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United States District Court, Southern District of New York

October 31, 2002


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


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.


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 here quick now.

O: I've already put this call in, sir. Are they shooting at each other?

A: No, they're trying to shoot at the door of the bar, trying to get in the bar.

O: To the Phoenix Bar, right?

A: Right.

O: Trying to get in.

A: Can you hurry, please.

O: Sir, I've already put the call in, I'm not . . .

A: Alright.

O: Okay, you want to leave your name and your number?

A: No, that's alright.

O: Police'll be there.

A: Thanks.*fn23

The call was received at 12:13 a.m. The officers began waiting for the men in green outside of the bar at approximately 12:05 a.m. and approached them at about 12:10 a.m.*fn24

I. Petitioner's Confrontation Clause Rights

The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."*fn25 Its purpose is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact."*fn26 Furthermore, the Supreme Court has emphasized that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial and that `a primary interest secured by [the provision] is the right to cross-examination.'"*fn27

Although the hearsay rule and the Confrontation Clause generally are designed to protect similar values, they are not coextensive. Rather, "[t]he Confrontation Clause . . . bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule."*fn28 Conversely, "merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied."*fn29 The Supreme Court has determined, however, that certain categories of hearsay statements "rest upon such solid foundations that admission of virtually any evidence within them comports with the `substance of the constitutional protection.'"*fn30 Specifically, statements falling under "firmly rooted" hearsay exceptions automatically satisfy the Confrontation Clause because they bear adequate "`indicia of reliability.'"*fn31 Alternatively, hearsay statements that have "`particularized guarantees of trustworthiness' such that adversarial testing would be expected to add little, if anything, to the statements' reliability" satisfy the Confrontation Clause.*fn32

The Appellate Division summarily affirmed the trial court's admission of the 911 tape, finding that there was no Confrontation Clause problem because the tape had "particularized guarantees of trustworthiness." It therefore did not decide whether the present sense impression hearsay exception is firmly rooted.

II. The Appropriate Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may be granted:

"on behalf of a person in custody pursuant to the judgment of a State court . . . with respect to any claim that was adjudicated on the merits in State court proceedings . . . [provided] adjudication of the claim —

"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . ."*fn33

The scope of deferential review under AEDPA now is reasonably clear. The Supreme Court has interpreted Section 2254(d)(1) to give independent meaning to both the "contrary to" and "unreasonable application" clauses of the statute.*fn34 A state court decision is "contrary to" Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Court.*fn35 A state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule . . . but unreasonably applies it to the facts" of a particular case or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."*fn36

Petitioner concedes that the "contrary to" clause of section 2254(d)(1) is inapplicable to his case.*fn37 Thus, the question at hand is whether the Appellate Division's decision "unreasonably applied" the pertinent Supreme Court authorities on the circumstances in which a hearsay statement has particularized guarantees of trustworthiness. To be considered "unreasonable," the state court's application of law must be more than incorrect or erroneous*fn38 — it must be objectively unreasonable.*fn39 On the other hand, the increment of incorrectness "need not be great."*fn40 Because the Appellate Division failed to decide the question whether the present sense hearsay exception is firmly rooted, the Court may review this claim de novo.*fn41

III. Is the Present Sense Impression Hearsay Exception Firmly Rooted?

If the 911 caller's statement that men in green jackets were shooting fell within a firmly rooted hearsay exception, its admission did not violate the Confrontation Clause. As noted, this Court's review of this question is de novo.*fn42

The Supreme Court has not decided whether the present sense impression is firmly rooted. The Second Circuit, however, in United States v. Jones,*fn43 suggested, albeit perhaps not definitively, that it is.

Jones involved, among other issues, the question whether out-of-court statements by a witness' wife and daughter properly had been received at a supervised release revocation hearing.*fn44 The district court admitted the statements under the present sense impression and excited utterance exceptions to the hearsay rule.*fn45 The defendant challenged that ruling as a Confrontation Clause violation on appeal from an order revoking supervised relief. The Second Circuit, however, affirmed. It rejected the Confrontation Clause argument, referring approvingly to the district court's determination that the out-of-court statements were reliable and stating also that the testimony in question was "covered by `firmly rooted' exceptions to the hearsay rule."*fn46 It thus suggested that it regarded both hearsay exceptions relied upon below as "firmly rooted," although the case it cited for that proposition, White v. Illinois,*fn47 dealt only with the exceptions for excited utterances and statements made for purposes of medical diagnosis or treatment.*fn48

If Jones' statement concerning the present sense exception were a holding, this Court of course would be duty bound to follow it.*fn49 It is not clear, however, that it is.

Jones concerned the admissibility of evidence at a supervised release revocation hearing, not a trial. The "full range of procedural safeguards associated with a criminal trial" does not apply to revocation hearings, however, because the individual on release "already stands convicted of a crime."*fn50 The rules of evidence need not apply,*fn51 and the defendant enjoys only limited due process rights.*fn52 While these usually include "the right to confront and cross-examine adverse witnesses," confrontation may be dispensed with if "the hearing officer finds good cause" for doing so.*fn53 In view of the fact that the district court found the evidence to be reliable, a conclusion that the Court of Appeals approved, the Circuit's comment that both hearsay exceptions at issue were "firmly rooted" arguably was not necessary to the result. The reliability finding may well have been sufficient to satisfy both Rule 32.1(a)(2) and the Due Process Clause.

To be sure, the fact that the panel's statement was or, at least, may not have been a holding under the Confrontation Clause does not strip it of significance for this Court, for considered dicta "must be given considerable weight and cannot be ignored in the resolution" of close questions.*fn54 Nevertheless, this Court is "not necessarily bound to follow" "judicial dictum."*fn55 The prudent course therefore is to make an independent analysis of the "firmly rooted" issue against the possibility that the Circuit would regard the question as remaining open notwithstanding Jones.

A hearsay exception is firmly rooted "if, in light of `longstanding judicial and legislative experience,' it `rest[s] [on] such [a] solid foundatio[n] that admission of virtually any evidence within [it] comports with the `substance of the constitutional protection.'"*fn56 Moreover, a statement that qualifies for admission under a firmly rooted hearsay exception must be "so trustworthy that adversarial testing can be expected to add little to its reliability."*fn57 The Supreme Court has explained that "[t]his standard is designed to allow the introduction of statements falling within a category of hearsay whose conditions have proved over time `to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath' and cross-examination at trial."*fn58 The factors relevant to determining whether a hearsay exception is firmly rooted include its age and degree of acceptance among courts and legislatures.*fn59 The Court therefore begins with the resolution of this question by other courts.

The few federal decisions to consider the issue have divided, although a majority has found that the present sense impression is firmly rooted.*fn60 Most of the state courts have reached the same conclusion,*fn61 with but one finding to the contrary.*fn62 Unfortunately, however, few if any of these decisions have devoted much analysis to the question, thus undermining their persuasive effect and suggesting studied consideration.

The hearsay exceptions the Supreme Court has recognized to be firmly rooted include dying declarations,*fn63 statements made in securing medical treatment,*fn64 and excited utterances.*fn65 The Court has found also that co-conspirators' statements, which are exempt from the definition of hearsay in federal practice and often a hearsay exception under state law, are firmly rooted.*fn66 The hearsay exception for dying declarations is based on the premise that "`men are not apt to lie in the shadow of death'" and thus that such statements have circumstantial guarantees of trustworthiness that make cross-examination unnecessary.*fn67 Likewise, the rationale underlying the exception for statements made to obtain medical diagnosis or treatment is that "the declarant's motive guarantees their trustworthiness, since the declarant has a `motive to disclose the truth because his treatment will depend in part upon what he says.'"*fn68 The exception for excited utterances is premised on the notion that "a person under the sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication."*fn69 Among the rationales for the exemption from the definition of hearsay for co-conspirator statements is that "such statements provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court."*fn70

The present sense impression exception is based on a premise that is similar but not identical to that for excited utterances. "[T]he contemporaneity of [an] event and its description" is thought to "limit[] the possibility for intentional deception or failure of memory."*fn71 The declarant's statement must be contemporaneous with, or made shortly after, perceiving the event or condition, whereas for excited utterances, the standard of measurement is the duration of the state of excitement.*fn72

The rationale for the present sense impression exception is not beyond serious question. Dean Wigmore, among others, rejected it because, in his view, mere contemporaneity of event and declaration, without the shock of a startling or stressful event, is insufficient to guarantee trustworthiness.*fn73 Nevertheless, the Wigmore position implicitly has been rejected by many courts and legislatures. The exception was codified in the Federal Rules of Evidence in 1975*fn74 and has been codified or recognized by at least 40 states,*fn75 including New York.*fn76 Moreover, this broad acceptance is not a recent phenomenon.

The present sense impression exception originated in the broader, and now disfavored, res gestae doctrine, which came into usage in the early 1800s.*fn77 Courts used the res gestae doctrine to admit over hearsay objection declarations of present bodily condition and mental states and emotions, excited utterances, and present sense impressions.*fn78

Cases applying the res gestae doctrine to admit present sense impressions date back at least as early as 1897. For example, in Missouri, Kansas & Texas Railway Co. v. Vance, the court affirmed as res gestae the admission of a bystander's contemporaneous remark that a train was entering a crossing without stopping.*fn79 Likewise, in 1921, the Supreme Court of Washington affirmed as res gestae the admission of a witness' spontaneous statement that a car was moving quickly on the theory that "expressions made at the time, or as a part of the accident, by any of the parties connected therewith or by bystanders, may be received in evidence."*fn80 The present sense impression exception, while perhaps of more recent vintage than other hearsay exceptions the Supreme Court has determined to be firmly rooted — the excited utterance exception is "at least two centuries old"*fn81 and the exception for statements of co-conspirators more than 150 years old*fn82 — nonetheless is one of long standing.

The doctrine's widespread acceptance among the states seems also to weigh in favor of a finding that it is firmly rooted, although closer examination of the state evidence codes somewhat weakens this initial impression. Many states have imposed additional requirements or limitations on the doctrine that are not found under the federal rule, including New York's requirement of corroboration by extrinsic evidence,*fn83 Minnesota's insistence that the declarant be subject to cross-examination,*fn84 and California's restriction of its use to the declarant's explanations of his or her own conduct.*fn85 The existence of these state variations calls into question whether "longstanding judicial and legislative experience" has established that the present sense impression exception "rest[s] [on] such [a] solid foundatio[n] that admission of virtually any evidence within [it] comports with the `substance of the constitutional protection.'"*fn86

In sum, if this Court were writing on a clean slate, it would be a close call whether the present sense impression exception is so firmly rooted that "admission of virtually any evidence within [the exception] comports with the `substance of the constitutional protection.'"*fn87 Although the exception was applied at least as early as 1897 and has been adopted by at least four-fifths of the states, many states have imposed additional requirements to ensure reliability. Furthermore, it is not clear that admissibility of a hearsay statement should turn on contemporaneity alone, absent some other force or motive to ensure that the out-of-court declarant provides reliable testimony. Nevertheless, in view of the statement in Jones and the broad acceptance of the exception, in one form or another, by the states, this Court concludes, albeit not without hesitation, that the present sense exception is "firmly rooted" for Confrontation Clause purposes. At the very least, against this background, it is for a higher court to conclude otherwise if such a conclusion is to be reached.

IV. Was the State Court's Application of the Law Reasonable?

The conclusion that the present sense impression exception is "firmly rooted" is sufficient to decide this case. As that conclusion rests on such a debatable foundation, however, interests of judicial economy — specifically, the desirability of avoiding a remand and further prolonging uncertainty as to the status of petitioner's conviction — warrant reaching the other issues in the case against the possibility that a higher court may disagree on the "firmly rooted" point.

Hearsay evidence that does not fall within a firmly rooted hearsay exception is presumptively unreliable and inadmissible for Confrontation Clause purposes.*fn88 Its proponent has the burden of demonstrating that it is sufficiently reliable to satisfy the particularized guarantees of trustworthiness test.*fn89 In assessing whether a hearsay statement has particularized guarantees of trustworthiness, courts look to the "totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief."*fn90 Courts, however, may not "bootstrap," or look to corroborating evidence, to support a hearsay statement's reliability because "[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial."*fn91 It stands to reason, however, that courts may not ignore extrinsic evidence tending to show that a statement is unreliable and therefore inadmissible for Confrontation Clause purposes.

Among the factors courts may consider in assessing whether a hearsay statement satisfies the Confrontation Clause are whether the declarant's statement contained an express assertion about past fact, whether the declarant had personal knowledge concerning the substance of his or her statement, whether the statement was founded on faulty recollection, and whether the declarant had a motive to fabricate.*fn92 The requirement that a declarant have firsthand knowledge of the events he or she describes applies generally to all witnesses,*fn93 including hearsay declarants,*fn94 and is a particular element of the present sense impression hearsay exception.*fn95 The setting in which a statement was made and its actual content also are pertinent.*fn96

Here, the 911 call contained a series of assertions which do not uniformly give rise to the conclusion that they were the products of direct perception. The caller's assertion that there was gunfire appears to satisfy the particularized guarantees of trustworthiness requirement because implicit in the statement is the assertion that the caller saw or, more likely, heard gunfire. It is unnecessary to decide this issue, however, because it was undisputed that gun shots were fired around the time and location identified by the 911 caller.*fn97

The significant question relates to the caller's statement that two light-skinned black men in green coats were shooting at the door of the bar and trying to get in.*fn98 Determining whether a statement bears particularized guarantees of trustworthiness involves both circumstantial considerations and witness competency.*fn99 For example, in Barker v. Morris, in which the petitioner sought habeas relief based on the admission at trial of videotaped testimony of a deceased witness, the court held that there was no Confrontation Clause violation in reliance, in part, on the fact that the witness "was not a casual observer but an actual participant who knew all present."*fn100 Furthermore, the court looked to the circumstances of the hearsay declarant's statement, including the fact that the witness initiated contact with law enforcement, that his testimony was voluntary, given in open court and under oath and penalty of perjury, and that the jury had the opportunity to observe the declarant's demeanor on the videotape, to find that it satisfied the reliability requirement of the Confrontation Clause.*fn101

Here, there is nothing inherent in the statement or in the circumstances in which it was made that suggests with any degree of reliability or certainty that the caller saw who was firing weapons as opposed, for example, to inferring from having earlier seen the black men with a gun or guns that they must have been the source of gunshots heard by the caller from inside the bar, the bodega or some other nearby location. Indeed, the evidence strongly suggests, as respondents conceded in their brief to the Appellate Division,*fn102 that the caller did not witness the shooting. The two officers who shot at petitioner testified that petitioner and his companion were facing the officers as they approached from the street and that petitioner's back was to the Phoenix Bar when he fired,*fn103 whereas the 911 caller described black men in green jackets "trying to shoot at the door of the bar, trying to get in the bar."*fn104 The officer stationed in a nearby van with a "clear unobstructed view" of the scene also testified that petitioner raised his arm and pointed at the officers as they approached from the street, not that petitioner was facing the bar.*fn105 Furthermore, the police failed to recover from the scene any shell casings or bullets that matched petitioner's weapon.*fn106 Finally, the 911 caller failed to mention the presence of the two undercover officers who fired seven rounds at petitioner and his companion, a detail one would expect to have been included in an eyewitness description of the scene.*fn107 Thus, extrinsic evidence tends to suggest that the 911 caller may not have witnessed the event.

Nor is this a case in which "adversarial testing would add little to [the statement's] reliability."*fn108 Rather, cross-examination into the declarant's location during the shooting, whether he witnessed the gunfire, and his relationship, if any, with the participants would have provided a basis for assessing the trustworthiness of the caller's statement.

In sum, then, this Court is persuaded that the caller's assertion that the petitioner fired a weapon did not bear particularized guarantees of trustworthiness because there is insufficient basis for concluding that the caller saw the shooting.

The fact that this Court disagrees with the Appellate Division's conclusion on this issue of course is not enough to warrant habeas relief. Humility and awareness of human fallibility suggest as much, and the unreasonable application prong of Section 2254(d)(1) has rendered such prudential considerations into positive law that forbids a federal judge from overturning a state court decision merely because the judge disagrees with it. But the Supreme Court has made clear that a statement such as this is admissible over hearsay objection, assuming the exception relied upon is not firmly rooted, only if it bears "particularized guarantees of trustworthiness." As indicated, this Court finds little in the statement itself to suggest trustworthiness on the pivotal issue of who was doing the shooting, and substantially all of the other evidence suggests that the 911 caller quite likely did not see who was firing. Bearing in mind that "the increment of incorrectness" necessary to make an application of Supreme Court precedent unreasonable "need not be great,"*fn109 and with the greatest respect to its brethren in the state courts, this Court concludes that the state court's conclusion that the 911 caller's statements that the black men in green jackets were firing bore particularized guarantees of trustworthiness was unreasonable.

V. Harmless Error Analysis

Assuming arguendo that the case turns on whether the critical statements bore particularized guarantees of trustworthiness, the question whether the error perceived by this Court warrants relief would be presented. A court need correct a constitutional error on habeas review only if it "`had substantial and injurious effect or influence in determining the jury's verdict.'"*fn110 Accordingly, a petitioner is entitled to habeas relief only if the trial error resulted in "`actual prejudice.'"*fn111 And whether any error in admitting the 911 tape was harmless is not clear-cut.

In determining whether the erroneous admission of evidence had a substantial and injurious effect on a jury's decision, the principal factors to be considered are the importance of the wrongly admitted evidence and the overall strength of the prosecution's case.*fn112 In assessing the importance of the wrongly admitted evidence, a district court should consider such factors as whether it bore on an issue that plainly was critical to the jury's decision, whether it was material to the establishment of a critical fact or instead was corroborated and cumulative, and whether it was emphasized in arguments to the jury.*fn113 These issues are to be analyzed in light of the record as a whole.*fn114 Finally, the burden of persuasion is on the government, meaning that if "the matter is so evenly balanced that [the federal judge] feels himself in virtual equipoise as to the harmlessness of the error" the petitioner should prevail.*fn115

Respondents argue that because the firing of a shot is not an element of attempted aggravated assault on a police officer, the one charge on which petitioner was convicted, any error in admitting the 911 tape was harmless.*fn116 But the argument is not persuasive.

In order to convict, the jury was obliged to find that petitioner intended seriously to harm the officers.*fn117 The evidence that he fired at them was sufficient to justify such a finding.*fn118 And while firing at the officers at least arguably was not necessary to such a finding — as respondents argue, simply pointing his weapon at the officers might have been enough*fn119 — the 911 call was central to either theory. The only evidence that petitioner even pointed his weapon was the sharply challenged police testimony. Absent the 911 call, the jury might well have rejected the officers' testimony that petitioner pointed his weapon, let alone fired at the police.

The importance of the 911 call is confirmed by the prosecutor's emphasis on it in argument to the jury. Although the prosecutor's remarks on summation concerning the tape were fairly brief, comprising approximately two pages of the twenty-nine page summation transcript, her comments were potent. She argued that the 911 call corroborated the other evidence presented at trial:

"[Y]ou heard a call from an anonymous 911 caller and you heard that person say two men green, army jackets, light skinned blacks, are firing. Get here now, they're firing. They're trying to get in the bar."*fn120

The prosecutor argued also that the 911 caller's account was especially credible because it was based on firsthand, contemporaneous perception:

"The officers are corroborated by . . . an anonymous 911 caller who was reporting the incident as he saw it unfold before his eyes, not something that he called about days later or read accounts about in the news or spoke to anyone about. He's telling you what's happening as it is happening."*fn121

Although situating these brief remarks in the larger context of the full eleven-day trial may have diminished their import somewhat, it cannot be said that their effect was de minimis.*fn122

Moreover, the People's overall case — in light of the absence of evidence, physical or otherwise, corroborating the two officers' assertions that petitioner fired a shot — was not strong. The officers' testimony was far from ironclad. They testified at trial that only petitioner had fired a shot, whereas the officers asserted in an application for official commendation that both men in green jackets had shot at them.*fn123 Neither officer could remember whether petitioner had pointed his left or right at them when he fired the weapon.*fn124 The third officer did not see petitioner or his companion fire at all.*fn125 These inconsistencies and omissions demonstrate that evidence of petitioner's guilt was far from overwhelming.

In these circumstances, this Court could not conscientiously find that respondents have carried their burden of showing that any error was harmless. Unless the admission of the 911 tape came under a firmly rooted hearsay exception, petitioner would be entitled to a new trial without the evidence of the 911 call.


The petition for writ of habeas corpus must be denied. The Court grants a certificate of appealability on the questions whether the present sense impression exception to the hearsay rule is "firmly rooted" and, if not, whether the 911 tape had "particularized guarantees of trustworthiness" and whether any error in admitting the 911 tape was harmless.


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