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The admission into evidence of hearsay in the form of a 911 call did not violate a defendant’s constitutional right to confront a witness against him, a Southern District of New York judge has ruled. Judge Lewis A. Kaplan, while questioning the reliability of the 911 call, denied a petition for a writ of habeas corpus brought by Troy Brown, who was convicted in 1997 of aggravated assault on a police officer in the Bronx. In Brown v. Keane, 02 Civ. 0350, Kaplan appeared to break new ground in the courts of the 2nd Circuit by finding specifically that a witness’s “present sense impression” is a “firmly rooted” exception to the hearsay rule, and therefore, admission of the evidence does not violate the Confrontation Clause of the Sixth Amendment. Normally, hearsay evidence, or testimony in court about something said out of court offered to prove the truth of the matter asserted, is usually not admitted as evidence because it is inherently unreliable. Certain exceptions to the hearsay rule are allowed where the statement is deemed reliable, such as a statement by someone who is dying. Only exceptions to the hearsay rule that are “firmly rooted” are considered reliable enough to admit without running afoul of a defendant’s right to confront a witness. In making that ruling, Kaplan afforded the same status to the present sense impression exception as that given hearsay exceptions for dying declarations and excited utterances. Brown and a second man were outside the Phoenix Bar in the Bronx when they were approached by undercover Housing Police officers who had been alerted that the two men were carrying guns. Police initially claimed that they announced themselves and pulled out their shields, then Brown raised a semi-automatic pistol and fired, leading them to return fire. The defense later claimed that the police gave inconsistent statements as to whether Brown actually fired his weapon. Evidence at trial in Bronx Supreme Court consisted of eyewitness statements, physical evidence in the form of seven slugs, all fired from the officers’ guns, and a 911 call made by an anonymous caller who said that two “light-skinned blacks” were shooting “at the door of the bar, trying to get in the bar.” Mr. Brown was convicted and sentenced to serve 7 to 14 years in prison. The Appellate Division, 1st Department, affirmed the conviction and the admission of the 911 call, finding that there were “particularized guarantees of trustworthiness drawn from the circumstances of the making of the statement.” But the 1st Department, Judge Kaplan said, never reached the question of whether present sense impression was a “firmly rooted hearsay exception.” While the U.S. Supreme Court has not decided the issue, Kaplan said, the 2nd Circuit in U.S. v. Jones, 299 F.3d 103, (2002), “suggested” in dicta that present sense impression is a firmly rooted exception. And a majority of the few federal court decisions to consider the issue have found the exception to be firmly rooted, he said, as well as “most state courts” that have considered the issue, although few of the state court decisions “devoted much analysis to the question.” Present sense impressions are considered reliable for one of the same reasons courts trust excited utterances — there is little if any time for the speaker to fabricate a statement. But Kaplan noted that “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.” “Nonetheless, 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,” he said. “At the very least, against this background, it is for a higher court to conclude otherwise if such a conclusion is to be reached.” Judge Kaplan then granted Brown a certificate of appealability on three 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.” The judge left little doubt that, absent a finding that the exception is firmly rooted, Brown should be granted a new trial because the 911 call was not particularly trustworthy and its admission was not harmless error. Kaplan said: “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.” Judge Kaplan also said that while he disagreed with the First Department’s conclusion as to the “particular guarantees of trustworthiness” in the 911 call, his disagreement “is not enough to warrant habeas relief.” John Schoeffel of the Legal Aid Society Criminal Appeals Bureau represented Brown. Assistant District Attorney Rafael A. Curbelo represented Bronx County.

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