Summary
holding that spontaneous statement on scene of crime; "Gun! Gun! He's got a gun," was not testimonial
Summary of this case from State ex Rel. J.AOpinion
No. 04 Cr. 425 (RWS).
November 22, 2004
MEMORANDUM OPINION
The government has moved to admit: (1) certain evidence concerning defendant's past conduct pursuant to Fed.R.Evid. 404(b); (2) certain recorded statements made by the defendant to his wife on May 19, 2004; (3) a May 1, 2004 out-of-court statement made by an alleged eyewitness to defendant's conduct pursuant to Fed.R.Evid. 803(1) or 803(2) (3); and (4) other May 1, 2004 out-of-court eyewitness statements for background informational purposes. As set forth below, the 404(b) motion is denied in its entirety. The recorded and eyewitness statements are admitted.
In a Superseding Indictment filed on September 29, 2004, defendant Arnold Griggs ("Griggs") was charged with possession of a loaded handgun in violation of 18 USC § 922(g) (1). Griggs allegedly brandished a loaded Glock handgun during a melee outside a Bronx nightclub on May 1, 2004. According to the Superseding Indictment, Griggs has been convicted of four prior felonies.
On October 1, 2004, the defendant moved to suppress certain statements that he allegedly made to police officers at the time of his arrest on May 1, 2004. (See Garnett Aff. ¶¶ 5-9.) However, this issue was resolved in open court based on the government's representation that it would not seek to offer such statements into evidence at trial.
1. Admission of Evidence of Defendant's Past Conduct Pursuant to Rule 404(b)
Rule 404(b) states:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Fed.R.Evid. 404(b). Rule 404(b) codifies the common law rule that "[e]vidence of other acts is not admissible to prove that the actor had a certain character trait, in order to show that on a particular occasion he acted in conformity with that trait."Hynes v. Coughlin, 79 F.3d 285, 290 (2d Cir. 1996).
Courts of the Second Circuit "follow an inclusionary rule, allowing the admission of [Rule 404(b)] evidence for any purpose other than to show a defendant's criminal propensity, as long as the evidence is relevant and satisfies the [Fed R. Civ. P. 403] balancing test. . . ." United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994); United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000); United States v. Nektalov, 325 F. Supp.2d 367, 371 (S.D.N.Y. 2004). Under this inclusionary rule, "other act" evidence is admissible unless: (1) it is offered to show defendant's bad character or for some other improper purpose; (2) it is not relevant to a consequential issue at trial; (3) its probative value is substantially outweighed by its possible prejudice; or (4) it is unaccompanied by an appropriate limiting instruction. See United States v. Edwards, 342 F.3d 168, 176 (2d Cir. 2003) (citing United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992); United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996) (stating that "other act" evidence is admissible unless (1) it is offered "for the sole purpose of showing the defendant's bad character[,]" (2) it is unduly prejudicial pursuant to Fed.R.Evid. 403, or (3) it is not relevant to a consequential issue at trial).
"In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Huddleston v. United States, 485 U.S. 681, 689 (1988) (citing United States v. Beechum, 582 F.2d 898, 912-13 (5th Cir. 1978)). In Huddleston, the Supreme Court held that the trial court is required to make preliminary determination as to whether the jury could reasonably find by a preponderance of the evidence that the alleged prior act did, in fact, occur. Id. at 690; see also Jack B. Weinstein Marsha A. Berger, Weinstein's Federal Evidence § 104.30[5] at 104-51 n. 11 (2001).
A trial court's decision whether to admit or exclude other-act evidence pursuant to Fed.R.Evid. 404(b) is subject to review on an abuse-of-discretion standard. See, e.g. Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996) (citing United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987)).
Evidence of a 1988 Murder in Washington, D.C.
The government seeks to introduce evidence from witnesses who will testify that they saw the defendant shoot and kill a man in Washington, D.C. in 1988. (Second Letter from Michael Farbiarz of 10/1/04 at 1-2.) The defendant opposes the admission of this evidence on three grounds: (1) that based on the evidence presented, a reasonable jury could not find by a preponderance of the evidence that defendant committed the alleged 1988 crime (Letter from Ronald L. Garnett of 10/07/04 at 2-3); (2) that the alleged 1988 crime is substantially more prejudicial than probative (Id.); and (3) that the alleged 1988 crime is not relevant to whether defendant committed the instant offense because the acts are not sufficiently similar. (Letter from Maurice H. Sercarz of 11/09/04 at 3-4.)
According to defendant's October 7, 2004 submission, the facts of which the government has not contested, the defendant was tried three times for his alleged role in the 1988 killing. (10/07/04 Garnett Letter at 2.) The first trial was terminated by a mistrial order after it was disclosed that the government had withheld Brady evidence relating to a witness' prior identification of another person as the person who had committed the shooting. (Id.) During the second trial, it was disclosed that a second government witness had also previously identified another individual, and not the defendant, as the person who had committed the shooting. (Id.) Based on the late disclosure of this exculpatory material, defendant's conviction was apparently vacated on appeal. (Id. at 2-3.) The third trial, which commenced in 1995, ended in an acquittal. (Id.)
The government has failed to rebut the allegations of the defendant as to the reliability of the evidence concerning defendant's role in the 1988 shooting, based on the outcome of the Washington trials. The government has not provided a basis for this Court to conclude that a reasonable jury could find, based on a preponderance of the evidence, that the defendant shot and killed a man in Washington, D.C. in 1988. For this reason, evidence of the 1988 Washington, D.C. shooting will not be admitted into evidence.
1997 New York Arrest for Possession of a Firearm
The government seeks to introduce evidence that on October 17, 1997, defendant was arrested in an automobile in which a briefcase was found that apparently contained a handgun and business documents relating to a nightclub. (Second Farbiarz Letter of 10/1/04 at 2.) Defendant challenges the admission of this evidence on the following grounds: (1) that based on the evidence presented, a reasonable jury could not find by a preponderance of the evidence that defendant committed the alleged 1997 crime (10/07/04 Garnett Letter at 4); (2) that the proposed evidence is substantially more prejudicial than probative (Id. at 5) and (3) that the evidence is not relevant to the question of whether defendant committed the instant offense. (11/09/04 Sercarz Letter at 3-4.)
In his October 7, 2004 submission, defendant argues the handgun at issue in the 1997 arrest belonged to the driver of the car, Corwin Breeden. (10/07/04 Garnett Letter at 4.) Defendant alleges that after the arrest, Breeden admitted that the gun and briefcase belonged to him and not the defendant. (Id.) Furthermore, defendant states that the charges arising from this 1997 incident were subsequently dismissed. (Id.)
Aside from stating that the 1999 arrest occurred, the government has not demonstrated that defendant committed the alleged 1997 offense. Based on the record currently before it, this Court cannot conclude that a reasonable jury could find based on a preponderance of the evidence that the defendant committed the 1997 offense. Therefore, pursuant to Huddleston, evidence of the defendant's commission of the 1997 offense must be excluded.
1987 Conviction of Possession of Bullets
The government seeks to introduce evidence underlying the defendant's August 1987 conviction in New Jersey for criminal possession of hollow nosed bullets. (Second 10/1/04 Farbiarz Letter at 2.) Defendant does not contest that he committed this act. However, defendant argues: (1) that this other-act evidence is not relevant to the question of whether defendant committed the instant offense (11/09/04 Sercarz Letter at 3-4); and (2) that the evidence's prejudicial effect substantially outweighs its probative value. (10/07/04 Garnett Letter at 6.)
In his October 7, 2004 submission, defendant's former counsel states that at the time of this arrest, defendant Griggs and three others were riding in a car being driven through New Jersey. (10/07/04 Garnett letter at 5.) A weapon was apparently found in the car. Id. Two of the other person riding in the car pleaded guilty to the possession of the weapon. Id. Defendant pleaded guilty to possession of the bullets, and he was sentenced to a 76-day incarceration. Id.
The government contends that defendant will likely press a "wrong man" defense at trial, and that other-act evidence is generally admissible to identify a defendant as the perpetrator of a crime, where such identity is contested. (Second 10/01/04 Farbiarz Letter at 3.) However, the Second Circuit cases cited by the government are inapposite. Rather, these cases merely stand for the well-established proposition that where the identity of the perpetrator of a given crime is at issue, a trial court has discretion to admit evidence that the defendant committed a prior crime "that has the same unusual features as the charged crime." Weinstein Burger, Weinstein's Federal Evidence § 404.22[4] at 404-118 (2004) (citing, inter alia, United States v. Sappe, 898 F.2d 878, 879 (2d Cir. 1990);United States v. Mills, 895 F.2d 897, 907 (2d Cir. 1990)). The government has cited no authority for the proposition that defendant's past commission of a generic crime — for example, the past possession of bullets — is admissible for the purpose of demonstrating that the defendant has committed a similarly generic crime. Therefore, the 1987 conviction will not be admitted for the purpose of demonstrating identity.
In United States v. Campbell, 300 F.3d 202, 215 (2d Cir. 2002), the Second Circuit held that where the defendant was on trial for the armed robbery of banks and post offices, the district court could exercise its discretion to either exclude or admit evidence of previous similar crimes committed by the defendant. Similarly, in United States v. DiGeronimo, 598 F.2d 746, 753-54 (2d Cir. 1979), the Second Circuit held that the trial court had not abused its discretion by admitting evidence of defendants' past involvement in a truck hijacking at Kennedy Airport for the purpose of identifying the defendants as the perpetrators of a subsequent hijacking near Kennedy Airport that was committed in a substantially similar manner. A third case cited by the government in support of its wrong-man theory of admissibility — United States v. Moore, 98 F.3d 347, 349-50 (8th Cir. 1996) — does not concern use of other-act evidence for the purpose of establishing defendant's identity as the person who committed an alleged act. Rather, Moore concerns the admissibility of other-act evidence for the purpose of establishing that a defendant engaged in the alleged conduct with the requisite mens rea. Id.
The government also contends that the 1987 bullet possession is admissible because the defendant was in constructive possession of the handgun at the time of his arrest (Second 10/1/04 Farbiarz Letter at 3-5), and such other-act evidence is admissible to show: (1) that defendant had the opportunity and ability to acquire a firearm generally, see, e.g., United States v. Jobson, 379 F.3d 214, 221 (6th Cir. 1996); and (2) that the defendant had a culpable mental state at the time of the alleged constructive possession. See, e.g., United States v. Brown, 961 F.2d 1039, 1042 (2d Cir. 1992).
Based on the cases cited by the government, it would appear that evidence of 1987 bullet possession has been offered for a proper purpose and that this evidence is relevant to a consequential fact at issue. However, the probative value of this evidence is diminished substantially by the fact that the prior and present acts are separated by such a significant number of years. See United States v. Figueroa, 618 F.2d 934, 939-40 (2d Cir. 1980) (stating that pursuant to Rules 403 and 609, Fed.R.Evid., a trial court must assess the temporal remoteness of a conviction before admitting it into evidence); United States v. Gometz, 879 F.2d 256, 260 (7th Cir. 1989) (stating that passage of time mitigates probative value of other-act evidence). Defendant's possession of bullets in 1987 proves little concerning his opportunity and ability to acquire a firearm and his culpable mental state seventeen years later.
In contrast to the slight probative value of this evidence, it is likely to have significant prejudicial effect on the jury. Therefore, pursuant to Rule 403, evidence of the 1987 bullet possession will not be admitted into evidence. See United States v. Wiley, 846 F.2d 150, 156 (2d Cir. 1988).
Notice of Additional Other Act Evidence
In its October 1, 2004 submission, the government indicated that it may offer six additional pieces of other-act evidence. (Second 10/1/04 Farbiarz Letter at 6-7.) To date, no such evidence has been identified.
2. Admissibility of Defendant's 05/19/04 Recorded Statements
The government seeks to introduce a May 19, 2004 telephone conversation between the defendant and his wife that was recorded at the Metropolitan Correctional Center ("MCC"). (First Letter from Michael Farbiarz of 10/01/04 at 9.) Defendant argues that these statements should be excluded because they are protected by the spousal communications privilege. (11/09/04 Sercarz Letter at 5.) The government contends that the spousal communications privilege does not apply because the conversation was not confidential, defendant had been informed and was fully aware that his telephone calls were subject to monitoring by MCC officials. (First 10/01/04 Farbiarz Letter at 9.) According to the defendant, although he had notice that MCC was potentially monitoring his telephone calls, he had a reasonable expectation that his conversations with his wife would remain private. (11/09/04 Sercarz Letter at 5.) No authority has been cited, from this circuit or beyond, to support this proposition. In light of the ample notice defendant received concerning the potential for third-party monitoring of his telephone conversations, defendant had no reasonable expectation of privacy with respect to the telephone conversation at issue. Therefore, the spousal communication privilege does not apply, and defendant's recorded statements are admissible at trial. See, e.g., United States v. Madoch, 149 F.3d 596, 602 (7th Cir. 1998); United States v. Harrelson, 754 F.2d 1153, 1169-70 (5th Cir. 1985). However, any recorded statements made by defendant's wife are protected from admission into evidence by the marital testimonial privilege. In re Witness before Grand Jury, 791 F.2d at 237. 3. Admissibility of 05/01/04 Out-of-Court Statement
The spousal communications privilege shields "communications made in confidence during a valid marriage. . . ." In re Witness before Grand Jury, 791 F.2d 234, 237 (2d Cir. 1986)
The government seeks to introduce testimony by a police officer, summoned to the scene from the police precinct across the street, who heard the statement "Gun! Gun! He's got a gun!" and observed the declarant gesture at the defendant to identify the person to whom his statement had referred. (First 10/01/04 Farbiarz Letter at 3.) The government has indicated that this witness has not been found by government investigators. (Id.) The government seeks to introduce this testimony pursuant to the hearsay exceptions for either excited utterances (Fed R. Evid. 803(2)) or present sense impressions (Fed.R.Evid. 803(1)). (Id. at 3, 5.) Defendant argues that the Supreme Court's decision in Crawford v. Washington, 541 U.S. ___, 124 S. Ct. 1354, 1359 (2004), precludes the introduction of this evidence because the declarant is not available to be confronted by the defendant. (11/09/04 Sercarz Letter at 7.) In the alternative, defendant seeks a hearing to determine whether pursuant to Rules 803(1) or 803(2), the government has established a proper foundation for the admission of the above-described statement.
In Crawford, the Supreme Court held that out-of-court testimonial statements are per se inadmissible against a criminal defendant unless the defendant has had an opportunity to cross examine the declarant. Crawford, 124 S.Ct. at 1374. However, Crawford did not alter prior law with respect to non-testimonial statements. See United States v. Saget, 377 F.3d 223, 227 (2d Cir. 2004). Although the Crawford court did not provide a definition for what constitutes a "testimonial" statement, the Second Circuit has subsequently stated that a declarant's statements are testimonial if they are "knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings." Saget at 228.
Pursuant to Rule 803(2), "[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" is not excluded by the hearsay rule even if the declarant is available to testify. Fed.R.Evid. 803(2). Pursuant to Rule 104(a), the government has established the following facts by a preponderance of the evidence: "(1) [that] a startling event occurred; (2) [that] the declarant [made] the statement while under the stress of excitement caused by the startling event; and (3) [that] declarant's statement relates to the startling event." United States v. Joy, 129 F.3d 761, 766 (7th Cir. 2000).
Pursuant to Rule 803(1), "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" is not excluded by the hearsay rule even if the declarant is available to testify. Fed.R.Evid. 803(1). Pursuant to Rule 104(a), the government has established the following facts by a preponderance of the evidence: (1) that the declarant observed firsthand the event or condition, (2) that that the statement was made while the declarant was observing the event or condition or immediately thereafter, and (3) that the statement reports what the declarant observed firsthand through the senses. Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004).
Based on the government's uncontested description of the circumstances in which the above-described statement was made, it has been established that the statement is not testimonial in nature. Therefore, Crawford presents no bar to the statement's introduction. Since a proper foundation has been established pursuant to Fed.R.Evid. 803(1) and 803(2), the above-described excited utterance/present sence impression will be admitted into evidence.
4. Admissibility of Out-of-Court Statements as Background Information
The government seeks to introduce, for background purposes, out-of-court statements made to the police on the night in question. In these statements, witnesses indicate that there was a dispute at a nightclub and that police assistance was necessary. (Letter from Michael Farbiarz of October 5, 2004 at 2.) The defendant has indicated that he does not oppose introduction of this evidence. (11/09/04 Sercarz letter at 1.) Therefore, this evidence will be admitted for the limited purpose proposed. Conclusion
Based on the foregoing, the government's motion for admission, pursuant to Fed.R.Evid. 404(b), of evidence of certain prior acts allegedly committed by the defendant is denied. The government's motions for admission of the recorded and out-of-court eyewitness statements are granted.
It is so ordered.