UNITF.D S'I`ATES l)lS'l`RlCT COURT _

l"OR 'l'l"ll_:, DIS'l`RlCT Ol" COI.UMBlA F l L E §
DEC 2 l 2018

cll'~`.'rl(l U__S DES

 

 

tr.
u'Nrrso sTATES or AMERICA i Bank"'plcy C‘i:if:»nd
V. i Criminal No. 18-(111?(1’1..1"`]
paranch wlLLs, §
l)efendant. §
)
oPINION

'l`liis matter is bel`ore thc Court on the government"s motion i_n limine to admit an

 

eyewitness statement as a present-sense impression [Dkt. No. 18]. 'l`lie defendant filed an
opposition to the motion [Dkt. No. 39], the government filed a reply [Dl<t. No. 40], and the Court
heard oral argument on November 5. 2018. For the reasons that foilow. the Court granted the
go\-'ernment`s motion by separate order dated l)ecember l?., 2018 [I)kt. No. 43 |. lt will admit
the Slatemcnt of the non-testifying anonymous civilian dcciarant at trial as a present-sense

impression under Rule 803(1) ol` the l`~`ederal Rules oi` Evidence.I

I. l"AC'l`UAL BACKGROUND
Dcrrick Wills is facing trial on the one remaining count ol` the original three-count

inclietment. possession oi"a firearm by a prior convicted l`elon in violation oi` 18 U.S.C.

 

1 `I`he Court has reviewed thc following iilings in resolving the pending motion:

Go\-'ernmenl`s Motion l_n I.imine to Adlnit l-`.ycwitness Statement as a l’resent-Scnse Impression
("Mot.") [l)l<t. No. 18]; Dei`endant’s Opposilion lo the Government"s Motion ll I,iminc ("Opp."`)
[Dl<t. No. 39]; Government’s Reply to the Del`endant’S Opposition (‘“Gov`t Reply") [Dkt. No.
40]; and Government’s Exhi‘oit 4, ()t`t`iecr Keleman’s Body-worn Camera Footage (“Mot.

Ex. 4"').

 

§ 922(g)(l). w Opp. at l n. l. 'I`he facts surrounding the seizure of the weapon and the arrest of
Mr. Wills on February 9, 2018 are explained in detail in the Court’s opinion of August 8, 2018
suppressing evidence in this case. g United States v. Wills, 316 F. Supp. 3d 437 (D.D.C.

2018). Only those additional facts specifically relevant to the instant motion i_n limine are

 

included herein.

In support of its motion, the government relies primarily upon a portion of
body-worn camera (“BWC”) footage from an officer at the scene of Mr. Wills’ arrest, Offtcer
Cornel Keleman. B Mot. at 2 n.2; se_e alj Mot. Ex. 4. The government explains that this
footage depicts Offlcer Keleman’s “limited interaction” with an “anonymous civilian witness”
who briefly spoke to Off`lcer Keleman while other officers searched for the handgun allegedly
thrown.by defendant Derrick Wills. E Mot. at 2 n.2. The portion of Officer Keleman’s BWC
footage with audio begins at 4:57:08 p.m. and shows Offlcer Keleman walking toward and then
up a staircase of the apartment building breezeway through which Mr. Wills allegedly ran. g
Mot. Ex. 4.2 Off`lcer Keleman is seen walking to the second floor and then knocking on the door
of a second floor apartment. §ge_ i_d_. As Off`tcer Keleman knocks, someone off-screen calls out
to get his attention. g E. Ofi`icer Keleman turns in response and says “he what?”. §_eg ig. At
that point, the declarant says something to Officer Keleman as she walks toward him, coming up
the stairs. B E. The government submits that Exhibit 4, Offtcer Keleman’s BWC footage,

indicates that the declarant stated: “[l-l]e threw it in the bushes I seen him . . . he threw it to the

 

2 The BWC footage indicates that the hour of recording is “21,” not “4” as the
government reports. §§ Mot. Ex. 4. To maintain consistency with the govemment’s timeline,
and given that it is still daytime during the footage, the Court will assume that Officer Keleman’s
BWC footage should indicate the time to be the hour “4.” This inconsistency is inconsequential
to this opinion because the Court’s analysis turns on the length of time that elapsed - a matter of
minutes and seconds, not hours - which are accurately documented on the BWC footage.

right don’t talk to me.” § Gov’t Reply at 2. The anonymous witness continues walking. g
Mot. Ex. 4.

Mr. Wills disputes this rendition of the events depicted on the BWC footage, He
maintains that the audio from Ofiicer Keleman’s BWC indicates that the anonymous civilian
witness stated: “I-le threw it in the bushes. I was sitting there w. . . He threw it to the right.
Don’t talk to me.” g Opp. at 3 & n.2. According to Mr. Wills, the declarant did not say “l
seen him.”

This interaction between Ofiicer Keleman and the anonymous civilian witness
occurred from approximately 4:57:56 p.m. to 4:58:04 p.m., a period of about eight seconds. B
Mot. Ex. 4. According to the government, the interaction at issue took place between three and
four minutes after Mr. Wills allegedly threw the firearm. §§ Mot. at 2. The government
submits that the timeline on the body worn camera of another officer, Ofticer Krishaon Ewing,
the pursuing officer, shows that the defendant threw the firearm at 4:54:56 p.m, and the firearm
was recovered from the bushes at approximately 4:58: 18 p.m. E i_d. at 1-2. Thus, the lapse of
time from the throwing of the gun until its recovery was approximately 3 minutes and 22
seconds; the time between the throwing of the gun and the statement of the anonymous civilian
was approximately 3 minutes.

The government now seeks to admit the anonymous civilian witness’ statements
It contends that the statements meet both a hearsay exception as a present-sense impression and
are non-testimonial, and therefore their admission does not violate Mr. Wills’ rights under the
Confrontation Clause. g Mot. at 3. Mr. Wills opposes the admission of the statements,

arguing that they “do not meet the requirements for admission as present sense impressions and

the admission of the statements would violate Mr. Wills’ Sixth Amendment right to

confrontation.” g Opp. at 4.

II. PRESENT-SENSE lMPRESSION
A. Legal Standard

The F ederal Rules of Evidence define hearsay as an out-of`-court statement
offered for the truth of the matter asserted. g Fed. R. Ev. 801. Although hearsay is generally
not admissible,& FED. R. Ele. 802, a present-sense impression may be admitted as an
exception to the hearsay rule under Rule 803(1) of the Federal Rules of Evidence. m FED. R.
EVlD. 803(1); § Lso Partido Revolucionario Dominicano v. Partido Revolucionario
Dominicano, 311 F. Supp. 2d 14, 16 (D.D.C. 2004). Rule 803(1) defines a present-sense
impression as “[a] statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.” Y FED. R. EVtD. 803(1). The hearsay exception
applies “regardless of whether the declarant is available as a witness.” g i_d. The exception is
grounded in the idea that “statements about an event and made soon after perceiving that event
are especially trustworthy because substantial contemporaneity of event and statement negate the
likelihood of deliberate or conscious misrepresentation.” § Navarette v. California, 572 U.S.
393, 400 (2014) (imemal quotations omitted).

The Advisory Committee Note to Rule 803(1) makes clear that this exception is
of limited scope, applying only where there is “substantial contemporaneity of event and
statement.” g FED. R. EvtD. 803 advisory committee’s note. The exception recognizes “that in

many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is

Dominicano, 311 F. Supp. 2d at 16-17 (“The ‘critical element’ of the exception . . . is

contemporaneity.”). Spontaneity is also “a key factor.” Y FED. R. Ele. 803 advisory
committee’s note; gag alj United States v. Obayogbona, 627 F. Supp. 329, 339 (E.D.N.Y. 1985) '
(“F or present sense impressions, the spontaneity exists in the short time between the event
perceived and the declaration.”). In addition, the “[p]ermissible subject matter” of a
present-sense impression is “limited . . . to description or explanation of the event or condition,
the assumption being that spontaneity, in the absence of a startling event, may extend no farther.”
w FED. R. EVtD. 803 advisory committee’s note.

For the Court to admit the proffered statement of the anonymous civilian witness
as a present-sense impression, the government must prove three elements: (l) the statement
describes or explains an event or condition, (2) which the declarant perceived firsthand, and
(3) the statement was made contemporaneously - while the declarant perceived the event or
condition or immediately thereafter. g FED. R. EVtD. 803(1); g al_so United States v. Ruiz,
249 F.3d 643, 646 (7th Cir. 2001); United States v. Mitchell, 145 F.3d 572, 576 (2d Cir. 1998);
United States v. Meiia-Valez, 855 F. Supp. 607, 613 (E.D. N.Y. 1994). These elements must be
proven by a preponderance of the evidence. §e§ Gilmore v. Palestinian Interim Self`-Gov’t
Au_th., 53 F. Supp. 3d l9l, 201 (D.D.C. 2014), Lf’_d, 843 F.3d 958 (D.C. Cir. 2016); g alj
United States v. l~lsia, 87 F. Supp. 2d 10, 13 (D.D.C. 2000) (“As the party seeking to introduce
hearsay evidence, the government has the burden of proving each element of the exceptions it

asserts.”).

B. Analysis
The government contends that the anonymous witness’ statement should be
admitted at trial because it qualifies as a present-sense impression under Rule 803(1) of the

Federal Rules of Evidence, and is thereby excepted from the rule against hearsay. w

Mot. at l, 6. In contrast, Mr. Wills argues that the government has failed to prove by a
preponderance of the evidence each of the essential elements necessary to permit admission of
the anonymous witness’ statement as a present-sense impression.

First, Mr. Wills maintains that the statement does not describe the event or
condition in question. I-le argues that there is no evidence to prove that it was a gun that the
anonymous witness saw thrown, as opposed to some other unknown object, or even that the
witness was referring to Mr. Wills when she said “[h]e threw it in the bushes.” E Opp. at 3-4,
6-7. This argument borders on the frivolous. Although there were other persons in the area,
there is no evidence or suggestion that anyone other than Mr. Wills had thrown anything - a
firearm or any other object - during the approximately four minutes at issue here. And while the
witness was reluctant to speak to law enforcement and promptly left the scene without
identifying herself, she spontaneously provided a statement that she saw a person throw
something that was of serious concern to her into the bushes.

Second, Mr. Wills argues that there is no evidence that the declarant herself
perceived the event or condition firsthand - specifically, that there is no evidence that the
anonymous civilian personally saw something as opposed to merely “reporting what someone
else saw,” and no evidence of where she was when she claims to have seen something _S_e£ Opp.
at 3, 5-7. In the Court’s view, however, there is no doubt that the declarant perceived the event
personally. Having viewed and listened to the audio of`Officer Keleman’s body-worn camera
(Exhibit 4) numerous times - and having slowed the recording down to hear the audio clearly
-the Court finds as a fact that the anonymous civilian actually said: “He threw it in the bushes.
1 was sitting there watching. He threw it to the right. Don’t talk to me.” §_Qe_ Mot. Ex. 4. fhus,

while she did not say “l seen him,” she did say “I was sitting there watching,” and “he threw it in

the bushes . . . he threw it to the right.” The clear inference is that she was watching and, while
watching, she saw him throw it in the bushes.3 lt could hardly be clearer that this anonymous
civilian personally saw someone - a male - throw something in the bushes that gave her a
sufficient level of concern to stop a police officer and spontaneously and immediately report

what she had seen. 1-ler statement g fortiori constitutes a report of the first-hand personal

 

perception of an event she had just seen.

Mr. Wills further argues that the fact that the Court knows nothing about the
civilian witness - that she was and remains anonymous - raises heightened concerns about her
ability to perceive and her reliability. w Opp. at 3-4, 9-10. Some courts have been hesitant to
admit the present-sense impression of an unidentified declarant where the declarant’s capacity to
observe cannot be substantiated, corroborated, or attacked on cross-examination. E FED. R.
Ele. 803 advisory committee’s note (“[W]hen declarant is an unidentified bystander, the cases
indicate hesitancy in upholding the statement alone as sufficient.”); §§ all Miller v. Keating,
754 F.2d 507, 510-11 (3d Cir. 1985); Gainer v. Wal-Mart Stores E., L.P., 933 F. Supp. 2d 920,
929-30 (E.D. Mich. 2013). “[B]ut the truth is that [Rule 803(1)] does not condition admissibility
on the availability of corroboration.” g United States v. Ruiz, 249 F.3d at 647; United States
v. McElroy, 587 F.3d 73, 85 (lst Cir. 2009); g Bg_ Silas v. Target Corp., 569 Fed. App’x 405,
407 (6th Cir. 2014) (finding that an unidentified woman’s personal knowledge was apparent
from her statement for purposes of Rule 803); United States v. Johnson, 509 Fed. App’x 487,
494 (6th Cir. 2012) (concluding that the district court properly admitted the recording of an
anonymous 911 call-under Rule 803(1) without reference to the need for corroboration). As the

Seventh Circuit has correctly concluded, the lack of a corroborating witnesses “[bears] upon the

 

And as Yogi Berra famously said: “You can observe a lot just by watching.”

7

weight owed to this evidence but [does] not bar its admission.” United States v. Ruiz, 249 F.3d
at 647. In any event, here the officers’ discovery of a firearm in the bushes moments later itself
provides corroboration of the declarant’s statement. Furthermore, and importantly, the footage
from Officer Keleman’s body-worn camera is itself corroboration. Indeed, it is virtually
conclusive proof that what Officer Keleman said previously - and presumably will say at trial
- about his encounter with the anonymous civilian witness and what she said to him is
substantially accurate. Thus, the Court does not find the declarant’s anonymity a basis for
excluding the statement as hearsay.4

Finally, Mr. Wills argues that the statements were not made while the declarant
perceived the event or condition or “immediately after the declarant perceived it.” _Sg§_ FED. R.
EVlD. 803(1); Mot. at 7-9. Courts have not strictly required that a present-sense impression be
made at the exact moment of the described event, as even the most basic cognitive processing
requires some delay. B, gg, 308 CHARt.es A. WRIGHT & JEFFREV BsLLtN, FEDERAL PRAcrlcE
& PROCEDURE § 6814 (2017); FED. R. EvtD. Rule 803 advisory committee’s note (“[l]n many, if

not most, instances precise contemporaneity is not possible and hence a slight lapse is

 

4 The primary cases cited by the defendant on this issue - United States v. Mitchell,

145 F.3d 572 (3d Cir. 1998), and Miller v. Keating, 754 F.Zd 507 (3d Cir. 1985) - are
distinguishable Mitchell dealt with an anonymous note left by someone that provided no
context that would allow the police to determine whether the writer of the note actually observed
- that is, personally perceived -the events in question. g United States v. Mitchell, 145 F.3d
at 576-77. The Third Circuit found that the district court erred in admitting the anonymous note
in Mitchell because the record was “devoid of circumstances indicating by a preponderance that
the author of the anonymous note actually saw [the event it was describing.]” §§ i_d_. at 577.
Similarly, in Miller, the Third Circuit “found the trial court erred in inferring personal perception
on the ground that the declarant would have made the declaration only if he was in a position to
[personally observe].” _S_e§ i_d_. at 577 (citing Miller v. Keating, 754 F.2d at 51 l). Here, the
circumstances are entirely different because - as noted -the body-worn camera footage provides
the context that was missing in both Mitchell and Miller. The anonymous civilian is heard
stating: “He threw it in the bushes. I was sitting there watching.” § Mot. Ex. 4.

'\

allowable.”). But contemporaneity or substantial contemporaneity is important because it serves
as a proxy for reliability or trustworthiness g United States v. Green, 556 F. 3d 151, 155-56
(3d Cir. 2009) (“[T]he passage of time - or the lack thereof - is the effective proxy for the
reliability of the substance of the declaration.”). The theory is that (1) “the closeness in time
between the perceived event and the declarant’s description virtually eliminates dangers of faulty
memory,” and (2) “the absence of an opportunity for reflection reduces ‘the likelihood of
deliberate or conscious misrepresentation.”’ § WRlGHT & BELL|N, M, § 6812 (quoting FED.
R. Ele. 803 advisory committee’s note); ge aig Navarette v. Califomia, 572 U.S. at 399-400;
United States v. Ruiz, 249 F.3d at 647 (“[S]ubstantial contemporaneity of event and statement
minimizes unreliability due to defective recollection or conscious fabrication.”); United States v.
Mejia-Valez, 855 F. Supp. at 613.

Because the statement must be made at the time that the event or condition is
being perceived or immediately thereafter under Rule 803(1), the Court must determine how
long is too long to qualify as “immediately thereafter” in the circumstances presented here.
There is “no talismanic time period for admission of a present-sense impression,” so
admissibility must be'determined on a case-by-case basis. w 4 STEPHEN A. SALTZBURG,
MchAEt. M. MART|N & DAN|EL J. CAPRA, FEDERAL RuLEs oF EvloENci-: MANuAL 803-17 (l lth
ed. 2015). In the D.C. Circuit, it is clear that fifteen minutes is too long to satisfy the
contemporaneity requirement, but beyond that, there is very little guidance. Co_mM H_ilyg'_L
Howat Concrete Co., 578 F.2d 422, 426 n.7 (D.C. Cir. 1978) (explaining that an “out-of-court
statement made at least fifteen minutes after the event it describes is not admissible”), M
Flvthe v. District of Columbia, 4 F. Supp. 3d 222, 234 (D.D.C. 2014) (holding a statement

admissible when the statement was made within moments or seconds of the event). In this case,

the elapsed time between the event perceived -the throwing of the gun - and the anonymous
civilian witness’ statement was 3 minutes. The Court concludes that the event and the statement
were sufficiently contemporaneous to substantiate its reliability. '1_`hus, the anonymous witness’
statements qualify as a present-sense impression and may be admitted under Rule 803 as an

exception to the hearsay rule.

Ill. CONFRONTAT!ON CLAUSE
A. Legal Slandard

The parties agree that for the statement of the anonymous civilian to be admitted
at trial it must meet a hearsay exception ~ in this case as a present-sense impression - and also
not violate Mr. Wills’ Sixth Amendment right to confront the witnesses against him. D Mot. at
3; Opp. at 4, 10; Gov’t Reply at 1. The government argues that the statements do not implicate
the Confrontation Clause because they were non-testimonial in nature. It maintains that there
was an emergency perceived by the officers and presumably by the witness -the need to retrieve
promptly the gun the witness saw thrown - and the anonymous civilian’s statements were made
to assist the police in that endeavor, not to assist in arrest and prosecution. E Mot. at 3-6.

The Sixth Amendment confers upon a defendant in a criminal prosecution “the
right . . . to be confronted with the witnesses against him.” g U.S. CONST. amend. VI.
“A witness’s testimony against a defendant is thus inadmissible unless the witness appears at
trial or, if the witness is unavailable, the defendant had a prior opportunity for
cross-examination.” United States v. Williams 740 F. Supp. 2d 4, 6 (D.D.C. 2010) (quoting
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009)); § gl_sg Mgtgg

541 U.S. 36, 53-54 (2004). A declarant is a “witness” within the meaning of the Sixth

10

Amendment if he or she “bear[s] testimony” against the accused - that is, if he or she makes
statements that are “testimonial” in nature. w Crawford v. Washington, 541 U.S. at 51.

A “testimonial” statement is one that is “made under circumstances which would
lead an objective witness reasonably to believe that the statement would be available for use at a
later trial.” w Crawford v. Washington, 541 U.S. at 52. By contrast, a statement is deemed
non-testimonial if it was “made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency.” g Davis v. Washington, 547 U.S. 813, 822 (2006). But
“when the circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially relevant
States v. Arnold, 486 F.3d 177, 187 (6th Cir. 2007) (explaining that a statement is testimonial
where circumstances “objectively indicate” that the “primary purpose of the interrogation is to
establish or prove events potentially relevant to later criminal prosecution”). Ultimately, a court
must decide “whether, in light of all the circumstances, viewed objectively, the ‘primary
purpose’ of the conversation was to ‘create an out-of-court substitute for trial testimony.”’ Ql_tig_
M, 135 S. Ct. 2173, 2180 (2015) (quoting MgMj/a_nt, 562 U.S. 344, 358 (2011)).
A statement does not fall within the Confrontation Clause unless its “primary purpose” was

testimonial. D @.

B. Anal'ysis
The` government argues that the statement of the anonymous civilian was not
testimonial in nature and therefore need not be subject to cross-examination under the

Confrontation Clause. §§ Gov’t Reply at 7. lt points out that the civilian spoke first,

11

spontaneously offering information to the officer about the location of a gun that she saw thrown,
and that there was no interrogation by Officer Keleman. §§ i_d.; § alj Mot. at 5. The
government maintains that the primary objective of Officer Keleman and his colleagues was to
locate the gun for the protection of the community, not to support a prosecution. §e_e @. The
search for the lirearm, it asserts, was “unquestionably an ongoing emergency,” and thus the
statements by the civilian witness were non-testimonial and the Confrontation Clause therefore is
not implicated. _S_eg Mot. at 4, 6. The government analogizes the officers’ “frantic[] search[] for
a firearm,” to circumstances in which a 91 l dispatcher attempts to identify the perpetrator of an
ongoing crime. Y Mot. at 4.

'I`he existence of an emergency, however, “is not the touchstone of the testimonial
inquiry.” E Ohio v. Clark, 135 S. Ct. at 2180 (quoting Michigan v. Bryant, 562 U.S. at 374).
Rather, whether an emergency exists is only one factor relevant to determining the “primary
purpose” of a statement. w E. (quoting Michigan v. Bryant, 562 U.S. at 366). Other factors
that may play a role in determining the primary purpose of the interaction between the police and
a citizen is whether there was an interrogation by law enforcement and the formality or
informality ofthe situation. E Ohio v. Clark, 135 S. Ct. at 2180; MgLv_.l_Bg/jt_t, 562 U.S.
at 366. ln addition, “the statements and actions of both the declarant and interrogators provide
objective evidence of the primary purpose of the interrogation.” g MgLLQ'}/a_nt, 562
U.S. at 367; g alj Davis v. Washington, 547 U.S. at 829-30. In this case, those other factors
and the conduct and statements of both the anonymous civilian and Officer Keleman fully
support the government’s position.

The civilian witness voluntarily approached Officer Keleman without any

apparent solicitation in a relatively informal setting. She spontaneously offered her statement,

\

12

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confirmed that statement when Officer Keleman briefly asked one clarifying question, and then
quickly terminated the encounter. E, g&, United States v. Arnold, 486 F.3d at 190 (explaining
that the fact that statement was unprompted and not in response to police interrogation “at least
suggests that the statement was nontestimonial”).5 This was not the kind of “formal
station-house interrogation” that gives rise to the most classically testimonial statements S e

Ohio v. Clark, 135 S.Ct. at 2180 (citing Michigan v. Bgyant, 562 U.S. at 366). Indeed, the

 

interaction between the two was not an interrogation at all - the declarant’s statement was
entirely unsolicited and spontaneous ln these circumstances, the Court concludes that the
primary purpose of the conversation was to find the gun and remove it from the apartment
complex, not to obtain information potentially relevant to a criminal prosecution. The

. . ,, .
anonymous civilian’s statements therefore were “non-testimonial and may be admitted

consistent with Mr. Wills’ rights under the Confrontation Clause.

fying question between the declarant’s statements,

“He threw it in the bushes. Iwas sitting there d
And the anonymous civilian respon s

 

’ Officer Keleman asks one clari

` `lian says

h BWC footage shows that the eivi fw
;att:ching.” Officer Keleman asks You saw the bushesE.X 4
“He threw it to the right. Don’t talk to me. 853 Mot. . .

13

 

 

 

lV. CONCLUSION
For all of these reasons, the Court granted the govemment’s motion i_n limine to

admit an eyewitness statement as a present-sense impression by separate order [Dkt. No. 43]

dated December 12, 2018

SO ORDERED.

C?,WL j%;iw

PAUL L. FRIEDMXN\'T
United States District .Iudge

DATE: /a`\ 5_\\ \'K'

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