United States District Court, S.D. New York
November 28, 2014
UNITED STATES OF AMERICA,
ANTHONY SCOTT, Defendant.
Jennifer L. Brown, Esq., Daniel G. Habib, Esq., Federal Defenders of New York Inc. (NYC), New York, NY, for Defendant Anthony Scott.
James M. McDonald, Robert L. Boone, Assistant U.S. Attorneys, New York, NY, for the Government.
MEMORANDUM OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Anthony Scott faces criminal charges for being a felon in possession of a firearm. As part of its case against Scott, the Government intends to introduce the recording of a 911 Call in which the caller reported that a short, light-skinned black male brandished a gun and proceeded, weapon in hand, to the courtyard of the Mott Haven Houses, a development in the South Bronx. Scott has filed a motion in limine seeking, inter alia, to have the 911 Call excluded (1) as inadmissable hearsay, or (2) under the Confrontation Clause. For the reasons set forth below, Scott's motion as to the 911 call is DENIED.
On July 10, 2014, at 1:36 AM, the following call was placed to 911:
Operator: 911. What's the police emergency?
Caller: Yeah, there's guys on Willis between 141 and 142nd, with a firearm he just pulled out on me.
Operator: Where this happen to you, East 141 Street and East 142 Street?
Caller: It's between 140... 143rd.
Operator: 143rd and 142nd?
Caller: 143rd. 143rd and Willis.
Operator: Willis Avenue and 143rd?
Caller: Yes. He has on a white T-shirt, and [unintelligible] shorts [unintelligible].
Operator: Is he [unintelligible] or Hispanic?
Caller: He's light-skinned. I can't really tell. He looks black though. He's light-skinned and he has a lot of beads on.
Operator: Black, light-skinned.
Caller: He has a lot of beads on his neck. A lot of beads around his neck. He has like a pistol on him, a revolver. He pulled it out to my face and I ran.
Operator: Black. Wearing a white shirt? You said wearing a white T-shirt? Caller: Yes. He's most likely inside of Mott Haven projects, like, the square.
Caller: The basketball court, inside the projects. Most likely he'll be in there.
Operator: OK Willis Avenue aid East 143rd Street. OK He's male black, light-skinned, lot of beads around his neck, wearing a white shirt, inside the basketball court inside the projects?
Caller: Or around that area. He's around that area somewhere. And he's with a couple teenagers with black shirts. He's short.
Operator: What's your name?
Caller: David Johnson. Throughout the call, the caller's tone is urgent but composed. He is also audibly out of breath.
Scott challenges the admission of the 911 Call on two separate grounds. First, Scott argues that the call is hearsay, not subject to any of the exceptions enumerated in Federal Rule of Evidence ("FRE") 803. This argument fails. The caller clearly indicates that, at the time of the call, the gun had "just [been] pulled out on [him], " making the call a present sense impression - i.e., "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." Scott disagrees. In his view, the "present sense impression exception is not applicable to this case because the caller is not describing an event while perceiving the event." That Scott was unable to locate any authority for this understanding of the exception is not surprising. It clashes with the rule's plain language, which clearly specifies that statements qualify as a present sense impressions if (1) they are made "while... the declarant perceive[s] [the event], " or (2) they are made "immediately after the declarant perceived [the event]." Here, the 911 Call occurred immediately after the event that it recounted. It is therefore admissible under FRE 803(1).
Second, Scott argues that introducing the 911 Call would violate his Sixth Amendment rights. The Supreme Court's Confrontation Clause jurisprudence distinguishes between testimonial statements, made for the purpose of "establish[ing] or prov[ing]  events potentially relevant to later criminal prosecution, " and non-testimonial statements, which are made for a purpose other than establishing a fact or an event. In Davis v. Washington, the Supreme Court explained that 911 calls are non-testimonial insofar as their purpose is "to enable police assistance to meet an ongoing emergency.' Although the Davis Court left open the possibility that "one might call 911 to provide a narrative report of a crime absent any imminent danger thereby transforming the call into a testimonial statement - it made clear that any call that is, in effect, a "call for help" is non-testimonial,  and therefore does not trigger the Sixth Amendment.
This case is on all fours with Davis. Although the caller never summons police to the scene, the call is obviously an effort to inform police about events that just transpired, so that they might address the situation. Here, as in Davis, the caller "was not acting as a witness; [he] was not testiffing. " He was trying to help the police "meet an ongoing emergency.' Scott's attempt to distinguish Davis in essence, by arguing that the caller in this case never explicitly indicated that he, or anyone else, was in imminent danger is unpersuasive. As far as the caller (and the police) knew, a person was still wandering around the Mott Haven Houses with a firearm, with an apparent propensity for brandishing the weapon at passersby. That this constitutes an ongoing emergency is a proposition supported both by Supreme Court case law and by common sense.
For the reasons set forth above, Scott's motion is DENIED as to the admissibility of the 911 Call.