United States v. Lovato, No. 18-1468 (10th Cir. 2020)
Annotate this CaseOn March 3, 2018, a man called 911 to report that he witnessed two men in a Honda shoot at another car. The caller followed the Honda and dialed 911 within “two to three minutes” of observing the gunfire. During the approximately thirteen-minute 911 call, the caller discussed the shooting, his continuing observations of the Honda and its occupants, and his safety, often in response to the 911 operator’s questions. Shortly thereafter, responding police officer Levi Braun (“Officer Braun”) located a Honda matching the caller’s description. With Officer Braun in pursuit, the Honda slowed down and Defendant Daniel Lovato jumped out of the passenger’s side of the moving car. Officer Braun stopped to detain Defendant, who volunteered that he had a gun on him. Officer Braun then retrieved a .22 caliber pistol from Defendant’s waistband, along with thirty-two rounds of .22 caliber ammunition from Defendant’s left front pants pocket. At the time of this incident, Defendant had prior felony convictions. The government ultimately charged Defendant with three counts of being a felon in possession of a firearm or ammunition: one each for possessing the .22 caliber pistol, thirty-two rounds of .22 caliber ammunition, and canister full of additional ammunition. At trial, Defendant objected to the admission of the 911 call on hearsay grounds. The district court overruled the objection and admitted the 911 call into evidence under the present sense impression exception to the rule against hearsay. A jury convicted Defendant as charged, and the district court sentenced Defendant to 100 months’ imprisonment followed by three years of supervised release. On appeal, Defendant alleged the district court abused its discretion in admitting the 911 call. Finding no reversible error as to Defendant's conviction, the Tenth Circuit affirmed. The Court vacated a special condition and remanded on that issue for further proceedings.
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