70 N.Y.2d 9 | NY | 1987
OPINION OF THE COURT
Defendant Robert Brensic has been convicted by a Suffolk County jury of murder, second degree, and manslaughter, first degree, for his role in the asphyxiation death of 13-year-old John Pius. In an unrelated case, defendant Douglas Young has been convicted of rape, first degree, and two counts of robbery, second degree, stemming from his participation in an assault upon a woman which occurred on the grounds of the housing project in which he lived. Although others were similarly charged with the crimes arising from these two incidents, both defendants were tried alone and the common issue presented on these appeals is whether the trial courts
I
Out-of-court statements introduced to prove the truth of the matters they assert are hearsay. They may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable (see, People v Nieves, 67 NY2d 125, 131). In these cases the People contend that evidence was properly received as a declaration against penal interest. This exception to the hearsay rule recognizes the general reliability of such statements, notwithstanding the absence of the declarant to testify, because normally people do not make statements damaging to themselves unless they are true.
The exception has been recognized out of necessity and in the belief that the self-inculpating nature of the declaration serves as an adequate substitute for the assurance of reliability usually derived from the administration of an oath and the testing of the statements by cross-examination. Because these traditional guarantees are absent when out-of-court declarations against penal interest are offered, such evidence is admitted cautiously and only after reliability is firmly established (People v Thomas, 68 NY2d 194, 198; People v Geoghegan, 51 NY2d 45, 49; see generally, Fisch, NY Evidence § 891 [2d 1977]). As with all forms of hearsay evidence, a determination of the admissibility of a declaration against penal interest, focusing on the circumstantial probability of its reliability, must be made before it is received; the trial court must determine, by evaluating competent evidence independent of
When the declaration is offered by the People to inculpate the defendant in a criminal trial — as distinguished from declarations offered by defendant to exculpate himself — it is subjected to even more exacting standards in recognition of the due process protections afforded defendants charged with crime including, of course, the requirement that guilt be established beyond a reasonable doubt (see, People v Thomas, supra, at 198; People v Maerling, 46 NY2d 289, 298, supra; see, Martin, Evidence: Declarations Against Interest, Confrontation, NYLJ, Jan. 9, 1987, at 1, col 1; at 2, cols 1, 2). In such instances, the trial court must find that the interest compromised is "of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify” (People v Thomas, supra, at 198). This standard raises a rebuttable presumption of unreliability when the inculpatory declaration is the result of custodial questioning because, in such circumstances, the declarant is likely to have a "strong motive to falsify” in order to curry favor, shift blame, receive immunity from prosecution or obtain a favorable plea bargain (see, People v Geoghegan, 51 NY2d 45, 49, supra; People v Settles, 46 NY2d 154, 166-168, supra; and see Richardson, Evidence op. cit. § 260, at 227-228; cf, Lee v Illinois, 476 US 530, supra). Indeed, some authorities hold that a third party’s statements against penal interest obtained during
When the People seek to introduce the declaration against penal interest of an unavailable third party to inculpate a defendant, through the testimony of an in-court witness, and the defendant claims that such evidence is unreliable, the trial court should conduct a hearing, if there is any dispute concerning the circumstances, to determine whether the criteria for admissibility are actually satisfied (see, People v Thomas, 68 NY2d 194, 198, supra; People v Maerling, 46 NY2d 289, 299, supra). If the court decides to allow such evidence, it should admit only the portion of that statement which is opposed to the declarant’s interest since the guarantee of reliability contained in declarations against penal interest exists only to the extent the statement is disserving to the declarant (see, People v Thomas, supra, at 198 [where the statement — as redacted — did not directly implicate the defendant as a perpetrator of the crime for which he was being tried]; People v Geoghegan, 51 NY2d 45, 49, supra; People v Maerling, supra, at 298-299; and see, Richardson, Evidence op. cit. § 260, at 115 [1972-1985 Cum Supp]). Finally, when the trial court decides to admit a declaration against penal interest through the testimony of a third party, it should give a proper limiting instruction at the time such testimony is introduced and it should also instruct on the use of the evidence during its final jury charge (see, People v Thomas, 68 NY2d 194, 201, supra; see also, 4 Weinstein’s Evidence, United States Rules ff 804 [b] [3] [03], at 804-150 [1985]).
In the two cases before us we are unable to "all but rule out any motive to falsify” on the part of the nontestifying declarants (People v Maerling, 46 NY2d 289, 298, supra). That being so, the People failed to establish the reliability of their statements and it was error to permit the juries to consider them.
II
A
Defendant Robert Brensic has been convicted of killing John
Before receiving the confession, the trial court properly conducted a hearing on admissibility at which the People presented Detective Palumbo to testify about the circumstances underlying Peter’s statements. After hearing this evidence and the legal arguments of counsel for both sides, the court determined that Peter’s confession, recited in his mother’s presence, met the Settles prerequisites and that it was admissible.
At the Settles hearing, Detective Palumbo testified that he questioned Peter for approximately two and a half hours about his knowledge of a certain suspect in the case, Michael O’Neill. Peter eventually told the police that, in fact, Thomas Ryan and defendant Robert Brensic had killed John Pius to prevent him from disclosing that Brensic, Ryan and the Quartararo brothers had stolen a minibike from a house on Brensic’s paper route. Peter admitted that he and his brother Michael were present at the schoolyard at the time of the killing, but stated that they had neither seen nor become involved in it. Palumbo and another detective then took Peter to the crime scene and asked him to. describe where these events had taken place. At that time, Peter gave a new account of the murder, indicating that he and his brother, Michael, had witnessed the murder of Pius by Brensic and Ryan and had helped to bury the body. Upon being told that he would have to testify in court about this, and that Thomas Ryan also had made admissions to the police, Peter gave a third version of the homicide that implicated himself and his brother Michael, as well as Ryan and Brensic. It was then approximately 6:30 p.m. and, for the first time, Peter was given Miranda warnings. He waived his rights because he "wanted to tell the whole thing and get it off his chest.” While
After leaving the schoolyard, the police attempted to contact Peter’s mother but were unsuccessful. They took Peter to McDonald’s for dinner and then proceeded back to the juvenile service unit. In the meantime, Mrs. Quartararo had called the precinct about her missing son and apparently was not told that he was being questioned by the police. At approximately 8:00 p.m., the police reached Mrs. Quartararo by telephone, informed her of the events which had transpired, and requested her to bring her son Michael to the juvenile service unit. She agreed to do so and, when she and Michael arrived, at approximately 8:30 p.m., the Quartararo brothers and their mother were advised of their Miranda rights. They waived them and agreed to speak without the presence of an attorney. Michael was then asked to leave the room and the arresting officer asked Peter to tell his mother, in his own words, what had happened. Peter gave an account of the circumstances surrounding the death of John Pius in which he admitted his own active involvement, that of his brother Michael, and that of Thomas Ryan and defendant Robert Brensic. After he related his story to his mother, Michael Quartararo was brought back into the room and told of his brother’s confession. Michael vehemently denied any involvement in the killing, although he admitted a part in the stealing of the minibike. Peter Quartararo thereafter recanted his confession and denied any involvement in Pius’ death, telling the police he had fabricated the story because he "thought you guys would let me go.” Mrs. Quartararo, and later Mr. Quartararo, spoke alone with Peter in an attempt to persuade him to reaffirm his confession and not be intimidated by his brother Michael, but Peter refused. The Quartararo boys were released, without charge, at approximately 5:45 a.m. on April 29, 1979. Prior to leaving the precinct, Peter spoke alone with Palumbo and another detective telling them "I’ll tell the truth only if Michael will tell it first. Only if Michael will tell what happened first.”
Defendant Brensic and the Quartararo brothers were indicted in December 1979 and Ryan some months later. Bren
On appeal, the Appellate Division determined that, given the prosecutor’s suggestion during summation that the jury consider the confession as corroborating evidence of Brensic’s guilt — coupled with the court’s instructions to the jury — the jury was clearly led to believe it could consider the confession as primary evidence of defendant’s guilt. Hence, admission of the statements raised hearsay and confrontation issues. Nonetheless, the Appellate Division determined that the confession was properly admitted as a declaration against penal interest; that the statement had been properly redacted; and that defendant’s right of confrontation was not violated by admission of the statements. Accordingly, it affirmed defendant’s conviction.
We agree with the Appellate Division that, given the prosecutor’s remarks during summation and the court’s instruction in its jury charge, the jury was led to believe it could use Peter Quartararo’s confession as substantive evidence of de
In its oral ruling on admissibility, the trial court did not determine whether, at the time of the confession, Peter Quartararo had a motive to falsify. In a later written decision, it addressed that issue and found that, once Peter’s mother arrived at the precinct, his obvious motives for falsification no longer became paramount and it was "reasonable to conclude that the statements forthcoming were reliable and worthy of belief’ (People v Brensic, 118 Misc 2d 390, 400). The Appellate Division agreed with this analysis. We conclude, however, that the evidence before the court not only failed to establish the reliability of Peter’s confession, it suggested quite the contrary, that he had a strong motive to fabricate when he confessed to his mother. Accordingly, the confession was unreliable as a matter of law and should not have been received in evidence.
First, the confession was the product of the custodial questioning of a 15-year-old boy for six and a half hours, without his parents’ knowledge, by two police detectives. In the course of this interrogation, Peter gave numerous versions of the events that led to John Pius’ death. In the first account, he clearly attempted to shift the blame by identifying defendant and Thomas Ryan as the murderers, and he claimed that he and his brother did not even see the crime (compare, People v Thomas, 68 NY2d 194, 199-200, supra; People v Geoghegan, 51 NY2d 45, 49-50, supra). Gradually, however, under continual questioning Peter admitted that he and his brother watched the murder and helped bury the body. In none of these versions did he implicate himself in the killing sufficiently for the police to give him Miranda warnings. Finally, he admitted that he and his brother participated in the actual killing, as well, although defendant was clearly identified as the instigator and ringleader. Peter’s admissions became increasingly self-inculpatory as the interrogation wore on, but there is no guarantee that the later version of the killing, recounted in his mother’s presence and implicating defendant, was the accurate one or that the earlier motive to shift blame was not
Next, there is evidence that certain events occurred after Peter Quartararc’s confession to his mother which further undermine its reliability. For example, when his brother refused to admit any involvement in the murder, Peter recanted his confession. Although the People point to Peter’s statement to police that "I’ll tell the truth only if Michael will tell it first” as evidence that the now-recanted confession was reliable, there is no guarantee that the "true” version the brothers might have told would have implicated defendant as did the confession Peter recited to his mother.
Finally, there is evidence in the record to support the inference that Peter did not fully realize that his various admissions and confessions were contrary to his penal interest. He admitted participation in the murder after Detective Palumbo told him in the schoolyard that Brensic and Ryan would be tried for murder, and that he would have to testify against them. He then replied "I may as well tell the truth.” Thus, the possibility exists that Peter thought that only defendant and Ryan would be charged, and his involvement would be limited to testifying as a prosecution witness. Following Peter’s confession, he and his brother were not charged, ánd when they left the precinct the police expected that they would cooperate with the investigation. Moreover, there is no evidence that Peter Quartararo was specifically told that, if he confessed, he would be tried for murder. Palumbo testified that he did not tell Peter he would go to jail for what he was
Given this substantial evidence that the confession was but one of several, each containing material differences, that it was obtained from a juvenile after lengthy custodial questioning and that it was given under circumstances which suggest that it was induced by the hope of leniency, the confession should not have been placed before this jury as evidence of defendant’s guilt. Nor is the argument for reliability stronger because part of Peter’s confession was consistent with other evidence before the jury. The test is whether the confession was truly against the declarant’s penal interests and the People failed, as a matter of law, to establish in this case that it was.
Moreover, the error in admitting the confession cannot be deemed harmless because there is a significant possibility that the jury would reasonably have acquitted defendant had the confession not been admitted (see, People v Crimmins, 36 NY2d 230, 242). There was no physical evidence connecting defendant to the killing.
B
In People v Young, the issue is presented in a slightly
Defendant Douglas Young and three of his friends were charged with various crimes arising from the rape and robbery of 50-year-old Teresa Ocasio at approximately 3:00 a.m. on October 9, 1982. The incident occurred behind a building in the housing project in which defendant lived and was observed by two eyewitnesses who later identified the four assailants. Defendant and Jerome Portis were arrested on October 13, 1982 and taken to the police station for questioning. Detective Foley, who was assigned to investigate the crime, questioned defendant first. After being apprised of his constitutional rights, defendant gave an oral statement indicating that he had observed portions of the attack on Ms. Ocasio, but did not participate in it. Defendant then gave the police a handwritten statement, as did each of the other suspects.
All four defendants moved to suppress their statements and a Huntley hearing was held on their motions. After the testimony of Detective Foley was completed, David Littles and Jerome Portis each pleaded guilty to one count of robbery, first degree, in satisfaction of all seven counts in the indictment against them. Following the presentation of all the evidence, but before the court’s ruling on the suppression motions, Willie Portis similarly pleaded guilty to one count of robbery, first degree. Defendant declined to plea bargain, and his motion to suppress his statements to Detective Foley was denied.
Defendant came to trial before a Judge who had not presided over the Huntley hearing or the codefendants’ plea allocutions. Prior to trial, the People moved for a ruling permitting the admission of the accomplices’ statements on its direct case as evidence of the occurrence and nature of the crimes in which defendant was alleged to have participated. After hearing legal arguments from counsel on the motion, but without taking any evidence, the court ruled that the statements were admissible if properly redacted. On the first day of trial, defense counsel renewed his objection to the admission of the accomplices’ statements, arguing that no evidence had been taken concerning the circumstances surrounding them. Defense counsel also contended that the state
In fact, only David Littles’ confession was admitted into evidence at defendant’s trial. As developed at the Huntley hearing, Littles’ oral and written statements had been taken by Detective Foley several hours after the arrest of defendant and Jerome Portis when Littles had come voluntarily to the police station for questioning and, upon his arrival, saw defendant and Jerome Portis detained in cells. His written confession implicated defendant in the attack.
The parties had stipulated that Littles was unavailable to testify at defendant’s trial because he intended to invoke his privilege against self-incrimination if called. Hence, the confession, as redacted, was admitted through the testimony of Detective Foley without a limiting instruction by the court. Upon being asked if this statement was the sum and substance of David Littles’ statement, Detective Foley said it was not, "The Court said I can’t read”. The prosecutor cut off the witness’ response. Defense counsel’s motion for a mistrial was denied, and the court instructed the jury that they had heard all they were legally entitled to hear of the statement. During summation and without defense counsel’s objection, the prosecutor several times referred to Littles’ confession as evidence upon which the jury was entitled to rely as direct evidence of defendant’s active involvement in the crimes. Although defense counsel asked for an instruction that Littles’ confession could not be used to directly inculpate defendant, but rather only to show that more than one person participated in the crime, the trial court did not give this requested charge. Rather, after discussing how the jury should assess the credibility and weight of Littles’ statement, the court instructed the jury that it could consider the statement as substantive evidence of guilt but that it must be corroborated. The jury convicted defendant of rape, first degree, and two counts of robbery, second degree. On appeal, the Appellate Division affirmed the convictions, holding that Littles’ confession was admissible because it was clearly against his penal interest, the redacted statement did not clearly inculpate defendant, and there were sufficient "indicia of reliability” to survive a Confrontation Clause challenge. We disagree.
Given the remarks of the prosecutor during summation, and the trial court’s instructions to the jury, it is clear that the
The trial court’s ruling was erroneous, because a hearing to determine admissibility is required whenever there are unresolved factual issues concerning the reliability of the proffered statement (see, People v Thomas, 68 NY2d 194, 198, supra; People v Maerling, supra, at 299). In this respect, declarations against penal interests differ from other hearsay statements, such as dying declarations or spontaneous declarations, which are also exceptions to the general rule (cf., People v Egan, 78 AD2d 34). The reliability of declarations against penal interest is predicated entirely on their disserving character and, as we have recognized many times, they may be uttered for a variety of motives, many of them for the declarant’s benefit. Thus, an inquiry is generally required to resolve whether the statement was in fact against the declarant’s interest (see, People v Thomas, 68 NY2d 194, 198, supra) and that the declarant was not motivated by factors casting doubt on its reliability (see, e.g., People v Shortridge, 65 NY2d 309, supra). It is important to know, for example, the relationship of the declarant and the witness, whether the statement was made under the constraints of custodial questioning or spontaneously to disinterested parties, whether it was made to hurt an enemy or help a loved one. Moreover, defendant may assert grounds to believe that the declarant suffers from emotional or psychological instability or is a pathological liar (see, id., at 313). The evaluation of reliability is a matter entrusted to the trial court, and it is only after a determination of admissibility is made that the jury may assess the credibility of the third-party witness whose statement has been introduced (see, People v Settles, 46 NY2d 154, 170, supra; and see, People v Thomas, supra, at 199).
The trial court did not make such a determination here and there is sufficient evidence to hold that it should have done so.
The error in admitting Littles’ confession against defendant as a declaration against penal interest cannot be deemed harmless (see, People v Crimmins, 36 NY2d 230, 242, supra). As in the Brensic case (supra), the jury was invited to use the statement to support other evidence adduced at trial directly implicating defendant in the crimes. Apart from the confession, the only evidence of defendant’s active and intentional participation in the rape and robbery is found in the testimony of the victim and of one eyewitness, and both of these accounts were impeached by the prior inconsistent statements they had made.
Accordingly, in each case, the order of the Appellate Division should be reversed, the conviction vacated and a new trial ordered.
Chief Judge Wachtler and Judges Alexander, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye taking no part.
In each case: Order reversed, etc. [See, 70 NY2d 722.]
. Prior to Peter Quartararo’s trial, the court held a Huntley hearing on his motion to suppress the admissions and confessions. The suppression court ruled, inter alia, that Peter Quartararo’s confession in his mother’s presence, was admissible. The Appellate Division agreed (see, People v Quartararo, 113 AD2d 845, 848). Leave to appeal to this court was denied (66 NY2d 921).
. Because our determination in this case is based on the improper admission of Peter Quartararo’s confession as a declaration against penal interest, we do not reach defendant’s claim that the prosecutor’s suggestion during summation that defendant had destroyed a pair of sneakers that would have linked him to the murder — a claim which was unsupported by any evidence adduced at trial — deprived him of a fair trial.