People v. Johnson

• Decision Date: 22 December 2003
• Citation: 772 N.Y.S.2d 238,804 N.E.2d 402,1 N.Y.3d 302
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT JOHNSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 302

804 N.E.2d 402

772 N.Y.S.2d 238

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT JOHNSON, Appellant.

Court of Appeals of the State of New York.

Argued November 20, 2003.

Decided December 22, 2003.

Legal Aid Society Criminal Appeals Bureau, New York City (Laura Lieberman Cohen, Andrew C. Fine and Laura R. Johnson of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Walter J. Storey and Susan Axelrod of counsel), for respondent.

Judges CIPARICK, ROSENBLATT, GRAFFEO and READ concur with Chief Judge KAYE; Judge G.B. SMITH dissents and votes to reverse in a separate opinion.

OPINION OF THE COURT

Chief Judge KAYE.

Defendant appeals his convictions of assault in the first degree and resisting arrest, asserting that an out-of-court, hearsay statement made by the victim of the assault was improperly admitted at trial as an excited utterance. The Appellate Division affirmed. Because we conclude that the trial court's error was harmless beyond a reasonable doubt, we also affirm.

On February 5, 2000, Police Officer Jerrold Lutz and his partner came to the aid of Val Grey, a homeless man who had been stabbed twice in the eye. When the police arrived on the scene, defendant, also homeless, was holding in his right hand an ice pick with traces of blood on it while struggling with the victim, who had pinned defendant's right arm against a wall. Upon seeing the police, the victim screamed, "[H]e stabbed me, he stabbed me." The police arrested defendant¹ and Grey staggered to a nearby laundromat, where he wiped the blood from his eye with a wet paper towel. One to two minutes later, Lutz entered the laundromat and the victim asked the officer whether "his eye was still intact." Grey, accompanied by Lutz, was then taken to Bellevue Hospital by ambulance. Throughout the ride, as emergency medical technicians began to treat him, Grey continued to state that he had been stabbed, and continued to express concern that he had lost his eye, asking repeatedly whether it was still there.

Grey was given further treatment upon his arrival at the hospital. Finally, approximately one hour after the stabbing, he was interviewed by Lutz and made, in substance, the following statement to the officer about the circumstances leading up to the stabbing:

"[H]e was traveling down the stairway, at the subway station, and he saw a steel garbage can come rolling down the stairs next to him. He informed me that he was under the impression that that garbage can was intended to hit him. He then went back up the stairs to confront whoever threw the garbage can down the stairs. He did not see who threw it. [He stated he was informed by passersby that Mr. Johnson had thrown the can done (sic) the stairs.]² Mr. Johnson was standing approximately fifteen or so yards away. Approximately. Mr. Grey then went and confronted Mr. Johnson. A struggle ensued. Which resulted in Mr. Grey being stabbed."

Later that night, the victim's cognitive function began to deteriorate, resulting in the need for emergency brain surgery. After several months of treatment in Bellevue's rehabilitation program, Grey left the hospital without being discharged. Despite a diligent search by the police and prosecution, Grey could not be located for trial and the People sought to introduce his hearsay statements as excited utterances. On this appeal, defendant does not challenge Grey's statements at the scene, in the laundromat or in the ambulance, but claims that the final statement to the officer, quoted above, should not have been received in evidence.

The trial court held a hearing on the People's motion to introduce the statements at trial, at which Lutz testified. According to the testimony adduced at the hearing, when the police first approached defendant and the victim, who were then struggling with each other, the victim was bleeding heavily from his eye. The victim was "very agitated, very excited, he was confused about what was happening." Specifically, "[h]is speech was very high pitched, he was screaming at times. He was very unsteady in his movement." Similarly, when the officer entered the laundromat approximately one to two minutes later, the victim's demeanor had not changed in any way. Still distraught, the victim stated that he thought he had lost his eye and he asked the officer whether his eye had been "cut out." The victim "continued to be very agitated" and kept asking the officer how this happened. The victim "was having a little bit of difficulty hearing" the officer. "He was distracted by the amount of pain he was in. He was moaning." He was also "giving a lot of attention to his left eye. He was very distracted by what was happening to it."

By the time the officer spoke with the victim in the hospital, however, Grey's demeanor had become more relaxed in that "[h]e wasn't moving, he wasn't fidgeting, he was lying still." Moreover, Grey's hospital records, also introduced into evidence at the hearing, reflected that at the time of his admission he was awake, alert and oriented; he was able to follow complex instructions; and his speech was fluent.

Discussion

The familiar common-law hearsay exception for excited utterances, formerly called spontaneous declarations, has been recognized by this Court for nearly a century (see People v Del Vermo, 192 NY 470, 483-487 [1908]). The principle is easily stated. An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication. "Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy" (People v Edwards, 47 NY2d 493, 497 [1979]). Accordingly, "under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control. . . . [An excited] utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection" (People v Marks, 6 NY2d 67, 71 [1959], quoting 6 Wigmore, Evidence § 1747 [I] [3d ed]).

Stating the rule is simple. Determining a declarant's mental state—that is, whether at the time the utterance was made a declarant was in fact under the stress of excitement caused by an external event sufficient to still his or her reflective faculties—is considerably more difficult.³

Among the factors to be considered by a trial court is the period of time between the startling event and the out-of-court statement. As we have several times noted, there can be no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances. "The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance" (People v Brown, 70 NY2d 513, 518 [1987] [internal quotation marks omitted]). Ultimately, "the time for reflection is not measured in minutes or seconds, but rather is measured by facts" (People v Vasquez, 88 NY2d 561, 579 [1996] [internal quotation marks omitted]). Nor does the fact that statements are made in response to police questioning, "standing alone—any more than do other specific circumstances—defeat the admissibility of the responses as excited utterances" (Brown, 70 NY2d at 522).

While any serious injury may be a significant factor in determining whether the declarant remains under the stress of a startling event, it is not the only factor (see Steven Zeidman, Who Needs an Evidence Code?: The New York Court of Appeals's Radical Re-Evaluation of Hearsay, 21 Cardozo L Rev 211, 220-221 [1999]). There is, in short, no "injury" exception to the hearsay rule. Indeed, we have never held that any statement made by an injured victim about the event leading to the injury, however long after the trauma, constitutes an excited utterance merely because the victim continues to suffer pain caused by the injury. Even in the case of serious injury, the test remains what it has always been: whether the declarant is capable of studied reflection and therefore capable of fabrication.

On the combined facts before us, we cannot say that the declarant's capacity for reflection and deliberation remained stilled by the time of his final statement to the police. The challenged declaration was made—in narrative form and in response to prompting—a full hour after the startling event (cf. People v Cotto, 92 NY2d 68, 79 n 3 [1998]

[statement made in ambulance less than 10 minutes after declarant was shot admissible as excited utterance]; Edwards, 47 NY2d at 498 [statement made in response to a "simple inquiry"]). Moreover, the declarant had become more relaxed. According to his uncontroverted medical records, he was awake, alert and oriented; he was able to follow complex instructions; and his speech was fluent. In this condition, despite pain, clearly declarant was no longer without the ability to engage in reasoned reflection upon the content of his statement. Indeed, when asked by the prosecutor whether there had been "any pauses or a long time to reflect" when the victim explained his version of events to the officer at the hospital, Lutz responded, "There were moments of reflection."

Given the victim's disappearance, this case had to proceed to trial in the absence of a live complaining witness subject to cross-examination.⁴ Where the only direct evidence of a defendant's guilt is in the form of hearsay testimony, courts must be especially vigilant to ensure that only...