USA. v. Joy

• Decision Date: 28 September 1999
• Docket Number: No. 98-4034,98-4034
• Citation: 192 F.3d 761
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Vernon Joy, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 761

192 F.3d 761 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Vernon Joy, Defendant-Appellant.

No. 98-4034

United States Court of Appeals, Seventh Circuit

Argued June 10, 1999

Decided September 28, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 94--Ruben Castillo, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Harlington Wood, Jr., Ripple, and Manion, Circuit Judges.

Manion, Circuit Judge.

A jury convicted Vernon Joy of being a felon in possession of a firearm. He challenges three rulings made by the district court in the course of his trial: the court's admission of a recording of a 911 call; the admission of testimony that Joy used the firearm in question in a burglary of a house; and the district court's denial of his motion for a mistrial based on prosecutorial vouching. Joy also contends that the district court erred in its calculation of his criminal history for purposes of sentencing. Finding no error, we affirm.

I.

Vernon Joy's ("Joy") friend Paul Ortiz entered a plea agreement with the government and testified against Joy at his trial. Ortiz related that on the evening of August 6, 1997, Joy came to Ortiz's house in Elgin, Illinois. Joy appeared very anxious and told Ortiz that because Joy's friend did not show up, Ortiz had to go with him. When Ortiz refused, Joy became angry and stated that he had a gun and was not playing games. He then made a gesture indicating that he had a gun and implying that Ortiz had better comply with his demand. As it turned out, Joy wanted Ortiz's help in burglarizing a home in the neighborhood. While Ortiz was acting as a lookout, Joy emerged from the house carrying a pillowcase full of loot. After the pair walked back to Ortiz's house, Joy demanded that Ortiz drive him to the house that Joy shared with his brother, Paul Joy.

Later, Vernon Joy's girlfriend arrived at the Joy residence. When she proceeded to walk through the house Paul Joy stopped her and started yelling at her. Vernon Joy then got into the altercation and it soon escalated to a point where he retrieved a handgun from his room and started threatening his brother. Paul Joy ran upstairs and called the 911 dispatcher, who repeatedly called Paul Joy back after he hung up. At the trial, the jury listened to a recording of the conversations and transcripts were given to the individual jurors.¹

Paul Joy: hello

Dispatch: this is Elgin 911

Paul Joy: yeah, get me the po--

Dispatch: you keep calling and hanging up

Paul Joy: yeah, get me the police at 454 Fremont right now

Dispatch: what's wrong?

Paul Joy: right now

Dispatch: hello

Paul Joy: gun, gun play. Right now

Dispatch: what is going on?

Paul Joy: get me the police here now

Dispatch: sir (hangup)

Dispatch calls 289-2258

Paul Joy: yeah

Dispatch: this is the Elgin Police

Paul Joy: yeah, get me the police here right away

Dispatch: O.K., we're goin' to 454 Fremont

Paul Joy: yeah

Dispatch: what's wrong over there?

Paul Joy: what's wrong?

Dispatch: what's wrong?

Paul Joy: you'll see when you get here

Dispatch: no, I need to know what's wrong sir

Paul Joy: Well we got people pullin' guns and everything else

(shouting in background)

Dispatch: you got people, well I need to know that

Paul Joy: they're pullin' guns and burglaries everything

Dispatch: who's pullin' guns?

Paul Joy: Vernon Joy

Dispatch: Vernon Joy

Paul Joy: get here right away (hangup)

Dispatch calls 289-2258

Paul Joy: hello

Dispatch: hi, it's the Elgin Police

Paul Joy: yeah

Dispatch: we're on the way. Who's got the gun?

Paul Joy: Vernon Joy

Dispatch: Vernon's got the gun? What kind of gun does he got?

Paul Joy: a .25 automatic

Dispatch: .25 automatic

Paul Joy: and he just pulled some burglaries tonight

Dispatch: where's he at now?

Paul Joy: he out here in the yard

Dispatch: he in the yard. Is he white or black?

Paul Joy: he puttin' it in a black Riviera, he's pullin off. He's with a white guy.

[911 Trans.]

Realizing that Paul Joy was calling the police, Ortiz ran to his car. Vernon Joy followed him with the gun and the loot while yelling "Get me out of here. Paul's calling the cops." Ortiz had driven the car out of the driveway and up the street when the Elgin police intercepted him. Elgin police officer John Slocum testified that after he stopped Ortiz's car he observed Vernon Joy exiting the vehicle. Slocum instructed Joy to put his hands in the air, and noticed that he was holding a small handgun. Joy disregarded Slocum's instructions and fled on foot with the gun. Slocum chased him through several yards and a vacant lot where he saw Joy throw the gun. He continued to pursue Joy and eventually subdued him after a brief struggle. Slocum and other officers then proceeded to look for the gun in the area where Joy had thrown it. With the help of a canine, the officers retrieved a loaded Jennings .25 caliber, semi-automatic pistol from the lot. Slocum identified it as looking similar to the gun that he had seen Joy carrying, and it was of the same caliber as the gun Paul Joy told the dispatcher that his brother was holding. The jury eventually convicted Vernon Joy of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1). Because Joy had an extensive criminal history, he was sentenced to 210 months of imprisonment and 3 years of supervised release.

II.

A. Excited Utterances

Joy first argues that the district court erred in admitting the tape and transcripts of the 911 call because they contained hearsay.

We review the district court's evidentiary decisions for an abuse of discretion. United States v. Bradley, 145 F.3d 889, 892 (7th Cir. 1998). 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." Fed. R. Evid. 801(c). Under Fed. R. Evid. 802, hearsay is not admissible unless an exception to the rule applies. One such exception exists for so-called "excited utterances." That is, statements "relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition" are not excluded by the hearsay rule. Fed. R. Evid. 803(2). This exception is premised on the belief that a person is unlikely to fabricate lies (which presumably takes some deliberate reflection) while his mind is preoccupied with the stress of an exciting event. Martinez v. McCaughtry, 951 F.2d 130, 134 (7th Cir. 1991); Ferrier v. Duckworth, 902 F.2d 545, 548 (7th Cir. 1990).² For a statement to be admissible under this exception the proponent must demonstrate that: (1) a startling event occurred; (2) the declarant makes the statement while under the stress of excitement caused by the startling event; and (3) the declarant's statement relates to the startling event. United States v. Hall, 165 F.3d 1095, 1109 (1999); United States v. Sowa, 34 F.3d 447, 453 (7th Cir. 1994). Accordingly, the declarant must have personally perceived the startling event. United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998). Furthermore, the trial court must be able to determine that the declarant's state of mind at the time that the statement was made precluded conscious reflection on the subject of the statement. Hall, 165 F.3d at 1109; United States v. Zizzo, 120 F.3d 1338, 1355 (7th Cir. 1997). Of course, a court need not find that the declarant was completely incapable of deliberative thought at the time he uttered the declaration. Martinez, 951 F.2d at 135.

Joy concedes that the first and third criteria are satisfied, but he contends that his brother was not under the stress of the excitement when he made the statements at issue, as several minutes had passed. "An excited utterance need not be contemporaneous with the startling event to be admissible under rule 803(2)." United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998). Rather, the utterance must be contemporaneous with the excitement engendered by the startling event. Webb v. Lane, 922 F.2d 390, 394 (7th Cir. 1991); Martinez, 951 F.2d at 135. Here, Paul Joy could still have been under the stress of the excitement, as only a few minutes had passed from the time he had been in a heated argument with his brother and had seen him wave a gun around. Moreover, even during the call the excitement continued, as there was yelling in the background. Additionally, Paul Joy's responses to the dispatcher's questions were short and quick, further indicating that he was not capable of deep reflection at that time. Thus, there was an adequate basis for the district court to believe that Paul Joy's statements were sufficiently spontaneous, excited, and impulsive, and that they were not the product of reflection or deliberation.

Joy also argues that because the statements were in response to the dispatcher's questions, they could not have been excited utterances. The fact that Paul Joy was answering questions, rather than giving a spontaneous narrative, does not indicate that he was not excited when he provided the answers. See Webb, 922 F.2d at 394 (the fact that declarations were responses to questions did not destroy their "spontaneity"). On the contrary, it is possible for someone to be too excited to volunteer pertinent information (as Paul Joy appeared to be), and thus the inherent "guarantee of truthfulness" supporting the admission of excited utterances applies equally to declarations made in response to an inquiry. Importantly, there is no "absolute spontaneity" requirement to the excited utterance exception to the hearsay rule. See United States v. Glenn, 473 F.2d 191, 193, 194 (D.C. Cir. 1972) (the fact that declarations were prompted by questions of "what happened?" and "who did it?" did not destroy their spontaneity). Because all three elements of the excited utterance exception were satisfied, the district court did...