People v. Caviness

• Decision Date: 29 December 1975
• Citation: 379 N.Y.S.2d 695,342 N.E.2d 496,38 N.Y.2d 227
• Parties: , 342 N.E.2d 496 The PEOPLE of the State of New York, Respondent, v. Burnis CAVINESS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 695

379 N.Y.S.2d 695

38 N.Y.2d 227, 342 N.E.2d 496

The PEOPLE of the State of New York, Respondent, v. Burnis CAVINESS, Appellant.

Court of Appeals of New York.

Dec. 29, 1975.

Richard A. Greenberg and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (Steven W. Fisher, Elmhurst, of counsel), for respondent.

COOKE, Judge.

On this appeal, Burnis Caviness contends that two evidentiary errors during trial, resulting in his conviction of manslaughter in the second degree, warrant reversal. One involves the admissibility of a spontaneous declaration by a bystander; the other, the allowance of cross-examination of defendant as to a prior conviction.

In the late afternoon or early evening of March 11, 1972, William Earl Cephus was shot during the course of a heated exchange and struggle with defendant in front of a Brooklyn grocery or small supermarket. Death followed that evening, and within the month defendant was indicted for murder.

Dorothy Greene, called by the prosecution, related: that she was seeing defendant socially; that she went to the store on the day in question as she had a dinner engagement with defendant; that as they left the market she saw Cephus approaching from across the street; that she heard defendant and Cephus arguing, 'loud voices and loud words' being exchanged; that she next heard a 'pow pow' like a shot; that defendant and Cephus were about four feet apart, facing each other; that just prior to hearing the 'pow pow' she observed defendant 'go to his side' by movement of his hand or arm, but did not see anything in his hand or in Cephus' hand; that she saw Cephus clutching himself, stagger and fall near the store doorway and that she 'said out loud 'Burnis shot Earl. " The store proprietor, after narrating a conversation had with defendant in the market, testified that following defendant's departure he heard two shots, that he turned around and saw Cephus falling in front of the door, and that as he stooped over Cephus he saw defendant get in his car and speed away. Defendant took the stand as the sole witness in his behalf and told of meeting and having words with Cephus outside the store. Defendant then testified: that there came a time when they were but one to two feet apart; that, when Cephus went for his pocket and came out with something which looked like a gun, defendant grabbed him; that he then heard a couple of shots; that he panicked and went to his car; that he did not have or fire a gun; and that Cephus had a gun. On rebuttal, Dr. Di Maio, the medical examiner who performed the autopsy and based on his findings of no marks on the skin except for the perforation, opined that the fatal shot would have to have been fired approximately 12 inches away, although he conceded that an air gun which expels a projectile or missile could cause penetration of the body without making powder burns.

During direct examination Greene, replying to the question 'What did you see after you heard the pow pow?', testified 'I saw Earl clutching himself and stagger, and I went behind him. In fact, I was in shock, and he fell to the doorway of the store. I said out loud, 'Burnis shot Earl. " A defense objection to the answer was overruled and defendant contends that the court's failure to strike the volunteered last sentence of the response, as inadmissible hearsay, was reversible error.

Hearsay, the exclusion of which is perhaps the best known feature of Anglo-American law (Fisch, New York Evidence, § 756), has been subjected to a variety of definitions. Rule 63 of the Uniform Rules of Evidence, approved by the American Law Institute and American Bar Association, defines hearsay evidence as '(e)vidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.' This enunciation must be read in connection with the connotation accorded to 'statement' in rule 62, that it 'means not only an oral or written expression but also non-verbal conduct of a person intended by him as a substitute for words in expressing the matter stated' (Comment, Uniform Rules of Evidence, rule 63), and follows Wigmore in defining hearsay as an extrajudicial statement which is offered to prove the truth of the matter stated (5 Wigmore, Evidence (3d ed), § 1361; see, also, Richardson, Evidence (Prince--10th ed), § 220; McCormick, Evidence (2d ed. § 245, p. 584; 1 Mottla, New York Evidence, § 187; Morgan, Hearsay and Non-Hearsay, 48 Harv.L.Rev. 1138, 1144).

Spontaneous declarations, frequently referred to with some inexactitude as Res gestae declarations (e.g., Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 9, 14 N.E.2d 828; Handel v. New York R.T. Corp., 252 App.Div. 142, 297 N.Y.S. 216, affd. 277 N.Y. 548, 13 N.E.2d 468; Scheir v. Quirin, 77 App.Div. 624, 628--629, 78 N.Y.S. 956, affd. 177 N.Y. 568, 69 N.E. 1130; see 6 Wigmore, Evidence (3d ed), § 1745 Et seq.; Spontaneous Exclamations in the Absence of a Startling Event, 46 Col.L.Rev. 430; 56 A.L.R.2d 372), form an exception to the hearsay rule. It is established that spontaneous declarations made by a participant while he is under the stress of nervous excitement resulting from an injury or other startling event, while his reflective powers are stilled and during the brief period when considerations of sel could not have been brought fully to bear by reasoned reflection and deliberation, are admissible as true exceptions to the hearsay rule (People v. Marks, 6 N.Y.2d 67, 71, 188 N.Y.S.2d 465, 160 N.E.2d 26; People v. Del Vermo, 192 N.Y. 470, 483, 85 N.E. 690; Schner v. Simpson, 286 App.Div. 716, 719, 146 N.Y.S.2d 369; 6 Wigmore, Evidence, §§ 1745, 1747; 1 Mottla, New York Evidence, § 252). They are admitted because, as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant's belief as to the facts just observed by him, may be received as testimony of those facts (People v. Marks, supra, 6 N.Y.2d pp. 71--72, 188 N.Y.S.2d 465; Richardson, Evidence (Prince--10th ed), § 281). The question whether a declaration conforms to the spontaneity requirements of the rule is a preliminary question to be determined by the Trial Judge, not the jury, the test being whether the declarant was so influenced by the excitement nd shock of the event that it is probable that he or she spoke impulsively and without reflection rather than reflectively and would deliveration (People v. Marks,supra, pp. 72, 74--75, 188 N.Y.S.2d 465; Fisch, New York Evidence, § 1000, p. 494).

Where participation and the declaration are by the same person, all jurisdictions agree that the declaration is admissible if it satisfies the requirements of the hearsay exception for spontaneous exclamations, but, in the courts of a few States including New York, declarations have been excluded if made by persons not participating in the act, such as a bystander (6 Wigmore, Evidence (3d ed), § 1755; Richardson, Evidence (Prince--10th ed), § 284). The confusion of spontaneous declarations with Res gestae has resulted in limiting the admissibility of supontaneous declarations to those of participants (Richardson, Evidence (Prince--10th ed), § 284; Fisch, New York Evidence, § 1000), some courts concluding that the declaration is inadmissible if made by a nonparticipant on the theory that it constitutes no part of the Res gestae (e.g., Felska...