People v. Nieves

• Decision Date: 25 March 1986
• Citation: 501 N.Y.S.2d 1,492 N.E.2d 109,67 N.Y.2d 125
• Parties: , 492 N.E.2d 109 The PEOPLE of the State of New York, Respondent, v. Angel NIEVES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1

501 N.Y.S.2d 1

67 N.Y.2d 125, 492 N.E.2d 109

The PEOPLE of the State of New York, Respondent, v. Angel NIEVES, Appellant.

Court of Appeals of New York.

March 25, 1986.

Robert S. Dean and Philip L. Weinstein, New York City, for appellant.

Mario Merola, Dist. Atty. (Lisa E. Sarnoff, Steven R. Kartagener and Mark L. Freyberg, New York City, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Defendant, Angel Nieves, was convicted after a jury trial of manslaughter in the second degree (Penal Law § 125.15[1] ). The evidence at trial establishing his guilt consisted almost entirely of statements made by the victim of a stabbing shortly before she died. The issue on this appeal is whether these statements were admissible at trial pursuant to the "dying declarations" exception to the general rule prohibiting the use of hearsay evidence. We conclude that the statements do not qualify as dying declarations, and we also reject the attempt by the People to raise for the first time on appeal the alternative argument that the statements were admissible as "excited utterances."

At approximately 8:30 p.m. on January 16, 1982, the defendant, Angel Nieves, and another male carried Josephine Gonzalez into the emergency room at Bronx Lebanon Hospital. In response to inquiries by a doctor and nurse, defendant and his companion stated that Miss Gonzalez had been stabbed and that they had brought her to the hospital in a taxicab for which they had to wait outdoors for approximately 20 minutes. Miss Gonzalez was wearing only light-weight clothing, and her body was wet and extremely cold. Although conscious when brought in, she was in shock due to her low body temperature, and was unable to speak.

The doctor's initial examination of Miss Gonzalez revealed a small incision in the areola of her left breast, indicating the possibility of a heart wound. The doctor and the nurse commenced emergency procedures designed to warm the victim's body and stabilize her vital signs. After 10 to 15 minutes of treatment, Miss Gonzalez's condition improved and she became lucid.

At some point shortly after Miss Gonzalez came out of shock, the doctor and nurse began to question her. Miss Gonzalez first responded to questions as to her name and address. The nurse then asked her what had happened and she stated that she had been stabbed. When asked who had stabbed her, Miss Gonzalez pointed at the defendant, standing nearby in the emergency room, and said "Angel". In response to further inquiry, she stated that she and the defendant had been at a party and that he had gotten jealous and had then stabbed her.

The nurse immediately called hospital security, and about 10 minutes later Police Officer Perez arrived at the emergency room. After being told by the doctor and nurse what Miss Gonzalez had said, Officer Perez located the defendant, who then was standing in a small anteroom next to the emergency room, and brought him to Miss Gonzalez. The police officer asked her whether the defendant was the person who had stabbed her, to which she replied "Yes," and he then asked her what the defendant's name was, to which she replied "Angel Nieves". Officer Perez then took the defendant out of the emergency room, frisked him, and found a knife on his person. Although the knife had bloodstains on it, the amount of blood was insufficient to determine how long it had been there or whether it was from Miss Gonzalez.

During a period of approximately 20 to 25 minutes, Miss Gonzalez was alert and had no difficulty responding to the questions posed to her. She did complain, however, of strong chest pains. She stated several times that she did not want to die, although neither the doctor nor the nurse ever told her that she was dying or that her condition was critical.

Miss Gonzalez's condition worsened when blood began to seep into the wound, which had punctured both the pericardium, the sac surrounding the heart, and the heart itself. As her vital signs stabilized, more and more blood became trapped in the pericardium, causing a slow strangulation of the heart. The doctor's efforts to alleviate this pressure were unsuccessful and, after hand massaging her heart for 45 minutes, he pronounced her dead at 10:15 p.m.

Defendant was indicted for second degree murder (Penal Law § 125.25). He then moved for inspection of the Grand Jury minutes and to dismiss the indictment on the ground that the evidence before the Grand Jury was not legally sufficient (see, CPL 210.20, 210.30, 190.65). The court, after reviewing the minutes, denied the motion to dismiss, but ordered that a pretrial hearing be conducted to determine the admissibility of the statements made by Miss Gonzalez.

At the start of the hearing, the prosecutor stated, as to the admissibility of the statements, that they met the legal requirements of "dying declarations". The doctor, the nurse and Police Officer Perez testified at the hearing as to the events at the hospital. At the close of the evidence, defense counsel reiterated that the issue before the court was whether the statements were "dying declarations". He then noted the possible alternative argument that the statements were spontaneous exclamations, but added that the prosecutor had not made this contention. The prosecutor responded that he did not believe that Miss Gonzalez's assertions could qualify as spontaneous statements, given the length of time between the stabbing incident and the making of the statements and that he therefore agreed that their admissibility turned on whether they were dying declarations.

The court concluded that Miss Gonzalez was "in extremis" at the time she made her statements and that the nature of the wound, together with the surrounding circumstances, supported an inference that she knew that she was dying. It thus ruled that the statements were admissible at trial as dying declarations.

The evidence at trial with respect to the events in the emergency room was largely identical to that adduced at the hearing, and the testimony recounting Miss Gonzalez's statements was permitted in accordance with the pretrial ruling. The jury convicted defendant of second degree manslaughter, which was submitted to it as a lesser included offense of murder in the second degree.

The Appellate Division affirmed the judgment of conviction, though the majority of that court relied on a different ground for the admissibility of Miss Gonzalez's statements. The majority first disagreed with the trial court's ruling that the statements met the requirements of dying declarations, finding instead that the evidence did not show that Miss Gonzalez " ' "was under a sense of impending death, without any hope of recovery" ' " when she made them (108 A.D.2d 165, 168, 488 N.Y.S.2d 654, quoting People v. Allen, 300 N.Y. 222, 227, 90 N.E.2d 48). The Appellate Division majority went on to find, however, that the statements were admissible as "excited utterances," an argument made for the first time by the People in their brief to that court. The majority rejected the defendant's contention that the People could not attempt to sustain the admissibility of evidence on a ground not raised before the trial court, concluding that such a bar applied only where an initial ruling of admissibility was made as a determination of a pretrial motion to suppress evidence (see, CPL art. 710).

The concurring Justice at the Appellate Division concluded that the statements were properly received into evidence as dying declarations. Leave to appeal was granted by a Judge of this court.

Miss Gonzalez's statements, ¹ of course, constituted hearsay evidence, as they were made out of court and were sought to be introduced for the truth of what she asserted (see, People v. Edwards, 47 N.Y.2d 493, 496, 419 N.Y.S.2d 45, 392 N.E.2d 1229; Richardson, Evidence § 200 [Prince 10th ed.] ). Accordingly, they were admissible only if the People demonstrated that they fell within one of the exceptions to the hearsay rule. Although the People now contend that the statements should be admissible as long as they are deemed "reliable", without regard to whether they fit into any such exception, they made no such argument before the trial court. Furthermore, we are not prepared at this time to abandon the well-established reliance on specific categories of hearsay exceptions in favor of an amorphous "reliability" test, particularly in criminal cases where to do so could raise confrontation clause problems (U.S. Const. 6th Amend.; N.Y. Const., art. I, § 6; see, California v. Green, 399 U.S. 149, 155-156, 90 S.Ct. 1930, 1933-1934, 26 L.Ed.2d 489; McCormick, Evidence § 252, at 752 [Cleary 3d ed]; cf. Ohio v. Roberts, 448 U.S. 56, 65-66, and n. 8, 100 S.Ct. 2531, 2538-2539, and n. 8, 65 L.Ed.2d 597; United States v. Barlow, 693 F.2d 954, 964, cert. denied 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304). ²

Dying declarations have long been treated as an exception to the general rule excluding hearsay evidence. The notion that deathbed statements have some particular trustworthiness existed long before the hearsay rule itself gained general acceptance in the early 18th century, and thus, it is not surprising that formal recognition of a dying declarations exception occurred by the middle of that century (see, 5 Wigmore, Evidence § 1430 [Chadbourn ed.]; McCormick, Evidence § 281 [Cleary 3d ed.] ).

Although originally the use of dying declarations was not limited to particular types of cases (see, 5 Wigmore, op. cit. § 1431; McCormick, op. cit. § 283, at 831), by the early 19th century common-law courts had begun to restrict their use to homicide prosecutions, and this limitation became firmly engrained in New York law (see, e.g., People v. Becker, 215 N.Y. 126, 145, 109 N.E. 127; Richardson, Evidence § 311 [Prince 10th ed.]). ³ Numerous cases have rationalized the exception for dying declarations in homicide cases as one of "necessity", as in some cases...