U.S. v. Brown

• Decision Date: 21 June 2001
• Docket Number: Nos. 00-1774,00-1776,s. 00-1774
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, v. TISHON BROWN, aka Clarence Brown, Jr.; Tishon Brown, Appellant; UNITED STATES OF AMERICA v. CLARENCE BROWN, aka Tishon Brown; Tishon Brown, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 454

254 F.3d 454 (3rd Cir. 2001)

UNITED STATES OF AMERICA, v. TISHON BROWN, aka Clarence Brown, Jr.; Tishon Brown, Appellant;

UNITED STATES OF AMERICA v. CLARENCE BROWN, aka Tishon Brown; Tishon Brown, Appellant

Nos. 00-1774, 00-1776

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued January 8, 2001.

Opinion Filed June 21, 2001.

[Copyrighted Material Omitted]

Robert J. Cleary, United States Attorney, George S. Leone, Esquire, Chief, Appeals Division, Office of United States Attorney, Newark, NJ. Norman Gross (Argued), Assistant United States Attorney, Camden, NJ, Attorneys for Appellee.

Mark W. Catanzaro, Esquire (Argued), Moorestown, NJ, Attorney for Appellant.

Before: SLOVITER, ROTH and RENDELL Circuit Judges. RENDELL, Circuit Judge, dissenting

OPINION OF THE COURT

ROTH, Circuit Judge:

In 1994, Clarence Brown, a/k/a Tishon Brown, was convicted in the United States District Court for the Eastern District of New York of six counts of armed robbery. While on supervised release in connection with the robbery conviction, Brown was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g)(1). Following sentencing in the gun possession case, Brown pled guilty to violating his supervised release by committing the gun possession crime. The District Court revoked Brown's supervised release and imposed a sentence of incarceration for that violation to be served consecutively to the term of imprisonment in the gun possession case. Brown now appeals the judgments in both cases.

I. FACTS AND PROCEDURAL HISTORY

On May 25, 1998, at approximately 10:50 p.m., Police Officer Michael Hughes of the Camden Police Department was dispatched to the 700 block of Clinton Street in Camden to investigate a missing juvenile report. As Officer Hughes testified at Brown's gun possession trial, while he was speaking to a woman on the street about the juvenile, two black males approached him. "They were yelling, they were real excited, telling me they saw a guy with a gun over at 7th and New . . . . 7th and New or 7th and Washington." "They were very excited very nervous, like they were hopping around very . . . ." The men told Officer Hughes that a man approximately two blocks away was waving a gun at people and threatening to "shoot somebody." Officer Hughes accompanied the men along Clinton Street in the direction of 7th Street. The men kept saying, "he's over there" and "he's up there." When they reached 7th Street, the two men exclaimed, "He's up there, that's him right there." The men pointed out Brown, who was walking across 7th Street between Washington and Berkeley Streets, approximately one and one-half blocks from the location at which the men had said they encountered the man brandishing the gun.

Officer Hughes observed Brown, clearly illuminated by street lamps, approaching and carrying a pistol in his right hand. Officer Hughes took cover behind a parked car, drew his gun, and radioed for assistance. He ordered Brown to drop his weapon. After initially ignoring the command, which Officer Hughes repeated twice, Brown dropped the gun and complied with the officer's order to lie on the ground. Officer Kenyatta Kelly arrived at the scene and saw Brown on the ground. Officer Hughes told Officer Kelly that Brown had discarded a gun and directed Officer Kelly to recover and secure it. Officer Kelly retrieved the weapon, which contained thirteen live rounds of ammunition. The ammunition, however, had not been chambered and the gun's firing pin was subsequently discovered to be broken. Officer Hughes arrested Brown and read him his Miranda rights. After Brown was booked at the Camden Police Department, Officer Hughes drove Brown to the Camden County Jail. During the trip Brown spontaneously told Officer Hughes that this was not Brown's first offense and asked if he could receive "a lesser charge." Brown also told Officer Hughes that he was sorry he had put Officer Hughes "through this."

In light of Brown's prior federal convictions for six counts of armed robbery and other convictions for automobile theft and possession of a loaded firearm, the gun possession case was referred to federal authorities for prosecution. Trial was conducted in the United States District Court for the District of New Jersey. The jury found Brown guilty of the gun possession offense.

When Officer Hughes testified at trial that the two men had told him about the man waving the gun and saying he was going to shoot somebody, Brown's attorney objected and requested a mistrial. The District Court conducted a hearing pursuant to Fed. R. Evid. 104 to assess the objection. On the following day, the court issued a memorandum opinion holding Officer Hughes's testimony admissible as an excited utterance exception to the hearsay rule. Following the jury verdict, the District Court imposed a sentence of 78 months imprisonment, followed by a three-year term of supervised release.

Brown's supervised release in the robbery case had been transferred to the United States District Court for the District of New Jersey, pursuant to 18 U.S.C. 3605. Following sentencing in the gun possession case, Brown pled guilty to a violation of his supervised release by committing the gun possession crime. Brown and the government agreed as a condition of the plea that, if Brown's gun possession conviction was reversed on appeal, he would be allowed to withdraw his guilty plea for violating his supervised release in the robbery case. The District Court sentenced Brown to 18 months imprisonment for violation of his supervised release, to be served consecutively to the term of imprisonment in the gun possession case. Brown has appealed in both cases. For the reasons stated below, we will affirm in both.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over Brown's gun possession offense pursuant to 18 U.S.C. 3231 and over the violation of supervised release in his robbery case pursuant to 18 U.S.C. 3231, 3583(3) and 3605. We have jurisdiction of his appeals pursuant to 28 U.S.C. 1291.

We review the District Court's decision to admit evidence for abuse of discretion. United States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000). Our review of the District Court's interpretation of the Federal Rules of Evidence is, however, subject to plenary review. Id.

We apply an abuse of discretion standard in reviewing the District Court's rulings on objections to the summation. If a challenge to the summation was not raised in the District Court, we review for plain error only. See United States v. Wert-Ruiz, 228 F.3d 250, 252 n.1 (3d Cir. 2000). In order to demonstrate prosecutorial misconduct under a plain error standard, the review must reveal "egregious error or a manifest miscarriage of justice." United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996).

III. DISCUSSION

A. EXCITED UTTERANCES

The "excited utterance" exception to the hearsay rule is a long recognized one. It is incorporated into the Federal Rules of Evidence in Rule 803(2) which provides that an "excited utterance" is admissible as an exception to the hearsay rule as long as it is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The applicability of the exception is unaffected by the availability or unavailability of the declarant as a witness. Fed. R. Evid. 803. The rationale for the excited utterance exception lies in the notion that excitement suspends the declarant's powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable. See United States v. Joy, 192 F.3d 761, 766 (7th Cir. 1999), cert. denied, 530 U.S. 1250, 120 S. Ct. 2704, 147 L. Ed. 2d 974 (2000); 2 McCormick on Evidence 272, at 204-05 (5th ed. 1999).

Although courts' articulations of the elements necessary to invoke the exception differ, most agree upon three requirements: (i) the occurrence of a startling event or condition; (ii) the statement in question must have been made while the declarant was under the stress of excitement caused by the event or condition; and (iii) the statement must relate to the startling event or condition. See United States v. Moore, 791 F.2d 566 (7th Cir. 1986). In the Third Circuit, we have expanded the requirements of admissibility to include: (i) a startling occasion; (ii) a statement relating to the circumstances of the startling occasion; (iii) a declarant who appears to have had opportunity to observe personally the events; and (iv) a statement made before there has been time to reflect and fabricate. See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998); Miller v. Keating, 754 F.2d 507 (3d Cir. 1985).¹

In the memorandum opinion it issued following the Rule 104 hearing, the District Court carefully applied our four-part Rule 803(2) analysis as set forth in Mitchell and Miller and concluded that Officer Hughes's testimony about the statements of the two declarants satisfied each of the four prongs. First, the court held that the two declarants' observation of a man wielding a firearm qualified as a startling occasion. Significantly, Brown all but concedes this point in his brief: "On it's [sic] face, a man waving a gun and threatening to shoot people would appear to qualify." Second, the District Court found that the statements of the declarants to Officer Hughes regarding the man brandishing a gun (Hughes testified that the declarants said they "just saw a guy with a gun .. . over 7th and New, 7th and Washington Street") constituted statements relating to the circumstances of the startling occasion. Third, the District Court held that the declarants' several statements that they had personally seen the man with the gun, coupled with their subsequent statements as they actually pointed out the gunman ("that's him...