People v. Clay

Citation88 A.D.3d 14,926 N.Y.S.2d 598,2011 N.Y. Slip Op. 05729
PartiesThe PEOPLE, etc., respondent,v.Thomas CLAY, appellant.
Decision Date28 June 2011
CourtNew York Supreme Court Appellate Division

88 A.D.3d 14
926 N.Y.S.2d 598
2011 N.Y. Slip Op. 05729

The PEOPLE, etc., respondent,
Thomas CLAY, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 28, 2011.

[926 N.Y.S.2d 600]

Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Howard B. Goodman, and Melissa J. Feldman of counsel), for respondent.PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and PLUMMER E. LOTT, JJ.SKELOS, J.P.

The principal issues presented on this appeal are whether a statement uttered by a victim of a shooting shortly before his death, in response to an inquiry by a police officer regarding the identity of the shooter, constituted testimonial evidence, which is generally barred by the Confrontation Clause of the Sixth Amendment of the United States Constitution, and, if so, whether such evidence was admissible as a constitutionally permissible exception to the Confrontation Clause. We hold that, under the circumstances of this case, the victim's words were testimonial, but they constituted a “dying declaration” and, thus, were admissible as an exception to the Confrontation Clause.

At approximately 9:00 P.M. on August 11, 2006, Igol Isaacs was shot on a street in Brooklyn. Police Captain Brian McGee responded to a radio call seeking assistance at the scene of the shooting. When McGee arrived at that location, there were other officers and a police van already present. McGee observed Isaacs lying face-up on the sidewalk, and a police officer with him. Without speaking with the other officers, McGee approached Isaacs, who was gasping for air. McGee knelt down beside him and asked “Who shot you?” Receiving no response, McGee then stated to Isaacs: “I don't think you're going to make it. Who shot you?” The victim responded, saying what McGee

[926 N.Y.S.2d 601]

heard as “Todd shot me.” When McGee sought to confirm “Todd shot you,” the victim stated “[N]o. No. Tom shot me. Tom. Tom.” McGee “kept asking” Isaacs “Tom, who?” but, according to McGee, it was difficult for Isaacs to breathe and he was unable to speak any further. After McGee spoke with Isaacs, he had a conversation with another officer, but did not tell the other officer what Isaacs had said. McGee then began pushing back a crowd of people who had assembled, and set out to “preserve the crime scene.” Isaacs died at the hospital sometime the same night. An autopsy revealed that he had six gunshot wounds. The police recovered from the scene one discharged .45 caliber shell casing and seven discharged .9 millimeter shell casings found to have been fired from the same gun.

On the same night, the police were contacted by Yvette Clay, who indicated that she had witnessed the shooting. She identified the shooters as the appellant, Thomas Clay, who was her estranged husband, and his cousin, the codefendant Sidor Fulcher. The appellant and Fulcher each were subsequently indicted on one count of murder in the second degree, among other offenses, and were jointly tried before a jury. Prior to McGee's testimony, the People sought a ruling as to whether he would be permitted to testify to the statements made to him by Isaacs. Counsel for both defendants objected to the admission of the hearsay evidence on the ground that it would violate the defendants' rights under the Sixth Amendment as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The People countered that the testimony was not barred by the Confrontation Clause because it was not testimonial, and that it was admissible as a dying declaration. The Supreme Court agreed with the People, and McGee was permitted to testify to the statements made to him by Isaacs.

In addition to McGee's testimony, the People presented the testimony of Yvette Clay, and the testimony, given under a cooperation agreement with the People, of another eyewitness who had been talking to Isaacs when the shooting occurred. Both of these witnesses identified the appellant and Fulcher as the shooters. The jury convicted both defendants of murder in the second degree. The appellant contends that it was constitutional error to permit McGee to testify to Isaac's identification of “Tom” as the shooter. We disagree, and affirm the judgment.

The Sixth Amendment to the United States Constitution provides, in relevant part: “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted by the witnesses against him.” The same right is protected under Article I, section 6, of the New York Constitution. In Crawford, the United States Supreme Court “explicitly rejected as unfaithful to the original meaning of the Confrontation Clause its prior test in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, which admitted out-of-court statements ‘so long as [they had] adequate indicia of reliability—i.e., [fell] within a firmly rooted hearsay exception’ ” ( People v. Rawlins, 10 N.Y.3d 136, 150, 855 N.Y.S.2d 20, 884 N.E.2d 1019, cert. denied ––– U.S. ––––, 129 S.Ct. 2856, 174 L.Ed.2d 601 [internal quotation marks omitted], quoting Crawford, 541 U.S. at 42, 124 S.Ct. 1354). The Supreme Court replaced that test with one which assesses whether the statement to be admitted is “testimonial” ( Crawford, 541 U.S. at 68, 124 S.Ct. 1354; see Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224). “Only statements of this sort,” the Court reasoned, “cause the declarant to be a ‘witness' within the meaning of the Confrontation Clause” ( Davis, 547 U.S. at 821, 126 S.Ct. 2266; see

[926 N.Y.S.2d 602]

Crawford, 541 U.S. at 68, 124 S.Ct. 1354). Such testimonial evidence is therefore barred unless the declarant is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination ( see Davis, 547 U.S. at 821, 126 S.Ct. 2266; Crawford, 541 U.S. at 68, 124 S.Ct. 1354).

The Supreme Court declined to form “a comprehensive definition of ‘testimonial,’ ” but recited “various formulations” of that class of statements, which included “pretrial statements that declarants would reasonably expect to be used prosecutorially” ( Crawford, 541 U.S. at 51, 68, 124 S.Ct. 1354). Further, the Court observed, “[s]tatements taken by police officers in the course of interrogations” were testimonial “under even a narrow standard” ( id. at 52, 124 S.Ct. 1354). In making this latter observation, however, the Court “had immediately in mind” ( Davis, 547 U.S. at 826, 126 S.Ct. 2266) the police “questioning that generated the deponent's statement in Crawford—which was made and recorded while she was in police custody, after having been given Miranda warnings” ( Davis, 547 U.S. at 822, 126 S.Ct. 2266). In Davis v. Washington, the Supreme Court had occasion to consider whether statements made to law enforcement personnel during 911 calls and at a crime scene were testimonial, and in so doing, to “determine more precisely,” though not exhaustively, “which police interrogations produce testimony” ( id. at 822, 126 S.Ct. 2266). It held:

“Statements are nontestimonial 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 establish or prove past events potentially relevant to later criminal prosecution.” ( id.).

Applying this principle to the circumstances before it, the Supreme Court concluded that an interrogation that took place during the course of a 911 call did not produce testimonial statements ( id. at 826, 126 S.Ct. 2266; see People v. Phillips, 68 A.D.3d 1137, 892 N.Y.S.2d 157 [admission of recorded 911 calls in which a nontestifying complainant sought help in an ongoing emergency situation did not violate Sixth Amendment]; People v. Ward, 57 A.D.3d 582, 583, 868 N.Y.S.2d 297; People v. Drummond, 34 A.D.3d 492, 492–493, 824 N.Y.S.2d 126; People v. Conyers, 33 A.D.3d 929, 930, 824 N.Y.S.2d 301). In so concluding, the Court reasoned that the declarant “was speaking about events as they were actually happening, rather than ‘describ[ing] past events,’ ” and that the nature of the inquiry reflected that the “elicited statements were necessary to be able to resolve the present emergency” ( Davis, 547 U.S. at 827, 126 S.Ct. 2266). Simply stated, the declarant “was not acting as a witness,” for “[n]o ‘witness' goes into court to proclaim an emergency and seek help” ( id. at 828, 126 S.Ct. 2266).

The Court recognized, however, that an interrogation aimed at determining the need for emergency assistance could, once that purpose was achieved, evolve into an investigation into past events so as to produce testimonial statements. That point was reached in the companion case to Davis, Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224, in which the police, responding to a reported domestic disturbance, initially came upon a “ ‘somewhat frightened’ ” woman on the front porch of her home. The woman reported that “ ‘nothing was the matter,’ ” but gave the officers permission to enter the home, where they found her husband sitting calmly in the kitchen

[926 N.Y.S.2d 603]

( id. at 819, 126 S.Ct. 2266). Some of the officers then questioned the wife in a separate room from the husband while other officers remained with the husband, and prevented him from interfering in the questioning of the wife ( id. at 819–820, 126 S.Ct. 2266). The Court held that when the officers questioned the wife for the second time, i.e., in the house, separated from her husband, the “primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime” ( id. at 830, 126 S.Ct. 2266). Thus, the Court concluded, the statements made by the wife during that second...

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