People v Williams

[*1] People v Williams 2007 NY Slip Op 51255(U) [16 Misc 3d 1104(A)] Decided on June 25, 2007 Supreme Court, Kings County Gerges, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2007
Supreme Court, Kings County

The People of the State of New York

against

Rannik Williams, Defendant.



8203/2005



Attorneys

Geoffrey Stewart, Esq.

350 Broadway

Suite 700

New York, NY 10013

ADA Rupert Barry

350 Jay Street

Brooklyn, NY 11201

Abraham G. Gerges, J.

The District Attorney seeks to introduce into evidence statements made by the deceased shortly before he died. Defendant contends that the statements are violative of Crawford v. Washington, 541 US 36, 124 S. Ct. 1354 [2004].

A hearing was held on May 16, 2007. The District Attorney seeks to introduce statements allegedly made by Micheal Williams [FN1], the deceased, to Detective Castrogiovanni, and to his mother Anselma Williams. Detective Castrogiovanni and Philip DeRosa, an emergency medical specialist, testified at the hearing. The District Attorney relies on Ms. Williams testimony before the grand jury on November 4, 2005.

Facts

On October 26, 2005, sometime after 10:00 pm, Anselma Williams (mother of both the deceased and defendant), Micheal Williams, a daughter and grandson Jacquez were present in their apartment at 245 Cozine Avenue. Defendant Rannik Williams, Jacquez's father, called and spoke to his mother asking that his son be brought downstairs. Micheal and Jacquez went outside. Mrs. Williams opened her window and yelled to her son "Mike, where the car at?" Micheal replied "it's over there." At that moment the telephone rang, and as Mrs. Williams went to pick it up, she heard shots. She then heard Micheal say "Ma, Ma, Ma, my brother shot me. My brother shot me." Mrs. Williams ran outside to Micheal, who was laying in the grass in front of 245 Cozine. Mrs. Williams asked "What happened?" and Micheal, bleeding from 3 gunshot wounds to the stomach, leg and back, replied "My brother shot me. Why my brother shot me? He hate me and I love him so much. Why he do this to me? Why he hate me?" Mrs. Williams then began screaming and yelling for her grandson, Jacquez, who was nowhere to be found.

Moments before Mrs. Williams arrived outside, at approximately 10:50pm Detective Castrogiovanni heard multiple shots fired. The detective and his partner, already in the vicinity, attempted to locate where the shots came from and proceeded to Cozine Avenue. In front of 245 Cozine the detective observed a young male, later identified as Micheal Williams, fall on to the grass. The detective exited the vehicle, waiting to see if anyone fled the area. After waiting a moment, he approached Micheal Williams, who was yelling "Ma, oh shit, oh shit, oh shit". Detective Castrogiovanni twice asked Mr. Williams if he had a weapon, and turning him over, found nothing. Mr. Williams, wearing a blood- stained white t-shirt, was holding his stomach.

Mrs. Williams and others were running out of the building. Detective Castrogiovanni asked the victim, "Who shot you? Help me?" The victim had his hand wrapped around his [*2]mother's ankle and was continually sayaing "Ma, Ma, Ma." The detective again asked the victim "Who shot you?"

Micheal Williams was in pain and having great difficulty breathing, gasping for breath. Once the detective made eye contact with the victim, he realized that he knew Mr. Williams. Detective Castrogiovanni stated, "Mike, look at me." Mr. Williams, attempting to sit up, replied "You know him." The detective again asked "Who is he? You got to tell me his name." Mr. Williams said "It's my brother." Castrogiovanni then asked "Who's your brother?" Micheal then said "Ma, Ma."

Castrogiovanni asked Mrs. Williams if he had a brother and she indicated that he did. In reply to the detective's question regarding the brother's name, Mrs Williams answered "I am not hearing this right now." Detective Castrogiovanni then said to Micheal "Tell me who your brother is," and he replied "You know who he is, his name is Animal." Micheal then asked "How bad is it?" The Detective looked at the chest wound, which appeared to be bleeding internally and said "It doesn't look good. You sure that's who shot you?" Micheal said again "It's my brother, you know him, it's Animal." This conversation took place over the course of two or three minutes.

At approximately 10:55pm, Philip DeRosa, an emergency medical specialist employed by the New York City Fire Department, arrived at the scene with his partner. Mr. Derosa observed the victim laying on the grass and noted that he had been shot in the right thigh, left side of the chest and in the foot. While being treated at the scene, during the ambulance ride and as he was wheeled into the trauma room at the hospital, Micheal repeatedly asked "Am I going to die? I don't want to die. Please don't let me die."

Law

The Sixth Amendment to the United States Constitution and Article I, section 6 of the New York Constitution provide for the right of every defendant to be confronted with the witnesses against him. In Crawford v. Washington, 541 US at 53-54, the United States Supreme Court held that the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." At issue in this analysis is the meaning of "testimonial statements." Crawford provided a number of definitions for this, including "statements taken by police officers in the course of interrogations" Id at 53. Therethe court found that statements made after structured questioning by two detectives hours after the incident were testimonial. Id .

Further clarification was provided by the Supreme Court in the companion cases of Davis v. Washington, 547 US —, 126 S. Ct. 2266 [2006]and Hammon v. Indiana, 547 US , 126 S. Ct. 2266 [2006]) . Statements are non-testimonial,

"when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, 547 US at , 126 S. Ct. at 2273-2274).

[*3]Davis involved statements made during a 911 call by a victim of domestic violence. The 911 operator asked specific questions and the victim described an assault as it was happening; these statements to the 911 operator were deemed not testimonial as the victim was facing an ongoing emergency. Id at 547 US at , 126 S. Ct. at 2276).

Hammon, also a domestic violence matter, involved a detailed statement to police by defendant's wife. The police arrived at the couple's home to find the wife sitting alone on the front porch, with the husband inside. The situation appeared quiet, although there was broken glass in the living room. The police spoke to the wife separately, keeping the husband away, and took a statement and affidavit from the wife; these statements were deemed testimonial as they took place hours after the incident and in a more formal manner.

In People v. Bradley, 8 NY3d 124 [2006], a police officer, in response to a 911 call, was confronted by the victim at the door to an apartment. The victim, with blood on her face and clothing, was visibly shaken, bleeding profusely from a hand injury, and limping. In response to the officer's question about what happened the victim indicated that her boyfriend had thrown her through a glass door. The court found this to be an excited utterance, and non-testimonial as the officer's questions were to meet an ongoing emergency Id at 128. Bradley focused on the facts the officer was confronted with - "a 911 call, a distressed and injured woman- and by the action he took after [the victim] answered his question-entering the apartment without lingering to find out more detail," stating that any responsible officer in the same situation would seek to ensure the victim's safety first and investigate the crime second Id.

In the case at bar, Detective Castrogiovanni and his partner were dealing with an unknown situation involving multiple gunshots. As the first police officers on the scene they approached the scene cautiously while scanning the area for armed individuals. At that time, moments after the gunshots, the officers were concerned about whether anyone in the area was armed; who was the perpetrator; was the threat ongoing; was anyone injured and to what extent, and if other individuals were in jeopardy. In short, the officers were focused on responding to what was clearly an urgent and possibly ongoing threat to public safety.

As the detective approached the apparently wounded victim, he was continually on the alert for weapons and checked to see if Mr. Williams was armed. Mr. Williams was conscious and responsive, yet clearly in great pain from what were mortal wounds The detective's questions were necessarily an attempt to secure the scene and safeguard the area.Castrogiovanni needed to quickly ascertain details and the only source of information initially appeared to be Mr. Williams. The scene was chaotic, with Micheal Williams gravely wounded, people running about and Mrs. Williams screaming for her missing grandson. Castrogiovanni's questions, which took place over a few brief minutes, were clearly designed to meet an ongoing emergency. Until the detective clarified the situation he had no way of knowing if the perpetrator was one of the bystanders in the area; anyone in close proximity to the victim was a likely suspect. Information as to the identity of the gunman was highly relevant to the police at the scene.

As in Bradley, Detective Castrogiovanni's prime motivation could have only been to ensure the victim's safety, and investigate the crime second. The victim's statements to Detective Castrogiovanni are non-testimonial.

Hearsay & Exceptions

[*4]The statements sought to admitted are hearsay as they were made out of court and are offered for the truth of the matter asserted (People v. Caviness, 38 NY2d 227, 230 [1975]). Therefore, they are admissible only if they fall within an exception to the hearsay rule.

Excited Utterance

Statements are admissible under the excited utterance exception where they are made "under the stress of excitement caused by an external event and not under the impetus of studied reflection" (People v. Brown, 70 NY2d 513, 519-520 [1987] citing People v. Edwards, 47 NY 493, 497 [1975])."Among the factors to be considered by a trial court is the period of time between the startling event and the out-of-court statement" (People v. Johnson, 1 NY3d 302, 306 [2003]) . "The test is whether the utterance was made before there has been time to contrive and misrepresent" (Id citing People v. Brown, 70 NY2d at 518). "That statements are made in response to an inquiry does not disqualify them as excited utterances but rather is a fact to be considered by the trial court" (People v. Cotto, 92 NY2d 68 [1998] citing People v. Edwards, 47 NY2d at 498-499).

The statements by Micheal Williams to his mother, which were clearly non-testimonial, were made moments after being shot multiple times. The incident was both sudden and violent. Given the almost instantaneous nature of Micheal Williams comments and the stress of his injuries, he had no opportunity to contrive or misrepresent, nor any time for studied reflection. These statements are admissible as excited utterances.

The statements made by Micheal Williams to Detective Castogiovanni were likewise made within minutes of the incident. The victim, while responsive, was in great pain and acutely suffering from the stress of the shooting with no opportunity for reflection or contrivance. The court has carefully considered that the statements were made in response to inquiries by the detective and finds that these questions did not interrupt the excitement of the shooting and injuries (Cotto, Id at 78). These statements are also admissible as excited utterances.

Dying Declaration

In Crawford the Supreme Court specifically noted that the existence of the dying declaration "exception as a general rule of criminal hearsay law cannot be disputed.. Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are." ( Crawford, 541 US at 55 fn. 6, 124 S. Ct. at 1367, fn. 6).

For a statement to qualify as a dying declaration, the declarant must have been in extremis and must also have spoken under a sense of impending death with no hope of recovery (People v. Nieves, 67 NY2d 125, 132 [1986]). Further, there must be a settled hopeless expectation that death is near at hand (Id at 133 citing Shepard v. United States, 290 US 96, 100 [1933]).

Micheal Williams was in great pain from multiple wounds and gasping for breath. His statements "Ma, Ma, oh shit, oh shit, oh shit." coupled with inquiry to the detective as to the seriousness of the injury and his comments to the EMS worker "Am I going to die? I don't want to die. Please don't let me die" demonstrate that the victim, who was in

extremis, spoke under a sense of impending death. The statements made in the presence of Detective Castrogiovanni while awaiting the arrival of EMS are admissible as dying declarations. [*5]

Present Sense Impression

Present sense impression declarations "are descriptions of events made by a person who is perceiving the event as it is unfolding" (People v. Vasquez, 88 NY2d 561, 575 [1996]). Such declarations are determined to be reliable "because the contemporaneity of the communication minimizes the opportunity for calculated misstatement" or the risk of inaccuracy from a faulty memory Id. The key components to this analysis are contemporaneity and corroboration (Id. See also People v. Buie, 86 NY2d 501 [1995]; People v. Brown, 80 NY2d 729 [1993]) . Both Brown and Vasquez held that corroboration requires "that there must be some independent verification of the declarant's description of the unfolding events" (Id at 737; Vasquez, 88 NY2d at 575.) The critical question is whether the corroboration offered "truly serves its substance and content" (Vasquez at 576).

The non-testimonial statements made here by Micheal Williams to his mother after the multiple gunshots were fired were an immediate recitation of the incident. The shots themselves, heard by Mrs. Williams and Detective Castrogiovanni among others, are sufficient corroboration. These statements are admissible under the present sense impression exception.

The District Attorney's request to introduced evidence of the victim's statement is granted to the extent provided herein. This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:According to the victim's mother, this is the correct spelling of his first name.