People v. Acomb

Decision Date21 May 1982
PartiesPEOPLE of the State of New York, Respondent-Appellant, v. Charles Bruce ACOMB, Appellant-Respondent.
CourtNew York Supreme Court — Appellate Division

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, for respondent-appellant; Herald Fahringer, Buffalo, of counsel.

Theodore E. Wiggins, Jr., Geneseo, for appellant-respondent.

Before DILLON, P. J., and SIMONS, DOERR, MOULE and SCHNEPP, JJ.

DILLON, Presiding Justice:

Defendant stands convicted of manslaughter in the first degree for the shooting slaying of his nephew. Two of the errors asserted on appeal were of such dimension that defendant was denied a fair trial. The Trial Court erred in permitting a witness to testify to statements of the victim made at the scene of the shooting indicating that the defendant was the perpetrator. It was also error to deny defendant's motion to strike the testimony of a prosecution witness who testified on direct examination to an admission by defendant but who took refuge in his right against self-incrimination and refused to answer questions on cross-examination concerning his alleged pretrial solicitation of $10,000 to absent himself from the trial. Since there must be a reversal and a new trial, we also hold that the Trial Court did not err in excluding testimony of other statements made by the victim which the People claim were "excited utterances" in one instance and "dying declarations" in another.

On November 11, 1978 at approximately 12:30 A.M., the defendant and the victim, William Bradley Delavergne, were involved in an argument in a bar in Dansville, New York. At one point the defendant asked Delavergne to "get out back" to settle the argument. Delavergne refused, and what was otherwise said in the course of the argument is not known. Upon intervention by a third party, defendant calmed; he left the premises between 12:45 and 1:30 A.M.

Although Nicholas Mark, a friend of Delavergne's, was present in the bar during the argument between defendant and Delavergne, he did not hear the conversation between them. Mark and Delavergne left the premises together at about 2:15 A.M.

Mark testified that at approximately 2:30 A.M., as he drove his car northerly on Route 63 with Delavergne as his passenger, he saw defendant's pickup truck entering Route 63 from defendant's farm. He did not identify defendant as an occupant of the truck, which he followed as it proceeded along Route 63 and thence along Everman Road to a point where he drove his car from the road into the headlands of a cornfield, stopping behind defendant's already parked truck.

The record thereafter recounts Mark's direct testimony and the attendant colloquy as follows:

"Q. What happened next, please?

A. I pulled in and stopped and Brad opened the door and got out, and with my door open, stood beside the car and looked around for Bruce.

MR. MERBERG: I object to that. I don't know how he can know what the man was doing--and ask that it be stricken and the jury told to disregard.

MR. WIGGINS: I would oppose.

MR. MERBERG: It is a conclusion on this witness' part. He said one minute before, he didn't see anybody and he said he got out looking for somebody.

A. Brad got out looking for Bruce.

THE COURT: Yes. The objection is overruled. Go ahead.

MR. MERBERG: Note my exception.

Q. You can continue, sir.

A. Brad got out and hollered--

MR. MERBERG: Objection, your Honor.

THE COURT: Overruled. Continue

Q. Go ahead, Mr. Mark.

A. He hollered for Bruce and Bruce did not appear. So, he stood there a minute looking around and asking for Bruce, and Bruce didn't show. So, he got back in my car and shut the door and he said--

MR. MERBERG: Objection as to what he said.

THE COURT: Overruled.

MR. MERBERG: That is not in the presence of--

THE COURT: I understand your objection. Overruled. You may continue, Mr. Mark.

A. He said that 'we were to meet here and Bruce is here', he says--

MR. MERBERG: May we approach the bench, your Honor?

THE COURT: No. Your objections are noted, Mr. Merberg. Continue, sir.

A. 'He was to meet me here and he's here someplace' but he says, 'he'll probably shoot me if I get back out there.'

MR. MERBERG: Objection. May we approach the bench, again, your Honor?

THE COURT: Please sit down. Your objections are continually noted.

Q. Would you continue?

A. And I said to him, 'well, if you think he's going to shoot you, let's go and--

MR. MERBERG: Your Honor, I have a continuing line of objection to this.

THE COURT: I understand you do.

MR. MERBERG: Thank you, your Honor.

A. --so i told him, 'brad, let's go. you can Tell bruce yoU were here and that'll be all there would be to it.' He says, 'he's got to be here' and so he says, 'he's got to be here laying in the truck, laying down.' He got back out of the car, shut the door, went over to the back of the pick up truck, got on the bumper so he could see around better, and jumped up and down on the bumper a couple of times, so if Bruce was in there, he'd come out, and no one appeared. So, he stepped off the bumper on the ground, and when he stepped on the ground there was a shot.

Q. I'm sorry, sir, when he stepped on the ground there was a shot fired? I'm sorry, sir, when he stepped on the ground?

A. When he stepped on the ground, there was a shot fired.

Q. Are you familiar with guns?

A. From a high-powered gun.

Q. Are you familiar with guns? In the past, have you been around them or heard them?

A. I have a shotgun of my own.

Q. You have heard guns fired in the past?

A. Yes. It was a loud shot.

Q. I'm having trouble hearing you?

A. It was a loud shot.

Q. What happened then?

A. Brad grabbed his stomach and said, 'he shot me.'

MR. MERBERG: Objection."

Mark fled the scene, leaving Delavergne lying on the ground. He drove home and went to bed without reporting the incident. On cross-examination he admitted that he did not see the defendant at any time after the defendant left the bar.

I

On these facts, our first inquiry is whether, as claimed by the People, Mark's testimony of the victim's statements made at the scene of the shooting were admissible as "verbal acts". They were not.

Analysis begins with the familiar observation that the hearsay rule prohibits the use of statements made out of court when offered to prove the truth of facts asserted in the statement (People v. Settles, 46 N.Y.2d 154, 166, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496; Richardson, Evidence § 201). A verbal act does not offend the hearsay rule because it is not offered to prove the truth of the statement. It is admissible because it accompanies otherwise ambiguous conduct and lends significance to it. "a verbal part of the act" its purpose is to explain the conduct (6 Wigmore, Evidence §§ 1768, 1772; see, also, People v. Sostre, 70 A.D.2d 40, 418 N.Y.S.2d 662, affd. 51 N.Y.2d 958, 435 N.Y.S.2d 702, 416 N.E.2d 1038).

In order to qualify as a verbal act, and thus not hearsay, the conduct to be characterized by the attendant words must be independently material to the case, must be equivocal, and the statements must aid in giving significance to the conduct (United States v. Day, 192 U.S.App.D.C. 252, 591 F.2d 861, 882; People v. Sostre, supra; 6 Wigmore, Evidence §§ 1773-1776). There is no question here that Delavergne's presence and conduct at the scene of the shooting were a material part of the case and his spoken words accompanied his conduct. There was nothing equivocal about his conduct, however; it was complete in and of itself and required no further explanation (see Commonwealth v. Chance, 174 Mass. 245, 54 N.E. 551).

Moreover, Delavergne's statements were "not wholly incidental to the conduct" (United States v. Day, 192 U.S.App.D.C. 252, 591 F.2d 861, 882, supra); they went far beyond lending significance to his acts. Although the People claim that Delavergne's statements were not offered for the truth of their content, their clear purpose and effect was to accuse the defendant of being present at the scene by prearrangement with Delavergne and of lying in wait to ambush his victim. The inescapable inferences flowing from such highly prejudicial hearsay should not be received under the pretext of "elucidating" conduct which was already complete (6 Wigmore, Evidence § 1775). A reversal is required solely on this issue. 1

One final observation is necessary. For reasons which will later appear, Delavergne's statement "He shot me", though hearsay, is admissible as an excited utterance made in response to a startling event (see People v. Edwards, 47 N.Y.2d 493, 419 N.Y.S.2d 45, 392 N.E.2d 1229).

II

Defendant's right to a fair trial was further eroded by other error which may not be viewed as harmless. Immediately upon Delavergne's death on November 3, 1979, the defendant was incarcerated in the Livingston County Jail. Norman Fountaine, a "trustee" inmate of the jail, testified that on November 5, 1979 he overheard the defendant mumble "I didn't mean to kill him." On cross-examination Fountaine invoked his Fifth Amendment right to refuse to answer questions concerning whether he solicited a $10,000 bribe from a defense investigator in exchange for his agreement not to testify at the trial (see Penal Law, § 215.05). The court denied defense counsel's motion to strike Fountaine's direct testimony. 2

A defendant has a fundamental right to confront witnesses against him (Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934) and a witness, of course, has the right to invoke his constitutional protection against self-incrimination (Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624). A defendant is deprived of the right of confrontation "when a witness testifying to substantial matters against hides behind the shield of the privilege against self incrimination when cross-examined" (People v. Schneider, 44 A.D.2d 845, ...

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