People v Thompson

[*1] People v Thompson 2009 NY Slip Op 52542(U) [25 Misc 3d 1241(A)] Decided on October 14, 2009 Supreme Court, Ulster County Sise, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 14, 2009
Supreme Court, Ulster County

The People of the State of New York, Plaintiff,

against

Eddie Thompson, Jr., Defendant.



195-08



Appearances:

For the People:Hon. Holley D. Carnright

Ulster County District Attorney

For the Defendant:Andrew Kossover, Esq.

Ulster County Public Defender

Richard E. Sise, J.

Defendant Eddie Thompson, Jr., has been indicted on a single count of Murder in the Second Degree (Penal Law § 125.25[1]) in connection with the October 28, 2008 shooting death of Frances Johnson, a 57 year old woman described as Defendant's paramour. Before the Grand Jury, Defendant testified that he accidentally shot Ms Johnson while complying with her request that he assist her by unloading her .25 caliber automatic pistol. The autopsy report indicates that she was shot twice, once in the face and once in the upper back.

The People have brought the instant motion in limine in order to obtain the Court's ruling on admissibility of the following:

1)a diary purportedly written by the decedent;

2)testimony of the decedent's daughter regarding authenticity of the diary and the decedent's state of mind; and

3)testimony of a co-worker of the decedent regarding authenticity of the diary and the decedent's state of mind.

According to the prosecution, the diary and statements decedent made to others will reveal that the victim initially viewed her intimate relationship with Defendant as positive but that over time she became "increasingly troubled by [Defendant's] jealous nature" and eventually began to fear him (Motion, p 2). Because of this, the people argue, she would have been unlikely to have voluntarily handed Defendant a loaded firearm thus refuting his account of the shooting.

Hearsay statements of a deceased crime victim may be admitted to show the state of mind of the declarant at the time the statements were made and/or to show the [*2]declarant's future intention to perform a specific act, but they may be admitted only if the declarant's state of mind or his or her future intention is at issue in the case and if the prejudicial effect of such testimony is outweighed by its relevance and reliability (Mutual Life Ins. Co. v Hillmon, 145 US 285 [1982]). The principal danger of admitting such statements is the trier of fact's improperly considering such statements as reflecting the state of mind of the defendant, not the victim, thereby leading to invalid conclusions about the central issue of the defendant's guilt or innocence. Even when that danger is slight, the prejudicial effect of the statements may in certain circumstances outweigh the value of the statements in providing a complete picture of the facts and events surrounding the crime (People v Asmar, 168 Misc 2d 247, 251 [County Ct., Nassau County 1996], citing to Shepard v United States, 290 US 96 [1933]).

There are three types of cases in which the relevance of and need for such statements is most likely to overcome the possible prejudicial effect of the testimony: 1) where it is alleged that the victim committed suicide, 2) where the defendant claims that he acted in self-defense, or 3) where it is alleged that the death was accidental. A third claim involves a claim of accidental death, where, for example, defendant's version of the facts is that the victim picked up defendant's gun and was accidentally killed while toying with it. In such cases the deceased's statements of fear as to guns or of defendant himself (showing he would never go near defendant under any circumstances) are relevant in that they tend to rebut this defense.

(U.S. v Brown, 490 F2d 758, 767 [DC Cir. 1973], quoted in People v Amsar, 168 Misc 2d, at 252.) Even in such cases, however, if the evidence is highly prejudicial in nature or inherently unreliable, exclusion may still be required even if it is extremely relevant (id).

Hearsay statements made by a murder victim were admitted in People v Kimes (37 AD3d 1 [1st Dept 2006]), where she had expressed to others on several occasions her fear of a tenant and the tenant's son, her intention to evict them from the townhouse she owned, and her future plans which did not include selling the townhouse or engaging in extensive travel. These statements, it was held, were reliable and were extremely relevant to a material issue in the case: whether the decedent was likely to have voluntarily transferred title to the townhouse to the tenant so that she could spend her time traveling, as claimed by the defense.

Similarly, in People v Bierenbaum (301 AD2d 119 [1st Dept 2002]), the jury was allowed to hear several witnesses testify that the victim had told them of troubles in her marriage, that she was afraid of her husband, and that she was planning to leave him. "In a domestic violence homicide, as this clearly is, it is highly probativequite often far outweighing any prejudicethat a couple's marriage was strife-ridden and that defendant previously struck and/or threatened the spouse-victim" (301 AD2d at 146 [citations omitted].) The reliability of this type of testimony can be established both by the nature of the statements themselves (their spontaneity, repetition, and the absence of any motivation to fabricate) and by the relationship between the victim and the persons to whom she spoke (the absence of any coercision, desire to curry favor, or [*3]similar motivation) (id at 144-145, citing to Nucci v Proper, 95 NY2d 597 [2001])

There are few such assurances of reliability in connection with statements that an individual makes in the privacy of his or her own diary or journal, as these statements are not intended to be read by other people and, in the normal course, will never be tested for accuracy or even logic by others. A person who writes in a diary does so with the belief that the product will not be shared with anyone and consequently the entries may well contain secret thoughts, reflections, logical or illogical speculation, desires and even fantasies.

Diary or journal entries written by a deceased crime victim have been held to be "clear hearsay" and thus inadmissible proof of a defendant's motive. In People v. Steiner (30 NY2d 762, 763 [1972] ), it was held that the diary which recorded the wife's suspicion that the husband was having an extra-marital affair was not probative of the husband's state of mind. (See also, People v. Wlasiuk, 32 AD3d 674 [3d Dept 2006] [diary entries were inadmissable because "[t]he state of mind of the victim is only relevant if it can be shown that defendant was aware of same"]; People v. Forgione, 134 AD2d 514 [2d Dept 1987] [statements in the victim's diary "bore little relevance to the defendant's own mental state"].) Where, as in the instant prosecution, the diary or journal entries are intended to be used to provide information about the record-keeper's own state of mind, the information is inherently unreliable for the reasons mentioned above.

The decedent Frances Johnson's diary focused more on thoughts and reflections relating to her relationship with her God than on her relationship with Defendant. Even if her entries about Defendant were to be accepted as reliably accurate, there is nothing to indicate such a strained, adversarial, or physically frightening relationship between them that she would have hesitated asking for assistance if she needed help with a firearm. The decedent made many references to his jealousy and to her dissatisfaction, upset and "frustration" with that attitude, and she was clearly concerned that the relationship might not "work out." The only direct reference to violence of any sort was a purported statement by Defendant that in the past he "could get violent" but that he did not want to hurt her in any way. None of her own statements suggest that she herself had concerns about the possibility of physical violence directed toward her. Additionally, because the diary's contents are personal and emotional, there could well be a prejudicial effect in decedent's favor.

With respect to the proffered testimony of witnesses to whom the decedent had spoken prior to her death, the motion papers indicated only that they would both "authenticate the diary entries and independently establish the victim's state of mind" (Motion, p 7). According to these submissions, one of these witnesses was the victim's minor daughter, who would corroborate that there was an argument between the victim and Defendant the night before the shooting (id, p 4), and the other witness was not identified in the moving papers. No further information about these witnesses was provided in the initial motion papers and consequently that part of the People's request was not given serious consideration at the time.

Subsequently, at the hearing in which the Court announced its ruling on admission of the diary, additional information regarding these two witnesses was providedby the People by way of an "offer of proof." The People asserted that the [*4]victim's daughter, Jeanette, would testify that within days prior to her death, the decedent stated that she had become concerned about her relationship with Defendant, because of his jealousy, and that she was not sure it was going to work out. She also reportedly told her daughter where to find important documents "if anything should happen to me." This latter statement appears to have been made in a short conversation between the mother and daughter held in the early hours of the morning and the precise context of this statement was unclear (Transcript, pp 23-24).

The other proposed witness was a co-worker of decedent, Hortensia Grant, who, it was asserted, would testify that she heard about decedent's relationship with Defendant over an eight month period. Initially, these reports were very positive, but later on there was mention that he "had a temper" and was jealous of any attention the decedent gave to other men. Ms Grant would testify to accounts of specific events, such as the occasion on which Defendant became angry and left the home for a while after the decedent received a telephone call from another man. Ms Grant could not, however, testify that she was told of any acts of violence or that the decedent expressed direct fear of Defendant, and the witness had not observed any bruises or other evidence of violence. In addition to requesting admission of the statements made by decedent to witness Grant, the People also moved in limine, on the oral application,for the admission of statements witness Grant made to the decedent during their last conversation had on the day of the homicide. Namely, Ms Grant purportedly told the decedent "not to go back to her home" because the Defendant "was going to kill her."

The prosecutor stated repeatedly that all of the abovementioned statements were offered to show the state of mind of the decedent, not of the defendant. The statements made by decedent to her daughter and to her co-worker were equivocal and would require the jury to speculate as to any possible relevance they might have to the issues before it. In addition, the statements made by witness Grant to decedent would be rank hearsay to which the Court finds no exception to the exclusionary rule. Furthermore, they would reflect only Grant's state of mind, not the decedent's, and would be very emotionally charged and highly prejudicial.

In summary, presenting either the diary or the proposed testimony of these two witnesses to the jury would require them to engage in undue speculation and projection in order to read into the victim's concern about the future of her relationship with Defendant, or her dislike of his jealousy, any particular concern about safety or the potential for violence. Nothing in the diary entries or the reported statements to others was indicative of extreme fear or would logically lead to an inference that the decedent would have been unwilling to have Defendant handle a firearm in her presence. Moreover, the unproven connection between her statement about "if anything should happen to me" and her emotional unhappiness about some of Defendant's statements or actions would have a prejudicial effect that, in this instance, would far outweigh the informational value of the hearsay statements.

Because the diary entries had little, if any, assurance of reliability and because both those entries and the proffered testimony of the two witness had little relevance or probative value with regard to matters at issue in this trial, the People's motion is denied in its entirety. [*5]

So Ordered.

________________________

Hon. RICHARD E. SISE

Acting Justice of the Supreme Court

Dated: October 14, 2009