People v. Luke

• Decision Date: 31 August 1987
• Citation: 136 Misc.2d 733,519 N.Y.S.2d 316
• Parties: The PEOPLE of the State of New York v. Floyd LUKE, Defendant.
• Court: New York Supreme Court

Page 316

519 N.Y.S.2d 316

136 Misc.2d 733

The PEOPLE of the State of New York v. Floyd LUKE, Defendant.

Supreme Court, Bronx County,

Part 45.

Aug. 31, 1987.

Mario Merola, Dist. Atty. by Francis P. Karam, Asst. Dist. Atty., for the People.

Charles M. Lee, New York City, for defendant.

DOMINIC R. MASSARO, Justice.

The defendant is charged with burglary in the second degree (P.L. 140.25) and criminal possession of stolen property in the third degree (P.L. 165.40). Specifically, he is charged, with a confederate, of unlawfully entering a dwelling and stealing property therein.

Upon the trial of the action, the People sought to introduce into evidence a tape recording of two telephone conversations wherein a witness to the burglary while in progress reported it to a "911 operator." Although it is conceded that the conversations are hearsay, the People urge admission under three exceptions to the traditional rule; namely, the business records exception, the excited utterances exception, and the present sense impression exception.

Initially, this Court finds that the admission of the tapes cannot be predicated upon the business records exception. In order for an out-of-court hearsay statement to be admitted as a business record, it must be demonstrated that the declarant was under a duty to report the occurrence to the entrant (People v. Wilson, 123 A.D.2d 457, 506 N.Y.S.2d 760 [2nd Dept.,1986]; Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378, 461 N.E.2d 864 (1984)). In the instant case, the declarant was a citizen witness who had no such duty to report the incident.

This Court further finds that the tapes cannot be admitted under the excited utterances exception to the hearsay rule. Under such exception, the criteria for admissibility are the existence of an exciting event and the declaration being prompted thereby without time to reflect. The test is whether the declarant was so influenced by the excitement and shock of the event that it is probable that he or she spoke compulsively and without reflection rather than reflectively and with deliberation (People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496 (1975)). In the instant case, the Court listened to the tapes in camera and determined, from the tone and tenor of the declarant's voice, that the statements were not the product of excitement or shock. Indeed, the declarant's verbal demeanor indicated a dispassionate and deliberate narration of the events as they were unfolding.

Present Sense Impression

In view of the inadmissibility of the tapes under the excited utterances and business records exceptions to the hearsay rule, this Court now turns its attention to present sense impressions, a newly evolving exception to the hearsay rule in New York State.

Present sense impression has its origins in what is known as the "res gestae" exception to the hearsay rule. In recent years, the term "res gestae" has come into disfavor for its imprecision (McCormick, Evidence, Sec. 288 [3d ed. 1984] ). "Res gestae" does, however, encompass four distinct exceptions to the hearsay rule: (1) statements of present bodily condition, (2) statements of present mental states and emotions, (3) excited utterances, and (4) statements of present sense impression.

The latter exception with which we are concerned is defined in Rule 803(1) of the Federal Rules of Evidence as "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter."

The present sense impression concept is neither new nor novel. Its roots lie deep within the common law, though it is often obscured by the practice of courts in an earlier day to admit such evidence "as part of the res gestae" neither specifying the particular exception nor detailing the underlying theories of reliability that justify the admission of such evidence.

The first thorough analysis of present sense impressions by an American was that of James Bradley Thayer. Thayer was satisfied, on the basis of his research, that "this sort of exception to the hearsay rule has always existed, [but] it has never been well worked out" (Thayer, Bedingfield's Case-Declarations as Part of Res Gesta, 15 Am.L.Rev. 71, 82). He opined that there existed an exception for "statements, oral or written, made by those present when a thing took place, made about it and importing what is present at the very time" (Thayer, supra, at 83).

While Thayer felt that the present sense impression exception was justifiable, his student, John Henry Wigmore, argued that contemporaneousness of event and descriptive statement, without more, was an insufficient guarantor of trustworthiness (6 J. Wigmore, Evidence, Sec. 1747, at 195-98 [Chadbourn, rev. 1976] ). As a result of Wigmore's non-acceptance of the present sense impression exception, "the American law of spontaneous statements shifted emphasis from what Thayer had observed to a requirement of an exciting event and a resulting stilling of the declarant's reflective faculties" (McCormick, Evidence, Sec. 298, at 860 [3d ed. 1984] ).

Edmund Morgan, another distinguished student of Thayer, subsequently attempted to revive the formulation of the present sense impression exception to the hearsay rule (Morgan, A Suggested Classification of Utterances Admissible as Res Gesta 31 Yale L.J. 229, 236 [1922] ). Although statements of present sense impression

lack whatever assurance of reliability there is in the effect of an exciting event, other factors offer safeguards. First, since the report concerns observations being made at the time of the statement, it is safe from any error caused by a defect of the declarant's memory. Second, a requirement that the statement be made contemporaneously with the observation means that there will be little or no time for calculated misstatement. Third, the statement will usually have been made to a third person (the witness who subsequently testifies to it) who, being present at the time and scene of the observation, will probably have an opportunity to observe the situation himself and thus provide a check on the accuracy of the declarant's statement, i.e., furnish corroboration (McCormick, Evidence, supra ).

Some commentators, including Wigmore, have found greater reliability in excited utterances than in present sense impressions. Wigmore's rationale lies in the belief that nervous excitement tends to suspend the declarant's powers of reflection and fabrication.

Paradoxically, present sense impressions are said to draw reliability from the fact that the statement was not caused by excitement.

These statements are found to be especially trustworthy because the fact that they are simultaneous with the event eradicates possible memory deficiencies and fabrication [citations omitted]. The exception is thought to be most appropriate when the declaration in question is made before the declarant is aware that something startling would happen, so that the distortion brought on by excitement would be avoided (United States v. Narciso, 446 F.Supp. 252, 285, (1977)).

Corroboration

At least twenty-eight states recognize the present sense impression exception to the hearsay rule in their codified evidence codes, most of which have been patterned after the Federal Rules of Evidence. While New York has not yet codified the exception, it is contained in the proposed New York Code of Evidence (1980 ed.) as Rule 803(1), which is identical to the same numbered section of the Federal Rules of Evidence.

A major point of controversy with respect to present sense impressions is the question of whether the statement requires corroboration by an equally percipient witness who was present at the time and place that the statement was uttered. Many courts have considered this issue and some have determined such corroboration to be necessary (see Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d 426 [1985]; Jones v. State, 65 Md.App. 121, 499 A.2d 511 [1985]; Hewitt v. Grand Trunk Western Railroad Company, 123 Mich.App. 309, 333 N.W.2d 264 [1983]; State v. Case, 100 N.M. 714, 676 P.2d 241 [1984] ) while others have dispensed with such requirement (see Booth v. State, 306 Md. 313, 508 A.2d 976 [1986]; Duke v. American Olean Tile Company, 155 Mich.App. 555, 400 N.W.2d 677 [1986]; State v. Flesher, 286 N.W.2d 215 [Iowa 1979]; People v. Slaton, 135 Mich.App. 328, 354 N.W.2d 326 [1984]; State v. Rendon, 148 Ariz. 524, 715 P.2d 777 [App.1986]; Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d...