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Hearsay Or Non-Hearsay: Reversed On Trial Court’s Failure To Admit Non-Hearsay Testimony.

People v. Becoats 2011 NY Slip Op 07306

Decided October 20, 2011

New York Court of Appeals 


(1) Whether the mode of proceedings error was applicable in this case;

(2) Whether the non-hearsay testimony offered by defendant at trial that showed one of the prosecution’s witnesses was a conspirator, and which was deemed inadmissible by the trial court, was reversible error.

Holding: The conviction of one of the defendants, Wright, was reversed on the trial court’s error when it failed to admit certain non-hearsay testimony.  The Court of Appeals found that the mode of proceedings argument was inapplicable in this case.

Facts: Defendants appealed  their convictions for manslaughter and robbery. Wright is entitled to a new trial because of an error in excluding evidence he tried to present in his defense. The People sought to prove that defendants, acting with a third man, beat Hayden Spears to death.

The two witnesses who claimed to have seen the attack were Lorraine Small and Nicholas Carter, Sherrod Carter’s brother. There was forensic evidence consistent with the witnesses’ accounts of the event, but there was no evidence of the attackers’ identity except the eyewitness testimony. A jury convicted both defendants of second degree (depraved indifference) murder and first degree robbery. The Appellate Division modified by reducing the murder convictions to manslaughter in the second degree. 

The indictment included a single count of robbery in the first degree, asserting that defendants “forcibly stole property, to wit, a gun and/or a pair of sneakers from Hayden Spears” and caused serious physical injury to Spears. Becoats and Wright claim that this count was duplicitous — i.e., that the robbery of the gun and the robbery of the sneakers were separate crimes that should have been charged in separate counts. They did not make this argument in the trial court, however, and the Court of Appeals held that it would not consider it.

Legal Analysis:

Mode of Proceedings Error:

The general rule of mode of proceedings error is that this Court does not consider claims of error not preserved by appropriate objection in the court of first instance (CPL 470.05, 470.35; People v Patterson, 39 NY2d 288, 294-295 [1976] . Defendants seek to bring this case within the narrow exception for so-called “mode of proceedings” errors, but the exception does not apply here.

 Patterson: “A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings prescribed by law” (39 NY2d at 295). We added:

“the purpose of this narrow, historical exception is to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute. Where the procedure adopted by the court below is at a basic variance with the mandate of law, the entire trial is irreparably tainted”

The term “mode of proceedings error” is reserved for the most fundamental flaws. Examples are the shifting of the burden of proof from prosecution to defense , and the delegation of the trial judge’s function to his or her law secretary . Mistakenly charging   more than one crime in one count of an indictment is not a fundamental error in this sense.

To allow an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse.  Under the rule defendants here seek, it would be possible for them to make that choice at trial by letting a duplicitous indictment stand without objection, and make the opposite choice on appeal; they might thus obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it. To expand the definition of “mode of proceedings” error too freely would create many such anomalous results.

The Court of Appeals would not consider the defendants’ argument that the indictment was duplicitous and expressed no opinion on it.

Hearsay Issue:

In a deposition given to police about a week after the event, Small (one of the witnesses at trial) told them that she had overheard a conversation in which an attack on Spears was being planned. According to Small, Nicholas Carter took part in the conversation, and Wright was not present. The jury never learned of this conversation; Wright tried to put it in evidence, but the trial court would not let him do so. In this, the Court of Appeals concluded, the trial court erred.

Wright sought at trial to question Small about this conversation, which was helpful to him in two ways — showing both his absence from the planning session and the participation in it by one of the People’s key witnesses. The trial court ruled that the statements Small overheard should be excluded on hearsay grounds.

This ruling was mistaken. Wright argues, perhaps correctly, that Sherrod Carter’s statement that he was going to kill Spears was within the “statement of present intention” exception to the hearsay rule. Wright did not even need to rely on a hearsay exception, because he was not offering Sherrod’s statement, or any other out-of-court declaration, for its truth; Wright had no interest in proving that Sherrod actually intended to kill Spears. Wright wanted only to prove that he was not part of this meeting, and that Nicholas Carter was. His proffer raised no hearsay problem.

 In a case wholly dependent on the testimony of two eyewitnesses — both of whom had criminal records that might have made the jury doubt their word — proof that one of the two had actually participated in planning the crime might have been decisive. It could have supplied the basis for an argument that Nicholas Carter was one of the criminals, and was falsely accusing Wright to conceal his own involvement.

The Court of Appeals held that it was reversible error not to admit this testimony.