People v. Brown

• Decision Date: 19 November 1987
• Citation: 70 N.Y.2d 513,517 N.E.2d 515,522 N.Y.S.2d 837
• Parties: , 517 N.E.2d 515 The PEOPLE of the State of New York, Respondent, v. Carlton BROWN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 837

522 N.Y.S.2d 837

70 N.Y.2d 513, 517 N.E.2d 515

The PEOPLE of the State of New York, Respondent, v. Carlton BROWN, Appellant.

Court of Appeals of New York.

Nov. 19, 1987.

Stuart Birbach, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty. (Steven H. Kessler and Barbara D. Underwood, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

In his appeal from a conviction for second degree murder, defendant's chief contention is that the trial court committed reversible error in admitting testimony of several incriminating statements of the victim as excited utterances. Errol O'Neil was shot at approximately 2:00 P.M. on October 2, 1981 following an argument in the basement apartment of a two-family dwelling in Brooklyn where he resided with various relatives including his mother, Joyce Scott, and an uncle, Robert Hinds. We readily agree with the courts below that it was proper to admit the testimony of Scott and Hinds concerning statements made to them by O'Neil immediately after the shooting as he emerged from the apartment and during the automobile trip to the hospital. The principal question pertains to the testimony of Police Officer Turnbull about statements O'Neil made in response to the officer's questions in the emergency room approximately 30 minutes after the shooting. For reasons which follow, we conclude that these statements were also properly admitted as excited utterances. Because we find no merit in defendant's further contention that the proof of guilt was legally insufficient, there should be an affirmance.

I

In a pretrial hearing to determine the admissibility of the statements made by O'Neil, Scott testified that she heard "like a shuffling" in the basement and a door flying open, and then the sound of three shots. When she heard an exclamation from her son she "start[ed] screaming" and ran out of the house. She saw one Trevor Campbell, "another guy by the name of Killer [Michael Remaken]", and defendant running away. Immediately thereafter, she saw her son coming from the basement, holding his stomach with both hands. She asked, "Errol, what happened?". He replied, "They shot me, Ma."

Scott rushed into the house, called the emergency number 911, and returned to her son who "was sitting on the steps, you know, at the door" and was "in pain--a lot of pain". By then, her brother-in-law, Hinds, had arrived. Together they helped O'Neil into an automobile and headed to the nearby Baptist Medical Center. En route, according to Scott, her son was "in a lot of pain". He said, "Ma, I'm getting weak" and started hiccupping. She noticed that his eyes were "turning over in his head". Hinds, she said, was driving "real fast" at her insistence "because I see [my son] was dying." During the drive to the hospital Hinds asked O'Neil, "Who shot you, Errol?". "Carlton did", he replied. ¹

Officer Turnbull testified that at about 2:30 in the afternoon he and a police sergeant arrived at the hospital emergency room in response to the reported shooting. He was advised by the physician in charge that "O'Neil was in critical condition". O'Neil, Turnbull said, was "laying on a gurney in the emergency room" and there "was an I.V. running into his arm". Before talking with O'Neil, Turnbull "advised him that he was in critical condition and that there was a possibility that he might die". In reply to Turnbull's inquiry whether O'Neil would "tell [him] who committed the crime", O'Neil answered "yes". He then said that "Carlton Brown, Killer, a Jamaican, and Trevor Campbell shot me". Answering further inquiries O'Neil said, according to Turnbull's testimony, that "all three had guns", that "they shot at [me] four times" and that the three "were probably at 568 Pine Street, on the second floor." The questioning was terminated when the physician advised Turnbull that O'Neil was being taken into surgery. O'Neil died several hours later from three gunshot wounds, two of which were to the abdomen and had penetrated various vital organs.

In holding that the statements to Officer Turnbull were admissible, the trial court found that "the totality of the circumstances indicate that Errol O'Neil was critically wounded by three gunshots, was in hemorrhagic shock, second degree, severe pain, and nearly died enroute to the hospital. He was told he may not make it and indeed died several hours later. There was no time for reflection, nor was he in any condition to reflect." Relying on the criteria set forth in People v. Edwards, 47 N.Y.2d 493, 419 N.Y.S.2d 45, 392 N.E.2d 1229, the court held that neither the lapse of time between the shooting and the emergency room statements nor the fact that the statements were in response to Turnbull's questions precluded the ultimate finding that O'Neil's statements were "not made under the impetus of studied reflection" (id., at 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229).

Because of its ruling that the emergency room statements were admissible as excited utterances, the court did not reach the People's alternative argument that the statements were admissible under a separate and different theory, i.e., as dying declarations (see generally, People v. Nieves, 67 N.Y.2d 125, 132-133, 501 N.Y.S.2d 1, 492 N.E.2d 109). The Appellate Division, 125 A.D.2d 320, 509 N.Y.S.2d 56 unanimously affirmed in a memorandum, finding that the record supports the conclusion that the statements were made while O'Neil remained under the stress and exciteme from the shooting. The appeal is before us by leave of a Judge of this court.

II

The present rule permitting the admission of excited utterances as an exception to the hearsay rule has evolved from earlier cases in which, following English precedents, we allowed proof of so-called "spontaneous declarations" only if they could be shown to have been part of the res gestae, i.e., "made at the same time, or so nearly contemporaneous [with the transaction] as to characterize it, or throw [some] light upon it" (Waldele v. New York Cent. & Hudson Riv. R.R. Co., 95 N.Y. 274, 278; Richardson, Evidence § 281 [Prince 10th ed]; see also, Whitaker v. Eighth Ave. R.R. Co., 51 N.Y. 295; Insurance Co. v. Mosley, 8 Wall. [75 U.S.] 397, 19 L.Ed. 437). In Waldele, for example, sign language communications by a deaf mute made 30 minutes after being struck and fatally injured by a railroad train were excluded because "declarations made after the accident had happened, after the train had passed from sight, and the whole transaction had terminated were no part of that res gestae, had no connection with it, and were purely narrative" (95 N.Y., at 286, supra ).

In later cases, our court, adopting the approach urged by Wigmore and other commentators, began to abandon its earlier strict res gestae analysis and the attendant requirement that the declaration be a verbal act forming part of the transaction itself (see, People v. Del Vermo, 192 N.Y. 470, 483, 85 N.E. 690; see, e.g., People v. Marks, 6 N.Y.2d 67, 71, 188 N.Y.S.2d 465, 160 N.E.2d 26). ² In People v. Marks (supra) we left no doubt that an excited utterance or spontaneous declaration, although a narrative of a past transaction and not a part of the res gestae, could nevertheless be admitted as an exception to the hearsay rule under certain circumstances. The rationale for the exception, we noted, was not res gestae but, as explained by Dean Wigmore in his treatise, that " 'under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control * * *. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts' " (6 N.Y.2d, at 71-72, 188 N.Y.S.2d 465, 160 N.E.2d 26, supra, quoting 6 Wigmore, Evidence § 1747[I] [3d ed.] ).

Moreover, we emphasized in People v. Marks (supra), again citing Wigmore, that "there can be no definite or fixed limit of time within which the declaration [must] have been made [and] each case must depend upon its own circumstances" (id., at 72, 188 N.Y.S.2d 465, 160 N.E.2d 26; see also, 6 Wigmore, Evidence § 1750 [Chadbourn rev. 1976] ). The test is whether the utterance was made "before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance" (id., at 72, 188 N.Y.S.2d 465, 160 N.E.2d 26).

In our most recent discussions of the admissibility of excited utterances, we have adhered to the course set in People v. Marks (supra) and avoided the strict res gestae analysis in favor of admitting such declarations because "as * * * impulsi and unreflecting responses * * * to the injury or other startling event, they possess a high degree of trustworthiness " (People v. Caviness, 38 N.Y.2d 227, 231, 379 N.Y.S.2d 695, 342 N.E.2d 496 [emphasis added] ). Thus, in People v. Caviness (supra) we abandoned as an "unjustifiable evidentiary stance" (id., at 231, 379 N.Y.S.2d 695, 342 N.E.2d 496) the rule that an excited utterance of a nonparticipant in the event had to be excluded because it was not a part of the event itself--i.e., the res gestae. And finally, in People v. Edwards (supra), we dispelled any remaining doubt that in New York statements made in response to questioning could, nevertheless, be admitted as excited utterances. We noted our approval of the view, implicit in our decision in People v. Del Vermo (supra) and adopted since then by most courts which have addressed the issue, that the fact that an utterance is in response to an inquiry is ...