United States v. Wills
| Decision Date | 21 December 2018 |
| Docket Number | Criminal No. 18-0117 (PLF) |
| Parties | UNITED STATES OF AMERICA v. DERRICK WILLS, Defendant. |
| Court | U.S. District Court — District of Columbia |
This matter is before the Court on the government's motion in limine to admit an eyewitness statement as a present-sense impression [Dkt. No. 18]. The defendant filed an opposition to the motion [Dkt. No. 39], the government filed a reply [Dkt. No. 40], and the Court heard oral argument on November 5, 2018. For the reasons that follow, the Court granted the government's motion by separate order dated December 12, 2018 [Dkt. No. 43]. It will admit the statement of the non-testifying anonymous civilian declarant at trial as a present-sense impression under Rule 803(1) of the Federal Rules of Evidence.1
Derrick Wills is facing trial on the one remaining count of the original three-count indictment, possession of a firearm by a prior convicted felon in violation of 18 U.S.C.§ 922(g)(1). See Opp. at 1 n.1. The facts surrounding the seizure of the weapon and the arrest of Mr. Wills on February 9, 2018 are explained in detail in the Court's opinion of August 8, 2018 suppressing evidence in this case. See United States v. Wills, 316 F. Supp. 3d 437 (D.D.C. 2018). Only those additional facts specifically relevant to the instant motion in limine are included herein.
In support of its motion, the government relies primarily upon a portion of body-worn camera ("BWC") footage from an officer at the scene of Mr. Wills' arrest, Officer Cornel Keleman. See Mot. at 2 n.2; see also Mot. Ex. 4. The government explains that this footage depicts Officer Keleman's "limited interaction" with an "anonymous civilian witness" who briefly spoke to Officer Keleman while other officers searched for the handgun allegedly thrown by defendant Derrick Wills. See Mot. at 2 n.2. The portion of Officer Keleman's BWC footage with audio begins at 4:57:08 p.m. and shows Officer Keleman walking toward and then up a staircase of the apartment building breezeway through which Mr. Wills allegedly ran. See Mot. Ex. 4.2 Officer Keleman is seen walking to the second floor and then knocking on the door of a second floor apartment. See id. As Officer Keleman knocks, someone off-screen calls out to get his attention. See id. Officer Keleman turns in response and says "he what?". See id. At that point, the declarant says something to Officer Keleman as she walks toward him, coming up the stairs. See id. The government submits that Exhibit 4, Officer Keleman's BWC footage, indicates that the declarant stated: "[H]e threw it in the bushes I seen him . . . he threw it to theright don't talk to me." See Gov't Reply at 2. The anonymous witness continues walking. See Mot. Ex. 4.
Mr. Wills disputes this rendition of the events depicted on the BWC footage. He maintains that the audio from Officer Keleman's BWC indicates that the anonymous civilian witness stated: See Opp. at 3 & n.2. According to Mr. Wills, the declarant did not say "I seen him."
This interaction between Officer Keleman and the anonymous civilian witness occurred from approximately 4:57:56 p.m. to 4:58:04 p.m., a period of about eight seconds. See Mot. Ex. 4. According to the government, the interaction at issue took place between three and four minutes after Mr. Wills allegedly threw the firearm. See Mot. at 2. The government submits that the timeline on the body worn camera of another officer, Officer Krishaon Ewing, the pursuing officer, shows that the defendant threw the firearm at 4:54:56 p.m, and the firearm was recovered from the bushes at approximately 4:58:18 p.m. See id. at 1-2. Thus, the lapse of time from the throwing of the gun until its recovery was approximately 3 minutes and 22 seconds; the time between the throwing of the gun and the statement of the anonymous civilian was approximately 3 minutes.
The government now seeks to admit the anonymous civilian witness' statements. It contends that the statements meet both a hearsay exception as a present-sense impression and are non-testimonial, and therefore their admission does not violate Mr. Wills' rights under the Confrontation Clause. See Mot. at 3. Mr. Wills opposes the admission of the statements, arguing that they "do not meet the requirements for admission as present sense impressions andthe admission of the statements would violate Mr. Wills' Sixth Amendment right to confrontation." See Opp. at 4.
The Federal Rules of Evidence define hearsay as an out-of-court statement offered for the truth of the matter asserted. See Fed. R. Ev. 801. Although hearsay is generally not admissible, see FED. R. EVID. 802, a present-sense impression may be admitted as an exception to the hearsay rule under Rule 803(1) of the Federal Rules of Evidence. See FED. R. EVID. 803(1); see also Partido Revolucionario Dominicano v. Partido Revolucionario Dominicano, 311 F. Supp. 2d 14, 16 (D.D.C. 2004). Rule 803(1) defines a present-sense impression as "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." See FED. R. EVID. 803(1). The hearsay exception applies "regardless of whether the declarant is available as a witness." See id. The exception is grounded in the idea 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." See Navarette v. California, 572 U.S. 393, 400 (2014) (internal quotations omitted).
The Advisory Committee Note to Rule 803(1) makes clear that this exception is of limited scope, applying only where there is "substantial contemporaneity of event and statement." See FED. R. EVID. 803 advisory committee's note. The exception recognizes "that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable." See id.; see also Partido Revolucionario Dominicano v. Partido Revolucionario Dominicano, 311 F. Supp. 2d at 16-17 (). Spontaneity is also "a key factor." See FED. R. EVID. 803 advisory committee's note: see also United States v. Obayoebona, 627 F. Supp. 329, 339 (E.D.N.Y. 1985) (). In addition, the "[p]ermissible subject matter" of a present-sense impression is "limited . . . to description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a startling event, may extend no farther." See FED. R. EVID. 803 advisory committee's note.
For the Court to admit the proffered statement of the anonymous civilian witness as a present-sense impression, the government must prove three elements: (1) the statement describes or explains an event or condition, (2) which the declarant perceived firsthand, and (3) the statement was made contemporaneously - while the declarant perceived the event or condition or immediately thereafter. See FED. R. EVID. 803(1); see also United States v. Ruiz, 249 F.3d 643, 646 (7th Cir. 2001); United States v. Mitchell, 145 F.3d 572, 576 (2d Cir. 1998); United States v. Mejia-Valez, 855 F. Supp. 607, 613 (E.D. N.Y. 1994). These elements must be proven by a preponderance of the evidence. See Gilmore v. Palestinian Interim Self-Gov't Auth., 53 F. Supp. 3d 191, 201 (D.D.C. 2014), aff'd, 843 F.3d 958 (D.C. Cir. 2016): see also United States v. Hsia, 87 F. Supp. 2d 10, 13 (D.D.C. 2000) ().
The government contends that the anonymous witness' statement should be admitted at trial because it qualifies as a present-sense impression under Rule 803(1) of the Federal Rules of Evidence, and is thereby excepted from the rule against hearsay. SeeMot. at 1, 6. In contrast, Mr. Wills argues that the government has failed to prove by a preponderance of the evidence each of the essential elements necessary to permit admission of the anonymous witness' statement as a present-sense impression.
First, Mr. Wills maintains that the statement does not describe the event or condition in question. He argues that there is no evidence to prove that it was a gun that the anonymous witness saw thrown, as opposed to some other unknown object, or even that the witness was referring to Mr. Wills when she said "[h]e threw it in the bushes." See Opp. at 3-4, 6-7. This argument borders on the frivolous. Although there were other persons in the area, there is no evidence or suggestion that anyone other than Mr. Wills had thrown anything - a firearm or any other object - during the approximately four minutes at issue here. And while the witness was reluctant to speak to law enforcement and promptly left the scene without identifying herself, she spontaneously provided a statement that she saw a person throw something that was of serious concern to her into the bushes.
Second, Mr. Wills argues that there is no evidence that the declarant herself perceived the event or condition firsthand - specifically, that there is no evidence that the anonymous civilian personally saw something as opposed to merely "reporting what someone else saw," and no evidence of where she was when she claims to have seen something. See Opp. at 3, 5-7. In the Court's view, however, there is no doubt that the declarant perceived the event personally. Having viewed and listened to the audio of Officer Keleman's body-worn camera (Exhibit 4) numerous times - and having slowed the recording down to hear the audio clearly - the Court finds as a fact that the anonymous civilian actually said: ...
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