United States v. Tishon Brown, AKA Clarence Brown, Jr. Tishon Brown, United States of America v. Clarence Brown, AKA Tishon Brown Tishon Brown
254 F.3d 454
3rd Cir.
2001
Check Treatment
Docket

*3 SLOVITER, Before ROTH Judges. RENDELL Circuit THE COURT OPINION OF ROTH, Judge: Circuit Brown, Tishon Clarence a/k/a Brown, in the was convicted United States Eastern District for the District of Court robbery. of armed New York of six counts in release supervised While on connection conviction, robbery with the Brown was possession convicted of firearm in violation of 18 S convicted felon U.S.C. sentencing 922(g)(1). Following in the case, possession pled gun guilty violating supervised release com- his mitting gun possession crime. The supervised District revoked Brown’s Court release a sentence incar- imposed ceration for that violation be served imprisonment consecutively to the term of gun possession case. Brown now appeals in both judgments cases. I. AND PROCEDURAL FACTS HISTORY 25, 1998, at May approximately On 10:50 p.m., Hughes Michael Police Officer Department Camden Police was dis- patched to the 700 block of Clinton Street investigate missing juve- Camden report. Hughes nile As Officer testified trial, possession Brown’s was while he speaking on the about to woman street juvenile, approached males two black yelling, they him. real “They were were excited, they guy saw a with a Cleary, telling Attor- me Robert J. Leone, Chief, .... ney, gun over at 7th and New 7th and Appeals Divi- George S. Washington.” “They were Attorney, New or 7th and sion Office of United States nervous, very they sorry put were was he had Officer very Hughes like excited very....” “through men told hopping around The this.” approximately that a man light prior of Brown’s federal convic- away gun at waving

two blocks tions for six counts of armed robbery and some- people threatening to “shoot other convictions automobile theft and accompanied the body.” firearm, possession a loaded along direction men Clinton Street possession case was referred to federal kept saying, of 7th The men “he’s Street. prosecution. authorities for Trial was con- up over there” “he’s there.” When ducted in United States District Court Street, 7th the two men ex- reached Jersey. for the District of New jury claimed, there, up right “He’s that’s him guilty gun possession found Brown *4 Brown, pointed The men out who there.” offense. walking 7th between was across Street Hughes When Officer testified at trial Streets, Washington approx- and Berkeley that the two men had told him about imately one and one-half blocks from the man waving gun and was saying he at which the men said location had going somebody, to shoot Brown’s attor- gun. the man brandishing encountered ney objected requested and a mistrial. hearing The District Court conducted a Brown, clearly Hughes Officer observed pursuant to Fed.R.Evid. 104 to assess by lamps, approaching illuminated street objection. the following day, On the court pistol a in carrying right and his hand. opinion a issued memorandum Of- holding parked Hughes took cover behind Officer Hughes’s testimony ficer admissible as car, for gun, drew his and radioed assis- exception excited utterance drop He tance. ordered Brown to his verdict, Following the jury rule. the Dis- weapon. initially After the com- ignoring imposed trict 78 Court sentence of mand, repeated which Hughes Officer months imprisonment, by followed a three- twice, dropped Brown gun com- year supervised term of release. plied on the with officer’s order to lie ground. Kenyatta Kelly supervised Officer arrived at Brown’s release in rob- ground. bery the scene saw Brown on the had been case transferred to Hughes Kelly told Officer Officer United States District Court for the Dis- had gun Jersey, pursuant Brown discarded a and directed trict of New to 18 U.S.C. Kelly Following to recover and it. Of- in sentencing gun Officer secure S 3605. case, Kelly weapon, possession pled ficer retrieved the which Brown guilty supervised contained thirteen live ammuni- by rounds of violation of his release com- ammunition, however, possession tion. The had not mitting crime. Brown pin gun’s firing agreed been chambered and the and the as condition that, subsequently plea broken. if gun possession discovered to be of the Brown’s Hughes Officer arrested Brown and read he appeal, conviction was reversed on him Miranda rights. his After Brown was would to withdraw guilty be allowed his supervised at the in Department, plea violating booked Camden Police for his release Hughes drove Brown the Cam- The robbery Officer case. District Court sen- County trip During imprisonment den Jail. Brown tenced to 18 months Brown spontaneously release, told supervised for violation of his consecutively not Brown’s this was first offense and be served to the term he charge.” imprisonment gun possession asked if could receive “a lesser case. also told that he appealed both For Brown has cases. 458 below, relating rule it is long we will affirm in as as a “statement stated

the reasons condition made startling event or both. while the declarant was under stress AND STANDARD II. JURISDICTION caused the event condi excitement OF REVIEW exception applicability tion.” The of the availability or by the unavaila unaffected jurisdiction over The District Court bility declarant a witness. Fed. possession offense pursuant Brown’s for the excited R.Evid. 803. rationale over the violation S 3231 and to 18 U.S.C. exception in the notion that utterance lies robbery his case supervised release suspends pow declarant’s excitement 3583(3) to 18 SS pursuant U.S.C. fabrication, ers of reflection and conse jurisdiction appeals We have his 3605. minimizing possibility that the quently pursuant to 28 U.S.C.S be self utterance will influenced interest the District Court’s de We review rendered unreliable. See therefore of dis to admit evidence abuse cision Joy, United States 192 766 Serafini, 233 cretion. denied, (7th Cir.1999), cert. 530 U.S. (3d Cir.2000). Our 768 n. E.3d (2000); L.Ed.2d S.Ct. *5 interpreta Court’s review of District 272, at McCormick on Evidence S 204-05 is, Rules of tion of the Federal Evidence (5th ed.1999). Id. however, subject plenary review. Although courts’ articulations of of apply We an abuse discretion invoke necessary elements the ex the District reviewing standard Court’s differ, ception upon agree most three re objections If rulings on summation. (i) a quirements: star occurrence challenge to the summation was (ii) condition; tling or the statement event Court, we in the District review raised in question must made while the have been See United States only. plain error declarant was under the stress excite Wert-Ruiz, (3d 228 F.3d 252 n. 1 condition; by the or ment caused event Cir.2000). prose to demonstrate order (iii) and relate the statement must to the plain under a error cutorial misconduct condition. See United startling event standard, “egre the review must reveal Moore, 791 F.2d 566 (7th States v. Cir. gious miscarriage error or a manifest 1986). Circuit, Third we In the have ex Price, justice.” 76 F.3d panded requirements admissibility (3d Cir.1996). 526, 530 (i) (ii) occasion; startling

to include: relating to statement the circumstances of III. DISCUSSION (iii) occasion; a declarant startling who A. EXCITED UTTERANCES appears opportunity have to ob (iv) events; exception personally the and The “excited utterance” serve hearsay long is a statement made before there has been recognized to the rule fabricate. See United time It is into the to reflect incorporated one. Federal Mitchell, 803(2) which States v. in Rule Rules Evidence Keating, Miller v. Cir.1998); that an is ad 754 F.2d 507 provides “excited utterance” (3d Cir.1985).1 exception hearsay as an missible (J. 1976). Wigmore’s requirements SS 1. These follow clas- 1750-51 Chadbourne rev. Wigmore, formulation. See 6 J. Evidence' sic opinion the memorandum it issued tified that the declarants could have following the Rule 104 hearing, place the Dis- walked they from the had seen the carefully applied trict Court four-part gunman our to Officer Hughes’s location in 803(2) analysis Rule minute”), as set forth Mitch- “maybe a such statements were ell and Miller and concluded that Officer made without opportunity to reflect Hughes’s testimony about the statements and fabricate. of the two declarants satisfied each of the contends, however, gov- that the First, prongs. four the court held that the provide ernment failed to evidence of the two declarants’ observation of a man wield- startling event Hughes’s other than discus- ing qualified a firearm a startling occa- sion of hearsay statements themselves. Significantly, sion. Brown all but con- however, argument, This fails in light of point cedes this in his brief: “On it’s [sic] generally prevailing rule an excit- face, a man waving gun and threatening may ed utterance of itself be sufficient to people to shoot appear would to qualify.” establish the occurrence of the startling Second, the District Court found that the Moore, (cita- event. See statements of the declarants to Officer omitted) (dictum). tions Academic com- Hughes regarding the man brandishing a agree mentators tend to gun (Hughes testified that the declarants itself proof is sufficient they “just said guy saw a with a ... exciting event without resort to indepen- New, 7th over 7th Washington evidence, dent corroborating in both theo- Street”) constituted statements relating to ry practice. jurisdictions Most also

the circumstances of startling occasion. find the statement in itself sufficient.2 Third, the District Court held that the Similarly, many courts have held that the declarants’ several statements appearance, behavior and condition of the *6 had personally seen the man gun, with the establish, may declarant without other in- coupled with their subsequent statements evidence, dependent that a startling event they actually pointed as out gunman addition, occurred.3 In Advisory Com- (“that’s there”) him right adequately es- 803(2) mittee Note to Federal Rule de- tablished that the men had the opportunity rulings scribes holding the statement itself to observe personally the at startling event sufficient “increasing” as “prevail- and the Fourth, issue. the court concluded that practice.” ing See Fed.R.Evid. 803 Advi- because the appeared declarants Note, be sory 183, Committee’s 56 F.R.D. excited,” “very “very “hop- 305; nervous” and 2 272, McCormick on Evidence S around,” ping and given approximate- Indeed, 206 n. 19. Weinstein’s Federal ly passed one minute had between the goes Evidence so far as to conclude that startling occasion and the declarants’ “hearsay may be used as the foundation statements to Hughes (Hughes tes- [the excited excep- utterance] See, Moore, e.g., (dictum); See, Moore, 2. 1; 791 F.2d at 571 e.g., 791 F.2d at &570 n. 190, Diveley, Industrial Comm’n v. 88 Colo. Co., Safety Casualty v. Wetherbee 219 F.2d 274 (Colo.1930); 294 P. 532 Johnston v. W.S. Nott (5th Cir.1955); States, Wheeler v. United 211 Co., 309, (Minn. 183 Minn. 236 N.W. 466 denied, (D.C.Cir.1953), F.2d 19 cert. 347 U.S. 1931); Smith, 104, State v. 178 W.Va. 358 1019, 876, (1954); 74 S.Ct. 98 L.Ed. 1140 188, (1987) (dicta). S.E.2d 194-95 But see Co., Stewart v. Baltimore & Ohio R. 137 F.2d Burton, 268, People v. 433 Mich. 445 N.W.2d (2d Cir.1943). 527 (1989); Exchange 133 Truck Michling, Ins. v. (Tex. 1963). 364 S.W.2d 172 See 2 McCor (5th mick on Evidence S at 206 & 17 n. ed.1999). held Appeals for the Circuit approach greatly would Second Any other

tion. exception by properly admitted utility of out-of-court statement undermine to be excluded.” aby valuable evidence an excited utterance declarant who causing Evidence, S hyped Federal “nervous” up” Weinstein’s was “all even ed.2000).4 803.04[2][b],at 803-21 it was three hours after though made some Tocco, 135 F.3d at startling event. persua of light the volume Phelps, v. 127-28. bearing ques on the authority siveness (8th Cir.1999), Eighth Cir F.3d 1048 tion, we conclude that an excited utterance “visibly of a dis cuit held statement to establish may itself be sufficient as an traught” declarant admissible excited ques that the startling event occurred and utterance, statement was although the corroborating evidence inde tion whether startling to 20 after the made 15 minutes of the declaration is needed pendent Golden, v. also States event. See United to establish the occurrence of given case (10th Cir.1982), cert. to the discre an event committed such denied, 456 U.S. 102 S.Ct. the trial judge. tion of (1982) (out-of-court L.Ed.2d 179 that the Brown also asserts admissible as excited utterance even satisfy fourth criterion of the failed to minutes approximately fifteen had though test: the statements were Mitchell transpired the event between declarants had time reflect made before statement). that, argues and fabricate. Brown be- Hughes did not know what cause Officer comparable factual Under circumstances passed time amount of had between the here, temporal gap to those where the event and men’s statements startling minutes, only a matter one or few if because did not know the have often admitted the asserted courts directly from declarants come him Territory utterance. Guam excited See (a the location of event distance Cir.1995), (9th Cepeda, 372-73 approximate- could be concedes covered part, part rev’d in Peo aff 'd. minute) or ly one a more circuitous Territory Cepeda, ple Guam route, preclude did not (state (1995) (citation omitted) F.3d 369 possibility that the two men had sufficient ments made “within minutes” of armed *7 story. time to their fabricate “quite robbery, where declarants were too, argument, unavailing panicked” properly This in were admitted excit utterances); Joy, facts ed United States 192 applicable law and the light (statement 803(2) appellant not at 766 that had record. Fed.R.Evid. does re F.3d admissible, around,” that, within a gun in order “waved a made few quire to be incident, qualified with as excit contemporaneous be the minutes statement utterance); Ladell, event, only with 127 startling but rather ed Cir.1997) (state (7th by excitement caused the event. criti F.3d 625 case, therefore, “hysterical police question in the ments of woman” cal instant claiming appel minutes” of call report the men’s of an armed “within 911 is whether period gun hit her a likely during man occurred lant had with threatened engendered by sighting their to kill her held admissible as excited utter excitement Tocco, ances); Bailey, 834 States v. United States v. gunman. United (1st Cir.1987) (out-of-court Cir.1998), state- F.3d 116 the Court of Louisell, (1980). Evidence Accord Federal 510-11 Moreover, an by “upset” concerning ment declarant the out-of-court statement in Miller an by was made unidentified declar- attempted bribe three minutes earlier the, utterance). accident, ant at scene of an automobile properly admitted as an excited assigning blame for the accident to the bar, In the case at the two declar plaintiff. The pro- statement itself did not Hughes statements to Officer that ants’ startling claim the event and the record just gun” a with a “they guy saw that was devoid of evidence from which the a a guy gun” “there’s over there with court could have inferred that the defen- startling very indicate that the event was actually dant saw the accident. See Mil- recent, if ongoing, ler, not at the time of the case, present 754 F.2d at 511. In the Therefore, ignoring however, statements. even the declarants did in fact claim to fact found Brown car personally startling have seen the event: a rying gun shortly after the statements Moreover, wielding gun. man the de- made, entirely were it was reasonable for clarants are simply stating what ob- the District to infer Court from testi They giving opinion, served. are not mony only passed short time which is what occurs when the declarant between event startling and the state points a finger causing of fault for ments, that visibly reasons, the declarants were still accident. For these we find this state, in an excited that their statements distinguishable case is from Miller. in likely thus were made a state of excite Furthermore, if interpret even we did event, ment with the and con originating the “heavier burden” for unidentified de- sequently that their statements were ad clarants, Miller, require established pursuant

missible as excited utterances startling beyond corroboration of the event 803(2). short, Rule we can find no itself, the excited utterance the fact that deficiency applica in the District Court’s immediately almost came tion of the Mitchell test. Brown, upon visibly carrying who was gun and who was identified as the argues admitting Brown also declarants, provides brandisher the two statements, two men’s the District Court such corroboration. See United States v. ran afoul of holding our Miller. We do (1st Cir.1995) (excited Collins, agree. Although we did state in Mil- regarding appellant’s utterance threat party seeking ler that a to introduce a appel- shoot the victim corroborated when an unidentified un- declarant shortly lant returned thereafter to scene of 803(2) der Rule “carries burden heavier bearing the threat a loaded while de- than where the declarant is identified to officer).5 spoke police clarant to a demonstrate the statement’s circumstan- trustworthiness,” Miller, tial recently 754 F.2d at We note also that we have ad *8 emphasized we also that “such state- reliability dressed the issue of the of a informant, if they by ments are admissible otherwise an unidentified 803(2).” of[Rule] meet criteria Id. For albeit in a context. different United (3d Valentine, supra, the reasons set forth v. Officer States 232 F.3d 350 Cir. 2000), Hughes’s testimony satisfies all the crite- we held that an unidentified infor rule, ria of that tip high as elaborated Mitchell. mant’s a crime area to a law Sallins, question 5. Brown also invokes United States with the whether the statements at 1993), challenge 993 F.2d 344 Cir. to issue were admissible as excited utterances. decision, therefore, admissibility of the out-of-court statements. That is not relevant to Sallins, however, presented we were not issue before us. them, objections we can wearing lodged that a man a different to officer

enforcement plain only review the comments for error. pants, gold blue and a neck top, blue sweat Walker, See United States v. not to be considered gun, a was chain had (3d Cir.1998) (prosecutorial remarks the informant re- solely because unreliable at trial objection to which no is made are to the officer. identify himself fused to error); only plain reviewed Fed. sufficiently reli- found the statement We 52(b). R.Crim.P. stop of the justify investigatory able to Supreme at 357. As the suspect. Id. objects re- following Brown first instructed, question Court has gov- prosecutor during marks of the reported infor- anonymously whether the initial ernment’s summation: trustworthy in deemed mation “should be Two men which he believes came from circumstances.” Id. at light of the total excited, Avenue came out Edmonds Gates, 462 U.S. (citing Illinois yelling guy started there’s with (1983)). 76 L.Ed.2d 103 S.Ct. area New around New Street present in the The total circumstances 7th, gun. waving it carrying He’s that the declarants case include the facts around. accompanied Hughes to the loca- Officer Hughes do? He tes- What does Officer out Brown and they pointed where tion tifies, you and I’ll submit to there has visibly carrying a that Brown was indeed challenge testimony, no to this it’s been gun in his hand. uncontested.... reasons, we conclude For the above interrupted At point, this Brown’s counsel testimony concern- Officer objected, claiming that prosecutor two was ing the men statements shift attempting was properly admitted into proof the burden of to the defendant and “excited utter- District under the Court asserting that the “evidence has been chal- hearsay exception to the rule.6 ance” sidebar, lenged, At it’s been denied.” prosecutor explained that she had intended B. REMARKS SUMMATION interrupted complete her remark with words, “it was that [Offi- Brown’s contentions uncontested We now consider cer down the street.” prosecutor’s Hughes] certain of the sum- walked regarding accepted prosecu- Because Brown either The District Court mation remarks. object explanation to the comments at trial or tion’s and concluded failed to argues present that the erroneous ad- radio would be admissible as a sense Brown also 803(1). Hughes's testimony impression mission of Officer under Fed.R.Evid. Kelly's testimony exacerbated Officer con- Brown's counsel then moved to strike Hughes’s report. cerning Officer's radio Offi- testimony whereupon the District Court patrol Kelly "I was on in that cer testified: agreed jury to strike it and instructed the come over area and I heard "disregard given by the last answer told there was the radio that ... he been Kelly.” In view of defense counsel's conces guy walking up gun.” the street with a admissibility Kelly's sion of of Officer testimo objected to the statements as Brown’s counsel nature, ny, Serafini, of its cumulative see and moved for mistri- inadmissible F.3d at and of the District Court’s in sidebar, al. At defense counsel reversed his it, jury disregard struction to the see United testimony position and conceded that *9 1143, Newby, v. F.3d 1147 Cir States 11 because the declarants’ would be admissible .1993), we find no merit to Brown’s conten had been admitted into evidence statements prior tion that it exacerbated the error— as excited utterances and because Officer we held was not in error. which have fact Hughes's repetition over the of the statements

463 (8th Sheppard, 766, have consti- States v. entirety would remark its 219 767 F.3d - denied, cert. Cir.2000), U.S.-, “fair on tuted comment” the evidence. 121 1208, (2001). 149 that it clear S.Ct. L.Ed.2d 121 Given The Court also noted the fact accepted that the District Court charge guilty from the and Brown’s not explanation, this reasonable we are unable contesting that plea charge he was the prosecutor’s to find that the remarks were objection. overruled defense “manifestly intended” “naturally or would complains appeal Brown on not taken],” Bontempo, 958, [be 692 F.2d at as prosecutor’s unfairly remarks that- on comment Brown’s silence. proof but that shifted burden rather also govern Brown asserts that impermissible constituted commen “necessarily” ment’s comments reminded tary on the silence. con accused’s We jury defendant’s failure to testi clude, however, prosecutor’s that remarks fy too, at argument, unper trial. This is impermissible did constitute commen prosecutor’s suasive. The claim that a tary testify on at Brown’s decision not to necessarily perceived remark would be case, trial. this did not jury as adverse comment on the concerning make direct comment silence accused’s must be assessed in the silence; only aspect Brown’s context of the summation aas whole and complains summation which now See of the evidence at trial. introduced formulation, is the “there has been no Collins, (6th Byrd 486, v. 209 F.3d 533 challenge testimony, to his it’s uncontest Francis, United States v. Cir.2000); 82 ed.” (4th Cir.1996). 77, F.3d 78 Viewed in the prosecutor’s We have held that re context of entire summation all any mark that aspect government’s trial, the evidence introduced at Brown’s “undisputed” evidence was or “uncontra- agree government’s we that cannot dicted” at trial an improper constitutes to testimony references “uncontested” nec only comment on a defendant’s silence interpreted essarily would have been as a “the language manifestly where used was commentary on Brown’s silence. Particu intended or such a that was of character larly given the fact that the comment at jury naturally would be a take it to interrupted issue was and never subse comment on failure of the accused completed, quently there no 'reason to Fenton, v. Bontempo testify.” F.2d 692 jury conclude would have as (3d Cir.1982). 954, 958 Brown has failed sumed it referred to failure to Brown’s satisfy requirements. either of these jury testify. surely was aware of the sidebar, government explained theAs aspects Hughes’s numerous of Officer tes the comments in went question only to timony were unchallenged defense relatively innocuous fact that Officer counsel over the course of the trial. Fur Hughes walked down Clinton be Street thermore, strategy the defense had includ seeing fore The trial Brown. court attempts impeach govern ed numerous every right, in the exercise of its sound likely ment witnesses. Thus it is more discretion, explanation credit jury that the would have understood the interrupted prosecutor’s comments prosecutor’s references to “uncontested” fit. See United it saw States extent responses testimony impeach to such (8th Mabry, cert. Cir.1993), F.3d attempts ment rather than as veiled refer denied, U.S., Edwards v. silence. See 511 U.S. ences to the defendant’s Durant, 114 S.Ct. L.Ed.2d abrogation denied, (8th Cir.1984), cert. grounds recognized on other United 469 U.S. *10 (citations door, you you I think the called opened 83 L.Ed.2d 87 105 S.Ct. omitted) credibility, to likely government’s question Hughes’ view into Officer (jury unchallenged concerning planted the suggested might remarks he have sixteen impeach- testimony response weapon, weapon. as I it was broken an rather than as adverse attempt, ment I think fair don’t this is comment silence). upon comment defendant’s objec- it the The think shifts burden. tion is overruled. certain challenges Brown also prosecutor’s during remarks the find no in the Court’s We error District as either summation government’s rebuttal Indeed, have twice ruling. we at least proof attempt shift the burden of to an to commentary of this to consti- type found improper implicit or commen the defense proper tute rebuttal material. See United ’ on decision not to tary the defendant’s (3d Dansker, v. States rebuttal, prosecutor the stated: testify. Cir.1976) (prosecutor’s challeng- comments Hughes Kelly, he sees Officer offer ing the failure of defense counsel to ground him on with got after he’s the explanation suspicious an innocent for points gun Hughes the pointed—Officer involving appellant did not conversation over Kelly goes out and Officer appel- improper commentary constitute on it. retrieves testify); lant’s failure to you And have the defendant’s state- Cir.1976) (3d Adamo, 31, 39 534 F.2d they’re I ments. submit admissions (prosecutor’s during remark summation gentlemen of guilt, of ladies portion “nobody denied” a of witness’s jury. suggestion heard of any Have we impermissible testimony not an com- would have Hughes some motive Officer silence, mentary appellant’s on but rather story? making up for this attempt credibility to defend witness’s context, counsel). clear- Examined in these remarks after of defense Addi- attacks proof of ly tionally, specifically do shift burden we have held that commentary improper when, here, constitute on defense its summa- uses Rather, testify. Brown’s failure to government witness of tion accuse argu- defendant, simply proper to a rebuttal amount framing government summation, During ment. the defense point in its may rebuttal to the absence upon Brown’s counsel cast doubt such support an accusation. Hughes’s testimony he was unaware Pungitore, See United States Cir.1990). until trial that the recovered It is our view firing pin, arrest scene had broken government properly that the did so possibility suggested the that “Officer instant case. Hughes planted” the defective and there- only other re argument Brown’s him, Mr. Brown.” “gun

fore on harmless lating prosecution’s con summation statement, prose- In its rebuttal when following cerns the remarks: asked, any sugges- cutor we “Have heard you your judge instructed to use tion some motive Officer would sense, up things light have this common to take making story?”, Brown’s experiences. it un- your counsel and at accused own life Was objected sidebar case— contested or did defendant’s shifting burden say' police, proof defendant. The District did Officer Camden objection, drop what Officer gun? That’s Court overruled defense he Hughes testified that said. stating, *11 object failed to Brown these comments IY. CONCLUSION any trial. We find neither error nor foregoing reasons, For the find we miscarriage justice of here. colorable See challenges Brown’s to his in the conviction Price, Indeed, appears 76 F.3d at 530. it gun possession case meritless. willWe prosecutorial mere of the slip that a reason, affirm that conviction. For that tongue gave language rise to the to which we will affirm also the of revocation objects language Brown now with no dis — supervised robbery Brown’s release in the upon adverse effect cernible the defendant. case. context, any in as Read such comments be, prosecutor’s phrase the must use of the RENDELL, Judge, Circuit dissenting: ‘Was it uncontested or did the defendant’s difficulty The I majority’s have with the appears nothing case—” to be more than application excep- excited utterance garbled syntax an that she instance tion hearsay to the rule in this instance immediately corrected proper with a refer stems from the fact that the element of admitted ence to evidence: “Did Officer “startling indepen- occasion” has not been say police, drop gun?” Camden was, dently instead, but “proven” verified Supreme think the Court’s We observation hearsay statement While Donnelly v. DeChristoforo, 416 U.S. itself. majority’s may view be majority “the (1974), 94 S.Ct. 40 L.Ed.2d 431 con view,” that does remove the need challenges arguments cerning closing on a case-by-case assessment basis apposite particularly analysis. to our Be ruling the appropriate regarding admissi- cause summations bility. unique factual setting present- The carefully are seldom constructed toto ed here a different required result. the event improvisation [and] before fre- Here, theory the defense imperfect results in was that offi- quently syntax left planted cer gun. The meaning crystal less than clear ... only that runs counter to that a court should not that a lightly infer theory is statement of prosecutor Hughes, ambiguous intends an re- the statement recounting to have made damaging mark its most mean- three unidentified males. No other wit- ing jury, through or sitting exhortation, ness saw heard anything. lengthy will draw that Hughes’ that he meaning from statement then went plethora less dam- waving saw the defendant interpretations. gun does aging reliability not add to the of the 646^47, general Id. at 94 S.Ct. 1868. As a rather, testimony; Hughes’ testimony that rule, in assessing ambiguous whether an with gun just he observed Brown could prosecutorial remark should be construed easily be no more than an embellish- improper as an comment on the defen ment of a fabrication. Nor the find- does appellate testify, dant’s decision not ing any itself add element not strain to reach the one courts “should reliability, just that fact is because as com- interpretation improper which ascribes patible theory with the defense prosecutor.” motives planted as it with govern- Monaghan, it. theory possessed ment’s (D.C.Cir.1984), denied, cert. 470 U.S. (1985). reliability problem 105 S.Ct. L.Ed.2d 146 pat- the fact case, the District de properly presented compounded by this Court tern is thus so, do clined to as do we. fact that allegedly the witness hearing de- testimony established nent of the purported star- regarding *12 and the knowledge credi- very person personal whose the clarant’s is tling event majority’s Here, The attack. Id. the is- spontaneity. under bility is statement’s of Hughes’ version on stamp approval of incident gun-waving the sue is whether ruling reliability by events, it with cloaking and, than the other really happened ever hearsay, seems impermissible to be it not that the de- self-serving statement officer’s unwarranted an hand the to gun, the there holding in fact was fendant bonus.1 in fact incident that is no evidence Keating, 754 F.2d in Miller v. saidWe “cir- no evidence of There is occurred. (3d Cir.1985): trustworthiness,” alone evi- let cumstantial the Rule 803 of all unifying trait The Id. at burden. satisfy to a “heavier” dence guarantee is a circumstantial exceptions 511. justify to sufficient of trustworthiness here, I presented In the circumstances declarant, whether of the nonproduction testimony Hughes’ find that Officer would Although Rule 806 not. available by the statement concerning purported any right a to confer cannot be read was insufficient declarants unidentified the credibil- attack on form of particular ad- own declarant, hearsay statement’s it does confer establish hearsay a ity of record, significantly that is right Hughes’ testi- generalized missibility. On this hearsay declarant when the diminished that evidence “scant[ ]” constitutes mony unavailable, un- also but is only is not occurred; it actually startling event identified, against whom party of trustwor- guarantees “sufficient lacked in- is statement hearsay declarant’s for the admis- provide the basis thiness” only of the deprived not thus troduced is as an excited hearsay statement sion of the cross-examine, any mean- but of right to Miller, at 510. utterance. of finding evidence of ingful prospect Court admitted I think the District bias. inconsistency or more “proved” hearsay statement omitted). (footnote thenWe Id. at 510 a criminal proven. in fact than was concede, noted, does majority here as the this, theory defense where the case such as identified, is not the declarant that where very trustworthiness to undercut the seeks such a to introduce party seeking events, we government’s version burden a “heavier” statement carries hearsay proves admit “circumstan- should not the statement’s demonstrate reliability at if the Id. 510. case government’s tial trustworthiness.” Otherwise, the questionable. as to Miller, question was no there think, rule, as, I exception swallows occurred. startling occasion whether the propo- happened here. Rather, was whether the issue testimony was setting, Because the officers’ ard.... utterance” Although an "excited contested, Sallins, any say with hotly we cannot F.2d 344 United States v. Cir.1993), degree certainty that the evidence problem created we noted There, computer rec- police the 911 government witness. radio call and the absent carrying jury's verdict. tape describing a black male ord did not contribute government’s into evidence: evidence cemented been admitted invisible, presumably dis- adding Here, case linking only evidence admissible pre- allegedly who saw interested witness was cir- possession of Sallins to the cisely police said saw. what the through the conveyed evidence cumstantial added). (emphasis Santiago Id. and How- testimony Officers Also, BECKER, closing remarks prosecutor’s Present Judge, Chief SLOVITER, MANSMANN, being SCIRICA, the evidence’s “uncontest- regarding different, NYGAARD, ALITO, McKEE, very prejudi- ed” take on a more RENDELL, BARRY, cial, FUENTES, quality yet when unconfirmed incon- ROSENN,** CUDAHY,* government’s Judges. trovertible is the Circuit central in the case. ORDER

I do not believe these errors were *13 BECKER, Judge. Chief harmless, I require and would reverse and a new trial. A majority of the active judges having voted for rehearing en banc the above reasons, I respectfully

For these dissent. appeal, it is ORDERED that the Clerk of opinion

this Court vacate the judg- January ment filed 2001 and the Pub- lished Opinion Panel Sur Petition for Re- 5, 2001, hearing filed June and list the above for rehearing en banc at the conve- nience of the Court. CRISSMAN; Wendy

Charles * Crissman; Christine

Crissman, Appellants, America, UNITED STATES of

DOVER DOWNS ENTERTAINMENT Wandy REYNOSO, Appellant. INC.; Downs, Dover Inc.

No. 00-2230. No. 00-5178. Appeals, United States Court of Third Circuit. Appeals, United States Court of Third Circuit. Argued March 2001.

Argued Dec. 2000. June 2001.

Filed June * * (Dismissed Party per Cudahy, Court’s Or- Judge, Hon. Richard D. Senior Unit- 11/8/2000 der). Appeals ed States Court of for the Seventh ** Circuit, Judge panel Sitting by Designation. Rosenn’s vote is limited to re- hearing only.