Brown v. Keane
| Decision Date | 31 October 2002 |
| Docket Number | No. 02 Civ. 0350(LAK).,02 Civ. 0350(LAK). |
| Citation | 229 F.Supp.2d 298 |
| Parties | Troy BROWN, Petitioner, v. John KEANE, Superintendent, Woodbourne Correctional Facility, and Eliot Spitzer, Attorney General of the State of New York, Respondents. |
| Court | U.S. District Court — Southern District of New York |
John Schoeffel, The Legal Aid Society, Criminal Appeals Bureau, for Petitioner.
Rafael A. Curbelo, Assistant District Attorney, Robert T. Johnson, District Attorney of Bronx County, for Respondents.
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that a state trial court violated his Confrontation Clause rights in admitting, under the present sense impression exception to the hearsay rule, a tape recording of an anonymous 911 call.
Petitioner Troy Brown was convicted in New York State Supreme Court, Bronx County, on August 19, 1997 of one count of attempted aggravated assault upon a police officer1 and sentenced to an indeterminate prison term of seven to fourteen years. He appealed alleging, inter alia, that admission of the anonymous 911 call violated his Confrontation Clause and Due Process rights. On June 12, 2001, the Appellate Division, First Department, affirmed, stating summarily that "there was no violation of defendant's right of confrontation" because the 911 tape had "`particularized guarantees of trustworthiness' drawn from the circumstances of the making of the statement."2 It did not reach the question of whether the present sense impression is a "`firmly rooted hearsay exception.'"3 On September 10, 2001, the New York Court of Appeals denied petitioner leave to appeal.4
The events that formed the basis of petitioner's indictment unfolded as follows:
The owner of a bodega in the Bronx paged undercover Housing Police officers and informed them that two black men wearing green army jackets and hats and carrying guns had just left his store and entered the nearby Phoenix Bar.5 An undercover Housing Police Anti-Crime Unit positioned itself outside of the bar to watch for the suspects.6 When two black men wearing green army jackets exited the Phoenix Bar, the officers approached them.7
According to the trial testimony of two of the officers, they pulled out their shields and announced that they were police.8 The officers saw petitioner, who was holding a semiautomatic pistol, raise his arm.9 They then saw a muzzle flash and heard a shot, whereupon one of the officers fired three shots and the other fired four, both from distances of 10 to 20 feet.10
According to the defense, petitioner never fired his weapon. Rather, the officers "precipitately" shot at him seven times without good cause and then concocted petitioner's shot in an effort to coverup their mistake.11 It was undisputed that neither officer was hit or wounded by a gunshot.12
There were three types of evidence relevant to the question of whether petitioner shot at the police officers. The first was the testimony of eye witnesses, which was not without problems. The two officers who shot at petitioner and his companion both refused to make a statement on the night of the shooting.13 At trial, both testified that petitioner shot at them first, but neither could recall whether petitioner had pointed his left or right arm at them when he fired the weapon.14 Both testified that only petitioner had fired a shot.15 However, in an application for official commendation submitted by the Housing Police Anti-Crime Unit, the officers who fired at the men in green claimed that both men in green had shot at them.16
Another officer who reported to the scene, and who stated that he had a "clear unobstructed view" of the events, saw one of the men in green raise his arm and point in the direction of the two officers and then heard a "bang."17 This officer, however, did not see whether either of the men in green had a weapon in his hand and did not see petitioner or his companion fire a shot.18
The second category of relevant evidence was the physical evidence recovered from the scene. Police investigators recovered all seven shell casings that were discharged by the officers19 but did not recover any discharged shell casings or bullets that matched petitioner's weapon.20
The final relevant evidence, and the focus of this petition, was the anonymous 911 tape that the trial court admitted over the defense's objection under the present sense impression exception to the hearsay rule.21 The court instructed the jury that it could consider the evidence on the tape "exactly as you would listen to a witness on the witness stand."22
There are no gunshots audible on the tape. The transcript of the 911 tape is as follows:
Operator ("O"): Police Operator 1077, where is your emergency?
Anonymous Male Caller ("A"): Yeah, 1411 Bronx River Avenue. Guy's got a gun. Two guys in green coats.
The call was received at 12:13 a.m. The officers began waiting for the men in green outside of the bar at approximately 12:05 a.m. and approached them at about 12:10 a.m.24
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."25 Its purpose is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact."26 Furthermore, the Supreme Court has emphasized that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial and that `a primary interest secured by [the provision] is the right to cross-examination.'"27
Although the hearsay rule and the Confrontation Clause generally are designed to protect similar values, they are not coextensive. Rather, "[t]he Confrontation Clause ... bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule."28 Conversely, "merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied."29 The Supreme Court has determined, however, that certain categories of hearsay statements "rest upon such solid foundations that admission of virtually any evidence within them comports with the `substance of the constitutional protection.'"30 Specifically, statements falling under "firmly rooted" hearsay exceptions automatically satisfy the Confrontation Clause because they bear adequate "`indicia of reliability.'"31 Alternatively, hearsay statements that have "`particularized guarantees of trustworthiness' such that adversarial testing would be expected to add little, if anything, to the statements' reliability" satisfy the Confrontation Clause.32
The Appellate Division summarily affirmed the trial court's admission of the 911 tape, finding that there was no Confrontation Clause problem because the tape had "particularized guarantees of trustworthiness." It therefore did not decide whether the present sense impression hearsay exception is firmly rooted.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may be granted:
The scope of deferential review under AEDPA now is reasonably clear. The Supreme Court has interpreted Section 2254(d)(1) to give independent meaning to both the "contrary to" and "unreasonable application" clauses of the statute.34 A state court decision is "contrary to" Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Court.35 A state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule ... but unreasonably applies it to the facts" of a particular case or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."36
Petitioner concedes that the "contrary to" clause of section 2254(d)(1) is inapplicable to his case.37 Thus, the question at hand is whether the Appellate Division's decision "unreasonably applied" the pertinent Supreme Court authorities on the circumstances in which a...
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Hallums v. US, No. 98-CM-1354.
..."[t]he present sense impression exception to the hearsay rule is well rooted in our common law." Id.; accord, Brown v. Keane, 229 F.Supp.2d 298, 308 (S.D.N.Y.2002),vacated on other grounds, 355 F.3d 82 (2nd Cir. 2004) ("Cases applying the res gestae doctrine to admit present sense impressio......
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Hallums v. United States, No. 98-CM-1354 (D.C. 2/12/2004)
..."[t]he present sense impression exception to the hearsay rule is well rooted in our common law." Id.; accord, Brown v. Keane, 229 F. Supp. 2d 298, 308 (S.D.N.Y . 2002), vacated on other grounds, 2004 U.S. App. LEXIS 192 (2nd Cir. 2004) ("Cases applying the res gestae doctrine to admit prese......
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Brown v. Keane
...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 th......
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U.S. v. Delvi
...rooted' hearsay exceptions satisfy the Confrontation Clause because they bear adequate `indicia of reliability.'" Brown v. Keane, 229 F.Supp.2d 298, 303 (S.D.N.Y.2002) (quoting Roberts, 448 U.S. at 66, 100 S.Ct. 2531); see also Fed. R.Evid. 802 Advisory Committee Note (explaining that under......