OPINION
PAUL
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE
This
matter is before the Court on I lie government's motion
in limine to admit an eyewitness statement as a present-sense
impression [Dkt. No. 18]. The defendant filed an opposition
to the motion [Dkt. No. 39], the government filed a reply
[Dkt. No. 40], and the Court heard oral argument on November
5, 2018. For the reasons that follow, the Court granted the
government's motion by separate order dated December 12,
2018 [Dkt. No. 43]. It will admit the statement of the
non-testifying anonymous civilian declarant at trial as a
present-sense impression under Rule 803(1) of the Federal
Rules of Evidence.[1]
I.
FACTUAL BACKGROUND
Derrick
Wills is facing trial on the one remaining count of the
original three-count indictment, possession of a firearm by a
prior convicted felon in violation of 18 U.S.C. §
922(g)(1). See Opp. at 1 n.1. The 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.
See United States v. Wills, 316 F.Supp.3d 437
(D.D.C. 2018). Only those additional facts specifically
relevant to the instant motion in 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, Officer Cornel
Keleman. See Mot. at 2 n.2; see also Mot.
Ex. 4. The government explains that this footage depicts
Officer Keleman's "limited interaction" with an
"anonymous civilian witness" who briefly spoke to
Officer Keleman while other officers searched for the handgun
allegedly thrown by defendant Derrick Wills. See
Mot. at 2 n.2. The portion of Officer Keleman's BWC
footage with audio begins at 4:57:08 p.m. and shows Officer
Keleman walking toward and then up a staircase of the
apartment building breezeway through which Mr. Wills
allegedly ran. See Mot. Ex. 4.[2] Officer Keleman
is seen walking to the second floor and then knocking on the
door of a second floor apartment. See Id. As Officer
Keleman knocks, someone off-screen calls out to get his
attention. See Id. Officer Keleman turns in response
and says "he what?". See Id. At that
point, the declarant says something to Officer Keleman as she
walks toward him, coming up the stairs. See id. The
government submits that Exhibit 4, Officer Keleman's BWC
footage, indicates that the declarant stated: "[H]e
threw it in the bushes I seen him ... he threw it to the
right don't talk to me." See Gov't
Reply at 2. The anonymous witness continues walking.
See Mot. Ex. 4.
Mr.
Wills disputes this rendition of the events depicted on the
BWC footage. He maintains that the audio from Officer
Keleman's BWC indicates that the anonymous civilian
witness stated: "He threw it in the bushes. I was
sitting there w... He threw it to the right. Don't talk
to me." See Opp. at 3 & n.2. According to
Mr. Wills, the declarant did not say "1 seen him."
This
interaction between Officer 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. See
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. See Mot. at 2.
The government submits that the timeline on the body worn
camera of another officer, Officer 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. See Id. 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.
See 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." See
Opp. at 4.
II.
PRESENT-SENSE IMPRESSION
A.
Legal Standard
The
Federal Rules of Evidence define hearsay as an out-of-court
statement offered for the truth of the matter asserted.
See Fed. R. Ev. 801. Although hearsay is generally
not admissible, see Fed. R. Evid. 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. See Fed. R. Evid. 803(1); see also
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." See Fed. R. Evid. 803(1). The hearsay
exception applies "regardless of whether the declarant
is available as a witness." See Id. 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." See Navarette v.
California, 572 U.S. 393, 400 (2014) (internal
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." See Fed. R. Evid. 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 allowable." See
id.; see also Partido Revolucionario Dominicano v.
Partido Revolucionario Dominicano, 311 F.Supp.2d at
16-17 ("The 'critical element' of the exception
... is contemporaneity.")- Spontaneity is also "a
key factor." See Fed. R. Evid. 803 advisory
committee's note: see also United States v.
Obayogbona, 627 F.Supp. 329, 339 (E.D.N.Y. 1985)
("For 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."
See Fed. R. Evid. 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: (1) 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. See Fed. R.
Evid. 803(1); see also 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. See Gilmore v. Palestinian
Interim Self-Gov't Auth., 53 F.Supp.3d 191, 201
(D.D.C. 2014), aff'd, 843 F.3d 958 (D.C. Cir.
2016): see also United States v. Hsia, 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.
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