The opinion of the court was delivered by: David G. Larimer United States District Judge
Defendant, Glen Harper, is charged in a six-count indictment with various firearms-related offenses. This case is currently scheduled to begin trial on January 26, 2009.
The government has filed three motions in limine seeking to admit certain evidence, and to preclude or limit certain other evidence. This Decision and Order constitutes my rulings on those three motions.
I. CAD Printout from 911 Call
In its first motion in limine (Dkt. #140), the government seeks a ruling permitting the government to introduce, pursuant to Rule 803(6) of the Federal Rules of Evidence, a certified CAD printout of the City of Rochester (New York) Emergency Communications Department's 911 Center ("ECD").*fn1 This printout was generated in response to a 911 telephone call by defendant's mother, Gertrude Harper ("Mrs. Harper"), on September 20, 2004. In that call, Mrs. Harper allegedly reported that her son Glen had just called her on the telephone and told her that he had a gun and that he was coming over to shoot her and his father, Mrs. Harper's husband Joseph Harper. Defendant had allegedly threatened Joseph Harper with a shotgun the day before.
At one point during the 911 call, Mrs. Harper, who was calling from a location on Central Park in Rochester, also allegedly stated that defendant Glen Harper had just driven by her, and that she had seen him drive to, and enter, the Harper family residence at 151 Third Street, which was apparently not far from Mrs. Harper's location.*fn2
In response to Mrs. Harper's call, officers of the Rochester Police Department were dispatched to Mrs. Harper's location, where they spoke to her for several minutes. From there the officers went to 151 Third Street, where defendant eventually surrendered to the officers and was arrested. A subsequent search of the Third Street premises uncovered a sawed-off shotgun inside the house, which defendant's father later identified as the same gun with which defendant had threatened him the night before defendant's arrest. Defendant's alleged possession of that shotgun forms the basis for Counts IV and V of the indictment.
Although an audio recording was made of Mrs. Harper's 911 call, the government states that, in accordance with ECD policy, that recording was destroyed after one year. As stated, the government seeks to introduce the CAD printout from the call, which sets forth the gist of Mrs. Harper's statements recited above. See Dkt. #140 Ex. A.
Defendant argues that this evidence constitutes inadmissible hearsay. The government contends that Mrs. Harper's statements to the 911 operator are admissible as an excited utterance or present sense impression, and that the CAD printout is admissible as a business record. See Fed. R. Evid. 803(1), 803(2), 803(6).
"Hearsay statements on a 911 tape can be admitted into evidence as either a 'public record,' Fed. R. Evid. 803(8)(B), or a 'business record,' Fed. R. Evid. 803(6). However, because citizens who call 911 are not under any 'duty to report,' Fed. R. Evid. 803(8)(B), a recorded statement by a citizen must satisfy a separate hearsay exception." Bemas v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995) (additional citations omitted); see also United States v. Sagas, 266 Fed.Appx. 258, 262 (4th Cir. 2008) (recording of 911 call was admissible under Rule 803(6) because it constituted a record kept in the course of a regularly conducted business activity).
There does not seem to be any dispute here that the CAD printout itself meets the requirements for admission as a business record under Rule 803(6). The government has submitted a sworn certification by an ECD employee (Dkt. #140-2), which establishes that the printout is a "report, record, or data compilation ... made at or near the time by ... a person with knowledge" of the 911 call, that it was "kept in the course of a regularly conducted business activity" of the ECD, and that "it was the regular practice of [the ECD] make the ... report, record or data compilation ... ." Fed. R. Evid. 803(6).*fn3
There is also nothing in the record to cast any doubt on the government's assertion that the recording itself was destroyed pursuant to routine ECD policies having nothing to do with the contents of the call in question or this prosecution, and thus the admission of the printout does not violate the best-evidence rule. See United States v. Ross, 33 F.3d 1507, 1513 (11th Cir. 1994) (stating that "where the original of a recording has been lost or destroyed, the original is not required and other evidence of its content is admissible, unless the proponent lost or destroyed the original in bad faith," and that "the party against whom the secondary evidence is being offered bears the burden of challenging its admissibility") (citing Fed. R. Evid. 1004(1)), cert. denied, 515 U.S. 1132 (1995)); see, e.g., United States v. Jimenez, 256 F.3d 330, 349 (5th Cir. 2001) (because original recording of debriefing interview had been lost or destroyed, transcript was admissible as "other evidence of [its] contents") (citing Fed. R. Evid. 1004(l)); United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (where audiotape of defendant's deposition was not available because it had been erased by its owner prior to trial, use of tape itself was not required, and best-evidence rule was not violated by admission of transcript instead).
To be admissible, however, Mrs. Harper's statements to the 911 operator, which are reflected in that printout, must also fall within some exception to the hearsay rule. I agree with the government that they fall within the exceptions for excited utterances and present sense impressions. The CAD printout and its contents are therefore admissible.
"As defined by the Federal Rules of Evidence, a present sense impression is a statement 'describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.' Such statements are considered to be trustworthy because the contemporaneity of the event and its description limits the possibility for intentional deception or failure of memory." United States v. Jones, 299 F.3d 103, 112 (2d Cir. 2002) (citing Fed. R. Evid. 803(1)).
As the Second Circuit went on to explain in Jones, [t]he hearsay exception for excited utterances is premised on a similar, though distinct, assumption that the reliability of a statement increases as opportunity for reflection by the declarant decreases. An "excited utterance" is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Rule 803(2), Fed.R.Evid. ... 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. Unlike present sense impressions, an excited utterance need not be contemporaneous with the startling event to be admissible. Rather the length of time between the event and the utterance is only one factor to be taken into account in determining whether the declarant was, within the meaning of rule 803(2), "under the stress of excitement caused by the event or condition."
Id. (additional internal quotation marks and citations omitted). "Thus while the hearsay exception for present sense impressions focuses on contemporaneity as the guarantor of reliability, and requires that the hearsay statement 'describe or explain' the contemporaneous event or condition, the excited utterance exception is based on the psychological impact of the event itself, and permits admission of a broader range of hearsay statements-- i.e. those that 'relate to' the event." Id. at 112 n. 3 (citations omitted).
As stated, the caller here, Mrs. Harper, called 911 and reported that her son Glen had just called her and stated that he was coming with a gun to shoot her and her husband. During the call, she also reported that Glen had just driven by her and that he was at that moment at the family home on Third Street, not far from where Mrs. Harper was calling.
Clearly, then, Mrs. Harper called about "a startling event or condition"--a statement by defendant that he was, at that moment, on his way over to shoot her and her husband, defendant's father--that had occurred no more than minutes earlier. Her statements about seeing Glen drive by and go to 151 Third Street were made contemporaneously with the event that she described, which she had personally witnessed.
All these statements, then, fall within recognized exceptions to the hearsay rule. See United States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007) (although one or two minutes may have elapsed between alleged threat by defendant and 911 call, "Rules 803(1) and (2) do not require that the statement occur contemporaneously with the event, ... since 'in many, if not most, instances precise contemporaneity is not possible and hence a slight [time] lapse is allowable'") (quoting Fed. R. Evid. 803(1) Advisory Committee's Note); United States v. Thomas, 453 F.3d 838, 843-44 (7th Cir. 2006) (where anonymous caller stated to the 911 operator that "'[t]here's a dude that just got shot ...,' and that 'the guy who shot him is still out there,'" district court did not err in admitting recording of call under Rules 803(1) and 803(2)); United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004) (finding no plain error in admission of recording of 911 call under excited-utterance exception, where caller reported that defendant had used a gun to threaten defendant's girlfriend's mother and sister), cert. denied, 546 U.S. 934 (2005); United States v. Allen, 235 F.3d 482, 493 (10th Cir. 2000) (911 tape was admissible as both a present sense impression and an excited utterance, since caller's statements were made at the time that defendant was trying to get into caller's apartment, and "[t]he evidence showed that [caller] was distressed by Mr. Allen's presence at her apartment"); cf. Brown v. Keane, 355 F.3d 82, 88-90 (2d Cir. 2004) (anonymous 911 call was not admissible where caller's statements indicated that he had not personally witnessed shooting in question, and that his statements describing shooter were based on surmise rather than on personal knowledge).
Nor does admission of the printout give rise to any Confrontation Clause issues. The Confrontation Clause applies only to testimonial statements. Statements admitted as excited utterances or present sense impressions are non-testimonial and thus do not implicate the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 821 (2006) (statements made in 911 call "to describe current circumstances requiring police assistance" were not testimonial); United States v. Cadieux, 500 F.3d 37, 41-42 (1st Cir. 2007) ("the statements recorded during the 911 call are non-testimonial"); Thomas, 453 F.3d at 843-44 (anonymous caller's statements to the 911 operator, that "'[t]here's a dude that just got shot ...,' and that 'the guy who shot him is still out there,'" were non-testimonial and did not implicate defendant's right to confrontation).
II. Defendant's Exculpatory Statements
A. Statements during Post-Arrest Interview
In its second motion in limine (Dkt. #141), the government seeks to preclude the defense from eliciting self-exculpatory statements that defendant made to the police and to Mrs. Harper. This motion thus involves two separate sets of statements.
The first set of statements is from an interview of defendant by Investigator Thomas Cassidy at the Public Safety Building in Rochester on April 22, 2005. Earlier that day, police officers had executed a search warrant at 151 Third Street, where they found a number of firearms and firearms-related evidence. Some of the items seized during in that search form the basis for Counts I, II and III of the indictment.
During the interview, defendant and Investigator Cassidy, who conducted the interview, discussed a number of matters. According to Cassidy's written report (which the government does not seek to introduce at trial), defendant asked what he was being charged with, and Cassidy responded that he was not sure yet because checks were still being performed to see if the seized guns were stolen, and because the search had still been going on when Cassidy left the premises.
Harper then stated that he had been in prison several times and was familiar with the law. He added that "he knew he was looking at Criminal Possession of a Weapon 2nd or 3rd and some kind of possession of stolen property" charge. Dkt. #141 at 2.
During this conversation, defendant made several statements that were, on their face, self-exculpatory. For example, when Cassidy asked him if guns were his, Harper responded that they were not. He opined that the guns must have belonged to his brother, since ...