Tuesday, January 7, 2025
Court Finds Statement to Police Officer 10-15 Minutes After a Shooting Was Not a Present Sense Impression
Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
So, how much time can pass before a statement is no longer made "immediately after" perceiving an event or condition? That was the question addressed by the United States District Court for the District of Oregon in its recent opinion in Clark v. Farr, 2024 WL 4652129 (D. Oregon 2024).
In Farr,
On February 24, 2020, shortly before midnight, [Stacy] Clark used his semi-automatic firearm to shoot a few dozen rounds into the air in an empty field near his home. Clark's neighbors Jonathan Carrillo and his wife Yesenia Carmona, Billy Robing, and Michaela Berry called 911 to report that they heard gunshots....Robing and Berry did not identify the person firing the gun, but Carrillo identified the shooter as his neighbor in the yellow house....Law enforcement officers Post and Farr were dispatched to the scene and arrived at Carrillo's home shortly after midnight on February 25th.... After speaking with Carrillo, the officers drove to Clark's home. The officers did not turn on their car overhead lights or sirens....
Upon arriving at Clark's home, the officers used their flashlights to look around the parking area and the front yard of the property....The officers intended to make contact with the person in the home to learn more details about the gunfire earlier that night.... There was no audible noise coming from inside the house...Both officers were armed with semi-automatic rifles....
Post knocked on one of the doors to Clark's house, and when no one answered after a short period, Post walked around the rest of the front yard and side yard....Post then came back to the door and knocked again, and before Clark answered the door, announced himself as police....Clark answered the door. Farr was between two cars in the parking area, and Post “eclipsed” Farr's view of the front door....The parties dispute whether Clark answered the door holding a handgun, whether Clark pointed the handgun at the officers, and whether Post told Clark to drop the gun. Shortly after Clark opened the door, Post fired three gunshots, id. at 153:16-21, and Farr fired a shot a few seconds later....Two of the bullets struck Clark in the torso,...and a third grazed Clark's ear....
Shortly after the shooting, Robing called 911 again, this time reporting: “I think an officer may have been shot at or shot.”...About ten minutes after the shooting, Trooper Darin Wong arrived on the scene and spoke to the officers and Clark....Post and Farr were also interviewed by detectives from the Pendleton Police Department and the Oregon State Police more than six days after the shooting....The interviews were not given under oath, subject to cross-examination, or video- or audio-recorded....
Clark [thereafter] move[d] for partial summary judgment on his claims of an unconstitutional search, an unconstitutional use of deadly force, and state law trespass.
In addressing this motion, the court had to grapple with whether "Post's statements to Wong approximately 10 to 15 minutes after the shooting" qualified as present sense impressions under Rule 803(1). The court addressed the issue as follows:
Defendants cite two out-of-circuit cases to argue that Post's statements to Wong, made 10 to 15 minutes after the shooting, qualify as present-sense impressions. See United States v. Blakely, 607 F.2d 779, 786 (7th Cir. 1979) (holding that the district court did not err in admitting statements made at a maximum of 23 minutes—and likely only several minutes—after an event); Miller v. Crown Amusements, Inc., 821 F. Supp. 703, 706 (S.D. Ga. 1993) (holding that a less-than 10-minute time gap qualified as a present-sense impression). But other circuit courts have found that statements made 10 to 15 minutes after an event do not constitute a present-sense impression. See United States v. Penney, 576 F.3d 297, 313-14 (6th Cir. 2009) (holding that a statement made 10 to 15 minutes after the declarant's confrontation with law enforcement was over, where declarant “had to have known ... that ... he had shot somebody, and most likely that that was a police officer,” was not a present-sense impression (quotation marks omitted)); United States v. Cain, 587 F.2d 678, 681 (5th Cir. 1979) (“[A] out-of-court statement made at least fifteen minutes after the event it describes is not admissible unless the declarant was still in a state of excitement resulting from the event.”).
The Court finds Penney persuasive, given the similar facts. As the Sixth Circuit explained, the declarant “knew what was at stake at the time he made the statement[; thus,] the statement was unreliable” because the declarant “had time and motive to contrive or misrepresent.”...Here, Post knew that he had shot a civilian and what was at stake. He had time to reflect on what to tell Wong, and there is a likelihood of misrepresentation. This statement, therefore, does not qualify as a present-sense impression.
-CM
https://lawprofessors.typepad.com/evidenceprof/2025/01/federal-rule-of-evidence-8031-provides-an-exception-to-the-rule-against-hearsay-for-a-statement-describing-or-explaining.html