People v Hamilton

[*1] People v Hamilton 2006 NY Slip Op 52399(U) [14 Misc 3d 1203(A)] Decided on December 15, 2006 Supreme Court, Kings County Leventhal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 19, 2006; it will not be published in the printed Official Reports.

Decided on December 15, 2006
Supreme Court, Kings County

The People of the State of New York, Plaintiffs v Rohan Hamilton, Defendant.



327 / 2005



Ed Purce, Esq.

Saeed Mody, Esq.

For the People

Assistant District Attorneys

John Stello, Esq.

For the Defendant

John M. Leventhal, J.

Defendant was charged with Murder in the Second Degree and Criminal Possession of a Weapon in the Second and Third Degrees. It was alleged that defendant shot and killed the mother of his child on or about October 31, 2004.

The People sought to introduce a statement by the then four year-old son of the defendant and the decedent, made to the child's aunt, to the effect that "Daddy shot Mommy." Although the child was available to testify, the People represented on the record that they had no intention of having him testify at the trial of his father for the murder of his mother. The People's theory of [*2][*3]the admissibility of this statement was that it is an excited utterance.

The Court denied the People's application. This opinion explains the Court's decision and addresses the various, multi-layered issues relevant to the admission of the statement.

EXCITED UTTERANCE

The People did not request a hearing, nor was a hearing held, as to whether this statement constituted an excited utterance. One can imagine that if a four year-old child saw one parent shooting another that this would be an excitable event. However, the Court cannot decide whether the child was excited, whether he actually witnessed the shooting and whether this statement is reliable without hearing some testimony.

Additionally, assuming arguendo that this statement were to constitute an excited utterance, the Court would then have to determine whether the statement is testimonial pursuant to the dictates of Crawford v. Washington, 531 U.S. 36 (2004) and Davis v. Washington, 126 S. Ct. 2266 (2006).[FN1] If the statement were deemed testimonial, it would be inadmissible because the child is available to testify. If it were deemed non-testimonial, the Court would then have to determine whether it is reliable under Ohio v. Roberts, 44 U.S. 56 (1980).[FN2] As there was no hearing, the Court is unable to evaluate the reliability of this statement.

Moreover, there is no guarantee that, had the Assistant District Attorney offered the testimony of the child at trial, he would prove to be a competent witness. Although the Criminal Procedure Law has been amended in recent years to lessen the age at which a witness is presumed to understand the nature of an oath,[FN3] (see, CPL 60.20[2]), this witness is under that age. Therefore, before the Court could permit the child to testify under oath, it must be satisfied that the child understands the nature of the oath by assessing whether the child appreciates the difference between a truth and a falsehood. (Id.) Although the CPL permits courts to allow child witnesses to testify without taking the oath, it requires that the court first be "satisfied that the witness possesses sufficient intelligence and capacity to justify the reception" of the unsworn testimony. (Id.)

As the child was not produced before the Court, the child's capacity to understand what it means to tell a lie cannot be ascertained. Furthermore, there was no evidence proffered that he is of sufficient intelligence and capacity to justify the admission of his unsworn testimony. This puts a cloud on the reliability of the statement. As this Court explained in People v. Flores, 2001 WL 1190967 (2001),"[t]he statement of a witness does not become admissible simply because it [*4][*5]is an excited utterance. Testimony that is not directly admissible at trial will not be admitted through the backdoor under an exception to the hearsay rule."[FN4]

For all of the foregoing, the People's application to admit statements of a non-testifying four year-old child [FN5] is denied.

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J.S.C. Footnotes

Footnote 1:Most courts find that statements to civilians are non-testimonial. (See, e.g., U.S. v. Savoca, 335 F. Supp. 2d 385 [S.D.NY 2004]; State v. Ahib Paul a/k/a Paul Ahib, 25 AD3d 165 [N.Y.A.D. 1 Dept. 2005]; U.S. v. Compan, 100 P.3d 533 [Colo. App. 2004]). However, even before the Supreme Court's decision in Davis, supra, one court found that statements made to declarant's grandmother were testimonial. (In re. E.H., 823 N.E.2d 1029 [Ill. App. 1 Dist. 2005]). In the aftermath of Davis, the Supreme Court of West Virginia held that a statement made to a civilian may be testimonial. (State v. Mechling, 219 W.Va. 366 [W.Va. App. 2006]).

Footnote 2:See also, Nucci v. Proper, 95 NY2d 597 (2001).

Footnote 3: This section of the Criminal Procedure Law was amended in 2000, decreasing the age at which a child is presumed to understand the nature of the oath from twelve to nine.

Footnote 4:See also, People v. Sullivan, 117 AD2d 476, 478 (1986) ("If a witness is incompetent to testify such that his in court statements are inadmissible, there is no logical reason why his statements should be admissible merely because they were made out of Court.")

Footnote 5:The Court notes that the child is now six years of age.