New Requirement for Excited Utterance Exception to the Hearsay Rule
People v. Cummings
2018 NY Slip Op 03306
New York Court of Appeals
Decided on May 8, 2018
Issue: Whether a statement, heard in the background of a 911 call and spoken by an unidentified person, is admissible at trial under the excited utterance exception to the hearsay rule.
Holding: The Court of Appeals held that the admission of the statement was error because the record contains no evidence from which a trier of fact could reasonably infer that the statement was based on the person observation of the declarant, and the error was not harmless.
Facts: Three men, Relaford, Phillips and Allen, were on a street corner when a vehicle drove past them and parked. The passenger walked past the men but then turned around and pointed a gun at Relaford. The gunman shot all three men, got into the vehicle, and sped off. Phillips called 911. In the background of that call, someone could be heard faintly stating, “Yo, it was Twanek, man! It was Twanek, man!” (the defendant’s name).
A woman at the scene of the crime provided a partial license plate number for the vehicle and an officer later spotted and successfully stopped a minivan matching the description provided by the woman, but the gunman managed to flee. The defendant’s fingerprint was found on the passenger door of the van and cell site data was consistent with his presence in the area at the time of the shooting. No weapon was recovered and the victims failed to identify the defendant in a lineup. Neither the shooter nor the person who stated “it was Twanek” could be identified on surveillance footage.
At trial, the People sought to admit the unidentified person’s statement from the 911 call under the excited utterance exception to the hearsay rule, but the court denied the application. When the jury was unable to reach a verdict, the court declared a mistrial and the case was put on for retrial. At the second trial, under a different judge, the People’s application to admit the statement was again denied. After the judge became ill, she was replaced by another judge who then granted the People’s application. The defendant was subsequently convicted of one count of assault in the second degree.
On appeal, the defendant argued that the law-of-the-case doctrine prevented the substitute judge from reconsidering the prior judge’s decision. He also argued that the ruling was error because there was no evidence that demonstrated that the speaker witnessed the shooting. The Appellate Division denied the arguments and the defendant was granted leave to appeal to the Court of Appeals.
Analysis: “Law of the case” is “a judicially crafted policy that expresses the practice of courts generally to refuse to reopen what has been decided.” However, law of the case does not require a strict application to every judge or decision. On retrial, evidentiary hearings may be reconsidered, but orders determining the result of a suppression hearing generally cannot.
Here, the decision to admit the statements as an excited utterance was an evidentiary decision that was left to the judge’s discretion and, therefore, could be reconsidered at retrial. The Court of Appeals determined that “there was no reason to apply a different rule to a successor judge within the same trial . . .”
An exception to the hearsay rule includes an “excited utterance,” or a spontaneous declaration of the circumstances usually immediately following a startling event. People v. Edwards, 47 NY2d 493, 496-497 (1979). Excited utterances may be allowed at trial because the impulsive nature of the reaction holds a high degree of trustworthiness. However, it must be shown that the individual who made the statement personally observed the incident described in the statement. Direct observation is pertinent because it ensures the declarant was reacting to the event in question.
In this case, the Court was asked whether it was reasonably inferable from the circumstances that the unidentified declarant in the background of the 911 call personally observed the shooting. The Court looked at People v. Fratello, 92 NY2d 565 (1998) and People v. Caviness, 38 NY2d 227 (1975), two cases that also involved the admission of excited utterances.
In Fratello, the declarant was the victim of the shooting—not an observer like the present case. That Court ultimately held that the excited utterance statements were admissible, noting, additionally, that the victim and the defendant had been close friends, the victim accurately identified his car, and the victim observed one of the attackers sufficiently to describe his appearance. However, as Caviness demonstrates, an admissible excited utterance statement does not necessarily have to come from a participant in the event. Statements made from a bystander who had the opportunity to directly observe the unexpected event could be just as admissible.
Unlike Fratello and Caviness, the individual who made the exclamations here was unidentified and, while lack of identification does not automatically prohibit admissibility, it must be shown that the declarant personally witnessed the incident. Here, the Court concluded that there was “no basis from which personal knowledge can reasonably be inferred.” The People relied heavily on the fact that the call occurred immediately after the incident, but video evidence showed that many people who did not directly observe the incident ran over to the site of the shooting after it happened. Thus, the declarant may have only been hypothesizing or repeating someone else’s statements.
While the Court held that the trial court erred in admitting statement in the background of the 911 call, it was also necessary to determine whether the error was harmless since the defendant failed to raise a due process argument. The Court of Appeals concluded that the evidence of the defendant’s guilt was not overwhelming and, therefore, the error was not harmless. The order of the Appellate Division was reversed and a new trial was ordered.