United States v. Brown

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

6-21-2001

United States v. Brown
Precedential or Non-Precedential:

Docket 00-1774

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Filed June 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1774

UNITED STATES OF AMERICA

v.

TISHON BROWN
aka Clarence Brown, Jr.

Tishon Brown,
Appellant

No. 00-1776

UNITED STATES OF AMERICA

v.

CLARENCE BROWN,
aka Tishon Brown

Tishon Brown,
Appellant

Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action Nos. 99-cr-00054/96-cr -00580)
District Judge: Honorable Stephen M. Orlofsky

Argued on January 8, 2001

Before: SLOVITER, ROTH and RENDELL Cir cuit Judges

(Opinion filed: June 21, 2001)
 Robert J. Cleary
United States Attorney
George S. Leone, Esquire
Chief, Appeals Division
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Norman Gross (Argued)
Assistant United States Attorney
Camden Federal Building and
United States Courthouse
401 Market Street, Fourth Floor
Camden, NJ 08101-2098

Attorneys for Appellee

Mark W. Catanzaro, Esquire
(Argued)
513 South Lenola Road
Blason IV, Suite 208
Moorestown, NJ 08057

Attorney for Appellant

OPINION OF THE COURT

ROTH, Circuit Judge:

In 1994, Clarence Brown, a/k/a Tishon Brown, was
convicted in the United States District Court for the
Eastern District of New York of six counts of armed
robbery. While on supervised release in connection with the
robbery conviction, Brown was convicted of possession of a
firearm by a convicted felon in violation of 18 U.S.C.
S 922(g)(1). Following sentencing in the gun possession
case, Brown pled guilty to violating his supervised release
by committing the gun possession crime. The District Court
revoked Brown's supervised release and imposed a
sentence of incarceration for that violation to be served
consecutively to the term of imprisonment in the gun
possession case. Brown now appeals the judgments in both
cases.

2
I. FACTS AND PROCEDURAL HISTORY

On May 25, 1998, at approximately 10:50 p.m., Police
Officer Michael Hughes of the Camden Police Department
was dispatched to the 700 block of Clinton Str eet in
Camden to investigate a missing juvenile report. As Officer
Hughes testified at Brown's gun possession trial, while he
was speaking to a woman on the street about the juvenile,
two black males approached him. "They wer e yelling, they
were real excited, telling me they saw a guy with a gun over
at 7th and New. . . . 7th and New or 7th and W ashington."
"They were very excited very nervous, like they were
hopping around very . . . ." The men told Officer Hughes
that a man approximately two blocks away was waving a
gun at people and threatening to "shoot somebody." Officer
Hughes accompanied the men along Clinton Str eet in the
direction of 7th Street. The men kept saying, "he's over
there" and "he's up there." When they reached 7th Street,
the two men exclaimed, "He's up there, that's him right
there." The men pointed out Brown, who was walking
across 7th Street between Washington and Berkeley
Streets, approximately one and one-half blocks from the
location at which the men had said they encounter ed the
man brandishing the gun.

Officer Hughes observed Brown, clearly illuminated by
street lamps, approaching and carrying a pistol in his right
hand. Officer Hughes took cover behind a parked car, drew
his gun, and radioed for assistance. He order ed Brown to
drop his weapon. After initially ignoring the command,
which Officer Hughes repeated twice, Br own dropped the
gun and complied with the officer's order to lie on the
ground. Officer Kenyatta Kelly arrived at the scene and saw
Brown on the ground. Officer Hughes told Officer Kelly that
Brown had discarded a gun and directed Officer Kelly to
recover and secure it. Officer Kelly r etrieved the weapon,
which contained thirteen live rounds of ammunition. The
ammunition, however, had not been chamber ed and the
gun's firing pin was subsequently discover ed to be broken.
Officer Hughes arrested Brown and r ead him his Miranda
rights. After Brown was booked at the Camden Police
Department, Officer Hughes drove Brown to the Camden
County Jail. During the trip Brown spontaneously told

3
Officer Hughes that this was not Brown'sfirst offense and
asked if he could receive "a lesser char ge." Brown also told
Officer Hughes that he was sorry he had put Officer Hughes
"through this."

In light of Brown's prior federal convictions for six counts
of armed robbery and other convictions for automobile theft
and possession of a loaded firearm, the gun possession
case was referred to federal authorities for prosecution.
Trial was conducted in the United States District Court for
the District of New Jersey. The jury found Br own guilty of
the gun possession offense.

When Officer Hughes testified at trial that the two men
had told him about the man waving the gun and saying he
was going to shoot somebody, Brown's attor ney objected
and requested a mistrial. The District Court conducted a
hearing pursuant to Fed. R. Evid. 104 to assess the
objection. On the following day, the court issued a
memorandum opinion holding Officer Hughes's testimony
admissible as an excited utterance exception to the hearsay
rule. Following the jury verdict, the District Court imposed
a sentence of 78 months imprisonment, followed by a three-
year term of supervised release.

Brown's supervised release in the r obbery case had been
transferred to the United States District Court for the
District of New Jersey, pursuant to 18 U.S.C. S 3605.
Following sentencing in the gun possession case, Br own
pled guilty to a violation of his supervised r elease by
committing the gun possession crime. Brown and the
government agreed as a condition of the plea that, if
Brown's gun possession conviction was r eversed on appeal,
he would be allowed to withdraw his guilty plea for violating
his supervised release in the robbery case. The District
Court sentenced Brown to 18 months imprisonment for
violation of his supervised release, to be served
consecutively to the term of imprisonment in the gun
possession case. Brown has appealed in both cases. For the
reasons stated below, we will affirm in both.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over Brown's gun
possession offense pursuant to 18 U.S.C. S 3231 and over

4
the violation of supervised release in his r obbery case
pursuant to 18 U.S.C. SS 3231, 3583(3) and 3605. We have
jurisdiction of his appeals pursuant to 28 U.S.C.S 1291.

We review the District Court's decision to admit evidence
for abuse of discretion. United States v. Serafini, 233 F.3d
758, 768 n.14 (3d Cir. 2000). Our review of the District
Court's interpretation of the Federal Rules of Evidence is,
however, subject to plenary review. Id.

We apply an abuse of discretion standar d in reviewing
the District Court's rulings on objections to the summation.
If a challenge to the summation was not raised in the
District Court, we review for plain err or only. See United
States v. Wert-Ruiz, 228 F.3d 250, 252 n.1 (3d Cir. 2000).
In order to demonstrate prosecutorial misconduct under a
plain error standard, the review must reveal "egregious
error or a manifest miscarriage of justice." United States v.
Price, 76 F.3d 526, 530 (3d Cir. 1996).

III. DISCUSSION

A. EXCITED UTTERANCES

The "excited utterance" exception to the hearsay rule is a
long recognized one. It is incorporated into the Federal
Rules of Evidence in Rule 803(2) which provides that an
"excited utterance" is admissible as an exception to the
hearsay rule as long as it is a "statement r elating to a
startling event or condition made while the declarant was
under the stress of excitement caused by the event or
condition." The applicability of the exception is unaffected
by the availability or unavailability of the declarant as a
witness. Fed. R. Evid. 803. The rationale for the excited
utterance exception lies in the notion that excitement
suspends the declarant's powers of reflection and
fabrication, consequently minimizing the possibility that the
utterance will be influenced by self inter est and therefore
rendered unreliable. See United States v. Joy, 192 F.3d
761, 766 (7th Cir. 1999), cert. denied , 120 S.Ct. 2704
(2000); 2 McCormick on Evidence S 272, at 204-05 (5th ed.
1999).

5
Although courts' articulations of the elements necessary
to invoke the exception differ, most agree upon three
requirements: (i) the occurrence of a startling event or
condition; (ii) the statement in question must have been
made while the declarant was under the stress of
excitement caused by the event or condition; and (iii) the
statement must relate to the startling event or condition.
See United States v. Moore, 791 F .2d 566 (7th Cir. 1986). In
the Third Circuit, we have expanded the r equirements of
admissibility to include: (i) a startling occasion; (ii) a
statement relating to the circumstances of the startling
occasion; (iii) a declarant who appears to have had
opportunity to observe personally the events; and (iv) a
statement made before there has been time to reflect and
fabricate. See United States v. Mitchell, 145 F.3d 572, 576
(3d Cir. 1998); Miller v. Keating, 754 F.2d 507 (3d Cir. 1985).1

In the memorandum opinion it issued following the Rule
104 hearing, the District Court carefully applied our four-
part Rule 803(2) analysis as set forth in Mitchell and Miller
and concluded that Officer Hughes's testimony about the
statements of the two declarants satisfied each of the four
prongs. First, the court held that the two declarants'
observation of a man wielding a firear m qualified as a
startling occasion. Significantly, Brown all but concedes
this point in his brief: "On it's [sic] face, a man waving a
gun and threatening to shoot people would appear to
qualify." Second, the District Court found that the
statements of the declarants to Officer Hughes r egarding
the man brandishing a gun (Hughes testified that the
declarants said they "just saw a guy with a gun .. . over
7th and New, 7th and Washington Street") constituted
statements relating to the circumstances of the startling
occasion. Third, the District Court held that the declarants'
several statements that they had personally seen the man
with the gun, coupled with their subsequent statements as
they actually pointed out the gunman ("that's him right
there") adequately established that the men had the
opportunity to observe personally the startling event at
issue. Fourth, the court concluded that because the
_________________________________________________________________

1. These requirements follow Wigmore's classic formulation. See 6 J.
Wigmore, Evidence SS 1750-51 (J. Chadbourne rev. 1976).

6
declarants appeared to be "very excited," "very nervous" and
"hopping around," and given that appr oximately one minute
had passed between the startling occasion and the
declarants' statements to Officer Hughes (Hughes testified
that the declarants could have walked from the place they
had seen the gunman to Officer Hughes's location in
"maybe a minute"), such statements wer e made without the
opportunity to reflect and fabricate.

Brown contends, however, that the gover nment failed to
provide evidence of the startling event other than Hughes's
discussion of the hearsay statements themselves. This
argument, however, fails in light of the generally prevailing
rule that an excited utterance may of itself be sufficient to
establish the occurrence of the startling event. See Moore,
791 F.2d at 571 (citations omitted) (dictum). Academic
commentators tend to agree that the hearsay statement
itself is sufficient proof of the exciting event without resort
to independent corroborating evidence, in both theory and
practice. Most jurisdictions also find the statement in itself
sufficient.2 Similarly, many courts have held that the
appearance, behavior and condition of the declarant may
establish, without other independent evidence, that a
startling event occurred.3 In addition, the Advisory
Committee Note to Federal Rule 803(2) describes rulings
holding the statement itself sufficient as "increasing" and
the "prevailing practice." See Fed. R. Evid. 803 Advisory
Committee's Note, 56 F.R.D. 183, 305; 2 McCor mick on
Evidence S 272, at 206 n.19. Indeed, W einstein's Federal
Evidence goes so far as to conclude that "hearsay may be
used as the foundation for [the excited utterance] hearsay
_________________________________________________________________

2. See, e.g., Moore, 791 F .2d at 571 (dictum); Industrial Comm'n v.
Diveley, 88 Colo. 190, 294 P. 532 (Colo. 1930); Johnston v. W.S. Nott Co.,
183 Minn. 309, 236 N.W. 466 (Minn. 1931); State v. Smith, 178 W.Va.
104, 358 S.E.2d 188, 194-95 (W.Va. 1987) (dicta). But see People v.
Burton, 433 Mich. 268, 445 N.W.2d 133 (Mich. 1989); Truck Ins.
Exchange v. Michling, 364 S.W.2d 172 (T ex. 1963). See 2 McCormick on
Evidence S 272, at 206 & n.17 (5th ed. 1999).

3. See, e.g., Moore, 791 F.2d at 570 & n.1; Wetherbee v. Safety Casualty
Co., 219 F.2d 274 (5th Cir. 1955); Wheeler v. United States, 211 F.2d 19
(D.C. Cir. 1953), cert. denied, 347 U.S. 1019, 74 S.Ct. 876 (1954);
Stewart v. Baltimore & Ohio R. Co., 137 F .2d 527 (2d Cir. 1943).

7
exception. Any other approach would greatly undermine the
utility of the exception by causing valuable evidence to be
excluded." Weinstein's Federal Evidence,S 803.04[2][b], at
803-21 (2d ed. 2000).4

In light of the volume and persuasiveness of authority
bearing on the question, we conclude that an excited
utterance may itself be sufficient to establish that a
startling event occurred and that the question whether
corroborating evidence independent of the declaration is
needed in a given case to establish the occurr ence of such
an event is committed to the discretion of the trial judge.

Brown also asserts that the government failed to satisfy
the fourth criterion of the Mitchell test: that the statements
were made before declarants had time to r eflect and
fabricate. Brown argues that, because Officer Hughes did
not know what amount of time had passed between the
startling event and the men's statements and because
Hughes did not know if the declarants had come to him
directly from the location of the event (a distance Brown
concedes could be covered in approximately one minute) or
by a more circuitous route, the evidence did not preclude
the possibility that the two men had sufficient time to
fabricate their story.

This argument, too, is unavailing in light of applicable
law and the facts of record. Fed. R. Evid. 803(2) does not
require that, in order to be admissible, the statement be
contemporaneous with the startling event, but rather only
with the excitement caused by the event. The critical
question in the instant case, therefore, is whether the
men's report of an armed man likely occurred during the
period of excitement engendered by their sighting of the
gunman. In United States v. Tocco, 135 F.3d 116 (2d Cir.
1998), the Court of Appeals for the Second Cir cuit held an
out-of-court statement properly admitted as an excited
utterance by a declarant who was "all hyped up" and
"nervous" even though it was made some thr ee hours after
the startling event. Tocco, 135 F .3d at 127-28. In United
States v. Phelps, 168 F.3d 1048 (8th Cir . 1999), the Eighth
Circuit held the statement of a "visibly distraught"
_________________________________________________________________

4. Accord Louisell, 4 Federal Evidence 510-11 (1980).

8
declarant admissible as an excited utterance, although the
statement was made 15 to 20 minutes after the startling
event. See also United States v. Golden, 671 F.2d 369, 371
(10th Cir. 1982), cert. denied, 456 U.S. 919, 102 S.Ct. 1777
(1982) (out-of-court statement admissible as excited
utterance even though approximately fifteen minutes had
transpired between the event and the statement).

Under factual circumstances comparable to those here,
where the temporal gap was only a matter of one or a few
minutes, courts have often admitted the asserted excited
utterance. See Territory of Guam v. Cepeda , 69 F.3d 369,
372-73 (9th Cir. 1995), aff 'd in part, rev'd in part by People
of Territory of Guam v. Cepeda, 69 F .3d 369 (1995) (citation
omitted) (statements made "within minutes" of armed
robbery, where declarants were "quite panicked" were
properly admitted as excited utterances); United States v.
Joy, 192 F.3d at 766 (statement that appellant had "waved
a gun around," made within a few minutes of the incident,
qualified as excited utterance); United States v. Ladell, 127
F.3d 622, 23, 625 (7th Cir. 1997) (statements of "hysterical
woman" to police "within minutes" of 911 call claiming
appellant had hit her with a gun and threatened to kill her
held admissible as excited utterances); United States v.
Bailey, 834 F.2d 218, 228 (1st Cir . 1987) (out-of-court
statement by "upset" declarant concerning an attempted
bribe three minutes earlier properly admitted as an excited
utterance).

In the case at bar, the two declarants' statements to
Officer Hughes that "they just saw a guy with a gun" and
that "there's a guy over there with a gun" indicate that the
startling event was very recent, if not ongoing, at the time
of the statements. Therefore, even ignoring the fact that
Officer Hughes found Brown carrying a gun shortly after
the statements were made, it was entirely reasonable for
the District Court to infer from the testimony that only a
short time had passed between the startling event and the
statements, that the declarants were still visibly in an
excited state, that their statements thus wer e likely made
in a state of excitement originating with the event, and
consequently that their statements were admissible as
excited utterances pursuant to Rule 803(2). In short, we

9
can find no deficiency in the District Court's application of
the Mitchell test.

Brown also argues that in admitting the two men's
statements, the District Court ran afoul of our holding in
Miller. We do not agree. Although we did state in Miller that
a party seeking to introduce a statement by an unidentified
declarant under Rule 803(2) "carries a bur den heavier than
where the declarant is identified to demonstrate the
statement's circumstantial trustworthiness," Miller, 754
F.2d at 510, we also emphasized that "such statements are
admissible if they otherwise meet the criteria of[Rule]
803(2)." Id. For the reasons set forth supra, Officer
Hughes's testimony satisfies all the criteria of that rule, as
elaborated in Mitchell.

Moreover, the out-of-court statement in Miller was made
by an unidentified declarant at the scene of an automobile
accident, assigning blame for the accident to the plaintiff.
The statement itself did not proclaim the startling event
and the record was devoid of evidence fr om which the court
could have inferred that the defendant actually saw the
accident. See Miller, 754 F.2d at 511. In the present case,
however, the declarants did in fact claim to have personally
seen the startling event: a man wielding a gun. Mor eover,
the declarants are simply stating what they observed. They
are not giving an opinion, which is what occurs when the
declarant points a finger of fault for causing the accident.
For these reasons, we find this case is distinguishable from
Miller.

Furthermore, even if we did interpr et the "heavier
burden" for unidentified declarants, established in Miller, to
require corroboration of the startling event beyond the
excited utterance itself, the fact that Officer Hughes almost
immediately came upon Brown, who was visibly carrying a
gun and who was identified as the gun brandisher by the
two declarants, provides such corroboration. See United
States v. Collins, 60 F.3d 4, 8 (1st Cir . 1995) (excited
utterance regarding appellant's thr eat to shoot the victim
corroborated when appellant returned shortly thereafter to

10
scene of the threat bearing a loaded gun while declarant
spoke to a police officer).5

We note also that we have recently addr essed the issue of
the reliability of a statement by an unidentified informant,
albeit in a different context. In United States v. Valentine,
232 F.3d. 350 (3d Cir. 2000), we held that an unidentified
informant's tip in a high crime area to a law enforcement
officer that a man wearing a blue sweat top, blue pants,
and a gold neck chain had a gun, was not to be considered
unreliable solely because the informant r efused to identify
himself to the officer. We found the statement sufficiently
reliable to justify an investigatory stop of the suspect. Id. at
357. As the Supreme Court has instructed, the question is
whether the anonymously reported information "should be
deemed trustworthy in light of the total cir cumstances." Id.
at 354 (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317
(1983)). The total circumstances in the pr esent case include
the facts that the declarants accompanied Officer Hughes
to the location where they pointed out Br own and that
Brown was indeed visibly carrying a gun in his hand.

For the above reasons, we conclude that the testimony of
Officer Hughes concerning the statements of the two men
was properly admitted into evidence by the District Court
under the "excited utterance" exception to the hearsay rule.6
_________________________________________________________________

5. Brown also invokes United States v. Sallins, 993 F.2d 344 (3d Cir.
1993), to challenge the admissibility of the out-of-court statements. In
Sallins, however, we were not pr esented with the question whether the
statements at issue were admissible as excited utterances. That decision,
therefore, is not relevant to the issue before us.

6. Brown also argues that the err oneous admission of Officer Hughes's
testimony was exacerbated by Officer Kelly's testimony concerning
Officer's Hughes's radio report. Officer Kelly testified: "I was on patrol
in
that area and I heard Officer Hughes come over the radio that . . . he
had been told there was a guy walking up the street with a gun."
Brown's counsel objected to the statements as inadmissible hearsay and
moved for a mistrial. At sidebar, defense counsel reversed his position
and conceded that the testimony would be admissible because the
declarants' statements had been admitted into evidence as excited
utterances and because Officer Hughes's repetition of the statements
over the radio would be admissible as a present sense impression under
Fed. R. Evid. 803(1). Brown's counsel then moved to strike the testimony

11
B. SUMMATION REMARKS

We now consider Brown's contentions r egarding certain
of the prosecutor's summation remarks. Because Brown
either failed to object to the comments at trial or lodged
different objections to them, we can only review the
comments for plain error. See United States v. Walker, 155
F.3d 180, 187 (3d Cir. 1998) (pr osecutorial remarks as to
which no objection is made at trial are r eviewed only for
plain error); Fed. R. Crim. P. 52(b).

Brown first objects to the following r emarks of the
prosecutor during the government's initial summation:

Two men which he believes came from Edmonds
Avenue came out excited, started yelling ther e's a guy
with a gun around New Street in the ar ea of New and
7th, carrying a gun. He's waving it around.

What does Officer Hughes do? He testifies, and I'll
submit to you there has been no challenge to this
testimony, it's uncontested. . . .

At this point, Brown's counsel interrupted the prosecutor
and objected, claiming that the government was attempting
to shift the burden of proof to the defendant and asserting
that the "evidence has been challenged, it's been denied."
At sidebar, the prosecutor explained that she had intended
to complete her interrupted remark with the wor ds, "it was
uncontested that [Officer Hughes] walked down the street."
The District Court accepted the prosecution's explanation
and concluded that the remark in its entir ety would have
constituted "fair comment" on the evidence. The Court also
noted that it was clear from the charge and Brown's not
guilty plea that he was contesting the charge and overruled
the defense objection.
_________________________________________________________________

whereupon the District Court agreed to strike it and instructed the jury
to "disregard the last answer given by Officer Kelly." In view of defense
counsel's concession of admissibility of Officer Kelly's testimony, of its
cumulative nature, see Serafini, 233 F.3d at 770, and of the District
Court's instruction to the jury to disregar d it, see United States v.
Newby, 11 F.3d 1143, 1147 (3d Cir . 1993), we find no merit to Brown's
contention that it exacerbated the prior err or -- which we have held was
not in fact error.

12
Brown complains on appeal not that the pr osecutor's
remarks unfairly shifted the burden of pr oof but rather that
they constituted impermissible commentary on the
accused's silence. We conclude, however , that prosecutor's
remarks did not constitute impermissible commentary on
Brown's decision not to testify at trial. In this case, the
government did not make a direct comment concerning
Brown's silence; the only aspect of the summation of which
Brown now complains is the formulation,"there has been
no challenge to his testimony, it's uncontested."

We have held that a prosecutor's r emark that any aspect
of the government's evidence was "undisputed" or
"uncontradicted" at trial constitutes an impr oper comment
on a defendant's silence only where "the language used was
manifestly intended or was of such a character that the
jury would naturally take it to be a comment on the failure
of the accused to testify." Bontempo v. Fenton, 692 F.2d
954, 958 (3d Cir. 1982). Brown has failed to satisfy either
of these requirements. As the gover nment explained at
sidebar, the comments in question went only to the
relatively innocuous fact that Officer Hughes walked down
Clinton Street before seeing Brown. The trial court had
every right, in the exercise of its sound discr etion, to credit
that explanation of the prosecutor's interrupted comments
to the extent it saw fit. See United States v. Mabry, 3 F.3d
244, 248 (8th Cir. 1993), cert. denied , Edwards v. U.S., 511
U.S. 1020, 114 S.Ct. 1403, abrogation on other grounds
recognized in United States v. Sheppar d, 219 F.3d 766, 767
(8th Cir. 2000), cert. denied, ___ S.Ct. ___ (2001). Given the
fact that the District Court accepted this r easonable
explanation, we are unable to find that the prosecutor's
remarks were "manifestly intended" or would "naturally [be
taken]," Bontempo, 692 F.2d at 958, as a comment on
Brown's silence.

Brown also asserts that the government's comments
"necessarily" reminded the jury of the defendant's failure to
testify at trial. This argument, too, is unpersuasive. The
claim that a prosecutor's remark necessarily would be
perceived by a jury as an adverse comment on the
accused's silence must be assessed in the context of the
summation as a whole and of the evidence intr oduced at

13
trial. See Byrd v. Collins, 209 F .3d 486, 533 (6th Cir. 2000);
United States v. Francis, 82 F.3d 77, 78 (4th Cir. 1996).
Viewed in the context of the entire summation and all the
evidence introduced at Brown's trial, we cannot agree that
the government's references to "uncontested" testimony
necessarily would have been interpreted as a commentary
on Brown's silence. Particularly given the fact that the
comment at issue was interrupted and never subsequently
completed, there is no reason to conclude that the jury
would have assumed it referred to Br own's failure to testify.
The jury surely was aware of the numer ous aspects of
Officer Hughes's testimony that were unchallenged by
defense counsel over the course of the trial. Furthermore,
the defense strategy had included numerous attempts to
impeach government witnesses. Thus it is mor e likely that
the jury would have understood the prosecutor's references
to "uncontested" testimony as responses to such
impeachment attempts rather than as veiled r eferences to
the defendant's silence. See United States v. Durant, 730
F.2d 1180, 1184 (8th Cir. 1984), cert. denied, 469 U.S. 843,
105 S.Ct. 149 (citations omitted) (jury likely to view
government's sixteen remarks concer ning unchallenged
testimony as a response to the impeachment attempt,
rather than as an adverse comment upon defendant's
silence).

Brown also challenges certain of the pr osecutor's
remarks during the government's r ebuttal summation as
either an attempt to shift the burden of pr oof to the defense
or improper implicit commentary on the defendant's
decision not to testify. In rebuttal, the pr osecutor stated:

Officer Kelly, he sees Officer Hughes after he's got him
on the ground with the gun pointed -- Officer Hughes
points the gun out and Officer Kelly goes over and
retrieves it.

And you have the defendant's statements. I submit
that they're admissions of guilt, ladies and gentlemen
of the jury. Have we heard any suggestion of some
motive Officer Hughes would have for making up this
story?

Examined in context, these remarks clearly do not shift
the burden of proof or constitute impr oper commentary on

14
Brown's failure to testify. Rather , they simply amount to a
proper rebuttal argument. During the defense summation,
Brown's counsel cast doubt upon Officer Hughes's
testimony that he was unaware until trial that the gun
recovered at the arrest scene had a broken firing pin, and
suggested the possibility that "Officer Hughes planted" the
defective and therefore harmless"gun on him, Mr. Brown."
In its rebuttal statement, when the prosecutor asked, "Have
we heard any suggestion of some motive Officer Hughes
would have for making up this story?", Br own's counsel
objected and at sidebar accused the government of shifting
the burden of proof to the defendant. The District Court
overruled the defense objection, stating,

I think you opened the door, you called into question
Officer Hughes' credibility, suggested he might have
planted the weapon, it was a broken weapon. I think
this is fair comment and I don't think it shifts the
burden. The objection is overruled.

We find no error in the District Court's ruling. Indeed, we
have at least twice found commentary of this type to
constitute proper rebuttal material. See United States v.
Dansker, 537 F.2d 40, 63 (3d Cir. 1976) (prosecutor's
comments challenging the failure of defense counsel to offer
an innocent explanation for a suspicious conversation
involving appellant did not constitute improper commentary
on appellant's failure to testify); United States v. Adamo,
534 F.2d 31, 39 (3d Cir. 1976) (pr osecutor's remark during
summation that "nobody denied" a portion of witness's
testimony was not an impermissible commentary on
appellant's silence, but rather an attempt to defend
witness's credibility after attacks of defense counsel).
Additionally, we have specifically held that when, as here,
the defense uses its summation to accuse a gover nment
witness of framing the defendant, the government may in
its rebuttal point to the absence of evidence to support
such an accusation. See United States v. Pungitore, 910
F.2d 1084, 1124 (3d Cir. 1990). It is our view that the
government properly did so in the instant case.

Brown's only other argument relating to the prosecution's
summation concerns the following remarks:

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 The judge instructed you to use your common sense, to
take things in light of your own life experiences. W as it
uncontested or did the defendant's case -- did Officer
Hughes say Camden police, drop the gun? That's what
Officer Hughes testified that he said.

Brown failed to object to these comments at trial. We find
neither error nor any colorable miscarriage of justice here.
See Price, 76 F.3d at 530. Indeed, it appears that a mere
prosecutorial slip of the tongue gave rise to the language to
which Brown now objects -- language with no discernible
adverse effect upon the defendant. Read in context, as any
such comments must be, the prosecutor's use of the phrase
"Was it uncontested or did the defendant's case --" appears
to be nothing more than an instance of garbled syntax that
she immediately corrected with a proper r eference to
admitted evidence: "Did Officer Hughes say Camden police,
drop the gun?" We think the Supr eme Court's observation
in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868
(1974), concerning challenges to closing ar guments
particularly apposite to our analysis. Because summations

are seldom carefully constructed in toto before the
event [and] improvisation frequently results in syntax
left imperfect and meaning less than crystal clear . . .
a court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting thr ough
lengthy exhortation, will draw that meaning fr om the
plethora of less damaging interpretations.

Id. at 646-47. As a general rule, in assessing whether an
ambiguous prosecutorial remark should be construed as an
improper comment on the defendant's decision not to
testify, appellate courts "should not strain to r each the one
interpretation which ascribes improper motives to the
prosecutor." United States v. Monaghan, 741 F.2d 1434,
1437 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085, 105
S.Ct. 1847 (1985). In this case, the District Court properly
declined to do so, as do we.

IV. CONCLUSION

For the foregoing reasons, we find Br own's challenges to
his conviction in the gun possession case meritless. We will

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affirm that conviction. For that reason, we will also affirm
the revocation of Brown's supervised r elease in the robbery
case.

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RENDELL, Circuit Judge, dissenting:

The difficulty I have with the majority's application of the
excited utterance exception to the hearsay rule in this
instance stems from the fact that the element of a "startling
occasion" has not been independently verified but was,
instead, "proven" by the hearsay statement itself. While the
majority's view may be "the majority view," that does not
remove the need for an assessment on a case-by-case basis
of the appropriate ruling regarding admissibility. The
unique factual setting presented here r equired a different
result.

Here, the defense theory was that officer Hughes had
planted the gun. The only evidence that runs counter to
that theory is the statement of Officer Hughes, r ecounting
the statement made by the three unidentified males. No
other witness saw or heard anything. Officer Hughes'
statement that he then went and saw the defendant waving
the gun does not add to the reliability of the hearsay
testimony; rather, Hughes' testimony that he observed
Brown with the gun could just as easily be no more than
an embellishment of a fabrication. Nor does thefinding of
the gun itself add any element of reliability, because that
fact is just as compatible with the defense theory that the
gun was planted as it is with the government's theory that
Brown possessed it.

The reliability problem in the fact patter n presented is
thus compounded by the fact that the witness allegedly
hearing the statement regarding the purported startling
event is the very person whose credibility is under attack.
The majority's stamp of approval on Hughes' version of
events, cloaking it with reliability by ruling it not to be
impermissible hearsay, seems to hand the gover nment an
unwarranted bonus.1
_________________________________________________________________

1. Although not an "excited utterance" setting, in United States v.
Sallins,
993 F.2d 344 (3d Cir. 1993), we noted the problem created by the absent
government witness. There, a 911 tape describing a black male carrying
a gun had been admitted into evidence:

Here, the only admissible evidence linking Sallins to the
possession
of a gun was circumstantial evidence conveyed through the

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We said in Miller v. Keating, 754 F .2d 507 (3d Cir. 1985):

The unifying trait of all the Rule 803 exceptions is a
circumstantial guarantee of trustworthiness sufficient
to justify nonproduction of the declarant, whether
available or not. Although Rule 806 cannot be r ead to
confer a right to any particular form of attack on the
credibility of a hearsay declarant, it does confer a
generalized right that is significantly diminished when
the hearsay declarant is not only unavailable, but is
also unidentified, and the party against whom the
hearsay declarant's statement is introduced is thus
deprived not only of the right to cross-examine, but of
any meaningful prospect of finding evidence of
inconsistency or bias.

Id. at 510 (footnote omitted). We then noted, as the majority
here does concede, that where the declarant is not
identified, the party seeking to introduce such a statement
carries a "heavier" burden to demonstrate the statement's
"circumstantial trustworthiness." Id. at 510.

In Miller, there was no question as to whether the
startling occasion occurred. Rather, the issue was whether
the proponent of the testimony established the declarant's
personal knowledge and the statement's spontaneity. Id.
Here, the issue is whether the gun-waving incident ever
really happened and, other than the officer's self-serving
statement that the defendant in fact was holding the gun,
there is no evidence that the incident in fact occurred.
There is no evidence of "cir cumstantial trustworthiness," let
alone evidence to satisfy a "heavier" bur den. Id. at 511.

In the circumstances presented her e, I would find that
Officer Hughes' testimony concerning the purported
_________________________________________________________________

testimony of Officers Santiago and Howard. . . . Because the
officers'
testimony was hotly contested, we cannot say with any degree of
certainty that the evidence of the police radio call and the 911
computer record did not contribute to the jury's verdict. The
evidence cemented the government's case by adding an invisible,
presumably disinterested witness who allegedly saw precisely what
the police said they saw.

Id. at 348 (emphasis added).

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statement by the unidentified declarants was insufficient to
establish the hearsay statement's own admissibility. On
this record, Hughes' testimony constitutes"scant[ ]"
evidence that the startling event actually occurr ed; it lacked
"sufficient guarantees of trustworthiness" to provide the
basis for the admission of the hearsay statement as an
excited utterance. Miller, 754 F.2d at 510.

I think the District Court admitted a hearsay statement
that "proved" more than was in fact proven. In a criminal
case such as this, where the defense theory seeks to
undercut the very trustworthiness of the gover nment's
version of events, we should not admit hearsay that proves
the government's case if the reliability of the statement is
questionable. Otherwise, the exception swallows the rule,
as, I think, happened here.

Also, the prosecutor's closing remarks r egarding the
evidence's being "uncontested" take on a very different,
more prejudicial, quality when unconfir med yet
incontrovertible hearsay is the government's central
evidence in the case.

I do not believe that these errors were harmless, and I
would reverse and require a new trial.

For these reasons, I respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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