People v. McCullough

• Decision Date: 20 March 1980
• Citation: 425 N.Y.S.2d 982,73 A.D.2d 310
• Parties: The PEOPLE of the State of New York, Respondent, v. Oscar McCULLOUGH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 982

425 N.Y.S.2d 982

73 A.D.2d 310

The PEOPLE of the State of New York, Respondent, v. Oscar McCULLOUGH, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 20, 1980.

Elizabeth M. Fink, New York City (Polly Eustis, New York City, of counsel, with her on brief), for defendant-appellant.

Robert M. Pitler, New York City, of counsel (Robert M. Morgenthau, New York City), for respondent.

Before KUPFERMAN, J. P., and SULLIVAN, LUPIANO, SILVERMAN and BLOOM, JJ.

SULLIVAN, Justice.

At about noon on November 10, 1976 Raymond Outlaw, Jr. was shot six times as he descended the stoop of his apartment house at 628 West 147th Street. An upstairs tenant, her curiosity aroused by the sound of a "firecracker", peeked through the venetian blinds on the window facing the street and observed the back view of a male with a low-cut afro hair style, wearing a short, light brown leather jacket, fleeing west on 147th Street. She also recognized the stricken Outlaw, supine, struggling to drag himself towards the steps leading down to a street-level apartment entrance.

After several minutes, Outlaw's landlady, Mrs. Miller, who had heard the shots, went outside to investigate. She found Outlaw at the bottom of the front steps, tossing and turning, blood "pumping" from his stomach. Mrs. Miller ran back to her apartment and brought out a blanket which she placed over the victim. She did not speak to Outlaw at this time but, instead, went back to her apartment to call the police. When she returned, after a lapse of time estimated as ten minutes since the shooting, she asked Outlaw: "My God, who shot you? He answered "Na. " Mrs. Miller said "Who? " Outlaw repeated "Na. " Having heard the name before, Mrs. Miller responded "That's your friend. " Outlaw replied "Yes, ma'am. " Mrs. Miller then asked, "Why did he shoot you? " Outlaw answered "I was coming out of the building. " He did not speak any further to Mrs. Miller.

When the police arrived at about 12:10 p. m., they found Outlaw coherent but "in a pretty bloody state." He was taken immediately in a police vehicle to a hospital, where he died later that day. An autopsy revealed six bullet wounds, the first shot having been fired into the victim's back from close range, hitting a kidney, the liver and the stomach before exiting from the victim's chest. The cause of death was certified as bullet wounds of the back, kidney, liver, stomach and extremities.

At defendant's trial for Outlaw's murder the conversation between Mrs. Miller and Outlaw was admitted, over objection, on the ground that Outlaw's statements qualified as a spontaneous declaration. To link Oscar McCullough, the defendant, to "Na", the People introduced an address book found in Outlaw's apartment. ¹ The book contained ninety-five boxed entries, three of which, according to the testimony, were under the name "Na" or "Nay." One entry listed a telephone number which was shown to belong to defendant's girlfriend, while a second listed the home telephone number of defendant's mother. The third entry contained two telephone numbers, one of which belonged to defendant's mother; the second was traced to one Dominga Rivera in Brooklyn.

Outlaw's mother testified that defendant was the only friend of her son known as "Na." Defendant, whose defense was alibi, testified that he knew of three acquaintances of Outlaw in the neighborhood who were named "Na." But he did acknowledge that he was known as "Na" and that he had been Outlaw's longtime friend, often having purchased marijuana from him. ² He himself had once lived on West 147th Street.

Defendant was convicted of murder in the second degree. Of the issues raised on appeal only two concern us: the admissibility of Outlaw's conversation with Mrs. Miller, and the court's supplemental instruction to the jury concerning its discovery during deliberations of a hitherto unexplained entry in Outlaw's address book under the name "Na". The telephone number next to the entry did not correspond to any of the other "Na" telephone numbers which were linked either directly or indirectly to defendant during the trial.

In urging error in the admission of Outlaw's statements, defendant argues that the lapse of time and the content of the victim's remarks demonstrate that these statements came after the shock of the shooting had subsided and at a time when the victim's reflective powers dominated. Thus, defendant argues, the factual bases for the admission of these statements as a spontaneous declaration were absent. While the issue is close, we think the statements were properly admitted.

Spontaneous declarations are admissible if they are "declaratory of the circumstances of an injury, when uttered by the injured person immediately after the injury, provided that (they) be spontaneously expressive of the injured person's observation of the effects of a startling occurrence and the utterance is made within such limit of time as presumably to preclude fabrication." (People v. Del Vermo, 192 N.Y. 470, 483, 85 N.E. 690, 695.)

Recognized as an exception to the hearsay rule, the spontaneous declaration is often confused with a statement which is admissible because it is part of the res gestae. (See Patterson v. Hochster, 38 App.Div. 398, 401, 56 N.Y.S. 467, 468; also People v. Del Vermo, supra, 192 N.Y. 470, 487, 85 N.E. 690, 696; People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 698, 342 N.E.2d 496, 498.) A statement is part of the res gestae when it is part of the transaction itself which is sought to be proved, or when it tends to qualify, explain or characterize the acts which it accompanies (see, e. g. Waterman v. Whitney, 11 N.Y. 157, involving a testator's declarations made contemporaneously with the destruction of his will). A declaration admitted under this principle is not, strictly speaking, offered or received for its truth and is, therefore, non-hearsay. (Richardson, Evidence, 10th Ed., § 280.) But a declaration made at the time of a transaction, relating solely to the acts and conduct of others and not in any way qualifying or explaining the act of the person speaking is technically, hearsay, as it is offered for its truth. Declarations made by a participant during or after an injury or other startling event, but declaratory of the circumstances, are within the latter category. Such statements are admissible provided they were uttered spontaneously. (People v. Del Vermo, supra, 192 N.Y. 470, 483, 85 N.E. 690, 695; Scheir v. Quinn, 77 App.Div. 624, 78 N.Y.S. 956, aff'd. 177 N.Y. 568, 69 N.E. 1130; 6 Wigmore, Evidence, §§ 1745, 1747.)

In 1975 the Court of Appeals extended the spontaneous declaration exception to include not only spontaneous declarations of a participant but also those of a non-participant, such as a bystander. (People v. Caviness, supra, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496.) Furthermore, if the declaration is truly spontaneous, its admissibility is not precluded merely because the declaration was made in response to a question (see People v. Del Vermo, supra, 192 N.Y. 470, 85 N.E. 690), but, instead, should depend on a variety of circumstances, of which the posing of the question is only one.

The touchstone of the admissibility of the excited utterance or spontaneous declaration is its reliability. "What the law altogether distrusts is not after-speech, but after-thought." (Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 775-6, 12 S.E. 18, 26.) In one of its most recent decisions on the subject, the Court of Appeals held that the statement's admissibility turns on an assessment of the nature of the startling event, the lapse of time between the event and the statement, and the activities of the declarant during this interval. (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 47, 392 N.E.2d 1229, 1231.) The court noted: "Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection." (Id. at 497, 419 N.Y.S.2d at 47, 392 N.E.2d at 1231.)

In this case defendant, while relying heavily on the time lapse of ten minutes, has ignored completely the victim's physical condition and capacity. He had been shot six times, at close range, and, bleeding profusely, was unable to drag himself down the steps to the street-level apartment entrance. ³ In such a setting, where the span of ten minutes is virtually meaningless, time is "measured in minutes or seconds, it is measured by facts." (People v. Gilbert, 199 N.Y. 10, 24, 92 N.E. 85, 89.) Realistically viewed, the trauma produced by the shooting was as acute ten minutes after the shooting as it was in the first moments. Medically unattended and helpless, the victim was still laboring under the "stress of nervous excitement resulting from an injury." (People v. Caviness, supra, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 699, 342 N.E.2d 496, 499.)

People v. Marks, 6 N.Y.2d 67, 188 N.Y.S.2d 465, 160 N.E.2d 26, cert. den. 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620, upon which defendant relies, is factually distinguishable. There, the victim's remarks exculpating the defendant were held inadmissible because the victim was able to walk a distance of 200 feet, during which he climbed over a ledge and mounted several steps. (See, also People v. Sprague, 217 N.Y. 373, 111 N.E. 1077.) Moreover, the victim in Marks, a drug addict who had recently stolen drugs from the defendant and was fearful of reprisal, had a motive to lie. The court thus found that the victim's statements were not uttered while the "stress of nervous excitement . . . (stilled) the reflective faculties and (removed) their control." (Id. 6 N.Y.2d at 71, 188 N.Y.S.2d at 468, 160 N.E.2d at 28, citing Wigmore, Evidence § 1747, subd. (1).)

Defendant also argues that Outlaw's "unresponsive" reply to Mrs. Miller's question as to why "Na" shot him was clearly the product of reflection which rendered the...