United States v. Brito

427 F.3d 53, 68 Fed. R. Serv. 727, 2005 U.S. App. LEXIS 22525, 2005 WL 2673671
CourtCourt of Appeals for the First Circuit
DecidedOctober 20, 2005
Docket04-1755
StatusPublished
Cited by63 cases

This text of 427 F.3d 53 (United States v. Brito) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brito, 427 F.3d 53, 68 Fed. R. Serv. 727, 2005 U.S. App. LEXIS 22525, 2005 WL 2673671 (1st Cir. 2005).

Opinions

SELYA, Circuit Judge.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court barred the admission of testimonial hearsay in a criminal case under circumstances in which the accused has not had an opportunity to cross-examine the declarant. This ruling effected a sea change in the jurisprudence of the Confrontation Clause—but the Court left open the parameters of testimonial hearsay, and so its ruling produced a miasma of uncertainty. We enter this murky milieu to answer a question of first impression in this circuit: under what circumstances should an excited utterance made to a police officer (in this case, a 911 [56]*56operator) be considered testimonial? Although the question is close, we conclude that, in the circumstances at hand, the excited utterance was nontestimonial and, therefore, properly admitted into evidence. We also reject the defendant’s other challenges to his conviction and sentence. Consequently, we affirm the judgment below.

I. BACKGROUND

In the early morning hours of February 9, 2003, gunshots rang out in the parking lot of Boomer’s, a saloon in Brockton, Massachusetts. At that time Robert Manoli, who was working late in his nearby office, peered out the window and saw a hat-wearing black man load a clip into a gun. As the man walked away, Manoli dialed 911 and reported his observations. The 911 operator dispatched Brockton police officers Steven Johnson and Scott Landry to the scene.

Immediately thereafter, a second 911 call came through. The caller, an anonymous woman, asked if she was talking to the Brockton police. When the 911 operator responded affirmatively, the following dialogue ensued:

Caller: Listen to me. I just seen a man with a gun in his hand. It’s at that club called Boomers. There was a shooting there just a second ago. He has on a black cap with a black leather coat. I can’t quite remember the color of his sweater. But I was just saying to my son when I was getting in the car that I didn’t come to Brock-ton to die. And when I was pulling out and backing out driving down the street, he pointed a gun at me and acted like he was shooting at my car.
Operator: Is he a black man?
Caller: Yes, he is a black man. He has on a baseball cap, he looks like he might be between the height of 5'8" and 5'10". But he’s there right now, he’s standing in between like two buildings. He’s basically on Perkins Ave., right beside [the club Boomers].1
Operator: Okay, we’re on our way down there. I’ll tell the officers to look for a guy with a black cap, black leather coat, about 5'8".
Caller: Yes, please do. [H]e has the coat unzipped. And it looked like a nine millimeter. I could be wrong but it looked like a nine.

The 911 operator relayed the augmented description of the suspect to Johnson and Landry (who were en route to Boomer’s). When the officers were about a block away, they saw a 5'8" black male, wearing a black hat and jacket, standing next to the open passenger door of a car. The man’s right hand was hidden inside his unzipped jacket, as if he were holding something.

The man spied the policemen and fled. His right hand remained inside his jacket. Officer Johnson gave chase. While he was in hot pursuit, his quarry threw away a 9 millimeter pistol. The pistol slid off a snow-covered roof and landed on the ground near Johnson’s feet. Johnson radioed his dispatcher to report the location of the gun and continued the chase.

Within a matter of seconds, Johnson tackled the fleeing man (later identified as defendant-appellant Jean Brito). Assisted by two newly arrived detectives, Johnson took the suspect into custody. The police then retrieved both the gun and the suspect’s hat (which had fallen during the chase). The police also found shell casings [57]*57and an empty magazine clip near the parking lot. The shell casings matched the retrieved pistol.

On March 26, 2003, a federal grand jury indicted the appellant on one count of possession of a firearm by a convicted felon and one count of possession of a firearm by an illegal alien. See 18 U.S.C. § 922(g)(1), (g)(5)(A). The only issue at trial was whether the appellant possessed a gun (he stipulated that he was both a convicted felon and an illegal alien). The government’s case in chief consisted of Manoli’s testimony, the tape of his 911 call, and the testimony of various police officers who had been involved in the investigation. That evidence tracked the factual account set out above.

The appellant testified in his own behalf. He said that, earlier in the day, he had purchased a gold chain from two men in a bar. Shortly thereafter, two other men confronted him. One of them claimed to own the chain and demanded its return. The appellant offered to sell it to the alleged owner. The latter, who did not have sufficient funds to effect a purchase then and there, took down the appellant’s contact information.

Around 1:00 a.m., the same man showed up in Boomer’s parking lot with three compatriots. They invited the appellant to enter their car, but he refused. As the appellant turned to walk away, he heard gunshots. That prompted him to run and hide in some nearby bushes. He remained in hiding until he heard police sirens. At that point, he emerged from the bushes, only to be tackled by police officers and arrested. He denied that a chase had occurred. He also denied that he had a pistol in his possession at any time.

On cross-examination, the government sought to use the appellant’s three prior felony drug-trafficking convictions for impeachment purposes. When the appellant objected, the trial court, at sidebar, proposed that the government be allowed to inquire as to the number of felony convictions without describing the crimes. Defense counsel refused this compromise and suggested that the government be limited to asking whether the appellant had “committed a crime” on a certain date. The court rejected this approach, overruled the objection, and offered the appellant a choice: in referring to the prior convictions, the government either could use the word “felony” or could name the charge. Defense counsel refused to choose. The court then ruled that the government, in its cross-examination, could identify each charge.

Cross-examination proceeded. Defense counsel belatedly asked the court to circumscribe the government’s references to the prior convictions so that only the word “felony” would be used. The court demurred, saying that the attorney had been given that option but had failed to exercise it in a timely manner. The prosecutor then established that the appellant had been convicted on three separate occasions in 1994—once for distribution of a controlled substance and twice for possession of controlled substances with intent to distribute.

After the defense rested, the government sought to introduce the anonymous 911 tape as part of its rebuttal case. The appellant objected on hearsay and Confrontation Clause grounds. The court redacted the tape to exclude the caller’s description of the pistol and allowed the remainder of the tape into evidence under the “excited utterance” exception.2 [58]*58Because Crawford

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Cite This Page — Counsel Stack

Bluebook (online)
427 F.3d 53, 68 Fed. R. Serv. 727, 2005 U.S. App. LEXIS 22525, 2005 WL 2673671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brito-ca1-2005.