Bemis v. Edwards

• Decision Date: 25 January 1995
• Docket Number: No. 93-35192,93-35192
• Citation: 45 F.3d 1369
• Parties: 41 Fed. R. Evid. Serv. 383 Ronald E. BEMIS; Brenda E. Bemis, Plaintiffs-Appellants, v. Tim EDWARDS; Leo Lotito; Perry Aldrich; City of Bend, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1369

45 F.3d 1369

41 Fed. R. Evid. Serv. 383

Ronald E. BEMIS; Brenda E. Bemis, Plaintiffs-Appellants, v. Tim EDWARDS; Leo Lotito; Perry Aldrich; City of Bend Defendants-Appellees.

No. 93-35192.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 2, 1994.

Decided Jan. 25, 1995.

David C. Force, Eugene, OR, for plaintiffs-appellants.

Robert E. Franz, Jr., Springfield, OR, for defendants-appellees.

Appeal from the United States District Court For the District of Oregon.

Before: FLETCHER, D.W. NELSON, and RYMER, Circuit Judges.

D.W. NELSON, Circuit Judge:

Appellant Ronald E. Bemis brought a civil rights action under 42 U.S.C. Sec. 1983 against police officers Tim Edwards, Leo Lotito, Perry Aldrich, and the City of Bend, Oregon ("Appellees") in which he claimed that the police had used excessive force against him. In his appeal from a jury verdict for the Appellees, Bemis argues that the trial judge improperly excluded from evidence portions of a tape recording of 911 emergency calls made on the night of his arrest. Specifically, he contends that the recorded statements of a citizen caller and of police officers should have been admitted as (1) nonhearsay, (2) present sense impressions, or (3) excited utterances. He also asserts that the recording of a call by Bemis' companion, James Kates, requesting medical assistance because he, too, had been beaten by the police, was admissible either to show a city policy of "deliberate indifference" to excessive force, or as a prior consistent statement by Kates. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I. Factual Background

On April 29, 1989, Bemis and Kates argued with each other as they drove home from a tavern. At a park near his home in Bend, Oregon, Bemis pulled a shotgun on Kates, which Kates promptly seized and broke against a tree. Bemis then ran to his own house nearby and, upon discovering that he had forgotten his keys, broke in. As Bemis emerged from his house with another gun, a resident of the house across the street, Gary Estep, called 911 to report what he believed to be a burglary by armed intruders. City of Bend police officers, including Edwards, Lotito, and Aldrich, arrived and apprehended Bemis and Kates.

At trial, the officers claimed that any force used was reasonable and necessary because they had believed Bemis to be an armed burglar, he had pointed his rifle at them, he had refused initially to drop the gun, and he had resisted arrest. They testified that Bemis had sustained injuries during his altercation with Kates, prior to their arrival. By contrast, Bemis claimed that he dropped the rifle when ordered to do so and verbally surrendered without resistance, yet the police beat him severely. Bemis' wife and stepdaughter, who were inside the house, testified that he had declared to the police that he was not resisting. All three, along with Kates, testified that Bemis suffered a broken jaw and other injuries. Kates testified that the police beat him as well, and that he called 911 to request assistance following his beating. The jury found for the defendants.

In an evidentiary hearing, the judge had considered admission of a 911 tape from the night in question. In one part of the tape, the 911 operator stated to Estep, "[a]pparently he must have thrown the shotgun down." Shortly thereafter, Estep reported, "Now there's a cop beating the shit out of the guy now," and then:

"There's five units--I got a scanner here in my house, so--but it's kind of getting ridiculous guys. I mean, the cop's beating the shit out of the guy right now. The guy's got a gun, though. I guess it's legal."

In another portion of the tape, Kates called 911 and reported that he had been beaten by four police officers, complained that his "ribs are busted," and requested an ambulance. Subsequently, a police officer instructed the 911 dispatcher to ignore Kates's request.

The district court excluded these statements. The judge held that there was a lack of foundation because the tape indicates that Estep was not actually observing the events he described during the 911 call, but was merely reporting what others in the house were seeing and describing to him at the time, and because there is no indication that the subject of the beating was Bemis rather than Kates. The court excluded Kates' statement as irrelevant to Bemis' beating or to his claim that the city had a policy of using excessive force. We address the admissibility of the various statements separately.

II. The Estep Statement

Bemis argues that the statement by Gary Estep on the 911 tape describing the police beating of Bemis (the "Estep Statement") should have been admitted either because (1) it was not hearsay, or (2) it satisfied the requirements of hearsay exceptions for a present sense impression, Fed.R.Evid. 803(1), or an excited utterance, Fed.R.Evid. 803(2). We reject these arguments.

A.

Bemis first asserts that the Estep Statement was not hearsay because it was not offered for its truth, but solely to reveal that the defendants' testimony was "inconsistent" with the recorded account of the events. We review whether the district court correctly construed the hearsay rule de novo. United States v. Warren, 25 F.3d 890, 895 (9th Cir.1994). This argument lacks merit.

The Federal Rules of Evidence provide that a "prior statement by a witness" offered to show inconsistency with testimony at trial is not hearsay. Fed.R.Evid. 801(d)(1). However, this rule only applies to prior inconsistent statements of testifying witnesses. See United States v. Pistante, 453 F.2d 412, 412 (9th Cir.1971). Whereas an inconsistent statement by a testifying witness can be used to impeach that witness's credibility, an inconsistent account by another source is offered to show an alternative view of the truth.

In the present case, Gary Estep was not a testifying witness. His out-of-court statement presents an independent account of the events and thus does not serve solely to impeach the credibility of the defendants under Rule 801(d)(1). Therefore, it is hearsay.

B.

Bemis next argues that even if the Estep Statement is hearsay, it should have been admitted under exceptions to the hearsay rule. We review district court rulings on admissibility under exceptions to the hearsay rule for an abuse of discretion. United States v. Bland, 961 F.2d 123, 126 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992).

Hearsay statements on a 911 tape can be admitted into evidence as either a "public record," Fed.R.Evid. 803(8)(B), or a "business record," Fed.R.Evid. 803(6). See United States v. Sallins, 993 F.2d 344, 347-48 & n. 4 (3d Cir.1993) (noting that a 911 tape itself is probably a "public record"); cf. United States v. Smith, 521 F.2d 957, 964-65 (D.C.Cir.1975) (finding that police radio broadcasts are business records). However, because citizens who call 911 are not under any "duty to report," Fed.R.Evid. 803(8)(B), a recorded statement by a citizen must satisfy a separate hearsay exception. See Fed.R.Evid. 805; United States v. Pazsint, 703 F.2d 420, 424-25 (9th Cir.1983) (excluding tapes of emergency calls from witnesses reporting defendant's assault of an IRS agent); Sallins, 993 F.2d at 347 (excluding 911 statement that person matching defendant's description was holding a gun). Under certain circumstances, such a statement may qualify as either a "present sense impression," Fed.R.Evid. 803(1), or an "excited utterance," Fed.R.Evid. 803(2). See United States v. Mejia-Valez, 855 F.Supp. 607, 613-14 (E.D.N.Y.1994) (admitting under either exception a tape of 911 call made by an eyewitness immediately following a shooting); United States v. Campbell, 782 F.Supp. 1258, 1260-61 (N.D.Ill.1991) (admitting under either exception a 911 tape of an eyewitness's description of a gunman). Certainly, a statement by a 911 caller who is witnessing the violent arrest of a suspect by the police could qualify under either exception.

The district court, however, properly refused to admit the Estep Statement because of a lack of foundation to show that it satisfied the requirements for admission as a present sense impression or an excited utterance. We review the issue of whether evidence is supported by a proper foundation for an abuse of discretion. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.1987).

We have held that to qualify under either exception, an out-of-court statement must be nearly contemporaneous with the incident described and made with little chance for reflection. ¹ See United States v Ponticelli, 622 F.2d 985, 991 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980), overruled on other grounds by United States v. DeBright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc). Although the Estep Statement satisfies these requirements, it does not meet the further requirement of personal knowledge of the events described. Generally, a witness must have "personal knowledge of the matter" to which she testifies. Fed.R.Evid. 602. In the context of hearsay, the declarant must also have personal knowledge of what she describes. ² Fed.R.Evid. 803 advisory committee's note ("In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge."); Miller v. Keating, 754 F.2d 507, 511 (3d Cir.1985); United States v. Stratton, 779 F.2d 820, 829 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986); see also In re Worlds of Wonder Securities Litigation, 35 F.3d 1407, 1420 n. 4 (9th Cir.1994) (excluding a written statement because the author lacked personal knowledge of the facts contained therein).

Specifically, this requirement that a declarant have personal knowledge of the events described applies to the present sense impression exception. Fed.R.Evid. 803(1) (defining "present sense impression" as one made "while...