Lead Opinion
OPINION OF THE COURT
Defendant appeals his convictions of assault in the first degree and resisting arrest, asserting that an out-of-court, hearsay
On February 5, 2000, Police Officer Jerrold Lutz and his partner came to the aid of Val Grey, a homeless man who had been stabbed twice in the eye. When the police arrived on the scene, defendant, also homeless, was holding in his right hand an ice pick with traces of blood on it while struggling with the victim, who had pinned defendant’s right arm against a wall. Upon seeing the police, the victim screamed, “[H]e stabbed me, he stabbed me.” The police arrested defendant
Grey was given further treatment upon his arrival at the hospital. Finally, approximately one hour after the stabbing, he was interviewed by Lutz and made, in substance, the following statement to the officer about the circumstances leading up to the stabbing:
“[H]e was traveling down the stairway, at the subway station, and he saw a steel garbage can come rolling down the stairs next to him. He informed me that he was under the impression that that garbage can was intended to hit him. He then went back up the stairs to confront whoever threw the garbage can down the stairs. He did not see who threw it. [He stated he was informed by passersby that Mr. Johnson had thrown the can done (sic) the stairs.][2 ] Mr. Johnson was standing approximately fifteen or sо yards away. Approximately. Mr. Grey then went and confronted Mr. Johnson. A struggle ensued. Which resulted in Mr. Grey being stabbed.”
The trial court held a hearing on the People’s motion to introduce the statements at trial, at which Lutz testified. According to the testimony adduced at the hearing, when the police first approached defendant and the victim, who were then struggling with each other, the victim was bleeding heavily from his eye. The victim was “very agitated, very excited, he was confused about what was happening.” Specifically, “[h]is speech was very high pitched, he was screaming at times. He was very unsteady in his movement.” Similarly, when the officer entered the laundromat approximately one to two minutes later, the victim’s demeanor had not changed in any way. Still distraught, the victim stated that he thought he had lost his eye and he asked the officer whether his eye had been “cut out.” The victim “continued to be very agitated” and kept asking the officer how this happened. The victim “was having a little bit of difficulty hearing” the officer. “He was distracted by the amount of pain he was in. He was moaning.” He was also “giving a lot of attention to his left eye. He was very distracted by what was happening to it.”
By the time the officer spoke with the victim in the hospital, however, Grey’s demeanor had become more relaxed in that “[h]e wasn’t moving, he wasn’t fidgeting, he was lying still.” Moreover, Grey’s hospital records, also introduced into evidence at the hearing, reflected that at the time of his admission he was awake, alert and oriented; he was able to follow complex instructions; and his speech was fluent.
Discussion
The familiar common-law hearsay exception for excited utterances, formerly called spontaneous declarations, has been recognized by this Court for nearly a century (see People v Del Vermo,
Stating the rule is simple. Determining a declarant’s mental state—that is, whether at the time the utterance was made a declarant was in fact under the stress of excitement caused by an external event sufficiеnt to still his or her reflective faculties—is considerably more difficult.
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. As we have several times noted, there can be no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances. “The test is whether the utterance was made before there has been time to contrive and misrepresent, i.е., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance” (People v Brown,
While any serious injury may be a significant factor in determining whether the declarant remains under the stress of a startling event, it is not the only factor (see Steven Zeidman, Who Needs an Evidence Code?: The New York Court of Appeals’s Radical Re-Evaluation of Hearsay, 21 Cardozo L Rev 211, 220-221 [1999]). There is, in short, no “injury” exception to the hearsay rule. Indeed, we have never held that any statement made by an injured victim about the event leading to the injury, however long after the trauma, constitutes an excited utterance merely because the viсtim continues to suffer pain caused by the injury. Even in the case of serious injury, the test remains what it has always been: whether the declarant is capable of studied reflection and therefore capable of fabrication.
On the combined facts before us, we cannot say that the declarant’s capacity for reflection and deliberation remained stilled by the time of his final statement to the police. The challenged declaration was made—in narrative form and in response to promрting—a full hour after the startling event (cf. People v Cotto,
Given the victim’s disappearance, this case had to proceed to trial in the absence of a live complaining witness subject to cross-examination.
Nevertheless, we conclude that the error here was harmless beyond a reasonable doubt.
Finally, we have no disagreement with the bulk of the dissent: The right of confrontation is indеed a fundamental right; face-to-face cross-examination of witnesses is greatly to be preferred; and the hospital statement here—unlike the earlier statements—was erroneously admitted. We disagree only as to harmless error on these indisputable facts: Defendant stabbed the victim in the eye with an ice pick; as the medical evidence established, the victim was stabbed twice, negating any possible accident; defense counsel made it “a hundred percent clear” at trial that he was not arguing self-defense, or justification; and, although six other witnesses testified and were subject to cross-examination, the victim had vanished months earlier and could
Accordingly, the order of the Appellate Division should be affirmed.
Notes
. Defendant resisted arrest and punched Lutz’s partner in the face. He was subdued only after being wrestled to the ground by the police. Defendant suffered no injury.
. The double hearsay contained in the bracketed portion of the statement was not admitted before the jury.
. Regrettably, there is no simple, sure-fire test such as that once proposed by the late Irving Younger: “How do you recognize an excited utterance? I can tell you. If hearsay is offered and it begins with ‘My God,’ and ends with an exclamation point, it is an excited utterance” (Younger, An Irreverent Introduction to Hearsay, at 33 [ABA Section of Litig Monograph Series No. 3, 1977]). Neither exclamation nor punctuation can be determinative. Rather, courts must take into account that a variety of circumstances may determine whether a declarant remains under the stress of a startling event.
. Six other witnesses did testify at trial: two police officers, the treating neurosurgeon, the victim’s physical therapist, and an assistant district attorney and her trial preparation assistant.
. Since the right to confront witnesses (see US Const Amend VI; NY Const, art I, § 6) may be implicated when a hearsay statement is introduced at trial, we apply a constitutional standard of harmless error (see People v Crimmins,
Dissenting Opinion
(dissenting). Defendant’s argument on this appeal is that a statement by the complainant in a hospital in answer to police questioning was not an excited utterance and violated his federal and state rights to confront witnesses and to due process. Because defendant’s conviction violated his federal and state constitutional rights to confront witnesses and to due process, I dissent.
Defendant was convicted of assault in the first degree and resisting arrest resulting from the stabbing of the complainant in the eye with an ice pick. The complainant did not testify before the grand jury or at the trial. The evidence was that two police officers came upon the defendant and the complainant while they were struggling with each other and defendant was holding the ice pick. Both men were homeless, the complainant smelled of alсohol and defendant appeared to be slightly intoxicated.
The only evidence of how the struggle between defendant and the complainant occurred resulted from statements of the complainant which were all admitted by the trial court as excited utterances. The first statement, made as the police approached the two men, was, “He stabbed me.” The second statement, made after the police had subdued defendant and after the complainant had wandered into a nеarby laundromat, was that he had lost his eye and a question as to whether or not his eye was still there. In the third statement in the ambulance on the way to the hospital, complainant again said he was stabbed and continued to question whether he would lose his eye. The fourth statement, made at the hospital in response to police questioning about an hour after the incident, without quoting, was substantially as follows: Complainant stated that while he was in a subway station, a garbage can was thrown down the stairs. Complainant felt that the can was thrown at him. He ran up the stairs and someone told him that defendant had thrown the can. He confronted the defendant and during the struggle he was stabbed in his eye. He could not say how the stabbing occurred.
The trial court admitted all of the statements as excited utterances and defendant was convicted. The Appellate Division
At the time of the trial, defendant argued that his right to confront witnesses
Analysis of this case must begin with Pointer v Texas (
“It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And рrobably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case” (id. at 404).
In Pointer, the Supreme Court reversed petitioner’s conviction for robbery because the testimony of the complainant at a preliminary hearing had been used at the trial held after the complainant had moved to California and did not intend to return to Texas. The petitioner did not have an attorney at the preliminаry hearing and was denied the right to cross-examine the complainant.
“The right to cross-examination, protected by the Confrontation Clause, ... is essentially a ‘functional’ right designed to promote reliability in the truth-finding functions of a criminal trial. The cases that have arisen under the Confrontation Clause reflect the application of this functional right” (Kentucky v Stincer,
In dealing with the relationship between the Confrontation Clause and heаrsay evidence, the Supreme Court has stated, “The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay” (Ohio v Roberts,
In Idaho v Wright (
In this case, the defendant’s rights under the Confrontation Clause as articulated in Kentucky v Stincer were violated by the hearsay evidence admitted as substantive evidence without an oppоrtunity for cross-examination and the admission of hearsay evidence without sufficient indications of trustworthiness. Defendant was convicted on the basis of a hospital statement that the majority agrees was inadmissible. Contrary to the decision of the majority, I cannot conclude that the error was harmless beyond a reasonable doubt and that the introduction of the hospital statement did not contribute to the conviction (Chapman v California,
“We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction” (id. at 22).
That a constitutional error can be harmless is not the only relevance of the Chapman case. As important is the Supreme Court’s determination of when an error is harmless. The Court stated:
“We prefer the approach оf this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut,375 U. S. 85 . There we said: ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ Id., at 86-87. . . . There is little, if any, difference between our statement in Fahy v. Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable dоubt that the error complained of did not contribute to the verdict obtained” (386 US at 23-24 ).
There are situations in which the fundamental interests served by the right to confront witnesses are not significantly impaired by the admission of a hearsay statement that falls under an exception (cf. Lilly v Virginia). In this case, however, the challenged statement does not even fall within a hearsay exception. The introduction of that statement violated defendant’s right of cross-examination and was prejudicial in that it gave only the complainant’s version of the events without cross-examination. Moreover, the complainant could not say how the stabbing occurred. Defendant had no burden at the trial and was presumed innocent.
The statements made at the scene, in the laundromat and in the ambulance, even assuming their admission was normally proper under Ohio v Roberts and Idaho v Wright, did not bear a sufficient indication of reliability. The complainant had a motive to lie because he went looking for the person who had thrown a trash can and sought a confrontation. Moreover, the fact that
The evidence leaves little doubt that defendant stabbed the victim. The same cannot be said of the evidence that defendant did so intentionally. How the confrontation proceeded and how the stabbing occurred, whether deliberately or accidently during a struggle, are unknown. Had the complainant been subject to cross-examination, questions surrounding the incident would have been answered and the jury might have gotten a more complete picture of the confrontation.
I would reverse the conviction.
Judges Ciparick, Rosenblatt, Grafpeo and Read concur with Chief Judge Kaye; Judge G.B. Smith dissents and votes to reverse in a separate opinion.
Order affirmed.
. Both the Sixth Amendment to the United States Constitution and article I, § 6 of the New York State Constitution give a defendant the right to confront witnesses against him or her. The Fourteenth Amendment to the Constitution and article I, § 6 of the New York State Constitution assure the right to due process and a fair trial.
. In White v Illinois (