People v. Cummings

• Decision Date: 08 May 2018
• Docket Number: No. 50,50
• Citation: 75 N.Y.S.3d 484,99 N.E.3d 877,31 N.Y.3d 204
• Parties: The PEOPLE of the State of New York, Respondent, v. Twanek CUMMINGS, Appellant.
• Court: New York Court of Appeals Court of Appeals

31 N.Y.3d 204

99 N.E.3d 877

75 N.Y.S.3d 484

The PEOPLE of the State of New York, Respondent,

v.Twanek CUMMINGS, Appellant.

No. 50

Court of Appeals of New York.

Decided May 8, 2018

Robert S. Dean, Center for Appellate Litigation, New York City (Benjamin Wiener and Susan H. Salomon of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Ross D. Mazer and Sylvia Wertheimer of counsel), for respondent.

OPINION OF THE COURT

WILSON, J.

Defendant Twanek Cummings appeals from an order of the Appellate Division affirming the trial court's decision to admit a statement, heard in the background of a 911 call and spoken by an unidentified person, under the excited utterance exception to the hearsay rule. Although we reject his argument that the law-of-the-case doctrine prevented the substitute Supreme Court Justice from revisiting the prior Justice's decision to exclude the statement, admission of the statement was error because the record contains no evidence from which a trier of fact could reasonably infer that the statement was based on the personal observation of the declarant. On the record here, we cannot conclude the error was harmless. Accordingly, we reverse the order of the Appellate Division and order a new trial.

On March 19, 2012, at about 2:28 p.m., three men—Messrs. Relaford, Phillips and Allen—were on the corner of 129th St. and St. Nicholas Terrace. A silver minivan drove past and double parked. The passenger exited, walked past the group, then turned around and pointed a gun at Mr. Relaford. The gunman shot Mr. Relaford in the hand and leg, Mr. Phillips in the leg, and Mr. Allen in the buttocks. The gunman briskly reentered the minivan, which sped off.

The exact timing is disputed, but somewhere between 2:29 p.m. and 2:32 p.m., Mr. Phillips called 911. About 20 seconds into the call, someone in the background can be faintly heard saying, "Yo, it was Twanek, man! It was Twanek, man!" A woman in the assembled crowd provided the police with a partial license plate number for the minivan. An officer spotted and stopped a minivan matching the description and partial license plate a short distance from the crime scene, at which point both the driver and passenger exited the vehicle. The officer stayed with and arrested the driver, but the passenger—the suspected gunman—slipped away.

Mr. Cummings' fingerprint was subsequently found on the passenger door of the minivan, and cell site data is consistent with his presence in the area at the time of the shooting. The People assert that Mr. Cummings left the state soon after the shooting, returning a few days later. No weapon was recovered, and the shooting victims failed to identify Mr. Cummings in a lineup. Surveillance video shows someone running away from the scene and entering the minivan immediately after the shooting, and several people hurrying towards the scene moments later. The surveillance video does not show the scene of the shooting. Neither the shooter nor the person saying, "It was Twanek, man," can be identified from the video.

During Mr. Cummings' first trial, the People sought to admit the unidentified person's statement on the 911 call under the excited utterance exception to the hearsay rule. The court denied the application. The jury deadlocked, and the court declared a mistrial. The matter was to be retried before a different Supreme Court Justice in October 2013. That Justice also denied the People's application to admit the statement. She took ill after all but the alternate jurors were selected, and was replaced by another Supreme Court Justice. The People renewed their application to admit the statement, and the court allowed admission of the statement as an excited utterance. Mr. Cummings was tried and convicted of one count of assault in the first degree, two counts of attempted assault in the first degree, two count of criminal possession of a weapon in the second degree, and assault in the second degree. He was acquitted of three counts of attempted murder.

On appeal, Mr. Cummings argued that the law-of-the-case doctrine barred the substitute Supreme Court Justice presiding over his second trial from reconsidering the prior Justice's decision to exclude the unidentified speaker's statement recorded in the background of the 911 call. He also argued that the ruling was incorrect, because there was no evidence from which to infer that the unidentified speaker personally observed the shooting. The Appellate Division rejected both arguments, and summarily stated that even if the admission of the statement was erroneous, it was harmless ( 145 A.D.3d 490, 491, 43 N.Y.S.3d 293 [1st Dept. 2016] ). A Judge of this Court granted Mr. Cummings leave to appeal.

I. Law of the Case

Law of the case is "a judicially crafted policy that 'expresses the practice of courts generally to refuse to reopen what has been decided, [and is] not a limit to their power'. As such, law of the case is necessarily 'amorphous' in that it 'directs a court's discretion,' but does not restrict its authority" ( People v. Evans, 94 N.Y.2d 499, 503, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] [citations omitted] ). Law of the case does not apply to every judge or every ruling. Our cases applying law of the case have generally involved courts of coordinate jurisdiction (see id. ; Dondi v. Jones, 40 N.Y.2d 8, 15, 386 N.Y.S.2d 4, 351 N.E.2d 650 [1976] ). Further, absent prejudice to the defendant, a judge may revisit his or her own evidentiary rulings during trial (see United States v. Wade, 512 Fed.Appx. 11, 14 n.1 [2d Cir.2013] ["pre-trial evidentiary rulings may be revisited w(h)ere no prejudice accrues to the party that had previously thought it had secured a favorable ruling from the ... court"]; cf. Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 396 N.Y.S.2d 170, 364 N.E.2d 835 [1977] ). On retrial, evidentiary rulings may be reconsidered, but orders determining the result of a suppression hearing generally cannot (see Evans at 504–505, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ; People v. Malizia, 62 N.Y.2d 755, 758, 476 N.Y.S.2d 825, 465 N.E.2d 364 [1984] ; People v. Nieves, 67 N.Y.2d 125, 136, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986] ).

The decision to admit hearsay as an excited utterance is an evidentiary decision, "left to the sound judgment of the trial court" ( People v. Hernandez, 28 NY3d 1056, 1057, 65 N.E.3d 1272 [2016] ), and thus may be reconsidered on retrial (see Nieves at 136–137, 501 N.Y.S.2d 1, 492 N.E.2d 109 [noting that a ruling on admissibility of evidence as excited utterance would not be binding in a subsequent trial] ). There is no reason to apply a different rule to a successor judge within the same trial and we, therefore, have no basis to adopt a per se rule prohibiting a substitute judge from exercising independent discretion concerning an evidentiary trial ruling. To be sure, "the law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case" ( Evans, 94 N.Y.2d at 504, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ). This, however, weighs against Mr. Cummings' argument that a substitute justice's discretionary reconsideration of a prior evidentiary ruling necessitates per se reversal (cf. Wright v. Cayan, 817 F.2d 999, 1002 n. 3 [2d Cir. 1987] ["it would be self-defeating to reverse a correct ruling by the second judge solely because of a departure from the law of the case"] ). Accordingly, the substitute Justice was not bound by law of the case and acted within his discretion to revisit the evidentiary ruling (see Evans, 94 N.Y.2d at 506, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ).

Notably, Mr. Cummings does not contend that he lacked sufficient notice of, or had taken irremediable steps in reliance on, the ruling allowing the admission of the statement from the 911 call (see United States v. Birney, 686 F.2d 102, 107 [2d Cir.1982] ). Where, as here, the evidentiary ruling was reversed before the jury was empaneled, absent a showing of prejudice resulting from, for example, a mid-trial reversal of an evidentiary ruling that impedes the defense strategy, we cannot say that an abuse of discretion occurred.

II. Admissibility

A "spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant" is an exception to the prohibition on hearsay ( People v. Edwards, 47 N.Y.2d 493, 496–497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 [1979] [the declaration may be admitted into evidence "as expressing the true belief of the declarant as to the facts observed"] ). "The admission of a hearsay statement under any exception deprives the defendant of the right to test the accuracy and trustworthiness of the statement by cross-examination" ( People v. Brown, 80 N.Y.2d 729, 736, 594 N.Y.S.2d 696, 610 N.E.2d 369 [1993] ). Although hearsay, excited utterances may be admissible 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. Caviness, 38 N.Y.2d 227, 231, 379 N.Y.S.2d 695, 342 N.E.2d 496 [1975] [emphasis added] ). As we stated in People v. Fratello: "To be sure, ... it must be inferable that the declarant had an opportunity to observe personally the event described in the [spontaneous] declaration" ( 92 N.Y.2d 565, 571, 684 N.Y.S.2d 149, 706 N.E.2d 1173 [1998] [emphasis added] ). Direct observation by the person making the excited utterance ensures that the declarant is in fact reacting to and "assert[ing] the circumstances of" the event causing the excitement ( Edwards, 47 N.Y.2d at 496–497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 ).

The question presented is whether it is reasonably inferable...