People v. Brown

• Decision Date: 21 January 1970
• Citation: 257 N.E.2d 16,308 N.Y.S.2d 825,26 N.Y.2d 88
• Parties: , 257 N.E.2d 16, 43 A.L.R.3d 1407 The PEOPLE of the State of New York, Respondent, v. Oneal BROWN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 825

308 N.Y.S.2d 825

26 N.Y.2d 88, 257 N.E.2d 16, 43

A.L.R.3d 1407

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

Court of Appeals of New York.

Jan. 21, 1970.

John A. Van Etten, Syracuse, for appellant.

Frank A. Gualtieri, Dist. Atty. (Jon K. Holcombe, Sr., Syracuse, of counsel), for respondent.

BERGAN, Judge.

The main issue in this case, where appellant has been convicted of murder in the second degree, is whether he acted in self-defense. In turn this depends on the proof of appellant's contention that the deceased had a pistol drawn when appellant shot him.

One witness for appellant testified to this effect; but several prosecution witnesses testified decedent did not have a pistol in hand when defendant shot him and the police found no pistol on decedent's clothes or on the floor of the premises where the shooting occurred.

This brings into focus the importance of an admission made both to the police and to appellant's lawyer by one Shelton Seals, who at the time of trial was being held in jail on a charge of robbery, that he had 'picked up the gun' apparently which he used in the robbery 'immediately after the shooting' for which appellant has been convicted. This admission was made in a conversation at the jail with appellant's counsel; another and similar admission was made by Seals in a confession to the police.

If it had been true that Seals picked up a gun from the floor of the premises immediately after the shooting for which defendant has been convicted, this could have a significant bearing on defendant's contention that decedent was armed and that defendant acted in his own defense.

Seals was called as a defense witness. He refused to answer questions on constitutional grounds. Appellant then offered proof of his admissions. The court sustained objections to them. The ruling was clearly proper upon settled authority in this State. Thus the important question presented by this appeal is whether the existing rule should be continued or abandoned in favor of a more rational view of admissibility of declarations against interest.

In discussing the admissibility of such declarations against interest as an exception to the hearsay rule, Richardson makes the categorical statement that 'The fact that the declaration alleged to have been made would subject the declarant to criminal liability is held not to be sufficient to bring it within the declaration against interest exception to the rule against hearsay evidence' (Richardson, Evidence (9th ed.), § 241, pp. 232, 233).

This, as it has been noted, has undoubtedly been the rule in New York (Kittredge v. Grannis, 244 N.Y. 168, 175, 176, 155 N.E. 88, 90; Ellwanger v. Whiteford, 15 A.D.2d 898, 225 N.Y.S.2d 734, affd. 12 N.Y.2d 1037, 239 N.Y.S.2d 680, 190 N.E.2d 24); in the Federal Courts (Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820); and in a majority of the States (31A C.J.S. Evidence § 219, pp. 608--609).

Yet the distinction which would authorize a court to receive proof that a man admitted he never had title to an Elgin watch, but not to receive proof that he had admitted striking Jones over the head with a club, assuming equal relevancy of both statements, does not readily withstand analysis.

Holmes attacked the distinction in his notable dissent in Donnelly (supra, 228 U.S. pp. 277--278, 33 S.Ct. p. 461) in which, among other things, he said: 'The rules of evidence in the main are based on experience, logic, and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man (Mattox v. United States, 146 U.S. 140, 36 L.Ed. 917, 13 S.Ct. 50); and when we surround the accused with so many safeguards, some of which seem to me excessive; I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. The history of the law and the arguments against the English doctrine are so well and fully stated by Mr. Wigmore that there is no need to set them forth at greater length. 2 Wigmore, Ev. §§ 1476, 1477.'

Wigmore, as Holmes notes, developed the argument against the distinction, not only on the basis of sheer logic, but on the historical ground that the English cases which created the distinction, particularly the Sussex Peerage Case (11 Cl. & Fin. 85, 109) were a departure from the basic rule of long standing that admissions against interest generally were received, where relevant, and the declarant dead. The Peerage decision was regarded by Wigmore as 'not strongly argued and not considered by the judges in the light of the precedents' (5 Wigmore Evidence, (3d ed.), § 1476, p. 283). Wigmore concludes his comprehensive analysis of the problem with the statement: 'It is therefore not too late to retrace our steps, and to discard this barbarous doctrine.' (Op. cit., p. 290).

There seems to be developing in this country a gradual change of viewpoint which would abolish the distinction. In 1964 the Supreme Court of California decided People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377, opn. per Traynor, J. This held that proof defendant's companion admitted to the police that the heroin found on the ground was hers was admissible.

Justice Traynor, discussing the usual rule that admission against pecuniary interest was admissible, said: 'A declaration against penal interest is no less trustworthy. As we pointed out in People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 622, 290 P.2d 538, 55 A.L.R.2d 1272, a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest. Moreover, since the conviction of a crime ordinarily entails economic loss, the traditional concept of a 'pecuniary interest' could logically include one's 'penal interest." (60 Cal.2d pp. 874--875, 36 Cal.Rptr. p. 845, 389 P.2d p. 381).

In the same direction in Missouri, see Moore v. Metropolitan Life Ins. Co., Mo.App., 237 S.W.2d 210 and Sutter v. Easterly (354 Mo. 282, 189 S.W.2d 284) where there is a good discussion of Wigmore's analysis; and in Arizona, Deike v. Great Atlantic & Pacific Tea Co., 3 Ariz.App. 430, 415 P.2d 145.

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