People v Nieves

[*1] People v Nieves 2005 NY Slip Op 51212(U) Decided on July 8, 2005 Supreme Court, Bronx County Fisch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

Juan Andino Nieves,



3206/01

Joseph Fisch, J.

Defendant, on trial for Murder in the Second Degree and related charges, moved in limine for an order excluding at trial a statement made by the shooting victim to the first officer who arrived at the scene. The victim, having died as a result of the inflicted gun shot wound, was unavailable to testify at trial. Defendant argued that the statement was hearsay and that its admission at trial would violate his Sixth Amendment right to confront the witness against him. The People's position was that the statement constituted an "excited utterance" exception to the hearsay rule and that its admission was not violative of the Sixth Amendment.

PROCEDURAL HISTORY

The People sought to introduce at trial a statement made by the victim of a shooting as he was lying on the ground to Police Officer Michael Doyle upon Doyle's arrival on the scene, within minutes of the shooting. When Doyle arrived he immediately called for an ambulance, approached the victim, asked him his name and what had happened. The victim, who was in extremis, stated that Bori had shot him because they had an argument. Such was essentially the substance of Police Officer Doyle's testimony.

After hearing arguments from both sides, the Court ruled orally that the statement was admissible, and the trial proceeded. This decision reflects the basis for the Court's oral ruling.

DISCUSSION

In light of the recent United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, (2004), this Court is called upon to determine if the statement by the homicide victim to Police Officer Doyle within minutes of the shooting is testimonial in nature and as such, if admitted, a violation of the Confrontation Clause of the Sixth Amendment.

In Crawford, the Court held that out of court testimonial statements made by an unavailable witness are inadmissible unless the defendant has had a prior opportunity to cross [*2]examine the witness concerning the statement. According to the Court, admission of these statements is a violation of the defendant's Sixth Amendment right to confront the witness. Although the Supreme Court did not provide a comprehensive definition of "testimonial" it held that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogation" Id. at 1374 (Emphasis added). The Supreme Court stated that it would defer the determination of what is "testimonial" for another day, imposing upon this Court, as well as those in other jurisdictions, the task of determining, on a case by case basis, when a statement is testimonial in nature, and therefore inadmissible.

The particular nature and circumstances of the statement at issue must be analyzed within the context of the Crawford decision, in order to determine if it is in fact testimonial in nature. In Crawford, former testimony and police interrogation which are both conducted in a formalized setting, where the primary purpose of the statement is to initiate prosecutorial action and a later trial, were explicitly referred to as "testimonial" and said to be a violation of the Sixth Amendment's right to confrontation. The Supreme Court did not elaborate on a statement that is made within minutes of a startling event, while the victim is still suffering the effects of the event and has had no time for reflection or deliberation.

Prior to Crawford, a hearsay statement which qualified as an "excited utterance" was admissible at trial despite the absence of the declarant. Often times an "excited utterance" is made by a victim or witness to a police officer during the initial police - victim interaction at the scene. Since Crawford, several jurisdictions have held that "excited utterances" are never testimonial as a matter of law. See, e.g., People v. Corella, 122 Cal App. 4th 461, 469, 18 Cal Rptr. 3rd 770 (Cal. Ct. App. 2004); People v. King, No. 02CA0201, — P.3d —, —, 2005 WL. 170727, at *5 (Colo. Ct. App. Jan. 27, 2005); Hammon v. State, 809 N.E.2d 945, 952-53 (Ind. Ct. App. 2004). Other jurisdictions have held that the facts and circumstances under which the statement was made must be considered in order to determine if the statement is testimonial. These latter jurisdictions have focused on the lack of deliberation by the declarant at the time the statement is made, as indicating that the declarant could not have anticipated the use of the statement in a future prosecution. See e.g., Fowler v. State, 809 N.E.2d 960, 964 (Ind Ct. App. 2004) ; People v. Isaac, No. 23398/02, 2004 WL. 1389219, at *4 (NY Dist. Ct. June 16, 2004); State v. Anderson, No. E2004-00694-CCA-R3-CD, 2005 WL. 171441, at *4 (Tenn. Crim. App. Jan 27, 2005).

In light of the Crawford decision, many courts reviewing the statements made during the initial police-victim interaction at the scene, have held that the statements are not the product of interrogation and admission of these statements does not offend the Confrontation Clause. Key v. State, 2005 WL 467167, at *3 (Texas Court of Appeals, Feb. 28, 2005), citing People v. Kilday, 123 Cal. App. 4th 406 at 421 (officers responding to a call from a hotel manager encountered victim in lobby where area was unsecured and the situation uncertain); People v. Corella, 122 Cal App. 4th 461, 469, 18 Cal Rptr. 3rd 770 (Cal. Ct. App. 2004) (victims statement to officer dispatched to scene that husband hit her deemed [*3]nontestimonial); People v. King, No. 02CA0201, 2005 WL 17027, at *6, . 3d , - (Colo. Ct. App. Jan 27, 2005) (where a victim makes an excited utterance to a police officer in a noncustodial setting and without indicia of formality, the statement is nontestimonial); Stancil v. United States, 866 A.2d 799, 815 (D.C. 2005) (statements made by victim to police before scene was secured are not testimonial and do not offend the Confrontation Clause); Fowler v. State, 809 N.E.2d 960, 964 (Ind Ct. App. 2004) (statements by victim of domestic violence, made to officer dispatched to scene, deemed nontestimonial); Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004), transfer granted, 2004 Ind. LEXIS 1031 (Ind., Dec. 9, 2004) (victim's statements to officer at her residence shortly after the incident occurred were not testimonial); People v. Mackey, 5 Misc 3d 709, 785 N.Y.S.2d 870, 874 (NY City Crim. Ct 2004) (where witness approached officer and made statements that were not in response to structured police questioning, not in a formal setting or a formalized document, and primary purpose of the statements was to seek protection, statements were deemed nontestimonial); State v. Forrest, 164 N.C. App. 272, 596 S.E.2d 22, 27 (2004) (statements made by victim of kidnaping and assault immediately after officer removed her from defendant's grasp, describing what happened to her, deemed nontestimonial and considered part of the criminal incident itself); State v. Maclin, No. W2003-03123-CCA-R3-CD, 2005 WL 313977, at *17 (Tenn. Crim. App. Feb. 9, 2005) (where assault victim summoned police to her home and talked to police about the assault in the presence of the defendant, while still fearing for her safety, her statements were not testimonial); Davis v. State, No. 2-03-305 CR, 2005 WL 183141, at *4 (Tex. App. -Fort Worth Jan. 27, 2005, no pet. h) (statements by witness to officer at crime scene deemed nontestimonial). The evaluation of "excited utterances" by other jurisdictions, provides persuasive authority to assist this Court's analysis of the statement in this trial [FN1].

In the instant case, the statement by the deceased that Bori had shot him because they had an argument, was made to Doyle after he responded to the scene of the shooting and inquired as to what had happened. This statement was not made in a formalized setting, but only during the initial police interaction with the victim as he was lying in the street after being shot. The statement was not in response to any structured police questioning which would constitute "police interrogation" as specified in Crawford, but promptly made to Officer Doyle within minutes of the shooting, prior to the detention of any suspect. The brief questions, general in nature, lacked the formality associated with a police interrogation, and did not go beyond a simple inquiry to ascertain what had happened. An "excited utterance" is not testimonial in nature when made by a declarant, who "has no time for reflection or [*4]deliberation and thus has not made the statement in contemplation of its use in a future trial." Key v. State, No 12-04-00030-CR, 2005 WL. 467167, at *3 (Texas Ct. App. Feb. 28, 2005)

This Court holds that the statement immediately made by the homicide victim upon arrival of the police constitutes an "excited utterance" exception to the hearsay rule, is not testimonial in nature and its admission is not a violation of the Sixth Amendment's Confrontation Clause.

The defendant's application to preclude the aforementioned statement is DENIED.

The foregoing shall constitute the decision and order of the Court.

Dated:

Honorable Joseph Fisch Footnotes

Footnote 1: After the Court's trial ruling, the Appellate Division, First Department, in People v. Diaz, upheld the admission of a statement "that's them" by a witness being treated in an ambulance. Based upon the facts and circumstances under which this "excited utterance" was made, it was held not testimonial, and admission of the statement did not violate the Confrontation Clause. (NYLJ, June 29, 2005, p.1)