Prosecutors can use 911 call recordings describing uncharged crimes to explain police aggression against a defendant during an arrest, New York’s highest court ruled in a 4-3 split decision.
The recordings, the Court of Appeals stated, could be admissible only under certain circumstances: when the value of the context it provides “outweighs” its potential to prejudice the jury against the defendant; and when the judge gives the jury sufficient instructions to consider the limits of evidence.
In the case against Chadon Morris, who was convicted of illegal gun possession following a 2007 arrest, those circumstances applied, four of the seven Justices agreed in a decision filed last Tuesday.
“[G]iven the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions,” Judge Sheila Abdus-Salaam wrote for the majority. “Its probative value outweighed the potential prejudice of the defendant.”
The 911 call in question came on May 27, 2007. As the court summarized:
A 911 caller reported that a black male, wearing a white T-shirt with red sleeves, dark pants, and a white Band-aid on his chin, pulled a gun and stole the caller’s chain necklace at Beach 21st Street and Elk Drive in Far Rockaway. The caller stated that the perpetrator was with two other black males and that, after the attack, all three men walked down Beach 20th Street toward a CVS store on Seagirt Boulevard.
Two officers on patrol, Glenn Ziminski and Edward Moore, spotted a man who appeared to match that description.
“What occurred next was contested at trial, but there is no question that the officers acted aggressively toward defendant,” Abdus-Salaam wrote. “Their actions included, at a minimum, grabbing defendant as he approached and forcibly pressing him against the patrol car.”
“At minimum” because Morris testified that the officers also hit him in the face and back of the head.
The officers found a pistol in his sweatpants.
They testified that he tried to run away when they seized the gun, and that he struggled with them as they handcuffed him. Morris was charged with resisting arrest.
Morris claimed at trial that he found the gun at the CVS and was planning to turn it over to police–he testified he was trying to explain this to the officers but was unable to because of their aggression. He denied trying to flee.
Morris’s defense team, however, did not challenge the lawfulness of the stop. The 911 caller didn’t come forward, and the officers didn’t find any chain necklace when they searched Morris and his two friends.
For these reasons, Morris’ defense argued that the 911 recording was not relevant to the case and that it would unfairly link Morris to a crime that was never charged. But the state Supreme Court judge disagreed, and so did appellate division judges.
The Court of Appeals affirmed those rulings.
“The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car,” wrote Abdus-Salaam, who was joined in the majority by Judges Victoria Graffeo, Susan Read, and Eugene Pigott. “By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context. … [S]uppression of uncharged crime evidence may lead the jury to speculate that the police actions were wrongful.”
To the three dissenting judges, however, the admission of the recording might have pushed the jury to speculate about an armed robbery without knowing the accusation’s proper context.
Next: dissenting judges argue the 911 evidence should have been invalid.
Evidence on uncharged crimes is inadmissible when it only serves to show a defendant’s poor character or criminal history. One exception is when the uncharged crime can provide necessary “background information” or “complete the narrative.” In those cases, judges allow prosecutors to present the evidence as context that has not been proven as fact.
In recent years, the Court of Appeals has ruled both ways on the application of this exception. In a 2002 decision, the judges approved a police officer’s testimony that a livery cab driver had “reported an encounter with the defendant involving a gun” shortly before the defendant was arrested for gun possession.
In a 2004 decision, the court reversed a defendant’s conviction for drug possession with intent to sell because two officers testified that they saw the defendant drive away in a stolen car, even though prosecutors failed to indict him on that alleged theft.
In her dissent, Judge Jenny Rivera argued that the 911 evidence’s main purpose was to justify police aggression, a precedent that falls outside the intent of the exception rules.
“The majority ignores the fact that the exception for background and narrative is a narrow one, and is not intended as a backdoor to allow the prosecution to bolster the credibility of the People’s witnesses,” Rivera wrote, joined in dissent by Judges Jonathan Lippman and Robert Smith.
Meanwhile, Rivera continued, the recording degraded the credibility of the defendant. The judge’s instructions to the jury–that the 911 call was to explain police actions and not “the truth of what that person is saying”–were not sufficiently limiting.
“There can be no doubt that this evidence pointed the finger at the defendant for the alleged robbery,” Rivera stated. “The narrative was a creative representation of the danger of a gun-toting robber on the streets. … Those instructions served to continuously remind the jury of defendant’s possible involvement in an armed robbery.”
In a separate dissent, Smith added that the 911 call was not relevant because no facts about the robbery could be backed by any evidence.
“I find it impossible to believe that any jury, on the facts of this case, could limit its consideration of the tape to the non-hearsay purpose for which it was purportedly offered,” he wrote.
Next: the text of the court’s decision.
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