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Precedential or Non-Precedential: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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation

"United States v. Brown" (2001). 2001 Decisions. Paper 135.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/135

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

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:

15

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

16

affirm that conviction. For that reason, we will also affirm

the revocation of Brown's supervised r elease in the robbery

case.

17

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

18

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).

19

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

20