People v. Egan

• Decision Date: 12 December 1980
• Citation: 434 N.Y.S.2d 55,78 A.D.2d 34
• Parties: PEOPLE of the State of New York, Respondent, v. Mavis EGAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 55

434 N.Y.S.2d 55

78 A.D.2d 34

PEOPLE of the State of New York, Respondent, v. Mavis EGAN, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 12, 1980.

Charles F. Crimi, Rochester, for appellant.

Lawrence T. Kurlander, Dist. Atty., Rochester, for respondent (Stephen Brent, Asst. Dist. Atty., Rochester, of counsel).

Before SIMONS, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.

SIMONS, Justice Presiding.

After separate trials, defendant and her husband James Egan have been convicted of the murder of defendant's former husband James Gerks. ¹ The three lived together in a residence owned by Gerks' father. An acquaintance, Vic Vyverberg, also stayed overnight with them occasionally and did so on the night of the killing. At the trial, Vyverberg supplied the crucial evidence that led to the defendant's conviction. He testified to the Egans' motive for the killing and that he helped them dispose of the body and the gun after the shooting. But more importantly, he testified about the Egans' admissions at the time of the killing and it is the admissibility of that testimony which raises the central issue on this appeal.

Vyverberg testified that on the day of the shooting he and the Egans had been out drinking. They returned to the house at about 10:45 p. m. and shortly thereafter Vyverberg fell asleep on the couch. Sometime later he was awakened by a noise, saw James Egan in the room and, seconds after, saw defendant next to him holding a gun. He then testified:

"A. Jim happily said, 'We blew the sucker away', and a few swear words to that effect that the so and so is gone and we have no more problems and that Mavis makes the first hit woman in the world, you know, slang words, you know.

Q. Did Mavis say anything?

A. Yes. She said she was glad it was over with and done with in a solemn way."

Defendant contends that this evidence was inadmissible hearsay and that the receipt of it was a denial of her constitutional right of confrontation.

Hearsay by definition found in the American Law Institute Uniform Rules of Evidence (accepted by the Court of Appeals (see People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496), is "evidence of a statement which is made other than by a witness while testifying at a hearing offered to prove the truth of the matter stated" (Rule 63). A statement within the intendment of the rule includes "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, Rule 63).

Generally, hearsay evidence is not permitted, of course, but there are recognized exceptions to the rule and this evidence was admissible under at least three of them.

First, Vyverberg's testimony was properly received because defendant's silence, when she would naturally be expected to deny her husband's accusation, was a tacit admission of its truth. His statements were admissible unless it appeared that defendant did not hear them or was unable to respond to them (Richardson, Evidence (10th ed. Prince), § 222; and see People v. Allen, 300 N.Y. 222, 90 N.E.2d 48; People v. Kennedy, 164 N.Y. 449, 58 N.E. 652). The reason for the exception is clear enough. Persons not privileged to remain silent (see e. g., People v. Conyers, 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342) normally respond to statements inculpating them in criminal conduct if they hear and understand them, and their failure to do so is some evidence of the truth of the statement. The rule does not apply here, defendant contends, because she was intoxicated when her husband spoke and she did not hear or understand his statement. The question of defendant's intoxication was before the jury, however, and Vyverberg's testimony that following Egan's statements defendant said that she was glad it was over, is evidence that she was aware of what he said.

Second, the statements were admissible as declarations against penal interest. Such statements are excepted from the rule barring hearsay evidence if: the declarant is unavailable to testify; he was aware that the statement was adverse to his penal interest when he made it; he had knowledge of the facts underlying the statement; and supporting circumstances are present to attest to the reliability of the declaration (People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612; and see People v. Harding, 37 N.Y.2d 130, 371 N.Y.S.2d 493, 332 N.E.2d 354, con. opn. of Cooke, J.). Egan's statements readily meet these requirements. He was unavailable because he invoked his right against self-incrimination and refused to testify at defendant's trial. As an alleged participant, there can be no question that he had first-hand knowledge of the facts underlying his statement, and he must certainly have realized that implicating himself in a murder would subject him to prosecution. Beyond that, the supporting circumstances attest to the reliability of the statements. Egan made the statements shortly after the commission of the crime, before he had been apprehended or was subject to criminal prosecution (cf. People v. Settles, supra), and Vyverberg's narrative of the evening's events and the considerable physical evidence developed by the police supplied additional corroboration.

Finally, Egan's statements were properly admitted as spontaneous declarations made, as they were, by a participant after a startling event and before he had time to reflect and fabricate (see People v. Edwards, 47 N.Y.2d 493, 496-497, 419 N.Y.S.2d 45, 392 N.E.2d 1229; People v. O'Neall, 47 N.Y.2d 952, 954, 419 N.Y.S.2d 950, 393 N.E.2d 1023; People v. McCullough, 73 A.D.2d 310, 313, 425 N.Y.S.2d 982; and see People v. Caviness, 38 N.Y.2d 227, 230-232, 379 N.Y.S.2d 695, 342 N.E.2d 496, supra). It is not clear whether the murder occurred immediately before Egan spoke (it is reasonable, however, to infer that the gunshot woke Vyverberg), but in any event, it has been held that statements need not be coincident in time with the event to be admissible as spontaneous declarations (People v. Edwards, supra, at 498, 419 N.Y.S.2d 45, 392 N.E.2d 1229). If the court determines that the declarant was so influenced by the excitement and shock of the event that it is probable that he spoke impulsively and without reflection rather than after deliberation, the statement is admissible (People v. Caviness, supra, 231, 379 N.Y.S.2d 695, 342 N.E.2d 496).

Thus, the evidence came within three recognized exceptions to the hearsay rule, each supplying its own guarantee of the trustworthiness of the evidence because of the circumstances under which the statements were made. That being so, we do not believe that the evidence was barred by the rule in Bruton v. United States (391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476), or the Confrontation Clause of the Sixth Amendment, although cases may be found involving similar facts which state otherwise (see People v. Cepeda, 61 A.D.2d 962, 403 N.Y.S.2d 248, mot. for. lv. to app. den. 44 N.Y.2d 952, 408 N.Y.S.2d 1031, 380 N.E.2d 341 and People v. Geoghegan, 68 A.D.2d 279, 416 N.Y.S.2d 802; but see Fisch, Evidence (2d ed.), § 899, supp. n. 47a).

In Bruton v. United States (supra), the court held that it was constitutional error to admit a defendant's confession which implicated his co-defendant and that the prejudice could not be cured by the court's instructions to the jury to disregard the inculpatory portions of the confession. Bruton is distinguishable from this case because it involved a joint trial. But more importantly, it is distinguishable because the defendant's confession in Bruton was inadmissible hearsay as to the appealing codefendant under any view of the evidence. Those considerations aside, however, the Supreme Court did not decide in Bruton that declarations against interest are not admissible in criminal trials. On the contrary, it specifically noted that it was not ruling that all hearsay evidence is constitutionally inadmissible (Bruton v. United States, supra, 391 U.S. 128, n. 3, 88 S.Ct. at 1623 n. 3). We may consider whether receipt of Vyverberg's testimony abridged defendant's constitutional right of confrontation, therefore, without reference to Bruton.

The Sixth Amendment states that in all criminal prosecutions the accused shall enjoy the right "to be confronted with the witnesses against him." This protection is obligatory on the states by the Fourteenth Amendment (Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923; see, also, N.Y.Const. Art. I, § 6). The historical purpose of the Confrontation Clause is to prohibit trial by ex parte affidavits and to advance the search for truth by guaranteeing the reliability of the evidence submitted against a criminal defendant (California v. Green, 399 U.S. 149, 156-160, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489; see, also, Baker, The Right to Confrontation, 6 Conn.L.Rev. 529; Read, the New Confrontation-Hearsay Dilemma, 45 S.Cal.L.Rev. 1). The clause contemplates that reliability will be guaranteed by the use of cross-examination, the penalties against perjury and the jury's in-person evaluation of the witness. But these are not the only ways to guarantee reliability; the common-law rules of evidence...