United States v. Joseph Arnold

Joseph Arnold challenges his felon-in-possession-of-a-firearm conviction, contending that the evidence does not support the verdict, that the district court violated his Confrontation Clause rights by admitting testimonial hearsay and that the district court made several erroneous evidentiary rulings during the course of the trial. We affirm.

At 7:43 a.m. on September 19, 2002, Tamica Gordon called 911 and told the emergency operator: "I need police.... Me and my mama's boyfriend got into it, he went in the house and got a pistol, and pulled it out on me. I guess he's fixing to shoot me, so I got in my car and [inaudible] left. I'm right around the corner from the house." Gordon identified her mother's boyfriend as Joseph Arnold, a convicted murderer whom the State had recently released from prison.

About five minutes after the dispatcher told three police officers about Gordon's call, the officers arrived at 1012 Oak View, the residential address that Gordon had provided to the 911 operator. Gordon exited her car and approached the officers, "crying," "hysterical," "visibly shaken and upset," and exclaimed that Arnold had pulled a gun on her and was trying to kill her. JA 112-14. She described the gun as a "black handgun." JA 127.

Soon after the officers arrived, Arnold returned to the scene in a car driven and owned by Gordon's mother. Gordon became visibly anxious again, exclaiming, "that's him, that's the guy that pulled the gun on me, Joseph Arnold, that's him." JA 115. She also told the officers that "he's got a gun on him." JA 116. Arnold exited the car, and the police patted him down to determine if he was carrying a weapon. When the pat-down did not produce a weapon, the officers asked Gordon's mother for permission to search the car. She consented, and the officers found a black handgun inside a clear, plastic bag directly under the passenger seat where Arnold had been sitting.

A grand jury charged Arnold with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). When Gordon did not appear to testify at Arnold's trial in response to a government subpoena, the district court ruled (1) that the government could admit a redacted recording of the 911 call (without the reference to Arnold as a convicted murderer) and Gordon's two statements at the scene under the "excited utterance" exception to the hearsay rule and (2) that the applicability of this well-established hearsay exception authorized the introduction of this evidence under the Confrontation Clause. The district court also declined to admit a statement from a private investigator hired by Arnold to the effect that Gordon had told the investigator, eight months after the incident, that she did not see Arnold with a gun. The jury found Arnold guilty of the single charge.

Arnold challenges the sufficiency of the evidence with regard to just one element of the crime: Did he possess a firearm? The jury heard several pieces of evidence that, when "view[ed] . . . in the light most favorable to the government," would allow it to conclude just that. United States v. Morrow, 977 F.2d 222, 230 (6th Cir.1992) (en banc); see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Aarons, 718 F.2d 188, 189 n. 1 (6th Cir.1983) ("Where the sufficiency of the evidence is properly before us, we consider that issue first because it is determinative of whether" the Double Jeopardy Clause prevents "the appellant [from] be[ing] retried.").

At trial, the jury learned that Tamica Gordon called 911 and told the emergency operator that Arnold had just threatened her with a gun. When officers arrived at the scene, they encountered a visibly shaken Gordon, who explained that she had just been in an argument with Arnold, her mother's boyfriend, and that he had threatened her with a gun. "Joseph Arnold," she told the officers, "pulled a gun on [me], he said he was going to kill [me]. He was arguing and [I] thought he was going to kill [me]." JA 114. Gordon "stated that she ... saw him with a gun in his hand," JA 140, and "that she observed him cock the weapon," JA 143. Gordon described Arnold's weapon as "a black handgun." JA 127, 140. "[B]ecause of the way she said that he cocked it," JA 127 — that he "pulled back the slide," id. — and because of the way she described the gun, the officers concluded that the gun was a semiautomatic handgun, id., and that "there would be a round chambered" in it, JA 133.

Soon after the officers arrived, Gordon's mother pulled up in a car with Arnold sitting in the passenger seat. "[A]s the car pulled up, [Gordon] got back excited, she started crying [and] pointing at the car saying that's him, that's the guy that pulled the gun on me, Joseph Arnold, that's him[,] . . . he's got a gun on him." JA 115-16. When the officers approached Arnold and "asked him what was going on, . . . he basically said that they were arguing." JA 117. After obtaining permission to search the car, the officers found a plastic bag containing a loaded, black, semiautomatic handgun with a round in its chamber directly under the passenger seat of the car.

In the light cast by this evidence, "any rational trier of fact," Jackson, 443 U.S. at 319, 99 S.Ct. 2781, could conclude beyond a reasonable doubt that Arnold possessed the gun the officers found below his seat. The jury heard evidence that Gordon, her mother and Arnold were at home that morning, that Arnold and Gordon began arguing and that during the argument Arnold retrieved a gun and pointed it at Gordon as she fled to call 911. They learned that Gordon described the gun to officers as a black handgun. They heard that the way Arnold cocked the weapon indicated to the officers that it was a loaded semiautomatic and that it had a round of ammunition in its chamber. And the jury learned that when, moments later, a car containing Arnold arrived at the scene, the police found a gun inches from the passenger seat where Arnold was sitting. The gun in every way matched Gordon's description: it was black; it was semiautomatic; it was loaded; and it had a round in its chamber. And it was found within easy reach of Arnold.

Because "possession may be proved by direct or circumstantial evidence," United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973), we cannot overturn the jury's decision merely because it had to draw reasonable inferences to find Arnold guilty. It is true, for example, that the government did not offer evidence that, after Arnold threatened Gordon with a gun, someone saw him take the gun, wipe his fingerprints off it, place the gun in a plastic bag and stick it under his seat in Gordon's mother's car. But the jury was told enough to know that, after Gordon left the house to call 911, Arnold had the opportunity to take these steps, and "any rational trier of fact" reasonably could infer that he did. See United States v. Moore, 208 F.3d 411, 413 (2d Cir.2000) (upholding felon-in-possession conviction even though "no witnesses saw or heard [the defendant] throw a handgun into the bedroom closet [where officers found it], and there were no identifiable fingerprints found on the gun that was recovered" because "such evidence was not necessary for a reasonable jury to conclude that [the defendant] had been in possession of the gun that was recovered by the police" when officers testified that they had seen the defendant earlier possessing a gun of the same size and color); see also United States v. Crowe, 291 F.3d 884, 886-87 (6th Cir.2002) (upholding conviction for carrying a firearm during a drug trafficking crime even though testifying officer "could see only a small portion of the object" he identified as a firearm and he "could not state for sure whether the object . . . was a real handgun or only a toy" because evidence need not "remove every reasonable hypothesis except that of guilt") (internal quotation marks omitted); United States v. Austin, 133 Fed.Appx. 271, 275 (6th Cir.2005) (upholding felon-in-possession conviction where arresting officer observed defendant "with a weapon from eight to ten feet away, through a plate-glass window, before [he] fled down a hallway" and officers later found a gun "in a trash can in the hallway down which [the defendant] ran").

As in all criminal trials, the jury did not have to draw these inferences. But it reasonably could have reached these conclusions — and when that is the case we must respect the jury's inferences over our own.

Even if the jury had not drawn these inferences, moreover, Arnold had little to gain from the uncontradicted evidence that remained before the jury. The only other conclusion the jury reasonably could have drawn was that Arnold possessed, cocked and pointed a loaded, black, semiautomatic handgun at Gordon, disposed of it somewhere, got into a car, left and, minutes later, returned to the scene with another black, semiautomatic, loaded weapon with a chambered round stowed beneath his passenger seat. That is not a traditional defense to a felon-in-possession charge, and it was not the defense that Arnold presented to the jury. Arnold argued that he had never threatened Gordon with a gun, period. JA 226-27 (closing argument). He did not argue that, even if he had threatened Gordon with a gun that morning, he managed successfully to hide that gun, and the gun the officers found directly under his passenger seat later that morning was a different weapon.

Regardless of which arguments Arnold did make and regardless of which arguments he did not make, the critical point is that the jury could have drawn different inferences from this evidence, and our mandate is to affirm when the jury's choice was a rational one — which it was here. See United States v. Barnett, 398 F.3d 516, 522 (6th Cir.2005) (affirming felon-in-possession conviction over sufficiency challenge; one officer testified that he saw defendant "holding a long black object that looked like a shotgun" and "that he saw [the defendant] throw the object to the ground as [the defendant] began to flee from the residence"; another officer "testified that upon investigating the residence after [the defendant] was apprehended, she found a black and chrome rifle in the front yard"); United States v. Thomas, 497 F.2d 1149, 1150 (6th Cir.1974); see also United States v. Daniels, 170 Fed. Appx. 409, 410, 412-13 (6th Cir.2006) (affirming felon-in-possession conviction over sufficiency challenge; one officer testified that he saw defendant throw to the ground a "silver metallic" object, "possibly a handgun or something to that effect"; that officer unsuccessfully attempted to locate the object after the defendant was detained; another officer later searched the area and found a ".25 caliber pistol" matching the first officer's description).

No doubt the linkage between the evidence would have been even stronger had Gordon described some other unique characteristic of the gun or, better yet, described the gun as "a Hi Point, 9 millimeter." But Arnold has pointed to no other feature of the gun that Gordon should have recalled, and to his credit Arnold does not argue that the sufficiency-of-the-evidence requirement of the Due Process Clause compels a witness to "make out the name brand of [a] weapon, the model, the model number, []or the gun's serial number" as an assailant threatens her with it. See Moore, 208 F.3d at 413 (upholding felon-in-possession conviction even though the witnesses who saw the defendant possess a "large black and silver handgun" did not describe the brand, model, or serial number and noting that the jury could reasonably conclude that the gun the witnesses described and the gun the police recovered "were one and the same"). Numerous cases hold that evidence not unlike the evidence presented here — eyewitness testimony describing a firearm actually possessed by the defendant that matches a firearm later recovered by the police — sufficiently connects the gun described to the gun found. And indeed most of these cases involve connections far more attenuated than the one here. See, e.g., Barnett, 398 F.3d at 522; Crowe, 291 F.3d at 887; United States v. Black, 525 F.2d 668, 669 (6th Cir.1975); see also United States v. Smith, 79 Fed.Appx. 97, 99 (6th Cir.2003); Whitis v. United States, No. 94-6333, 1995 WL 462423, at *1, *2, *4, 1995 U.S.App. LEXIS 22308, at *3, *6, *11 (6th Cir. Aug. 3, 1995); United States v. Smith, No. 90-2293, 1991 WL 182634, at *3, 1991 U.S.App. LEXIS 22429, at *7 (6th Cir. Sept. 18, 1991).

All of this suffices to resolve this aspect of the case. The defendant was charged with possessing a handgun, and the government proved that he actually possessed the handgun identified in the indictment— based on evidence that the victim saw him threaten her with a handgun minutes before the police discovered a handgun under Arnold's car seat, one that met the description the victim gave of the gun. The government did not argue at trial that he constructively possessed the gun, and it is quite understandable why: It had no reason to do so.

Yet even if we treat this prosecution as arising under a constructive-possession theory, as the dissent does, that does not help Arnold. "Presence alone" near a gun, true enough, does not "show the requisite knowledge, power, or intention to exercise control over" the gun to prove constructive possession. United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976) (emphasis added). But that is not what we have here. Here we have "other incriminating evidence, coupled with presence, . . . [that] serve[s] to tip the scale in favor of sufficiency." Id. at 108. And that "other incriminating evidence" was incriminating indeed: Minutes before the defendant was found with a handgun under the car seat in which he was riding, he was seen actually possessing a gun matching the description of the one found under his seat — and of course not just possessing it but using it to threaten someone.

Nor do the cases cited by the dissent alter this conclusion. In some of the cited cases, the sole connection between the defendant and the gun was the gun's proximity to the defendant. See Birmley, 529 F.2d at 107; see also United States v. Whitfield, 629 F.2d 136, 143 (D.C.Cir. 1980). But as we have shown, this is not a case in which the "record [was] devoid of any . . . evidence" other than the defendant's mere presence in a car with a weapon. United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir.1994).

In some of the cited cases, the only evidence connecting the defendant to the gun (other than proximity) was that the defendant at some distant point in time and in some other place had possessed a gun—in one instance the defendant possessed a gun "more than two years before the charged . . . offense," United States v. Hishaw, 235 F.3d 565, 573 (10th Cir.2000), and in another instance the defendant had committed "two offenses involving guns" at some unidentified point in the past, United States v. Kelso, 942 F.2d 680, 682 (9th Cir.1991). Here, however, the defendant threatened the victim with a gun minutes before the police found a gun under his car seat, and that same gun matched the description of the gun the defendant used to threaten the victim.

And in some of the cited cases, the proffered evidence connecting the defendant to the gun (aside from proximity) was deemed to be too attenuated. See United States v. Beverly, 750 F.2d 34, 37 (6th Cir.1984) (evidence showed only that the defendant "was standing close to a waste basket which contained two guns, and that [he] had at some point touched one of the guns"; but the evidence did not show when the guns were placed in the waste basket); United States v. Blue, 957 F.2d 106, 107-08 (4th Cir.1992) (holding that facts "barely" fell short of "support[ing] a finding of constructive possession" when officer found gun under passenger defendant's seat after observing defendant's "shoulder . . . dip as if [he] were reaching under the seat"). But in both of those cases, the courts emphasized that no eyewitness testimony connected the gun to the defendant—an evidentiary gap that the record in this case closes through the statements of the victim. See Beverly, 750 F.2d at 36 (explaining that government's evidence did not include testimony from anyone who saw defendant "with a gun in his hand"); Blue, 957 F.2d at 108 ("The government introduced no . . . testimony that [defendant] had been seen with the gun."). In the final analysis, whether one chooses to look at this verdict as resting on actual possession or constructive possession, the fact remains that it legitimately rests on ample evidence of possession— evidence that requires us to uphold the verdict.

Arnold also challenges the admissibility of three out-of-court statements—the 911 call, Gordon's initial statements to police officers upon their arrival at the crime scene and Gordon's statement to officers upon Arnold's return to the scene—under the excited-utterance exception to the hearsay rule. Under Rule 803(2) of the Federal Rules of Evidence, a court may admit out-of-court statements for the truth of the matter asserted when they "relat[e] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." To satisfy the exception, a party must show three things. "First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of the excitement caused by the event." Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir.1983). All three inquiries bear on "the ultimate question": "[W]hether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event." Id. at 1058 (internal quotation marks omitted). We apply abuse-of-discretion review to a district court's application of the rule. See United States v. Beverly, 369 F.3d 516, 540 (6th Cir.2004).

The 911 Call. Gordon's statements to the 911 operator readily satisfy the first and third prongs of the test. As to the first requirement, being threatened by a convicted murderer wielding a semi-automatic handgun amounts to a startling event that would prompt at least nervous excitement in the average individual, if not outright trauma. As to the third requirement, Gordon plainly remained in this state of anxiety during the 911 call. Throughout the call, the operator had to tell her to "calm down" and "quit yelling" and often had difficulty understanding her frantic pleas for help.

The record also supports the district court's finding that the call took place soon after Arnold threatened Gordon—"slightly more than immediately" after the threat, in the district court's words—which satisfies the second factor. The district court listened to the tape of the 911 call five times, noted that Gordon said "he's fixing to shoot me," not that he "was fixing to shoot me," JA 52 (emphasis added), and ultimately concluded that there was an immediacy to her statements. Arnold does not challenge the district court's factual conclusions regarding the meaning of the tape.

Case law supports the view that Gordon made the statement "before there [was] time to contrive or misrepresent." Haggins, 715 F.2d at 1057. Haggins, for example, upheld the admission of statements by a four-year-old child made more than an hour after the incident but while the child was still suffering the trauma from it. Other cases have upheld the admission of statements that also were made after the startling event but well within the traumatic range of it. See, e.g., United States v. Baggett, 251 F.3d 1087, 1090 & n. 1 (6th Cir.2001) (applying the excited-utterance exception to statements made several hours after the last of several spousal beatings over a three-day period); see also United States v. McCullough, 150 Fed. Appx. 507, 510 (6th Cir.2005) (applying exception to statements made "not . . . longer than two-and-a-half hours" after witnessing companion's arrest); United States v. Green, 125 Fed.Appx. 659, 662 (6th Cir.2005) (applying exception to statements made three hours after the startling event); see also United States v. Alexander, 331 F.3d 116, 123 (D.C.Cir.2003) (applying exception to statements made 15 to 20 minutes after the startling event); United States v. Cruz, 156 F.3d 22, 30 (1st Cir.1998) (applying exception to statements made four hours after the startling event); United States v. Tocco, 135 F.3d 116, 128 (2d Cir.1998) (applying exception to statements made within three hours of the startling event).

Contrary to Arnold's suggestion, our cases do not demand a precise showing of the lapse of time between the startling event and the out-of-court statement. The exception may be based solely on "[t]estimony that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing [to be] emotional[ly] upset," Haggins, 715 F.2d at 1058 (internal quotation marks omitted); see United States v. Schreane, 331 F.3d 548, 564 (6th Cir.2003), a conclusion that eliminates an unyielding requirement of a time line showing precisely when the threatening event occurred or precisely how much time there was for contrivance. The district court made this exact finding, a finding supported by evidence that, in the words of Haggins, "will often suffice." 715 F.2d at 1058 (internal quotation marks omitted).

The dissent, though not Arnold, raises the concern that the uncorroborated content of an excited utterance should not be permitted by itself to establish the startling nature of an event. But this issue need not detain us because considerable non-hearsay evidence corroborated the anxiety-inducing nature of this event: (1) Gordon's act of calling 911; (2) the fear and excitement exhibited by the tenor and tone of Gordon's voice during the 911 call; (3) Gordon's distraught demeanor personally observed by Officers Brandon and Newberry upon their arrival at the scene; (4) Gordon's renewed excitement upon seeing Arnold return; and (5) the gun matching Gordon's description found underneath the passenger seat in which Arnold was sitting. This dispute, in short, is not one of the "very few cases" in which this "knotty theoretical problem" has raised its head. See 2 McCormick on Evidence § 272 (6th ed. 2006) ("Fortunately, only a very few cases need actually confront th[e] knotty theoretical problem [of whether independent corroborating evidence of startling events is necessary] if the courts view what constitutes independent evidence broadly, as they should where the circumstances and content of the statement indicate trustworthiness.") (internal footnote omitted).

Gordon's statement to officers upon their arrival at the scene. When the officers arrived at the scene soon after learning of the 911 call, Gordon exited her car and approached the officers, "crying," "hysterical," "visibly shaken and upset," and exclaimed that Arnold had threatened her with a gun. JA 112-14. For many of the same reasons the district court had authority to admit the 911 call, it had authority to admit this statement. It remained the case that a startling event had occurred. The time that had passed between the end of the 911 call and the officers' arrival on the scene — 5 to 21 minutes, based on the officers' testimony that the dispatch contacted them "about 8:00" or "a little bit before 8:00," JA 71, 112, 139, (meaning the dispatch could have occurred any time between the end of the 911 call at 7:45 and 8:00) and that they arrived five to six minutes later—did not give Gordon sufficient time to misrepresent what had happened. See Alexander, 331 F.3d at 123 ("Considering the nature of the startling occurrence — Alexander allegedly had a gun and threatened both to `do something' to [declarant] and to `mess [up]' her apartment — the passage of 15 to 20 minutes hardly suggests that the district court abused its discretion in admitting the 911 call."). And as shown by Gordon's frantic statements to the officers upon their arrival, she remained visibly agitated by Arnold's threat. The court did not abuse its discretion in admitting the statement.

Gordon's statement to officers when Arnold pulled up next to the police car. Soon after the officers' arrival, which is to say from 30 seconds to 5 minutes after they reached the scene, a car with Arnold in it pulled up next to the police car, at which point Gordon made the last of her statements admitted as an excited utterance. "[T]hat's him," she said, "that's the guy who pulled a gun on me, Joseph Arnold, that's him." JA 115. The district court permissibly admitted this statement as part of the same emotional trauma that captured Gordon's earlier statement to the officers. On top of that, the unexpected appearance of the victim's assailant independently suffices to establish a startling event followed by an understandably excited verbal response. See Beverly, 369 F.3d at 540; cf. United States v. Scott, 69 Fed.Appx. 317, 321 (6th Cir.2003); United States v. Taylor, No. 92-5120, 1992 WL 322369, at *1, 1992 U.S.App. LEXIS 29048, at *3 (6th Cir. Nov. 5, 1992). The district court did not abuse its discretion in admitting the statement.

The dissent's view of the excited-utterance question prompts a few responses. First, the dissent, though not Arnold, contends that the district court failed to place the burden of proof on the government. Yet the district court, in making this ruling, concluded that "the elements to allow the exception have been demonstrated by the government." JA 79. And we, too, have placed the burden on the government. See supra at 184 (noting that, to qualify a statement as an excited utterance, "a party must show three things").

Second, the dissent claims that, instead of saying "he's fixing to shoot me," Gordon said "he finna shoot me," Dissent at 210, thereby eliminating the "'s" between he and finna (which the dissent finds to be a slang term for "fixing to"). But Arnold has not challenged the district court's factual determination that Gordon told the 911 operator "he's fixing to shoot me," and accordingly this issue is not properly before us. Nor, at any rate, is it clearly the case, or even somewhat clearly the case, that the dissent properly interprets the tape — given the rapidity and anxiety with which Gordon spoke during the 911 call. This difficulty reinforces not only our decision to defer to the district court's interpretation of the tape but also our decision that indeed it was an excited utterance. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

At trial, Arnold also challenged the admissibility of these three statements under the Confrontation Clause of the Sixth Amendment. Quite understandably then, quite wrongly now, the district court rejected these challenges on the ground that the applicability of a traditional hearsay exception to each statement (in this instance, the excited-utterance exception) freed the evidence from challenge under the Confrontation Clause in accordance with Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In light of the Supreme Court's intervening decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that is no longer an accurate mode of analysis. See id. at 61, 124 S.Ct. 1354. Under Crawford, when the prosecution seeks to introduce "testimonial" statements against a criminal defendant, when in the words of the Sixth Amendment the "accused" is being subjected to "witnesses against him," U.S. Const. amend. VI, the defendant generally has a right to confront those witnesses—without regard to what the modern-day Federal (or State) Rules of Evidence have to say about the matter. The Confrontation Clause, Crawford thus establishes, bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." 541 U.S. at 53-54, 124 S.Ct. 1354 (emphasis added).

In announcing this rule, Crawford chose not to provide a "comprehensive" definition of "testimonial" hearsay, id. at 68, 124 S.Ct. 1354, but it did offer initial guidance on the meaning of the term. The Court explained that "testimony" involves "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). And it explained that testimonial hearsay at a minimum includes "a formal statement to government officers" by "[a]n accuser" in the form of an affidavit, a deposition, prior testimony or the like. Id. at 51-52, 124 S.Ct. 1354. While these initial explanations sufficed to resolve Crawford, which involved statements made during a station-house interrogation, the Court reviewed two consolidated cases last Term that required it to give further definition to the line between testimonial and nontestimonial hearsay. See Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

"Statements are nontestimonial," Davis explained, "when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establ