People v. Gibian

• Decision Date: 10 August 2010
• Citation: 76 A.D.3d 583,907 N.Y.S.2d 226
• Parties: The PEOPLE, etc., respondent, v. Zachary R. GIBIAN, appellant.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 226 76 A.D.3d 583 The PEOPLE, etc., respondent, v. Zachary R. GIBIAN, appellant. Supreme Court, Appellate Division, Second Department, New York. Aug. 10, 2010.

Joseph Ferrante, Hauppauge, N.Y. (William J. Keahon of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Steven A. Hovani, Guy Arcidiacono, and Glenn Green of counsel), for respondent.

PETER B. SKELOS, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle, J.), rendered January 17, 2007, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial.

The defendant identifies three significant grounds for reversal of his conviction; to wit: the preclusion, on hearsay grounds, of statements purportedly made by the defendant's mother; juror misconduct during deliberations; and the summary curtailment of defense counsel's closing statement.

The trial court erred in precluding the defendant from testifying about a statement which his mother allegedly made to him on the day the decedent was killed concerning how she killed the decedent. The defendant contended that only after his mother made this detailed statement to him did he confess to the police that he had killed the decedent in an effort to protect her. The defendant argued that his testimony as to his mother's statement would establish his motive to protect his mother by removing evidence from the crime scene and confessing to the police, in addition to explaining his ability to provide accurate details of the crime in his confession. The specific details of the crime contained in the defendant's confession were not inconsistent with the expert forensic evidence presented to the jury.

The trial court improperly excluded such testimony on the ground that it constituted inadmissible hearsay. It is settled law that " '[t]he mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind of the hearer or of the declarant' "( People v. Cromwell, 71 A.D.3d 414, 415, 897 N.Y.S.2d 35, quoting Prince, Richardson on Evidence § 8-106, at 502 [Farrell 11th ed.]; see People v. Stevens, 174 A.D.2d 640, 641, 571 N.Y.S.2d 102).

The right to present a defense is one of the "minimum essentials of a fair trial" ( Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297; see People v. Diallo, 297 A.D.2d 247, 746 N.Y.S.2d 479; People v. Smith, 195 A.D.2d 112, 121, 606 N.Y.S.2d 656). Under certain circumstances, it encompasses the right to place before the jury secondary forms of evidence, such as hearsay ( see Chambers v. Mississippi, 410 U.S. at 294, 93 S.Ct. 1038). Depriving a defendant of the opportunity to offer into evidence another person's admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense ( id. at 302, 93 S.Ct. 1038; see People v. Smith, 195 A.D.2d at 121, 606 N.Y.S.2d 656; People v. Esteves, 152 A.D.2d 406, 413, 549 N.Y.S.2d 30). Moreover, "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice" ( Chambers v. Mississippi, 410 U.S. at 302, 93 S.Ct. 1038).

Here, the defendant's testimony as to his mother's statement was admissible, as it was "not to be elicited for the purpose of establishing the truth thereof, but merely to establish the defendant's state of mind" upon hearing it ( People v. Boyd, 256 A.D.2d 350, 351, 683 N.Y.S.2d 271; see People v. Davis, 58 N.Y.2d 1102, 1103, 462 N.Y.S.2d 816, 449 N.E.2d 710; People v. Barr, 60 A.D.3d 864, 874 N.Y.S.2d 384; cf. People v. Reynoso, 73 N.Y.2d 816, 818-819, 537 N.Y.S.2d 113, 534 N.E.2d 30). The substance and accuracy of the mother's out-of-court statement is important to the state of mind purpose for which the defendant sought to offer such testimony. Under the defendant's theory of the case, such testimony established why the defendant confessed and how the defendant knew the exact details of the murder. Therefore, the mother's statement should not have been excluded ( see People v. Cromwell, 71 A.D.3d at 415, 897 N.Y.S.2d 35; People v. Kass, 59 A.D.3d 77, 86, 874 N.Y.S.2d 475 ["Evidence of a statement offered not to prove the truth of its contents but only to prove that the statement was made is not hearsay"]; People v. Jordan, 201 A.D.2d 961, 607 N.Y.S.2d 828; see also People v. Boyd, 256 A.D.2d at 351, 683 N.Y.S.2d 271).

The dissent's application of the "state of mind" exception to the hearsay rule is more restrictive than controlling precedent otherwise dictates ( see e.g. People v. Kass, 59 A.D.3d at 86, 874 N.Y.S.2d 475). Our precedent clearly permits the admission of the statement, but requires the trial court to provide a limiting instruction to the jury as to the use of the statement solely for the purpose of determining the defendant's state of mind, and not for the purpose of actually establishing the truth of the matter assertedin the statement ( see e.g. People v. Kass, 59 A.D.3d at 85, 874 N.Y.S.2d 475 [after properly receiving testimony pursuant to the state of mind hearsay exception, the trial court erred in failing to "deliver a strong limiting instruction cautioning the jury that the testimony ... was not to be considered as any evidence that the defendant actually made any such statement"] ). Thus, the concern that the defendant's excluded testimony was offered for the purpose of accusing the mother of being the killer could have been allayed by a limiting instruction delivered by the trial court ( id.).

Moreover, the dissent relies upon People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30, finding it controlling here. The key factor in Reynoso is that the statement offered by the defendant was made two hours after the crime was committed; thus, it was not offered "to show the declarant's state of mind at the time the statement was made " ( id. at 819, 537 N.Y.S.2d 113, 534 N.E.2d 30 [emphasis added] ). Rather, the Court of Appeals found "the only relevanc[e] of defendant's statement [was] to support his justification defense and establish the past fact of defendant's prior belief[ ]" ( id.). That is not the case here. In the present case, the defendant sought to offer a conversation which he had with his mother immediately preceding his removal of evidence from the crime scene, thus defining the defendant's "then-present" state of mind. The determination in Reynoso is, therefore, not controlling upon the facts in this case.

In addition, the excluded testimony would not have been cumulative of other testimony elicited from the defendant with respect to his state of mind. The admitted testimony alone did not provide the jury with sufficient information to properly evaluate the defendant's claim that he had been able to accurately describe the killing to the police by relying on details which were conveyed to him by his mother during their conversation ( see People v. Kass, 59 A.D.3d at 87, 874 N.Y.S.2d 475; cf. People v. Black, 180 A.D.2d 806, 807, 580 N.Y.S.2d 444). The cases relied upon in the dissent do not suggest a different view. Moreover, the evidence of the defendant's guilt was not overwhelming where no blood was found on the defendant or his clothing, despite the bloodiness of the crime scene, and where the police observed blood on the mother upon responding to the house on the day of the murder. Accordingly, the exclusion of the defendant's state of mind testimony cannot be viewed as harmless ( see People v. Minor, 69 N.Y.2d 779, 780, 513 N.Y.S.2d 107, 505 N.E.2d 617; People v. Boyd, 256 A.D.2d at 350-351, 683 N.Y.S.2d 271).

We note that the defendant offered the testimony wholly under the state of mind exception to the hearsay rule, with nomention or attempt to admit the testimony as a statement by the mother against her penal interest. In light of this fact, we do not reach the issue of whether the proffered testimony constituted a statement against penal interest, as it is of no moment on this appeal.

A jury verdict may be set aside on the basis of juror misconduct which, inter alia, "may have affected a substantial right of the defendant" (CPL 330.30[2]; see People v. Clark, 81 N.Y.2d 913, 914, 597 N.Y.S.2d 646, 613 N.E.2d 552; People v. Giarletta, 72 A.D.3d 838, 898 N.Y.S.2d 639). However, "not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically" ( People v. Brown, 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461, 399 N.E.2d 51; see People v. Irizarry, 83 N.Y.2d 557, 561, 611 N.Y.S.2d 807, 634 N.E.2d 179; People v. Giarletta, 72 A.D.3d 838, 898 N.Y.S.2d 639). The Court of Appeals has noted that "each case ... must be examined [on its unique facts] to determine the nature of the [misconduct] and the likelihood that prejudice [was] engendered" ( People v. Brown, 48 N.Y.2d at 394, 423 N.Y.S.2d 461, 399 N.E.2d 51; see People v. Clark, 81 N.Y.2d 913, 914, 597 N.Y.S.2d 646, 613 N.E.2d 552).

We conclude that the trial court's response to evidence of potential juror misconduct during jury deliberations was inadequate to protect the defendant's right to a fair trial. The defendant properly preserved this issue for appellate review by filing a motion for a mistrial based upon juror misconduct pursuant to Criminal Procedure Law § 330.30.

Several instances of juror misconduct arose during deliberations. The trial court was advised by a member of the jury that Juror Number 11, who worked as a court officer in another county, was interjecting her professional knowledge into the jury deliberations by voicing certain legal opinions. Although the trial court...