United States v. MitchellUnited States v. Mitchell
5-14-1998
United States v. Mitchell
Precedential or Non-Precedential:
Docket 97-1295
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Recommended Citation
“United States v. Mitchell” (1998). 1998 Decisions. Paper 113. http://digitalcommons.law.villanova.edu/thirdcircuit_1998/113
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 97-1295
UNITED STATES OF AMERICA v. BYRON MITCHELL, Appellant
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 96-cr-00407)
Argued January 21, 1998
Before: SLOVITER, LEWIS* and GARTH, Circuit Judges
(Opinion filed May 14, 1998)
Robert Epstein (ARGUED)
Assistant Federal Defender
Elaine DeMasse
Assistant Federal Defender
Senior Appellate Counsel
Maureen Kearney Rowley
Chief Federal Defender
Federal Court Division
Defender Association of Philadelphia
Philadelphia, PA 19106
Attorneys for Appellant
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*Judge Lewis heard argument in this matter but was unable to clear the opinion due to illness.
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
Paul A. Sarmousakis (ARGUED)
Assistant United States Attorney
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
In this case, we must examine whether there is any basis to justify the introduction into evidence of an anonymous note that was plainly hearsay. Appellant Byron Mitchell, who was convicted of conspiracy to commit and commission of Hobbs Act robbery, in violation of
I.
The facts which appear not to be disputed are that between 9:00 a.m. and 9:15 a.m. on September 12, 1991 two men waited in a check cashing store at 29th and Girard Avenue in North Philadelphia, when an armored truck made a delivery of currency to the store. The assailants were armed with handguns and attacked the delivery man as he entered the store, robbing him of currency in excess of $20,000. The two men fled the scene in a beige car driven by a third person, and engaged in gunfire with those in the armored truck before they sped
During trial, the police officers testified that at 9:37 a.m. on September 12, 1991 the 911 radio room received an anonymous call in which the caller stated: “[I]n the 1660 block . . . of 32nd street, these guys just dumped this beige car. Apparently, they stole it [be]cause they jumped into another car and took off.” The caller also gave the license plate number of the deserted car, which turned out to be the beige getaway car that had been seen at the scene of the robbery. That car had been stolen shortly before the robbery at a gas station not far from the site of the robbery.
At 10:00 a.m., based on the 911 call, police officers found the beige car where the 911 caller had stated it was. A search by FBI agents recovered latent fingerprints and two anonymous notes from the front seat. One note contained the license plate number of the getaway car itself, ZPR-274, and is not challenged on appeal.1 The other note, which is the subject of this appeal, stated: “Light green ZPJ-254. They changed cars; this is the other car.” A check on the light green car revealed that it was a green 1978 Buick registered to Anita Young, then fiancee and later wife of defendant Mitchell.
That afternoon, an FBI agent who was part of a surveillance unit searching for that car observed Mitchell park the green Buick and enter Young‘s house. He exited shortly thereafter and drove away, with the agent following him. When the agent had grounds for a stop because of traffic violations, he searched Mitchell who was carrying $1,400 dollars in small bills. He also had a receipt from a lawyer for a $600 payment in cash which was made earlier that day.
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1. Although Mitchell does not challenge the admissibility of the 911 call or the note containing only the tag number of the getaway car, he argues that they too were erroneously admitted into evidence for the same reason as was the note indicating the switch of cars.
The government also presented testimony of Duane Johnson, an FBI agent specializing in fingerprint analysis, who testified that there were nine points of similarity between two of the fingerprints found in the getaway car and those taken from Mitchell. One fingerprint was on the outside door handle and the other was on the gear shift of the car. Agent Johnson conceded that it was common to have up to one hundred points of comparison when identifying an individual by fingerprint, but stated that he had made identifications on as little as seven.
Except for the testimony of Eileen Lamper, who testified that Mitchell was friends with one of the other robbers (thus supporting Chester‘s testimony), the other witnesses did not inculpate Mitchell per se; they established that the crime did happen, how it happened, and how it was investigated.
Mitchell sought exclusion of the anonymous note and certain other evidence before trial. He contended that the note was inadmissible hearsay and that its admission violated the Confrontation Clause of the Sixth Amendment. The district court overruled the objections, and the note was admitted. Mitchell was convicted by the jury on each count, and was sentenced to 24 years imprisonment, three years of supervised release, a special assessment of $150, and was ordered to pay restitution in the amount of $19,100.00.
II.
The district court held that the anonymous note referencing the light green car was admissible as an exception to the hearsay rule as a present sense impression or an excited utterance or under the catch all exception in section 803(24) of the Federal Rules of Evidence. Our standard of review is plenary, both because we are considering whether the district court correctly interpreted the Federal Rules of Evidence and relevant case law, see United States v. Pelullo, 964 F.2d 193, 199 (3d Cir. 1992) (“[t]o the extent the district court‘s admission of evidence was based on an interpretation of the Federal Rules of Evidence our standard of review is plenary“) and because Mitchell‘s challenge implicates the Confrontation Clause, see Government of the Virgin Islands v. Joseph, 964 F.2d 1380, 1385 (3d Cir. 1992).
A.
Present Sense Impression and Excited Utterance
To qualify as an excited utterance, the Rule requires that it be “[a] statement relating to a startling event or condition
Both Rules 803(1) and (2) share certain requirements. One of the principal requirements is that the declarant personally perceived the event or condition about which the statement is made. See Miller v. Keating, 754 F.2d 507, 511 (3d Cir. 1985) (personal perception a key element to the excited utterance exception); Bemis v. Edwards, 45 F.3d 1369, 1372-73 (9th Cir. 1995) (stating same for both the present sense impression and excited utterance exceptions). In addition, both hearsay exceptions have temporal limitations which limit admissibility of certain statements. See Bemis, 45 F.3d at 1372.
Mitchell‘s principal challenge to the admission of the anonymous note is that there is no evidence that the person who wrote the note personally perceived what it described. In support, Mitchell cites our opinion in Miller, 754 F.2d at 511, which presented facts similar to those here, as the statement at issue was anonymous.
In Miller, we stated that “[a] party seeking to introduce [an anonymous statement] carries a burden heavier than where the declarant is identified to demonstrate the statement‘s circumstantial trustworthiness.” Miller, 754 F.2d at 510. We further emphasized: “circumstantial evidence of the declarant‘s personal perception must not be so scanty as to forfeit the `guarantees of trustworthiness’ which form the hallmark of all exceptions to the hearsay rule.” Id. at 511.
In Miller, the trial court admitted a statement of an unidentified bystander at the scene of an automobile accident. Contradictory testimony was provided as to whose fault the accident was. Plaintiff sought the admission of the
On appeal we reversed, holding that admission of the anonymous statement was erroneous because the record was “empty of any circumstances from which the trial court could have inferred, by a preponderance, that the declarant saw [the defendant] `cut in.’ ” Id. at 511 (emphasis added). We found the trial court erred in inferring personal perception on the ground that the declarant would have made the declaration only if he was in a position to do so. Instead, we stated that the words of the statement, or the circumstances surrounding the event, “do not show more likely than not that the declarant saw the event.” Id. Inasmuch as it was equally likely that the unidentified declarant was “hypothesizing or repeating what someone else had said,” id., the statement was inadmissible as an excited utterance.
Miller is dispositive here. Although the government argues that “[a] common sense reading of the note suggests that the person writing the note was perceiving the event and in close proximity,” appellee‘s br. at 14, the record here is devoid of circumstances indicating by a preponderance that the author of the anonymous note actually saw Mitchell change cars. Thus, the requirement of personal perception necessary for both the present sense impression and excited utterance exceptions to the hearsay rule is not satisfied.
In light of our conclusion, the issue of the temporal limitations of the exceptions is less critical. Nonetheless, we note that there is also no evidence to suggest that the unidentified writer of the note made the statement before s/he had time to reflect and fabricate. The time lapse between the robbery and the writing of the note is not clear. Because the robbery occurred between 9:00 a.m. and 9:15 a.m. and the notes were found in the getaway car a mile away from the scene of the robbery at approximately 10:00 a.m. there could have been a 40 minute time span, probably too long for applicability of the present sense exception. Therefore, the government cannot rely on a hearsay exception which requires the statement to be made
Of course, if the writer and the 911 caller were the same, and the notes were left shortly before the 911 call at 9:37, the temporal limitation might have been satisfied. See McCurdy v. Greyhound Corporation, 346 F.2d 224, 226 (3d Cir. 1965) (statement admissible under the excited utterance exception even though it was made ten or fifteen minutes after an accident); United States v. Blakey, 607 F.2d 779 (7th Cir. 1979) (holding admissible a statement made up to 23 minutes after it was observed as a present sense impression), overruled in part on other grounds, Idaho v. Wright, 497 U.S. 805 (1990). However, given the total lack of information regarding the circumstances of the note‘s creation, the trial court could not reasonably find that there was no time to fabricate the statement.
We note that there are other problems as to admission of the note as an excited utterance. There was no indication that the author was under the stress of excitement when s/he wrote the note (or when the 911 call was made), a requirement of the excited utterance exception.“The assumption underlying the hearsay exception of Rule 803 (2) is that a person under the sway of excitement temporarily loses the capacity of reflection and thus produced statements free of fabrication.” Miller, 754 F.2d at 512. Further, there is no evidence that the parking of the beige car was a shocking or exciting event.
For all of the above reasons, we feel bound to conclude that it was error to introduce the anonymous note as either a present sense impression or an excited utterance exception to the hearsay rule.
The Residual Catch All Exception
The district court also held that the anonymous note was admissible under the residual exception to the hearsay rule, which at the time of trial was found in
The legislative history of
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2. As presently framed,
A statement not specifically covered by
Rule 803 or804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent‘s intention to offer the statement and the particulars of it, including the name and address of the declarant.
Although the hearsay rule and the Confrontation Clause protect similar values, see id. at 814, the Confrontation Clause has a broader reach barring the admission of some evidence that would otherwise be admissible under exceptions to the hearsay rules. See California v. Green, 399 U.S. 149, 155-56 (1970). Before a statement will be admissible, the prosecution must show that “it bears adequate `indicia of reliability.’ ” Wright, 497 U.S. at 814-15. The “indicia of reliability” requirement can be met if the hearsay statement either falls within a firmly rooted hearsay exception or if it is supported by a showing of “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980).
By definition, the residual hearsay exception is not a firmly rooted hearsay exception. See Joseph , 964 F.2d at 1386-87 (citing Wright, 497 U.S. at 817). The district court found the requisite trustworthiness from other evidence it considered to be corroborating, i.e., by “the locating of the fingerprints of defendant Mr. Mitchell, and his operating the described vehicle [ ] in a short distance away from th[e] area at a later point that afternoon.” App. at 652. In so finding, the district court erred as a matter of law because “under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Wright, 497 U.S. at 822. “[T]he use of corroborating evidence to support a hearsay statement‘s `particularized guarantees of trustworthiness’ would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at
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3. The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Mitchell argues that evaluation of the trustworthiness of the anonymous note reveals that the circumstances surrounding its creation do not possess sufficient guarantees of trustworthiness permitting its admission into evidence. As he points out, the government failed to produce any evidence as to who authored the note or the circumstances under which it was written. Thus, the government failed to meet its burden of showing that cross-examination of the author of the note would have been of marginal utility to Mitchell.
The circumstances to which the government points to show particularized guarantees of trustworthiness are all other facts proven at trial, i.e. that the getaway car used in the robbery was found where the 911 caller claimed and that the caller stated that the people in the getaway car drove off in another car. These are not circumstances surrounding the making of the note and, under the holding of Idaho v. Wright, cannot be used to support admission of the evidence. We must therefore conclude that the admission of the anonymous note failed also to meet the requirements of the residual catch all hearsay exception and its incorporation of the Confrontation Clause, and was error.
III.
Harmless Error
Not all error is reversible. We must therefore decide whether the erroneous admission of the anonymous note
Mitchell argues that the note could not be considered harmless because it constituted the government‘s most powerful piece of evidence, as it was the one thing that led the police directly to him. He then argues that the testimony provided by the fingerprint expert, although damaging, could not have been the basis of the jury‘s decision because it was questioned by the jury, and the testimony of Kim Chester was unreliable. Mitchell therefore asserts that the anonymous note must have contributed “in some manner” to the jury‘s decision to convict.
Although we may not accept Mitchell‘s characterization of the note as the “most powerful” evidence, we cannot disregard its effect. There were problems with the evidence on which the government relies. The FBI agent who testified at trial conceded that the latent fingerprints found in the beige getaway car were in a “fragile” and “erode[d]” condition. App. at 342a, 453. He based his opinion of the match on a finding of only nine points of similarity between these prints and the prints taken from Mitchell at the station house. He further testified that the fewest points of similarity that he had ever previously based an opinion upon was seven and that he had never heard of anyone basing an opinion upon fewer. Moreover, while the jurors were deliberating, they sent a note to the judge that they were “struggling with . . . agent Johnson‘s testimony about fingerprints.” App. at 653.
In light of the legitimate questions raised as to the remaining evidence admitted at trial, we are compelled to conclude that although there was circumstantial evidence corroborating the anonymous note, the government has not demonstrated beyond a reasonable doubt that the admission of the note did not contribute to the jury‘s verdict.
IV.
For the reasons set forth, we will vacate the judgment of Mitchell‘s conviction and remand to the district court for a new trial.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit