United States v. Lovato, No. 18-1468

• Decision Date: 27 February 2020
• Docket Number: No. 18-1468
• Citation: 950 F.3d 1337
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Daniel LOVATO, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

950 F.3d 1337

UNITED STATES of America, Plaintiff - Appellee,

v.Daniel LOVATO, Defendant - Appellant.

No. 18-1468

United States Court of Appeals, Tenth Circuit.

FILED February 27, 2020

John C. Arceci, Assistant Federal Public Defender (Shira Kieval, Assistant Federal Public Defender, and Virginia L. Grady, Federal Public Defendant, on the briefs), Office of the Federal Public Defender for the Districts of Colorado and Wyoming, Denver, CO, for the Appellant Daniel Lovato.

Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, CO, for the Appellee.

Before BACHARACH, KELLY, and CARSON, Circuit Judges.

CARSON, Circuit Judge.

This action arose out of the district court’s admission of a 911 call under the present sense impression exception to the rule against hearsay. Defendant Daniel Lovato ("Defendant") alleges that, in doing so, the district court abused its discretion.¹ Following admission of the 911 call, a jury convicted Defendant of two counts of being a felon in possession of a firearm or ammunition. The district court merged the two counts of conviction, and sentenced Defendant to 100 months’ imprisonment followed by three years of supervised release. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm Defendant’s conviction.

I.

On March 3, 2018, a man called 911 to report that he witnessed two men in a Honda shoot at another car. The caller followed the Honda and dialed 911 within "two to three minutes" of observing the gunfire.² During the approximately thirteen-minute 911 call, the caller discussed the shooting, his continuing observations of the Honda and its occupants, and his safety, often in response to the 911 operator’s questions.

The caller began the call by stating that occupants of the Honda "just shot at" another car. After providing his location, phone number, and name to the 911 operator, the caller again described his observations of the shooting less than one minute into the call. Specifically, the caller stated that he observed two Hispanic males in the Honda shoot at a white Durango. Less than three minutes into the call, the caller informed the 911 operator that the shooting occurred "five or six minutes ago."

While the caller continued to follow the Honda, he conveyed additional information of his observations of the Honda. The 911 operator returned the conversation to the shooting about five minutes into the call—seven to eight minutes after the shooting occurred. The caller responded that someone in the Honda fired "two shots," and provided the exact location of the shooting. Just over eight minutes into the call, the 911 operator asked for a description of the suspects, which the caller provided. The caller next stated that the passenger of the Honda was the shooter. Finally, the caller observed the Honda run a red light, at which point he lost sight of the Honda. The caller provided his address to the 911 operator and, with the Honda then out of sight, ended the call after about thirteen minutes.

Shortly thereafter, responding police officer Levi Braun ("Officer Braun") located a Honda matching the caller’s description. With Officer Braun in pursuit, the Honda slowed down and Defendant jumped out of the passenger’s side of the moving car. Officer Braun stopped to detain Defendant, who volunteered that he had a gun on him. Officer Braun then retrieved a .22 caliber pistol from Defendant’s waistband, along with thirty-two rounds of .22 caliber ammunition from Defendant’s left front pants pocket. The pistol had a spent shell casing in the chamber, which indicated that someone recently fired the weapon. Officer Braun also located a canister filled with more ammunition in the street near Defendant. Defendant told officers that the driver of the Honda gave him the gun and ammunition, pointed a second gun at him, and threatened to shoot him if he did not jump out of the car.

At the time of this incident, Defendant had prior felony convictions. The government ultimately charged Defendant with three violations of the 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm or ammunition: one each for possessing the .22 caliber pistol, thirty-two rounds of .22 caliber ammunition, and canister full of additional ammunition.

At trial, Defendant objected to the admission of the 911 call on hearsay grounds. The district court overruled the objection and admitted the 911 call into evidence under the present sense impression exception to the rule against hearsay. The district court concluded "that the length of the call, and the continuous discussion is [not] such that it destroys the contemporaneousness" required to qualify as a present sense impression. The district court based its conclusion on a finding that the call was "essentially, a continuous conversation" about "the same continuing event." The government played the 911 call for the jury.

Although Defendant admitted to possessing the .22 caliber pistol and ammunition, he raised the affirmative defense of duress caused by the driver’s threat. Defendant further claimed that the driver was the one who shot at the other car. The 911 call contradicted significant aspects of Defendant’s testimony. The jury ultimately convicted Defendant on two counts of violating 18 U.S.C. § 922(g)(1) for possession of the .22 caliber pistol and ammunition in his pants pocket.³

After granting Defendant’s motion to merge the two counts of conviction, the district court sentenced Defendant to 100 months’ imprisonment.⁴ The district court also imposed a three-year term of supervised release with special conditions following Defendant’s release from prison. Of note, the third special condition of supervised release ("Special Condition Three") requires Defendant to "take all medications that are prescribed by [his] treating psychiatrist" and "cooperate with random blood tests" to demonstrate compliance with the condition. Defendant now appeals.

II.

Defendant contends the district court abused its discretion by admitting the 911 call over his hearsay objection. Specifically, Defendant argues the 911 call does not qualify under the present sense impression exception to the rule against hearsay.

"We review the district court’s evidentiary rulings for an abuse of discretion, considering the record as a whole." United States v. Trujillo, 136 F.3d 1388, 1395 (10th Cir. 1998). "Because hearsay determinations are particularly fact and case specific, we afford heightened deference to the district court when evaluating hearsay objections." Id.

" ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." United States v. Collins, 575 F.3d 1069, 1073 (10th Cir. 2009) (quoting Fed. R. Evid. 801(c) ). Under Federal Rule of Evidence ("Rule") 802, hearsay is inadmissible, subject to certain exceptions. Fed. R. Evid. 802. A declarant’s "present sense impression" qualifies as one such exception. Fed. R. Evid. 803(1).

Under Rule 803(1), "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it" is admissible as an exception to the rule against hearsay, regardless of whether the declarant is available as a witness. Id. "In evidence law, we generally credit the proposition that statements about an event and made soon after perceiving that event are especially trustworthy because ‘substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.’ " Navarette v. California, 572 U.S. 393, 399–400, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (quoting Fed. R. Evid. 803(1) advisory committee’s notes to 1972 proposed rules (emphasis added)). "Unsurprisingly, 911 calls that would otherwise be inadmissible hearsay have often been admitted on those grounds." Id. at 400, 134 S.Ct. 1683 (analogizing to the present sense impression exception in a Fourth Amendment case). Defendant argues that: (1) the district court abused its discretion by analyzing the 911 call as a whole and (2) the caller’s statements were not sufficiently contemporaneous to qualify as present sense impressions.⁵ We address Defendant’s arguments in turn.

A.

We start by addressing the manner in which the district court considered the admissibility of the 911 call. On this issue, we conclude that the district court properly analyzed the 911 call as a whole because: (1) no authority requires otherwise in this context, (2) all the statements made within the call pertain to the same temporal event without a substantial change in circumstances, and (3) other relevant factors support the reliability of the statements within the call.

No authority creates a blanket requirement that a court must individually analyze each statement within a broader narrative under the present sense impression exception. Indeed, we have affirmed the admission of entire 911 calls as present sense impressions without requiring such a particularized inquiry. See United States v. Allen, 235 F.3d 482, 493 (10th Cir. 2000) (concluding that a 911 tape as a whole "was admissible as ... a present sense impression"). Where we—or the Supreme Court—have not recognized a novel rule or extended a principle to a materially distinct context, it stands to reason that the district court did not abuse its discretion in likewise declining to do so. See Sorbo v. United Parcel Serv., 432 F.3d 1169, 1177 (10th Cir. 2005) (reasoning that a district court does not abuse its discretion when we "know of no authority suggesting that the district court was required" to act in a certain manner). Even though some circumstances may require a court to conduct a more particularized analysis—and we are certainly not saying that the district court would have abused its discretion had it done so here—those circumstances are not present in this...