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BROWN v. KEANE

October 31, 2002

TROY BROWN, PETITIONER
V.
JOHN KEANE, SUPERINTENDENT, WOODBOURNE CORRECTIONAL FACILITY, AND ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, RESPONDENTS.



The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge

  MEMORANDUM OPINION

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that a state trial court violated his Confrontation Clause rights in admitting, under the present sense impression exception to the hearsay rule, a tape recording of an anonymous 911 call.

Facts

Petitioner Troy Brown was convicted in New York State Supreme Court, Bronx County, on August 19, 1997 of one count of attempted aggravated assault upon a police officer*fn1 and sentenced to an indeterminate prison term of seven to fourteen years. He appealed alleging, inter alia, that admission of the anonymous 911 call violated his Confrontation Clause and Due Process rights. On June 12, 2001, the Appellate Division, First Department, affirmed, stating summarily that "there was no violation of defendant's right of confrontation" because the 911 tape had "`particularized guarantees of trustworthiness' drawn from the circumstances of the making of the statement."*fn2 It did not reach the question of whether the present sense impression is a "`firmly rooted hearsay exception.'"*fn3 On September 10, 2001, the New York Court of Appeals denied petitioner leave to appeal.*fn4

The events that formed the basis of petitioner's indictment unfolded as follows:

The owner of a bodega in the Bronx paged undercover Housing Police officers and informed them that two black men wearing green army jackets and hats and carrying guns had just left his store and entered the nearby Phoenix Bar.*fn5 An undercover Housing Police Anti-Crime Unit positioned itself outside of the bar to watch for the suspects.*fn6 When two black men wearing green army jackets exited the Phoenix Bar, the officers approached them.*fn7

According to the trial testimony of two of the officers, they pulled out their shields and announced that they were police.*fn8 The officers saw petitioner, who was holding a semiautomatic pistol, raise his arm.*fn9 They then saw a muzzle flash and heard a shot, whereupon one of the officers fired three shots and the other fired four, both from distances of 10 to 20 feet.*fn10

According to the defense, petitioner never fired his weapon. Rather, the officers "precipitately" shot at him seven times without good cause and then concocted petitioner's shot in an effort to coverup their mistake.*fn11 It was undisputed that neither officer was hit or wounded by a gunshot.*fn12

There were three types of evidence relevant to the question of whether petitioner shot at the police officers. The first was the testimony of eye witnesses, which was not without problems. The two officers who shot at petitioner and his companion both refused to make a statement on the night of the shooting.*fn13 At trial, both testified that petitioner shot at them first, but neither could recall whether petitioner had pointed his left or right arm at them when he fired the weapon.*fn14 Both testified that only petitioner had fired a shot.*fn15 However, in an application for official commendation submitted by the Housing Police Anti-Crime Unit, the officers who fired at the men in green claimed that both men in green had shot at them.*fn16

Another officer who reported to the scene, and who stated that he had a "clear unobstructed view" of the events, saw one of the men in green raise his arm and point in the direction of the two officers and then heard a "bang."*fn17 This officer, however, did not see whether either of the men in green had a weapon in his hand and did not see petitioner or his companion fire a shot.*fn18

The second category of relevant evidence was the physical evidence recovered from the scene. Police investigators recovered all seven shell casings that were discharged by the officers*fn19 but did not recover any discharged shell casings or bullets that matched petitioner's weapon.*fn20

The final relevant evidence, and the focus of this petition, was the anonymous 911 tape that the trial court admitted over the defense's objection under the present sense impression exception to the hearsay rule.*fn21 The court instructed the jury that it could consider the evidence on the tape "exactly as you would listen to a witness on the witness stand."*fn22

There are no gunshots audible on the tape. The transcript of the 911 tape is as follows:

Operator ("O"): Police Operator 1077, where is your emergency?

Anonymous Male Caller ("A"): Yeah, 1411 Bronx River Avenue. Guy's got a gun. Two guys in green coats.

O: Okay, one moment.

A: It's an emergency, `cause they shooting.

O: Are they in front of the building?

A: Yeah, right in front.

O: But they shooting at each other?

A: Yeah, 1411 Bronx River Avenue. They're trying to get in the bar.
O: Between 173rd and 174th. Are they Black, White or Hispanics?
A: Both light-skinned blacks. Both have green coats on.

O: Wearing green coats. And they're shooting?

A: Right at the bar, at the Phoenix.

O: At the Phoenix Bar?

A: Yeah, you got to get someone over ...


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