Brown v. Keane

• Decision Date: 08 January 2004
• Docket Number: Docket No. 02-2703.
• Citation: 355 F.3d 82
• Parties: Troy BROWN, Petitioner-Appellant, v. John KEANE, Superintendent, Woodbourne Correctional Facility; Eliot Spitzer, Attorney General of the State of New York, Respondents-Appellees,
• Court: U.S. Court of Appeals — Second Circuit

355 F.3d 82

Troy BROWN, Petitioner-Appellant, v. John KEANE, Superintendent, Woodbourne Correctional Facility; Eliot Spitzer, Attorney General of the State of New York, Respondents-Appellees,

Docket No. 02-2703.

United States Court of Appeals, Second Circuit.

Argued: November 13, 2003.

Decided: January 8, 2004.

Appeal from the United States District Court for the Southern District of New York, Lewis A. Kaplan, J.

COPYRIGHT MATERIAL OMITTED

John Schoeffel, Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Petitioner-Appellant.

Rafael A. Curbelo, Assistant District Attorney (Robert T. Johnson, District Attorney for Bronx County; Joseph N. Ferdenzi and Allen H. Saperstein, Assistant District Attorneys, on the brief), Bronx, NY, for Appellees-Respondents.

Before: WALKER, Chief Judge, LEVAL and CABRANES, Circuit Judges,

LEVAL, Circuit J.

Petitioner Troy Brown appeals from the judgment of the United States District Court for the Southern District of New York (Kaplan, J.) denying his petition for a writ of habeas corpus to overturn his New York State conviction for attempted aggravated assault on a police officer, which resulted in an indeterminate prison term of seven to fourteen years. The petition alleges that Brown's rights under the Confrontation Clause of the United States Constitution were violated by the receipt in evidence at his trial of hearsay consisting of a tape recording of an anonymous 911 emergency telephone call. The anonymous caller's report, which Brown was, of course, unable to cross-examine, was incriminating, as the caller told the police that someone whose description matched Brown was firing a gun. The People contend that the receipt of this hearsay evidence was consistent with the standards of the Confrontation Clause because (i) it consisted of a contemporaneous report of the caller's sensory perceptions and thus came within a firmly rooted exception to the hearsay rule for reports of a present sense impression; and (ii) it carried substantial guarantees of trustworthiness, so that the absence of opportunity for Brown to cross-examine the caller did not significantly impair the reliability of the report. We conclude that this recorded telephone report did not fall within any recognized exception to the hearsay rule, much less a firmly rooted exception, and the circumstances in which the statement was made did not furnish any substantial assurance of trustworthiness. The People failed to demonstrate that the caller's incriminating report that Brown was shooting was based on any sensory observation; to the contrary, as Judge Kaplan pointed out, it appears to have been based on conjecture. We conclude that its admission violated Brown's constitutional right to confront his accusers by cross-examination. Because of the prominence given to the tape by the prosecutor in her summation and by the trial judge in the charge, we cannot say its admission had no substantial effect on the jury's verdict. We therefore remand to the district court for the entry of an order granting the writ.

Background

The conviction was based on a shooting incident involving Brown and a companion and New York City Housing Police officers, which took place outside the Phoenix Bar in the Bronx in New York City. Brown v. Keane, 229 F.Supp.2d 298, 300-01 (S.D.N.Y.2002). The trial evidence showed that the owner of a local bodega, or grocery, placed a call to the police, informing them that two black men wearing green Army jackets and carrying guns had just left his store and entered the Phoenix Bar. Two groups of officers went to the bar and waited outside the front door. When a pair of black men wearing green Army jackets came out, two of the officers, in plain clothes, approached them.

What happened next was disputed. The officers testified at trial that when they approached the men, displayed their shields, and identified themselves as police officers, Brown drew an automatic pistol; the officers saw its muzzle flash, heard its report, and fired back. The defense, however, denied that Brown had fired a shot, or even drawn a gun. The defense contended that the officers had shot at Brown without good cause, and concocted their story of his drawing a gun to avoid punishment and liability. It was undisputed that the officers fired a total of seven shots and wounded Brown, who was then arrested. The jury acquitted Brown of two counts each of first- and second-degree attempted murder, one count of attempted aggravated assault on a police officer, and other lesser charges, but found him guilty of one count of attempted aggravated assault on a police officer.

During trial, the judge admitted into evidence over objection a tape of an anonymous 911 call made at the time of the shooting. The caller said that "[t]wo guys in green coats ... [b]oth light-skinned blacks," who were "right in front" of the Phoenix Bar, were shooting guns "trying to shoot at the door of the bar, trying to get in the bar."¹ The People's argument in support of the admission of the hearsay tape, which the trial court apparently accepted, was that it described events the caller was witnessing as he was speaking, so that it fell within an exception to the hearsay rule for out-of-court declarations memorializing present sense impressions. See People v. Brown, 80 N.Y.2d 729, 734, 594 N.Y.S.2d 696, 610 N.E.2d 369, 373 (1993) (holding that "spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence"); cf. Fed.R.Evid. 803(1) (analogous federal rule permitting introduction of a "statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter").

The Appellate Division of the New York Supreme Court affirmed Brown's conviction, ruling that the 911 tape was properly admitted because it fell within an exception to the hearsay rule for reports memorializing a present sense impression, and displayed "particularized guarantees of trustworthiness." People v. Brown, 284 A.D.2d 156, 726 N.Y.S.2d 252 (App.Div. 2001). The New York Court of Appeals declined to hear Brown's appeal. People v. Brown, 96 N.Y.2d 938, 733 N.Y.S.2d 378, 759 N.E.2d 377 (2001). Brown then filed this petition for habeas corpus.

The district court was troubled by Brown's petition. Judge Kaplan was convinced that the 911 caller's assertion that Brown fired a weapon "did not bear particularized guarantees of trustworthiness because there [was] insufficient basis for concluding that the caller saw the shooting." Brown, 229 F.Supp.2d at 312. In Judge Kaplan's view there was "nothing inherent in the [caller's] statement or in the circumstances in which it was made that suggests with any degree of reliability or certainty that the caller saw who was firing weapons as opposed, for example, to inferring from having earlier seen the black men with a gun or guns that they must have been the source of gunshots heard by the caller from inside the bar, the bodega or some other nearby location." Id.

Judge Kaplan noted that the 911 caller's description of the two black men in green coats firing at the door of the bar was incompatible with any other evidence received. The three officers all testified that the defendant was facing in the opposite direction. The caller's failure to mention the plainclothes police officers, who, it is not disputed, were firing at Brown at close range, confirms the likelihood that the caller did not see the scene in the street but rather was in the bar, saw the armed men leave, heard shots in the street, and assumed the same men were the shooters.

Although Judge Kaplan believed the tape was not a trustworthy account of what it reported, he nonetheless denied the petition on the ground that hearsay evidence admitted as a report of a present sense impression categorically satisfies the requirements of the Confrontation Clause because it falls within a "firmly rooted exception" to the hearsay rule. The judge took pains to note that if he was mistaken in his belief that the present sense impression exception is firmly rooted, the writ should be granted because of the inherent unreliability of the tape's incriminating report.

Discussion

The district court's opinion sets out two analyses. In the first one, the district court engaged in a thoughtful and thorough examination of the present sense impression exception and determined that, in light of its wide acceptance by other state and federal courts as well as legal commentators, the exception was "firmly rooted." On this basis, the district court held that admission of the 911 call was constitutionally permissible, necessitating denial of the writ. Concerned that this court might disagree that the present sense impression exception is firmly rooted, the district court engaged in a second reasoned analysis to determine whether the 911 call nevertheless demonstrated "particularized guarantees of trustworthiness," as required by the Confrontation Clause. It concluded that the call did not satisfy this requirement. For the reasons explained below, we conclude that because of the very deficiencies identified by the district court in its analysis of the 911 call's reliability, the call not only lacked "particularized guarantees of trustworthiness," as found by the district court, but also did not qualify for the present sense impression exception. Nor have the People proposed any other acceptable justification for its receipt into evidence. Its admission, therefore, was impermissible irrespective of whether the present sense impression exception is "firmly rooted."

1. The Confrontation Clause and the present sense impression exception: The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides, "In all criminal prosecutions, the accused shall enjoy the right...