon exclaimed to the the officers’ given response in direct and her,” “pulled gun that defendant a questioning, were akin to McCot- parte ex description weapon no of the there was in described above try’s later statements In the words of police questioning. until Davis, Amy Hammon’s “narrative of trying “... we [sic] Officer Brandon ... remove in time past events at some gun....” the get description of Davis, danger from the she described.” Through questioning, such the officers in at 2279. Gordon’s statements S.Ct. complainant learned from the that the regard this were therefore testimonial black, loaded, was a semi-automatic hand- pursuant inadmissible to the Confrontation gun. In the absence of corroborative Amendment. Clause of the Sixth that de- eyewitness testimony or evidence firearm, actually possessed fendant Having concluded that confrontation complainant’s into evidence of admission occurred, inquiry the next is whether error police interrogation asking responses to beyond error is harmless the constitutional description was therefore for a doubt. States v. Rob- reasonable and violative of defen- highly prejudicial (6th Cir.2004) inson, right Amendment to confron- dant’s Sixth Arsdall, (citing Delaware v. Van 475 U.S. tation. 673, 684, 106 S.Ct. 89 L.Ed.2d 674 Moreover, argument, govern- at oral (1986) Askarov, and United States that, if a confrontation er- ment conceded (6th Cir.2002)). F.3d “Whether to Gordon’s hear- regard ror occurred with in a particular an error is harmless such statements, say the error could not be factors, of all depends upon case a host govern- I accept deemed harmless. reviewing courts. readily accessible regard and would ment’s concession importance factors include the of These for a new trial on this reverse and remand testimony prosecution’s the witness’ basis. case, testimony was cumula- whether

tive, or absence of evidence presence II. corroborating contradicting the testimo- V, majority rejects defen- ny points, witness on material Section impeachment challenge relating to per- otherwise dant’s extent of cross-examination and, course, that could have been offered mitted, strength the overall thus, there was ruling Because investiga- no made. testimony private through majority inappro- appeal, majority ruling holds that no tor Sam Lewis. analysis. strays plain be- into a error priately did not occur reversal requiring error his bur- failed to sustain defendant cause error, Fed.R.Evid. plain proving

den of III. result, but dis- 103(d). agree I with reasons, part I concur For these rationale. majority’s agree with reverse and part. I re- dissent would that, jury after the reveals The record mand for a new trial. two selected, made sought first in limine. The motions MOORE, Circuit KAREN NELSON taped portions of the admission Judge, dissenting. ad- requested second telephone call. The majority opinion’s disagree I with the hearsay state- on-the-scene mission sufficiency of regarding conclusions by Tamica made ments evidence, admissibility of Gordon’s on the During argument oral police. ex- under excited-utterance statements evi- admit its motions to government’s hearsay rule as well as ception to the dence, the court counsel advised defense Clause, and the under the Confrontation investiga- (private a he had witness testimony to admit district court’s refusal Lewis) to tes- prepared who was tor Sam I Accordingly, a defense witness. from re- regard to Gordon’s tify that with for the reasons respectfully dissent de- gun, had a claims that defendant peated tailed below. “... investigator Lewis talking to when story.” The court a different gave she I. OF SUFFICIENCY hearsay. There’s just “That’s responded THE EVIDENCE ar- counsel later exception.” Defense no admissi- be gued that such evidence court must first determine whether The along the lines of “... this is ble because presented sufficient evi- prosecution ” Although type information.... rebuttal conclude, jury a dence for reasonable between defense a occurred discussion doubt, Joseph beyond a reasonable judge, trial defense coun- and the counsel in his handgun found possessed move for admission sel did not car. evidence such girlfriend’s The Accord- impeachment potential evidence. (1) pres- Arnold’s possession consists a rul- not make the trial court did ingly, (2) car, Tamica Gordon’s ence excluding or this evidence. ing admitting police that Arnold had gun (although threatened her with Later, its rested after issue) gun at earlier necessarily the case, Phipps Honorable Jon MeCalla day. by the cases the As demonstrated thought “... I we counsel defense asked cites, opinion such evidence majority itself going to testi- investigator who felon-in-pos- support is not sufficient Harris re- Defense counsel Terrell fy....” either an actual session conviction under sir, the investi- “No we crossed sponded: theory. possession or constructive bring yesterday. I better gator knew yester- that discussion him over here after First, tellingly majority opinion day.” significant piece of sloughs over a gun its re- poten- that undercuts conclusion—the no error regarding There was car from mother’s bore reason trieved evidence for the tial impeachment If, majority and, opin- as the ruling fingerprints. no no motion for a that there was

203 concludes, ion Arnold had courtyard threatened Gor- of the awith black and silver gun don with a gun and then took the with handgun in his waistband.” Id. at 412. car, him into Gordon’s mother’s it stands Similarly, Crowe, in United States gun (6th to reason that carry would his Cir.2002), F.3d 884 the officer “ob fingerprints. car, found in the served the butt end of a black semi-auto however, had none. This inconvenient fact matic handgun protruding from under the entirety undercuts the majority’s waistband of pants.” Crowe’s Id. at 885. analysis. Barnett, See also United States v. 398 F.3d (6th Cir.2005) (officer saw defen

Second, majority opinion provides no dant “holding a long object black basis for concluding that a jury reasonable looked like shotgun” which later could have found that Arnold actually pos- recovered the area where the defendant sessed the girlfriend’s his car. found it); had dropped Daniels, United States v. “Actual possession tangible exists when a (6th Cir.2006) (un 170 Fed.Appx. object is in possession the immediate (officer published opinion) saw defendant control of the party.” United States v. pull object out an looking (6th handgun like a Cir.1984) Beverly, 750 F.2d throw to the ground, and Craven, handgun (quoting United (6th Cir.1973)).- recovered); was later United States v. Put another Austin, way, Fed.Appx person Cir. knowingly “[a] who has direct 2005) (officer (unpublished physical opinion) control saw thing given over at a defendant holding gun fled, time is then before he possession actual of it.” and later Frederick, gun recovered the 754, along path United v. his 406 F.3d (6th Cir.2005) of flight). eases, In 765 each of (quoting these the United States government (6th had 992, that Wolfenbarger, 426 F.2d evidence the defen 994 Cir.1970)). dant physical had “direct control” over the gun in question at the relevant time be jury lacked sufficient evidence to case, cause in each police officer wit convict on an actual-possession theory be nessed the defendant with gun on his government cause the supplied no evidence person. Frederick, See 406 F.3d at 765. that Arnold physical had “direct control No such evidence exists here. thing” over a gun the relevant —the —at “given time”—when he was the car. noted in per As the panel’s opin- curiam Instead, government offered ion, Gordon’s accusation that Arnold had a only of Arnold’s mere proximity to the gun when he threatened does not ad- gun. Proximity, however, is insufficient to dress whether physical Arnold had direct support a possession. conviction for actual (the control over the relevant one Beverly, 750 F.2d at 37 (holding that Cf. car) found in the at the relevant time evidence that standing defendant was next (when him). officers arrested to a waste basket containing gun in was testimony is insufficient to sustain a con- prove sufficient to even pos constructive viction requires because proof conviction session, let alone possession). actual “possess[ed] Arnold the firearm and basis,

On this each of the cases the specified ammunition in the indictment.” majority opinion is distinguishable. Schreane, cites 548, United States v. 331 F.3d instance, Moore, For Cir.2003) added). States v. 208 (emphasis 560 Be- (2d Cir.2000), F.3d 411 involved a prosecution situation cause the presented no evi- in which “the saw defendant-appel- officers showing dence physical Arnold had lant Curtis Moore standing the middle control over the recovered firearm when it (6th Cir.2004), a Carter, de before, 355 F.3d immediately no was recovered unsuc challenge sufficiency fendant’s found could have of fact rational trier in the car occupants other cessful because possession actual proved government being the source precluded from were doubt. beyond a reasonable here, But at 925. the firearm. Id. pro- Likewise, has not government show no evidence presented government a reasonable sufficient evidence vided driv girlfriend, the car’s ing that Arnold’s constructively Arnold jury to conclude er, not have been source. could car. “Con- in the gun found possessed the cases, sufficiency chal rejected we other person exists when possession structive the owner defendant was lenges when the but'instead possession actual does not have arranged to sell the car and had and the intention power knowingly has at when Birmley, 529 F.2d gun, dominion time to exercise given at a containing car drove the defendant directly or object, either control over id., the defendant police when saw gun, Craven, through others.” Carter, weapon, attempting to conceal may prove way 1333. One Schreane, 925; F.3d at F.3d at to exercise power the defendant the own the defendant and and when through evi- a firearm dominion over relationship, id. had a close er over control had dominion or dence he here, owned neither drove nor But Arnold was locat- where the firearm premises car, that the there is no evidence Kincaide, 145 F.3d ed. United States (let alone cert, to conceal him attempt saw denied, (6th Cir.1998), all), government never and the touch it L.Ed.2d 86 U.S. identity gun’s owner. established (1999). However, presence a defendant’s contains no evidence Because the record more, found, without where firearm factors, this court lacks any of these requisite to establish “the is insufficient to conclude that upon basis which or intention to exercise knowledge, power, over the car dominion or control exercised States the firearm. United control” over it. gun inside (6th or the found F.2d Cir. Birmley, v. 529 107-08 1976). by our de- conclusion is reinforced This Beverly, 750 F.2d in v. cision United States rejecting suffi- decisions previous

Our (6th Cir.1984), gun a which involved 34 in found ciency challenges defendants executing a in a An officer found home.1 readily distin- containing guns are all cars Beverly and another warrant found case, search in there was suffi- guishable, each (Austin) yet kitchen of anoth- in the person a tying the defendant cient evidence (Hatfield’s) Bever- residence. person’s er car. For in- found in the particular gun patting F.2d at 35. While down ly, 750 stance, Murphy, v. States United Austin, officer two Cir.1997), Beverly and noticed (6th that a noted we F.3d in a basket between gun handguns a could waste in a car with defendant found Beverly’s fingerprint Id. sufficiency chal- two individuals. a not mount successful print’s guns, one of the occupant, was on the car’s lenge when he was “would gun suggested location dominion over clearly and thus exercised Id. at have been laid down.” have had to But the car. at 1208. Id. were insuffi- held these facts v. 36. We car. In States alone United Cir.1997) (“The (9th same involving F.3d Constructive-possession decisions applies to reasoning cases] in vehicle inquiry [used involv- inform the in cases homes can house.”) Cazares, occupants aof v. ing See United States vehicles. in- on earlier occasions. Id. at 572- weapon possession; constructive prove cient to Kelso, stead, only that also 73. See United States “established] the evidence Cir.1991) (notwith- (9th kitchen of Hatfield’s Beverly was F.2d 681-82 residence, Beverly standing close reject- standing gun, defendant’s access to basket which contained two to waste ing argument passen- that the defendant Beverly point had at some guns, and ger constructively possessed gun found Id. at 37. guns.” touched one of the govern- behind the driver’s seat because case, Arnold and Gordon’s the instant ownership ment failed to show defendant’s close to where the mother were located gun); or awareness of the United States v. discovered, just as the defendant gun was (D.C.Cir. Whitfield, 142-43 Here, companion Beverly. were in and his 1980) juror that no (concluding reasonable however, was found on the fingerprint no that gun could find evidence was found firearm, so the evidence of constructive passenger’s under defendant seat within does not rise even to the level possession support his reach was sufficient to con- rejected Beverly. as insufficient in that we possession). structive attempt to dis- majority’s half-hearted ges- Nor do Gordon’s statements majority tinguish Beverly falls flat. The tures, officers, as recounted eyewitness that no had seen emphasizes Ar- establish a sufficient nexus between gun, but fails to ex- Beverly possess the con- gun support nold and the Arnold’s testimony in this plain (present how such best, they suggest viction. At that Arnold case) is more indicative of constructive black, possessed a semiautomatic firearm possession fingerprint than a defendant’s unspecified Again, at some earlier time. that had been laid down soon requires proof “pos- conviction that Arnold Again, if the before it was recovered. speci- ammunition the firearm and sess[ed] Beverly evidence in could not sustain Schreane, in the indictment.” conviction, the evidence in this case is woe- fied added). (emphasis Lacking F.3d at 560 fully inadequate. evidence, majority opinion such re- Similarly, our sister circuits have leap inferring takes the tenuous from sufficiency grounds versed on convictions putative possession Arnold’s earlier than stemming stronger from far facts black, constructively possessed he sem- instance, For those of this case. from the vehicle. iautomatic recovered Blue, Cir.1992), 957 F.2d 106 true that the recovered firearm While the Fourth Circuit overturned a conviction generic description— matched Gordon’s felon-in-possession police when the gun was statements that the brandished gun found the underneath the defendant’s gestures that an officer inter- black and seat, notwithstanding the officer’s testimo- preted to indicate a semiautomatic with if ny “dip that he the defendant as saw are too round —these attributes chambered reaching under the seat with his were [he] that equivalence prove common for this pulled officer the car right hand” after the constructively possessed gun the in Similarly, over. Id. at 107. United Hishaw, (10th in car. 235 F.3d at found See Hishaw, States v. 235 F.3d 565 Cir. cert, testimony that the (holding that denied, 572 2000), 121 533 U.S. S.Ct. a semiautomatic (2001), defendant was seen with L.Ed.2d 241 the Tenth 150 prior several occasions was “sim- pistol on such a conviction not- Circuit overturned support vague remote and too ply too withstanding that the defendant was car, that con- notwithstanding [the defendant] tes- the inference driver of the in structively pistol” found timony possessed a similar possessed he had 206 car).2 any statements fall into has not estab- of Gordon’s rule, hearsay I dis- gun exception found in between the this

lished nexus ground this case this as well. Accordingly, sent on the car and Arnold. from States v. distinguishable notes, correctly majority As the Federal (6th Cir.1974), Thomas, be- 497 F.2d 803(2) permits a court to Rule of Evidence Thomas, nexus between cause truth out-of-court statements for the admit was the defendant’s gun defendant and the they “relat[e] of the matter asserted when referring gun own statement or condition made startling to a event By Id. at 1150. question “my gun.” the declarant was under the stress of while contrast, between Ar- connection by the event or condi- excitement caused in the indict- gun specified and the nold majority opinion correctly also tion.” The it under a seat that officers found ment is Haggins cites the three elements of in a car he sitting

where Arnold (1) (2) event, startling the state- test: driving and did not own. being temporally made close to ment’s so that Arnold And if we were to infer even that the declarant lacked time event gun (3) found previously possessed misrepresent, to contrive or seat, prior possession cannot under the being under the stress of statement’s made later time. Bev- possession establish at a Haggins the event. excitement caused (evidence that defen- erly, Warden, Farm, 750 F.2d at 37 Fort Pillow State (6th Cir.1983). laid down a dant had earlier held and typi- F.2d As is constructive matters, was insufficient to establish evidentiary cal of “the burden of possession). squarely the statement fits proving with hearsay exception” within a rests has never today, Until mere coincidence here, hearsay proponent exception, constitutionally suffi- been a substitute for v. Ken- government. United States But with its possession. cient evidence of Cir.1988) drick, n. majority sweeps aside decades opinion, the Day, F.2d (citing United States v. others, court and authority from this (6th Cir.1986)). 1217, 1221 The district country rendering in the this Circuit alone place proof court failed to the burden of gun may of a be holding possession government, majority repeats and the without some direct nexus between shown error, notwithstanding its assertion to and the defendant. contrary. II. EXCITED UTTERANCE A. 911 Call rewriting

After this circuit’s law on the support whether the trial court required threshold of evidence We must decide when it admitted the being possession a conviction for a felon abused its discretion (Gordon’s firearm, majority next errs relevant out-of-court statements opinion call and her statements to offi- by concluding that Gordon’s statements to scene) as excited utterances. operator the 911 and to the are cers call, regard to the 911 the district admissible as excited utterances. Because With concluded that each statement con- support the record does not the conclusion court vague certainly case to constitute 2. The Hishaw court noted that "in certain too for this circumstances,” occasion, possession of a similar especially light such an of testi- “may support prior an inference occasions mony handguns that about half of all are possession.” of constructive 235 F.3d at 572. J.A. at 128. black. handgun a Gordon's reference to is black tape recording specifically, person tained in the of the call More “a under (save con- sway precipitated by Gordon’s claim that Arnold was of excitement an ex murderer, govern- a startling victed statement ternal event will be bereft of the admit) not admissible ment did seek capacity reflective essential for fabrication exception that, under the excited-utterance consequently, any utterance he hearsay rule. To evaluate this deci- spontaneous makes will be and trustwor sion, I consider the record evidence re- thy.” Haggins, 715 F.2d at (quoting prongs Hag- garding first two 4 J. & M. BergeR, Weinstein Weinstein’s gins test. ¶803(2)[01] (1981)). at 803-79 Evidence hearsay To determine whether a statement

Startling Event. The government guarantees reliability, contains such we failed to introduce evidence of a “star- apply three-step inqui the aforementioned tling hearsay event” outside of the state- “First, ry: there must be an event star call) (the majority ment itself. tling enough to cause nervous excitement. fact, glosses stating over this without anal- Second, the statement must be made be by ysis “being threatened a convicted fore is time misrepre there to contrive or wielding murderer semi-automatic hand- Third, sent. the statement must be made startling amounts to event person while the under is the stress of prompt would at least nervous excitement excitement caused the event.” Schre individual, if average outright ane, (internal 331 F.3d at quotation Maj. Op. trauma.” at 184. This well omitted). marks previously And as men true, independent be but absent some evi- tioned, bears the burden event, dence of such an the district court establishing each of these elements by admitting abused its discretion preponderance of the evidence. See Ken tape. drick, 853 F.2d at 496 n. 3. begin principles. Hearsay I with first first principles These demand that generally evidence is inadmissible because excited utterance itself cannot constitute sufficiently is not reliable and cannot be event; startling evidence of a through tested 1- cross-examination. See instead, hearsay of a proponent 14 Weinstein’s Evidenoe Manual independent statement must offer corrob- However, § particular categories 14.01[1]. orating evidence. This is true for two hearsay statements that “contain inher- different, related, but reasons. guarantees ent of their truthfulness” con- exceptions general prohibi- stitute First, relying putative on the excited hearsay. Haggins, tion on 715 F.2d at startling utterance itself to show 1057. Excited utterances are one such endlessly circular. event occurred is exception. scenario, such a the district court would rely “The basis for the ‘excited utterance’ on the statement itself to establish an ... exception is such statements are element of the test for whether the state- given sufficiently under circumstances that eliminate ment is reliable to be admitted possibility fabrication, coaching, circularity proble- into evidence. Such is itself, confabulation, although problem therefore the cir- matic in and of surrounding making potentially explained away by cumstances can refer- be 104(a), provide statement sufficient assurance that ence to Federal Rule of Evidence trustworthy.” permits the statement Idaho v. which district courts to resolve 805, 820, Wright, questions regarding 497 preliminary U.S. admissi- (1990) added). 111 (emphasis bility by preponderance L.Ed.2d 638 of the evidence. 208 States, truthfulness,” F.2d at Haggins, 715 of U.S. v. United 483 Bourjaily

See anyone 97 L.Ed.2d could con- 171, 175-76,107 contrary, the S.Ct. 1057. To (1987) may courts (holding that district cause ex- trive a fact that —if real —would under Fed questions preliminary resolve exclamatory citement, in an and state it 801(d)(2)(E) by pre Rule of Evidence eral statement, such a To hold that manner. evidence).3 Notably, of the ponderance alone, for the truth is admissible standing such reflects no the record this case hearsay the stands of the matter asserted 104(a). under Rule determination head. rule on its circularity Second, this significantly, case, of fabrication possibility In this excited-ut- of the purpose contradicts any indepen- and well. was alive Without hearsay rule. As exception to the terance of Arnold’s corroborating evidence dent above, are admis- excited utterances noted following ser- alleged gun-brandishing, startling event and corre- sible because certainly possible: it “unlike- of events was renders ies sponding state of alarm or the is contrived ly that the statement argu- into an got Gordon Arnold Haggins, reflection.” product of away angry. Gordon stormed ment and And, not- previously we have at 1057. or Although Arnold never brandished ed, determining whether a statement when during argument, mentioned utterance, ulti- “the an excited qualifies as kept knew her mother Gordon the statement is question mate whether in her car. handguns in the house and thought or of was the result reflective jail to return to wanted Arnold reaction to spontaneous whether it was relationship with so that her mother’s (quoting at Id. event.” exciting end, story contrived a him would so she Law of Evi- Handbook McCormick’s threat- fleeing the while house: ed.1972)). (2d § 705-06 denCe of with a the course ened her corroborating evidence of some Without relayed event, then argument. court their She exciting an the district such such a determi- capacity operator lacks the to make while still emo- story to the 911 nation, even that there or to determine tionally upset from altercation. differently, Put when such an event. that this turn of point here is not startling event is not, likely true than but events is more statement, proponent proffered any corroborating evi- that without rather establishing carry cannot its burden event, putative exciting dence of the “eliminate that the relevant circumstances provided no indication fabrication,” Wright, possibility any more reliable statement U.S. S.Ct. inadmissible hear- than run-of-the-mill guarantees inherent “contain[s] statement preme open the issue of whether Bowjaily, Supreme Court left Court concluded In pre- independent proof the relevant alleged an some a district court consider liminary required. fact was regarding ex- co-conspirator’s statements 801(d)(2) conspiracy as an aid to establish- response Bourjaily, istence of a Rule 801(d)(2)(E)’s co-conspirator excep- ing Rule the contents of the amended to reflect that 180-81, hearsay 483 U.S. at tion to the rule. at issue "are not alone sufficient statement However, explicit- conspiracy. the Court of a 107 S.Ct. 2775. establish” the existence Fed. note, alleged advisory ly co- committee’s refused to decide whether R.Evid. could, poli- reflects a conspirator’s in and of amendment. This amendment themselves, bootstrapping that the cy against type satisfy proponent’s burden. Thus, majority here the Su- condones. Id. at 107 S.Ct. 2775.

209 say noting evidence, statement.4 The lack of such reliabili- but that without such excluded).5 ty admitting undermines the rationale for statement would be Even a utterances, accordingly, panel excited I of this court unpub- has noted in an would that the district opinion hold court abused lished that “an excited utterance by admitting its discretion Gordon’s state- can not underlying establish its own operator indepen- to the 911 without McCullough, ment event.” United States v. 150 (6th Cir.2005) (un- 507, corroborating alleged Fed.Appx. dent evidence of the 509-10 startling published event. opinion). supplemental In its brief, empha- Next, places undue majority the concludes, that Gordon now majority the Al- tape. the of interpretation its sis on Arnold’s time, alleged- between the lacked utility of the semantical- question I though her 911 and -with threatening her ly statements, if I even ly dissecting Gordon’s Neither, misrepresent. call, or to contrive does tape the majority’s approach, take the for this reason however, a clear provides the 911 spoke to that Gordon not indicate conclusion. time contrive to sufficient operator before lapse According of that “the passed. noted misrepresent we Haggins, In or said, fixing to “he’s the majority, and Gordon startling event the the between time fixing to me,” to “he was opposed as shoot statement,” disposi- “not while out-of-court 184-85, After 186. Maj. Op. at shoot me.” relevant the most tive,” of “[o]ne was still times, I hear multiple tape listening and spontaneity” determining factors I me.” finna guess “I he shoot the words: Haggins, admissibility. therefore two reasons. for significant this find Here, majority the F.2d 1057-58.7 “I words First, inclusion need not maintains that (which cleverly excis- majority guess” much time how precision with establish es) far defini- less her statement renders if Even two events. passed between present chooses to majority than the tive correct, govern- assumption were this con- the statement importantly, it. More (as therefore and proponent ment “was”) or (e.g., “is” auxiliary tains no verb proof on evi- of bearing the burden party “finna,” I which understand connected in- provide some must dentiary questions) to,” “fixing for slang contraction to be a the two closely tethered dication of how as a contraction “gonna” much serves here, district court But were. events See, e.g., http://www.urban to.” “going for govern- on requirement placed no such dietionary.com/define.php?term=finna admitted, Instead, court the district ment. 2007) “finna” (last (defining Apr. visited 56. J.A. at the time frame.” “I don’t know Normally to.’ as, ‘fixing of “Abbreviation uncertainty, the dis- Notwithstanding this ”).8 an auxil- The lack of to.’ ‘going means explanation court without trict concluded of wheth- iary renders determination verb to have “appears phone call that Gordon’s imply past or intended er Gordon time to con- there guess- made was been before in sheer an exercise present tense 64. With- J.A. at misrepresent.” spoken the words Accordingly, trive or work. in the of- any basis explanation do not establish tape out conclusion, before there the district fered these for this record misrepresent. contrive or time to cannot stand. decision court’s usage, slang therefore along develops with factors Haggins we noted several 7. instance. unusually appropriate time in which of will the window seems often extend source, spontane- be considered as it UrbanDictionary.com still such a a statement is the declarant's slang These factors include ous. propose definitions permits users to physical and mental con- age, the declarant's terms, whether to vote on and other users shock, intervening uncon- (including dition sciousness, pos- they agree particular definitions with pain), characteristics "the visit, the defini- the last At the time of ited. event, subject state- matter (which posted in June above tion cited at 1058. Haggins, 715 ments.” F.2d votes, 2003) positive had received votes, making the most negative only 45 Understanding statements in Gordon's twenty proposed definitions popular of the understanding slang, tape requires "finna,” future which one of connote all but Turning constantly evolving. ato which consensus, and thus action. operates source call, majority attempts satisfy admitting next the 911 as the record temporal by noting element that the presently before us permit gov- cannot district court concluded that Gordon ernment satisfy either its burden of distraught. sounded nervous and But this that an establishing exciting event oc- the third element Hag- addresses curred or burden proving its that Gor- (whether gins test the statement was don’s statements were made before she made while the declarant under the was had the misrepresent. time contrive or (wheth- event), stress of not the second B.

er Gordon’s Statements When the the statement was made there Of- before ficers First Arrived was time to contrive or misrepresent), impermissibly collapses thus the second Gordon’s statements to the offi- tone, prongs third such that a nervous they cers when first arrived on the scene more, without is sufficient to establish suffer from the same fatal defects as her tone, however, speaker’s both. The operator: statements to the 911 gov- plainly satisfy insufficient to the second present any ernment failed to independent element, for whether one nervous sounds evidence pulled gun that Arnold on Gor- distraught or is irrelevant to determining similarly don and failed to show that she passed whether sufficient time has for the lacked the time to contrive or misrepre- speaker misrepresent. to contrive or Here, however, sent. the district court Finally, majority majority’s the cases the and the regarding relies conclusion upon readily distinguishable. are In the second Hag- specious, factor is even more gins, the court found the relevant state- evidence before the district declarant’s ments court young admissible because of her demonstrated notable temporal condition,” disconnect. “age physical emphasizing bleeding and in critical “[s]he Although the district court lacked Haggins, condition.” 715 F.2d 1058. regarding whether Gordon had Gordon, contrast, is an adult who suf- time misrepresent to contrive or before physical no harm. Similarly, fered call, making the evidence before declarant in v. Baggett, United States 251 the district court demonstrated that Gor- Cir.2001), F.3d had suf- don had sufficient time to contrive or mis- physical fered severe abuse that resulted represent talking to the officers before period an undefined of unconsciousness they when arrived on the scene. Gordon (a between the startling prolonged event a.m., made her call at 7:43 and the call statement, beating) and the which was approximately lasted two minutes. Officer made in the hospital regained after she testimony Brandon’s established Likewise, consciousness. the declarant in dispatched officers were sometime be- Cruz, (1st United States v. F.3d tween 7:54 and 8:00 and arrived on the Cir.1998), also suffered an and pro- intense scene five to six minutes later. J.A. 71- longed beating, and the declarant Unit- Thus, 72. in addition to the unknown peri- Green, ed States v. 125 Fed.Appx. od time between Gordon’s altercation (6th Cir.2005) (unpublished opinion), had with (during and her 911 call physical the victim of a been assault. course of begun she had which calm Again, declarants, and unlike each of these down), fourteen and twenty-one between physical Gordon suffered no harm. elapsed minutes until the officers arrived reasons, all For of these would hold clearly represents I on the scene. This suf- that the district court abused its discretion ficient time for someone in posi- Gordon’s Merely repeating story misrepresent contrive tion to miraculously does not unreliable statement her account. the details of ex- reliability. The doubts it with imbue the time obscures majority opinion previous state- regarding Gordon’s pressed by assuming events line of these that this state- lead me to conclude ments the end passed between five minutes too, on the ment, inadmissible plainly arrival and the officers’ 911 call court. before the district record true, it if this were Even on the scene. minutes is not that five not follow does conclusion, majority opinion evis- misrep- to have time for Gordon sufficient long that has three-part test cerates I of no happened. know what resented hearsay admissibility of governed declar- that an adult holding case binding ex- the excited-utterance under statements harm is in- physical no ant who suffered majority’s rea- The effect of ception. reflection sufficient of conscious capable in an a uttered soning is that statement story in even misrepresent a fabricate or manner, startling alleging that a exciting time, let alone period of this short occurred, automatically admissible event is minutes that actu- twenty-one fourteen to After the matter asserted. for the truth of reasons, I would these ally passed.9 For required today, independent no evidence its dis- court abused hold that the district (the first occurrence of either the event’s initial admitting state- cretion in Gordon’s passed time that the amount of prong) or as excited utterances. to the officers ments alleged event and the state- between (the instead, the de- prong); ment second Af- to Officers C. Gordon’s Statements the court to permits tone clarant’s excited Arrival ter Arnold’s making these infer- And after infer both. in a to the scene Arnold returned When ences, satisfy the third may the court then mother, by Gordon’s car driven alleged that the event by inferring prong allegation officers her repeated to the (the from was inferred occurrence of which I on her. would pulled Arnold had tone) speaker’s caused the speaker’s that, to those ex- for reasons similar hold Thus, liar not fear convincing need tone. above, court abused its the district pressed court admit perjury, of for a pains un- by admitting this statement discretion for truth of statement his out-of-court exception. the excited-utterance der asserted on basis the matter shown, the record contains previously As alone, insulating and tone statement al- of Arnold’s independent no oath and cross-examination. liar from both or evidence of gun-brandishing, leged flatly inconsistent with approach is This elapsed between amount of time that jurispru- excited-utterance existing our her with Arnold and altercation Gordon’s dence. defects, the call. of these Because carry its burden of es- government cannot III. CONFRONTATION CLAUSE claim that tablishing statements discussed Even if each of the inherent pulled “contain[s] Federal under the truthfulness,” above were admissible Haggins, 715 guarantees Evidence, we must undertake Rules of “possi- that there was no F.2d at or Amendment’s fabrication,” analysis the Sixth under Wright, 497 U.S. bility of previously, noted with Arnold. As extremely charitable cation calculation is 9. Even this assumption in the support there is no government, that Gordon as it assumes immediately record. after the alter- made the 911 call (6th Cir.2006) (“The majority- As the Confrontation Clause. 461 F.3d notes, crux inquiry of the constitutional government, satisfy order to the exi- challenges for Confrontation Clause has gent-circumstances exception in the pres- changed since Arnold stood trial. Previ case, ent must show that there awas risk ously, government to establish needed injury posed serious or officers (1) the witness’s constitutional una action.”). required others that swift Simi- (2) vailability and indicia statement’s larly, involving cases consent reliability (e.g., admissibility a hear under search, government has the burden Roberts, say exception). Ohio v. 448 U.S. demonstrating that the defendant consent- 56, 65-66, 100 S.Ct. 65 L.Ed.2d 597 search, Hurst, ed to the United States v. (1980). now, But must Cir.2000), 228 F.3d “that the establish that the proffered freely consent voluntarily given Washington, were not “testimonial.” v. Davis coercion, duress, and was not the result of - U.S.-, 2266, 2273, 126 S.Ct. to a claim of authority,” submission (2006); L.Ed.2d 224 Crawford Wellman, 36, 53-54, Washington, 541 U.S. (6th Cir.1999), and, 657 in involving cases (2004). 1354,158 case, L.Ed.2d 177 In this consent, third-party that the third party government developed the record fit the authority common sufficient to consent inquiry; first quite understandably, the search, ato Illinois v. Rodriguez, 491 U.S. government neither the nor the district 177, 181, 2793, 110 S.Ct. 111 148 L.Ed.2d court considered the But second. (1990). In the context of Fifth the Amend- give not this court a does license to contort ment, government the must establish test, the record to fit the Davis which is preponderance of the evidence that the exactly majority what the opinion does. defendant knowingly waived his Miranda doing, In so majority’s the ap revisionist rights, Connelly, 157, Colorado 479 U.S. proach effectively turns the bur applicable 169, 515, (1986), 107 S.Ct. 93 L.Ed.2d 473 proof den of on its head. and that confession voluntary, Lego Twomey, 404 U.S. 92 A. Burden of Proof (1972), S.Ct. 30 L.Ed.2d 618 if the proper starting The point of the Con- jury is to such statements. receive analysis frontation Clause is the allocation principle applies The same in determin- of burden proof, majori- of an issue the ing admissibility in light of a Confronta- ty does not address. aWhen criminal tion challenge. Clause It is clear that defendant raises a challenge constitutional government before bore government’s evidence, proffered Crawford burden of proving the of admissibility government prepon- must show statements under the Confrontation derance of evidence that evidence is Roberts, 74-75, Clause. 448 at constitutionally U.S. 100 admissible. principle This (“As S.Ct. evidentiary pro- in with other rings variety true of circumstances ponents, prosecution bears the Fourth the burden implicating and Fifth Amend- instance, establishing” of that a For witness is ments. we noted that constitu- have unavailable); government tionally Wright, bears the at “[t]he burden of U.S. proving exigent (recognizing gov- such as S.Ct. 3139 circumstances emergency medical existed ernment justify establishing has burden of warrantless search.” sufficient Hardesty reliability). Nothing v. Ham- indicia of burg Twp., states, Cir. either Davis or even Crawford 2006); hints, Huffman, see also United States v. Supreme that the Court intended call, her of time police” “need ines- burdens. of allocation alter this in the all were stated for this need reasons then, post- conclusion, is that capable boy- my momma’s “Me and tense: past the burden Dams, retains went he throw-up, and got in a friend evi- preponderance defeating, by it out pulled pistol, agot the house Clause dence, Confrontation a defendant’s got I me. So shoot I he finna guess me. the govern- means challenge. This around and went my [inaudible] car showing that facts must establish ment Audio tape: house.” from the the corner nontestimonial, are proffered Notably, 19, 2002. Sept. call dated in the course “made i.e., they were tense, each of past in the spoke circumstances under interrogation police statement Gordon’s verbs in italicized the primary indicating that objectively notably from different This is illustrates. is to enable interrogation purpose Davis, where at issue the statements emer- ongoing to meet police assistance tense, present in the spoke the 911 caller 2273. On Davis, 126 S.Ct. gency.” again,” on me jumpin’ here saying “He’s court, gov- before presently record fists,” runnin’ and “He’s his “He’s usin’ burden. meet this cannot ernment Davis, at 2271. While now.” case, Davis in the McCottry, the victim Call B. they were events as about speaking “was under inquiry above, the core noted As 2276, that was id. at actually happening,” of- were the statements is whether Davis contrary, Gor- To true Gordon. ongo- to address an to enable fered Id. “describing] past events.” don To deter- at 2273. Id. emergency. ing 527 U.S. Virginia, Lilly v. (quoting statements, courts the purpose the mine (1999) L.Ed.2d 119 S.Ct. under the circumstances consider must (alteration original). in opinion)) (plurality both made, emphasizing they were which environ- that the it is not clear Similarly, state- (e.g., whether the factors temporal the 911 spoke to ment which past events present or described ment to render sufficiently chaotic operator was ongoing) emergency was the whether true It is nontestimonial. her statements the (e.g., whether factors environmental that her upset, and sounded that Gordon formal, or were made statements throughout the call. raised voice was Consider- safe, Id. at 2276-77. setting). Nonetheless, that Gordon we know they of factors as categories ing these the herself from scene extricated to the statements to Gordon’s apply assault, by her indica- as evidenced alleged suffi- not contain does operator, record gone house and had left the tion she information cient (either to, in, or the corner around nontes- were statements that her establish as car). this fact knew operator reason, this For timonial. “Ma’am, Gordon, listen well; she reminded presently the record are not admissible now.” Audio there not to me. You’re court. before the 19, 2002. Davis Sept. call dated tape: 911 fact itself suggests Not- strongly factors. First, temporal I consider inquiry, to end inser- majority opinion’s well be sufficient withstanding the be- physical separation into Gordon’s stated auxiliary Court verb tion of an victim alleged the assailant Arnold’s tween regarding speculative statement terminate emer- clearly is often sufficient her, Arnold shoot intent (“after Davis, at 2277 gency. she spoke when past events reporting need- information gained the operator claimed she While operator. the 911 moment, exigency ed to address the C. Gordon’s Statements When the Offi- emergency appears cers to have ended First Arrived (when Davis away premis- drove from Because the emergency longer was no ).” added)). es (emphasis “ongoing” when call, Gordon made her 911 Gordon’s statements to the officers were majority While the that the insists emer- also testimonial and thus inadmissible. continued, gency insinuating that Gordon But one need not accept my conclusion might her, feared Arnold pursue Maj. regarding call to agree with me 189-90, Op. at the circumstances do not here. II, As supra noted in Part objectively reveal that Gordon considered relevant testimony establishes four- herself to be in danger. such Short of teen to twenty-one minutes separated the (which yelling Gordon’s subjec- reflects her phone call and the officers’ arrival. This state), tive additional emotional the 911 call time was certainly reveals sufficient to quell any “emergency” that may none of the have been objective being indicia of her “ongoing” at call, the time of the 911 espe- hunted that one would expect to hear from cially because record contains no evi- facing someone such an “ongoing emergen- any dence of aggravating factors Davis, cy.” 126 S.Ct. at 2276. The 911 interim sufficient to rekindle emergen- tape does not contain the sound of foot- cy- steps pounding pavement heavy Further, the record no contains breathing, which indicates that Gordon did that Gordon fled from her position “around run quickly from the house to her car. the corner” from 1012 Oak during View Nor does it contain any indication that this intervening period, which renders operating car, Gordon was let alone doubtful that real contin- emergency the sounds of hurriedly driving away from ued. We know that Joseph had, dangerous situation (ignition starting, some point, left 1012 Oak View a car engine revving, screeching). tires Re- mother, driven but we do not (the maining stationary in or outside of know whether Gordon knew that Arnold unclear) record is sitting a car “around the left. way, Either the record does not re- corner” the from location of a recent as- any flect actions on part her consistent sault with a hardly firearm is type the of with an ongoing emergency. Assume first behavior exhibited in someone the that Gordon not know that did Arnold had throes of “ongoing emergency.” an house, left the but instead was under the impression that he remained in the house. reasons, For these I would conclude that The record’s lack of any indication that she the statements in Gordon’s 911 call are spot left her around the implies corner testimonial, and therefore not admissible. that she felt enough safe to remain within minimum, At it is clear to me that on the (and walking shooting) distance of the presently court, record before gov- house alleged where her assailant re- ernment cannot establish “circumstances Alternatively, mained. assume that Gor- objectively indicating primary that don knew that Arnold had left the house. purpose of the interrogation is to enable instance, In this the lack of evidence police assistance to meet ongoing an emer- that she moved from the corner indicates gency,” id. at based on the factors that she did not think Arnold pursuing was emphasized in Davis. her to shoot or assault her.10 While the Further, 10. overwhelmingly unlikely Gordon, that Arnold left the house to hunt as relevant Clause. in Confrontation remaining that may be correct majority once car that testimony indicates route quickest place “offered the same said, to it pointed up, Gordon officers,” Maj. pulled with making contact him,' pulled the one that’s “that’s offered also remaining there Op. at statement, This at 74. me.” J.A. on contact with make route to quickest officers statements like Gordon’s emergen- ongoing bullet, assuming that scene, clear on they first arrived when which no matter Simply put, cy existed. previ As noted past events. ly references Gordon’s regarding draws one inference recounting “events not whereabouts, ously, was Gordon of Arnold’s knowledge ” Davis, actually happening. they were as indicate objectively not do circumstances original). in (emphasis at 2276 126 S.Ct. ongoing. was emergency Amy declarant Additionally, similar them- statements Similarly, Gordon’s held to were statements Hammon whose testimonial. they were reveal selves Court in Supreme by the testimonial be Brandon, said Gordon Officer According to while statement Davis, made Gordon pulled had boyfriend her mother’s “that to in the scene present on were officers thus 72; and this her,” at J.A. conduct.” past criminal “possibly vestigate happened “what recounted Gordon, Further, Ham like at 2278. Id. opposed as Davis, at past,” Id. at by the officers. mon, protected was Hammon, Amy Like events. present McCottry And, the declarant unlike Su- case the other in the the declarant nontes- held be were whose statements caption under decided Court preme case, is no Davis there in the timonial delivered Washington, Gordon Davis v. “in immediate indication anof scene officers, had arrived who Id. For car arrived. when the danger” past disturbance, “narrative earlier reasons, statements Gordon’s of these each from in time remove ... at some events testimonial, thus inadmissible. were at 2279. Id. danger she described.” not dis- McCottry, Gordon unlike And PRIVATE TO ADMIT REFUSAL IV. hap- actually they were as cussing “events STATEMENT INVESTIGATOR’S original), (emphasis id. pening,” when present not even majority Arnold was with the disagreement My final re- if one made. Even were the dis- conclusion lies its opinion infer- of which analyses previous jects error commit reversible did trict court upon based reasonably draw one can ences in- private excluding from spoke behavior, that Gordon told that Gordon statement vestigator’s events, is tense, relaying past past Joseph Ar- seen never she had him that statements that her establish sufficient to reaching its day. that nold with inadmissible. testimonial and were applies conclusion, majority opinion is approach This analysis. plain-error Af- Officers to Statements D. Gordon’s demon- record as the highly speculative, Arrival ter Arnold’s “brought to counsel that Arnold’s strates in not ad- error attention” the court’s once the officers Gordon’s investigator’s state- private mitting under admissible are not arrived Arnold daughter, pursuit of her own aid Arnold’s car driven in a the scene returned Arnold be- notwithstanding any of hostilities otherwise To conclude mother. counterintuitive accept the her mother. requires one to tween decided mother Gordon's proposition that ment, necessary which is all is for V. CONCLUSION Compare apply. harmless-error standard For above, each of the reasons described 52(a) with Fed. .R.Crim.P. Fed I believe that erred, the district court 52(b). It is true that Arnold’s R.CRIM.P. the majority today utilizes analy- incorrect counsel did not specifically mention Feder ses and wrong reaches the result. al Rule of Evidence 806 as the basis for admitting testimony. But “spe such a ground”

cific necessary only when objects

party to the admission of evidence. 108(a)(1). When, here,

Fed.R.Evid.

party challenges evidence, the exclusion of

it is sufficient that the basis for admissibil

ity apparent “be from the context.” Unit Ganier,

ed Stephanie PEETE, Plaintiff-Appellee, Cir.2006).11 Because the district court knew that Arnold sought to introduce tes timony that Gordon private told investi METROPOLITAN GOVERNMENT OF gator possessed Arnold a gun never NASHVILLE AND DAVIDSON day and because it apparent COUNTY; Nashville Tennessee Fire

Arnold intended to attack Gordon’s credi Department, Defendants, evidence, bility with this I believe that harmless-error review should apply. Turner, Michael Firefighter Captain; Assuming arguendo that we should re- Malcolm Arrington, Firefighter; Wil- plain error, view I cannot conclude West, liam Paramedic; Kevin David that this error did seriously affect the Kingsbury, Paramedic; Lloyd Craw- fairness, integrity, or public reputation of ford, EMT, Defendants-Appellants. judicial proceedings. Gordon’s state- No. 06-5321. ments that Arnold threatened her with a gun constituted the only evidence tying Appeals, States Court of to the gun found the car. Set- Sixth Circuit. ting aside the infirmity constitutional convicting a defendant upon such insuffi- Argued: April 2007. evidence, I, cient see Part I supra cannot May Decided and Filed: see how denying the defendant right introduce evidence that Gordon later re-

canted these statements could do anything

but affect the integrity fairness and reason,

Arnold’s trial. For this I would

hold Arnold has demonstrated that

the district court’s decision to exclude the

investigator’s error, plain statement was

and remand for a new trial. requirement

11. Even beyond stretches dence" he or she seeks to admit. And that text, the bounds of the requirement relevant rule's as Fed- attaches if the substance 103(a)(2) eral Rule of explicitly Evidence re- "apparent the evidence was not from the con- quires only apprise that the proponent questions text within were which asked." district court 103(a)(2). of "the substance of the evi- Fed.R.Evid. notes some oth- Reaching the same conclusion that I er opposite authorities have reached the have, various courts have held that a hear Appellee’s conclusion. Br. at Supp. 27-28. say statement itself cannot serve as the Although some of these authorities claim alleged startling sole evidence of the event admitting such statements is the See, that spurred e.g., the statement. rule,” “generally prevailing see United (Mo. Post, 231, State v. 901 234-35 S.W.2d Brown, (3d 454, States v. 459 Burton, Ct.App.1995); People v. 433 Mich. Cir.2001), they neither cite recent authori- 268, 133, (1989); 445 N.W.2d 144 Com ty provide explanations nor why such Barnes, 480, monwealth v. Pa.Super. 310 circular reasoning permissible. More 1037, (1983); Terry, 456 A.2d 1040 State v. troubling, not one of these cases addresses 874, 1397, Wash.App. 520 P.2d incompatibility bootstrapping such (1974); Truck Michling, Ins. Exch. v. with the foundations of the excited-utter- (Tex.1963); 174-77 S.W.2d Beck v. exception hearsay ance rule.6 The Nat’l Corp., Sur. F.2d 863-64 rule, better and the one I adopt, would Cir.1949); Leonard, see also People 83 requires corroborating at least some evi- Ill.2d 47 Ill.Dec. 415 N.E.2d alleged startling dence of the event. (1981) (upholding admissibility independent Misrepre- statement because Lack of Time to Contrive or event, concluded, corroborated startling occurrence of sent. The district court aside, 6.Further, Brushing majority Michigan Supreme 4. this concern as the Court "corroborating” offers five Burton, items of evidence. generally illustrated in the authorities matter, Maj. Op. at 185-86. As an initial it is support government’s position cited in of the far-fetched to count each of these items as an instance, are of dubious value. For the vast independent piece example, of evidence. For majority predate of such authorities majority attempts parse surgically Gor- Burton, many 445 N.W.2d at 142. In calling "act don's 911” from the "fear and treatise, cases cited in the McCormick inde- voice, distinguish excitement” in her and to pendent corroborating evidence of the star- both of these from the statements made dur- tling event existed. Id. at 142-43. These call, ing counting separate each as a fac- distinguishable are cases therefore from the indicating alleged startling tor that the event case at bar. actually point occurred. But the remains that whole, part item is each same a whole distinctions, Perhaps recognition of these perfectly hypotheti- that is consistent with the the latest version of the McCormick treatise major- cal contrivance recounted above. The now notes that whether an "[t]he [of issue ity’s rationale thus fails to illustrate how Gor- exciting proved simply rely- event be don's statements in the call are more ing yet on the statement itself] has not been any made-up allega- reliable than out-of-court resolved under the Federal 2 McCor- Rules.” tion. (6th ed.2006). § mick on Evid. applicable 5. The excited-utterance rule substantively each of these cases is indistin- 803(2). guishable from Rule

Case Details

Case Name: United States v. Joseph Arnold

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 18, 2007

Citation: 486 F.3d 177

Docket Number: 04-5384

Court Abbreviation: 6th Cir.