Posted: March 23, 2020

Judge Garaufis Grants In Part Motion to Preclude Transcript of 911 Call Where Victim Described Being Shot and Identified the Shooter

Posted by Solomon N. Klein, Litigation Partner

In a fact pattern echoing a law school Evidence Exam, Judge Garaufis granted in part and denied in part competing motions in limine regarding admissibility of an emergency 911 call where the victim described being shot by the defendant. United States v. Shipp, 19 CR 29 (E.D.N.Y. Mar. 9, 2020) (NGG).

The defendant (known as “Pump”) was charged as a felon in possession of a firearm and ammunition. The indictment accused defendant of shooting an individual in Queens, New York. However, defendant was not charged with a federal crime based on the shooting itself – the charges were limited to the weapons possession. Ahead of the trial, defendant sought to preclude the use of the 911 call – arguing, among other things, that the call is inadmissible hearsay and unfairly prejudicial. Here is an excerpted version of the 911 call from the motion papers:

Complainant: Yes. I’ve been shot

Complainant: 119th and Sutphin Boulevard. My shooter’s chasing me right now.

Complainant: My shooter’s on me right now.
Complainant: My shooter’s on me.
Complainant: My shooter’s right here.
Complainant: My shooter’s right here.

Operator: Ok, Sir. Is that 119th and Sutphin Avenue or Road?
Complainant: 119th and Sutphin Boulevard.

Complainant: I don’t want to die Pump, please.
Complainant: Pump, pump, I don’t wanna die, pump.
. . .
Operator: Ok. You’ve said you’ve been shot. You’ve been shot where?
Complainant: I’ve been shot in the stomach. Yes. I’ve been shot in the stomach. I’m dying. I’m dying.
Operator: Do you know who shot you?
Complainant: Yes.
. . .
Complainant: Please help me. I’m dying.
. . .
Complainant: It’s pump.
Complainant: My man…
Unknown Person: Your man?
Complainant: Ya. I’ve known him for over twenty years.
. . .
Complainant: Please help me. I’m dying.

The Court found that 911 call, though hearsay, was admissible. However, the Court excluded some portions of the call as unfairly prejudicial under Rule 403.

Defendant first argues that Complainant’s statements to the 911 operator and the responding police officer are inadmissible because they are hearsay not subject to an exception. The Government contends that Complainant’s statements are admissible under Federal Rule of Evidence 803(1) as a present sense impression as well as Rule 803(2) as an excited utterance.

“A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it,” is admissible as a present sense impression. Fed. R. Evid. 803(1). “The present sense impression exception applies only to reports of what the declarant has actually observed through the senses, not to what the declarant merely conjectures.” Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004); see also Schering Corp. v. Pfizer Inc., 189 F.3d 218, 233 (2d Cir. 1999) (“Statements based on present sense impressions… express knowledge based on direct sensory perception.”).

“A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is admissible as an excited utterance. Fed. R. Evid.
803(2). “The rationale for this hearsay exception is that the excitement of the event limits the declarant’s capacity to fabricate a statement and thereby offers some guarantee of its reliability.” United States v. Steele, 216 F. Supp. 3d 317, 322 (S.D.N.Y. 2016) (quoting United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998)). In contrast to the present sense impression exception, an excited utterance does not require contemporaneity with the underlying startling event. Id. “Rather, the key question governing admission is whether the declarant was, within the meaning of Rule 803(2), under the stress of excitement caused by the event or condition.” United States v. Fell, 531 F.3d 197, 231 (2d Cir. 2008) (citation and quotation marks omitted).

Here, Complainant’s statements are admissible under both exceptions. Complainant placed the 911 call shortly after being shot. (See Tr. of 911 Call) While speaking with the 911 operator.
Complainant reported that he had been shot, explained that the person who shot him was chasing him, and—referring to the shooter as “Pump”—begged the shooter to spare his life. (Id.) Shortly thereafter, Complaint told a responding police officer that “Pump” had shot him. (Id.) These statements described the event of being shot immediately after it occurred, and contemporaneously described the shooter following Complainant and threatening Complainant. Complainant’s statements to the 911 operator and the responding police officer are therefore admissible as a present sense impression. See Brown v. Keane, 355 F.3d at 89. Complainant’s statements were also made while Complainant was under the stress of receiving a gunshot wound to the stomach and are thus also admissible as an excited utterance. See Fell, 531 F.3d at 231.

Defendant does not seriously contest that Complainant’s statements fit the parameters of Rules 803(1) and 803(2). (See, e.g., Reply at 1-3.) Instead, Defendant argues that the circumstances
surrounding Complainant’s statements call their reliability into question. (See Def. Mot. at 4-7; Reply at 1-3 (citing United States v. Carneglia, 256 F.R.D. 384, 392 (E.D.N.Y. 2009)).) Defendant argues that Complainant’s statements are unreliable because—as he later admitted to law enforcement—he had been drinking all day prior to being shot. (Def. Mot. at 5, Reply at 2.) Defendant also points to statements later made by Complainant to law enforcement officers that Complainant “would not be able to identify his shooter because he had been too intoxicated.” (Def. Mot. at 7.)

These arguments go to the evidentiary weight of Complainant’s statements, however, and not their admissibility.[fn] Rule 806 gives Defendant the right to attack Complainant’s credibility through “any evidence that would be admissible for those purposes if the declarant had testified as a witness.” Fed. R. Evid. 806. Therefore, Complainant’s purported inconsistent statements may be used by Defendant to attack his credibility, but not to preclude admission of the 911 Call. Additionally, Defendant contends that “[i]f the [G]overnment wishes to present an identification of the shooter, it should bring the [C]omplainant to court to be subject to cross-examination.” (Reply at 3.) However, Defendant may himself call Complainant to testify, and, pursuant to Rule 806, “may examine” him “on [his] statement[s] as if on cross-examination.” Fed. R. Evid. 806. Additionally, Defendant may avail himself of the Sixth Amendment’s Compulsory Process Clause and subpoena Complainant to testify if he so chooses. See, e.g., United States v. Inadi, 475 U.S. 387, 397-98 (1986).

. . .

Finally, Defendant argues that admission of the 911 Call should be excluded under Rule 403. (See Def. Mot. at 9-11; Reply at 3-4.) For the majority of the 911 Call, the danger of unfair prejudice does not substantially outweigh the probative value of Complainant’s statements indicating that he was shot and that he identified his shooter as “Pump.” However, the court agrees with Defendant that the calculus changes for certain statements the Government seeks to admit. Specifically, Complainant’s statements “I’m dying. I’m dying” (Tr. at 3:6) and “I’m dying, ma’am” (Tr. at 3:10) add little, if any, probative value to that of the rest of the call. However, these statements create a substantial risk of unfair prejudice to Defendant by leading the jury to consider the apparent seriousness of Complainant’s injury, which is not relevant to the offenses charged. Therefore, the Government may admit the 911 Call up to and including the first time Complainant says, “I’ve been shot in the stomach.” (Tr. at 3:5; 911 Audio at 1:23.) The remainder, from the middle of line 3:5 through line 3:10, may not be admitted.

For the reasons stated above. Defendant’s motion to preclude Complainant’s statements to the 911 operator and to the responding police officer is GRANTED in part and DENIED in part and the Government’s motion to admit those statements is also GRANTED in part and DENIED in part.

United States v. Shipp, 19 CR 29 (E.D.N.Y. Mar. 9, 2020) (NGG).

Posted by Solomon N. Klein, Litigation Partner

Posted in Evidence
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