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United States District Court, Southern District of New York

July 31, 2003


The opinion of the court was delivered by: Harold Baer, Jr., District Judge[fn1] [fn1] James Barney. a second year law student at New York Law School, contributed to the research and writing of this opinion.


Pedro Gutierrez filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge the validity of his conviction. Specifically, Gutierrez alleges that (1) the trial court erroneously admitted the recording of a 911 call under the "present sense impression" hearsay exception and (2) the evidence is insufficient to prove his guilt of depraved indifference murder. For the following reasons, the petition is dismissed.


On the evening of February 26, 1994, Jose Torres, Elliot Herbas, and Gutierrez, who were members of a gang that sold crack cocaine predominately on the corner of 184th Street and Creston Avenue, confronted Jose Pagan, a member of a rival drug gang, and demanded that he cease selling drugs in the area. After a verbal dispute with Pagan, Jose Torres fired a shot at Pagan, who was in a crowd of people in front of a bodega, apparently to scare but not injure him. Torres Tr. at 606, 608, 700-702. At or around that moment, Torres decided he had to kill Pagan and began shooting in his direction as Pagan attempted to flee by running towards his drug partner, Julian Alamo. Torres Tr. at 608, 702-04, 734; Herbas Tr. at 905. After Torres opened fire, Herbas and Gutierrez started firing their weapons in Alamo's direction. Herbas Tr. at 903. Although Torres had not ordered or signaled them to shoot, they just "reacted" to the situation after Torres started shooting and began firing their weapons on their own. Torres Tr. 825-26; Herbas Tr. at 936. Both Herbas and Gutierrez fired all of the bullets in their gun within a span of 5 to 7 seconds. Torres Tr. at 611-13, 734; Herbas Tr. 904-905; Arroyo Tr. 1000. Less than three minutes after the incident, an anonymous motorist called 911 and reported that he observed, three male youths, comprising a mix of Hispanic and black, bearing guns.*fn2 The caller estimated that ten shots were fired, although, based on the number of spent shells and bullets that the police recovered, at least 13 shots were fired. The caller further reported visually observing flashes from the guns. Although the caller indicated that the shooting occurred in the vicinity of 183rd Street and Grand Concourse, he then corrected himself, stating that the shooting took place on 183rd Street and Morris Avenue. The recorded 911 call was admitted at trial over Gutierrez's objection.

On June 11, 1996, a jury found Gutierrez guilty of murder in the second degree (N.Y. Penal Law § 125.25(1)), attempted murder in the second degree (N.Y. Penal Law § 125.25(1)), assault in the second degree (N.Y. Penal Law § 125.05(4)), reckless endangerment in the first degree (N.Y. Penal Law § 120.25) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03). He received the following sentences of imprisonment, to be served consecutively: 15 years to life for second-degree murder, 7 1/2 to 15 years for attempted second-degree murder, and 3 1/2 to 7 years for first degree reckless endangerment.*fn3

On direct appeal to the Appellate Division, First Department, Gutierrez argued that:

(1) the trial court erroneously admitted, over defense objection, the 911 tape under the "present sense impression" exception to the rule against hearsay, despite the fact that the 911 call was made about three minutes after the event described had ended;

(2) the evidence was insufficient to prove appellant's guilt of depraved indifference murder, because (a) Pagan's murder was an intentional act, or (b) alternatively, the State simply failed to prove the elements of that crime as defined in the court's charge; and

(3) the imposition of consecutive sentences for depraved indifference murder and first-degree reckless endangerment was illegal, because both counts arose from the same criminal transaction and the latter are material elements of the former.

On March 26, 1998, the Appellate Division summarily decided that the 911 call was sufficiently contemporaneous to qualify for admission under the present sense impression exception, and that in any event, admission of the tape was "harmless in view of the overwhelming evidence of defendant's guilt." People v. Gutierrez, 248 A.D.2d 295, 295 (1st Dep't 1998). In addition, the Appellate Division held that the evidence of defendant's guilt of depraved indifference murder was legally sufficient and that, because "separate acts toward separate victims were involved, the court properly imposed consecutive sentences for the reckless endangerment and murder convictions." Id.

On April 15, 1998, Gutierrez sought leave to appeal to the New York State Court of Appeals, see Resp. Exh. 3, Leave Letter, which the court denied on May 4, 1998. People v. Gutierrez, 91 N.Y.2d 1007 (1998). On August 21, 1998, Gutierrez's counsel moved for reconsideration of the court's denial. See Resp. Exh. 6, Letter in Support of Motion for Reconsideration. Although the court granted Gutierrez's motion for reconsideration on September 4, 1998, it ultimately adhered to its earlier decision. People v. Gutierrez, 92 N.Y.2d 925 (1998). Gutierrez did not file a petition seeking a writ of certiorari from the United States Supreme Court. On or around the third week of October 1999, Gutierrez filed his habeas corpus petition pursuant to 28 U.S.C. § 2254. Gutierrez raised two of the same claims advanced in his state court appeal. See infra. I referred the habeas petition to Magistrate Judge Kevin N. Fox on February 20. 2000 for a Report and Recommendation, and the habeas petition became sub judice on May 10, 2002. 1 withdrew the order of reference on March 3, 2003 to expedite a decision on the habeas petition.


A. Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on habeas corpus petitions. 28 U.S.C. § 2244 (d)(1). Respondent expends considerable ink arguing that the current petition is untimely because Gutierrez filed it thirteen and a half months after the New York State Court of Appeals denied his application for leave to appeal. "The AEDPA limitations period specified in § 2244(d)(1)(A) does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Gutierrez's conviction did not become final until 90 days after denial of leave to appeal to the highest state court, i.e. December 3, 1998, from which he had one year to file his federal habeas petition. Gutierrez filed his habeas petition in October 1999, and thus his petition is timely.

B. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254

Under the AEDPA, a court deciding a habeas corpus petition must presume a state court's factual findings to be correct. Scarola v. Kelley, 2001 WL 849449, at *2 (S.D.N.Y. July 27, 2001) (citing 28 U.S.C. § 2254 (e)(1)). Furthermore, the district court may not grant relief unless the court finds that the state court's adjudication of the claims either: (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, or (2) resulted in a decision that was based on an unreasonable determination of the facts of the evidence presented in the state court proceedings. Id (citing 28 U.S.C. § 2254 (d)(1), (2)); see also Williams v. Taylor, 529 U.S. 362 (2000)).

C. Gutierrez's Arguments

Gutierrez contends that he is entitled to relief because (1) the trial court erroneously admitted into evidence a tape of a 911 call under the present sense impression hearsay exception and (2) the evidence was insufficient to prove Gutierrez's guilt of depraved indifference murder.

1. The Admission of the 911 Tape

Gutierrez contends that the trial court erroneously admitted into evidence a recorded 911 call made by an anonymous caller because (1) it fails to meet the contemporaneity requirement of the "present sense" impression exception to the hearsay rule under New York law, and (2) the admission of the evidence violated his rights under the Confrontation Clause of the United States Constitution. With respect to the first contention, "[i]t is not the province of a federal habeas review to reexamine state law determinations on state-law questions. In concluding habeas review, a federal court is limited to deciding whether a conviction violated the Constitution. laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Thus, for a federal court to grant relief to a habeas petitioner, he must demonstrate that the allegedly erroneous state court evidentiary rulings violated an identifiable federal right. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988). Proving that the state court made a constitutional error is a heavy burden, because generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation. Bonet v. McGinnis, 2001 WL 849454 at, *2 (S.D.N.Y. July 27, 2001)).

Respondent spills further ink contending that the New York State Court of Appeals was not alerted to the alleged constitutional violation by Gutierrez in his state court appeal, and thus, he is precluded from raising his Confrontation Clause claim now because the claim is not exhausted. Respondent's contention on this score is without merit. As in Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000), Gutierrez appealed his conviction to the Appellate Division, claiming, inter alia, a violation of his rights under the Confrontation Clause, Resp. Exh. 1 at 26, and then expressly requested that the Court of Appeals "consider and review all issues raised in the [briefs filed in the Appellate Division]." March 27, 1998 Pet. Letter (emphasis added). Such a statement is sufficient to alert the Court of Appeals that Gutierrez expressly sought review of the Confrontation Clause claim, and thus, he has satisfied the exhaustion requirement on that claim. See Morgan, 204 F.3d at 371.

Under the Confrontation Clause of the Sixth Amendment, all defendants in criminal prosecutions enjoy the right to be confronted by the witnesses against him. In certain circumstances, "[t]he Confrontation Clause . . . bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule." Idaho v. Wright, 497 U.S. 805, 814 (1990). Certain categories of hearsay exceptions, however, carry such guaranties of trustworthiness that they satisfy the Confrontation Clause. As recently explained by Judge Kaplan:

statements falling under "firmly rooted" hearsay exceptions automatically satisfy the Confrontation Clause because they bear adequate "`indicia of reliability.'" 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.
Brown v. Keane, 229 F. Supp.2d 298, 303 (S.D.N.Y. 2002) (internal citations omitted). The United States Supreme Court has not yet decided whether the present sense impression is "firmly rooted." In United States v. Jones, 299 F.3d 103 (2nd Cir. 2002), the Second Circuit suggested, in the context of at least supervised release revocation hearings, that it regarded the present sense impression hearsay exception as firmly rooted. Id. at 113. But, as duly noted by Judge Kaplan in Brown v. Keane, 229 F. Supp.2d 298 (S.D.N.Y. 2002), the "`full range of procedural safeguards associated with a criminal trial' does not apply to revocation hearings, . . . because the individual on release `already stands convicted of a crime.'" Id. at 305 (quoting United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). "The few federal decisions to consider the issue have divided, although a majority has found that the present sense impression is firmly rooted. Most of the state courts have reached the same conclusion, with but one finding to the contrary." Id. at 306-07. In view of the unclear significance of the Second Circuit's pronouncement in Jones, Judge Kaplan performed a thorough and independent analysis of whether the present sense impression hearsay exception is in fact firmly rooted. He concluded that it is firmly rooted and therefore it does not conflict with the Confrontation Clause. Brown, 229 F. Supp.2d at 309-10. I am inclined to agree, which compels me to conclude that I must deny Gutierrez's Confrontation Clause claim.

While I concur with Judge Kaplan's conclusion, I share his concern in regard to whether a higher court would agree with his conclusion. Id. at 309-10. Assuming the present sense impression hearsay exception is found not to be firmly rooted, I will examine here, for the sake of judicial efficiency and expediency, whether the content of the 911 call bears sufficient indicia of reliability to render it admissible for Confrontation Clause purposes. Hearsay evidence, unless firmly rooted, is presumptively unreliable and inadmissible for Confrontation Clause purposes. Idaho v. Wright, 497 U.S. 805, 821 (1990). The proponent of the hearsay evidence may overcome the presumption and show the evidence is admissible by demonstrating that the evidence bears particularized guarantees of trustworthiness. Lee v. Illinois, 476 U.S. 530, 543 (1986). More specifically, the "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." Wright, 497 U.S. at 822 (emphasis added).

Here, the caller reported his observations in the 911 call while driving his car, and thus, his attention must have been divided between driving and observing the shooting. When asked repeatedly to give a description of the shooters, he could provide nothing more specific than that they wore baggy pants, which suggests he did not closely observe them. The caller provides no indication of how far away he was when he observed the shooting, and, as soon as the shooting began, the caller "moved out of there" and "took off." While I have little doubt that the caller in fact observed the shooting, the sketchy description provided by the caller coupled with the circumstances surrounding the call, in my view, fail to provide the particularized guarantees of trustworthiness necessary to overcome the presumption of unreliability. There is little in the call or the circumstances it was made that suggest with certainty that the caller had specifically seen Gutierrez fire his weapon. Indeed, of the spent shells and bullets recovered from the crime scene, none matched the weapon that Gutierrez allegedly carried. Although the trial court deemed the 911 call reliable because it was corroborated by certain trial testimony, resorting to such independent evidence is contrary to the Supreme Court's holding in Idaho v. Wright, 497 U.S. 805 (1990). In Wright, the Supreme Court explained that corroborating evidence may not be used to support a hearsay statement's reliability because it "would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross examination of the declarant would be of marginal utility." 497 U.S. at 823. Assuming the present sense impression hearsay exception is not firmly rooted, I would agree that the 911 call fails to bear the particularized guarantees of trustworthiness required to satisfy the Confrontation Clause. Furthermore, the admission of such evidence can hardly be deemed "harmless," particularly when in the words of the prosecutor at summation, the 911 call constituted "[o]ne of the most important pieces of evidence" to establish that all three defendants, including Gutierrez, had shot or tried to shoot the victims. Trial Tr. at 1229-30. The 911 call appears critical to finding, apart from the testimony of witnesses who testified pursuant to a federal cooperation agreement, that Gutierrez actually participated in the shooting.*fn4 Unless the 911 call, as a present sense impression, may be properly characterized as firmly rooted, Gutierrez's application for a new trial without the 911 call should be granted.

2. The Sufficiency of the Evidence

The federal standard for reviewing the legal sufficiency of evidence as determined by the United States Supreme Court, is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Thus, the petitioner challenging the sufficiency of the evidence bears a very heavy burden and "only when the record is so totally devoid of evidentiary support that a due process issue is raised is granting of a habeas corpus petition warranted." Jett v. Mitchell, 1993 WL 478396, at *4 (S.D.N.Y. Nov. 15, 1993).

Gutierrez contends that because Torres testified that he intentionally shot Pagan in the back with the intent to kill, Gutierrez cannot, under accomplice liability, be found guilty of depraved indifference murder*fn5 for Pagan's death. Gutierrez attempts to analogize his case to People v. Gonzalez, 160 A.D.2d 502 (1st Dep't 1990), in which the Appellate Division held that the trial court erroneously submitted to the jury a depraved indifference murder count and an intentional murder count. The cases are clearly distinguishable. In Gonzalez, the Appellate Division held that "no reasonable view of the evidence [could] support the theory that the shooting which resulted in [the victim's] death was reckless." 160 A.D. at 504. In that case, eyewitness testimony was introduced showing that a co-defendant ordered the shooters to shoot the victim if he walked in the shooter's direction. Id. The intentional nature of the crime is further reflected by the circumstances surrounding the shooting in Gonzalez. Namely, the victim was prepared to strike the shooters with a golf club, thus prompting the shooters to thwart bodily injury to themselves by shooting the victim multiple times. Id. at 503. In contrast, in the case-at-bar, Gutierrez never received specific direction from Torres to shoot Pagan. Indeed, Torres admits he did not form the intent to kill Pagan until just moments before opening fire on him. Torres Tr. at 701-02. It is undisputed that Pagan turned and ran towards Alamo when the shooting began, and thus the shots by Gutierrez and Herbas in Alamo's direction helped preclude, in part, the possibility of safe retreat from Torres' gunfire that ultimately killed Pagan. The jury could reasonably infer, in view of Gutierrez's discharge of all the bullets in his gun towards Alamo while Pagan ran in his direction, that Gutierrez chose to ignore a substantial and unjustifiable risk of death to Pagan. Furthermore, in view of these circumstances, the jury could reasonably infer that, once Torres began shooting his weapon at Pagan and Gutierrez joined by attempting to shoot Pagan's partner in crime, Gutierrez acted with "community of purpose" with Torres to ensure Pagan's death. Although Torres brought his gun to meet Pagan, he testified that he did not originally intend to kill him. Nonetheless, Herbas and Gutierrez both went to get their own guns before the meeting, see Trial Tr. at 595-600; 892-895, suggesting that they understood that something more serious than simply scaring Pagan potentially lay ahead. This adds weight to the jury's finding that they acted with depraved indifference to human life. Viewing the evidence in a light most favorable to the prosecution, I agree that there is sufficient evidence upon which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Alternatively, Gutierrez contends that he could not have been found guilty based on the instructions given to the jury. Specifically, Gutierrez contends that the prosecution did not provide sufficient evidence to prove the first prong of the depraved indifference murder charge. The judge instructed the jury that to prove depraved indifference murder, the prosecutor is required to prove beyond a reasonable doubt that petitioner met all five prongs of the crime, including "acting in concert with others, [to shoot] Jose Pagan, thereby creating a grave risk of death to another person, namely Jose Pagan." Trial Tr. at 1296. Gutierrez contends that the evidence fails to support the actual theory charged to the jury because it is "undisputed that he did not shoot Pagan." Although Gutierrez may not have fired the bullet that actually killed Pagan, he did, according to witness testimony, fire all of the bullets in his gun at Alamo as Pagan ran towards or "in front" of Alamo. See Herbas Tr. at 903, 905, 937; Torres Tr. at 734. Indeed, Torres admits that Alamo and Pagan came in such close proximity as the shooting took place that he likely struck Alamo with a bullet from his gun as he attempted to kill Pagan. Torres Tr. at 734. Once more, viewing the evidence in a light most favorable to the prosecution, this testimony constitutes enough evidence to show that petitioner indiscriminately fired at Pagan's partner and in the process, shot at Pagan in such a manner as to create a grave risk of death to Pagan. Regardless of the fact that Gutierrez missed Pagan, under an accomplice liability theory, "[i]t is not necessary to prove that [Gutierrez] fired the fatal shot if the evidence is sufficient to establish that [Gutierrez] was acting in concert with another who did fire the fatal shot and that [Gutierrez] was acting with the mental culpability required for the commission of the crime." People v. Brathwaite, 63 N.Y.2d 839, 842 (1984). It is the job of the jury, not the reviewing court, "to determine whether defendant acted intentionally or recklessly at the time of the crime." People v. Gallagher, 69 N.Y.2d 525, 530 (1987). I find no error in the trial court's submission of the depraved indifference murder charge to the jury, nor do I find the record so totally devoid of evidence as to raise a due process concern.


Because the 911 call, as a present sense impression, appears to be a firmly rooted hearsay exception, I must DENY Gutierrez's § 2254 habeas petition. For the reasons discussed above, however, I would agree that this issue of whether the present sense impression hearsay exception is firmly rooted, and hence satisfies the Confrontation Clause, is debatable and is an issue that deserves further consideration on appeal. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) Accordingly, I grant a certificate of appealability. The Clerk of the Court is directed to close any pending motions, remove this case from my docket, and notify Gutierrez of his right to appeal.


*fn2 The 911 call transcript is set forth in pertinent part below:

Operator: Police operator 1-8-1-7, what's the emergency?

Male voice: Ah yes, um, I'm calling from a mobile. I was just driving by 183rd, east, um, the concourse.
Operator: East 183rd Street —

Male voice: Right, 183rd and Morris.

Operator: Morris Avenue.

Male voice: Right. And there's like a store there. And maybe about eight or nine youths. There was like three of them. There's a total of about six of them. They were shooting at somebody. All I know is when I saw the shooting, I moved out of there.
Operator: How many shots you heard?

Male voice: There was a total of ten shots. And I'm talking about these guys, there was like a total, there like three of them. Okay. Three young youths.
Operator: You have a description of them?

Male voice: They['re] wearing long pants, you know like those street kids and stuff, hanging out clothes. . . . The ones that I seen with guns, you know, like you could see the flash from the guns, were, were three of them. At least three of them had guns.
Operator: Are they male white, black, Hispanic, oriental?

Male voice: Ah, you have, there was a mixture of Hispanic and black. And there was a lot of people standing there, and I moved out of the way because they like running and shooting all over the place. This is just not three minutes ago. I mean I just took off. I don't want to get involved with none of that.
Operator: Do you know if anybody got hurt?

Male voice: I'm gonna to tell, I tell you like this, as close as they are to those people they were shooting, somebody should be on the floor. I'm gonna to tell you like that.
Operator: Okay, do you know what they was wearing though?

Male voice: Um, they were different types. Some of them, all of them had those baggy pants.
Operator: So you don't have a description then?

Male voice: No description. They got like baggy pants. All I could tell you is that, that they was shooting, and there was a lot of innocent people standing around there.
Operator: Sir, what's your last name?

Male voice: Ah, no, no, no, no, I don't want —

Operator: Are you calling from a car phone?

Male voice: Huh, yes, I'm calling from a mobile. I don't want nothing to do with that. All right. I just wanted, you know, if I just could — you know, I wish I was, me, I wish I was the police. I swear to god. I couldn't believe that.
*fn3 Additionally, he was sentenced to indeterminate 3 1/2 to 7 year and 7 1/2 to 15 year terms for the second-degree assault and second-degree weapon counts, respectively, to be served concurrently with each other sentence imposed.

*fn4 Of the three witnesses that testified without the benefit of a federal cooperation agreement, none could attest to whether Gutierrez had indeed fired his gun. Although Edwin Tosca claims he heard gunshots from three, not two, guns, it is somewhat unclear, to me at least, how he was able to discern from the multiple shots fired in the span of 5 to 7 seconds that there were three rather than two guns involved. In any event, Tosca clearly did not visually witness the shootings, and thus his testimony, at best, only circumstantially helps establish that Gutierrez fired his gun.

*fn5 Under New York Penal Law § 125.25(2), depraved indifference murder is committed when, "under circumstances evincing a depraved indifference to human life," an actor "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death" of another.


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