People v. Johnson

Defendant appeals his convictions of assault in the first degree and resisting arrest, asserting that an out-of-court, hearsay statement made by the victim of the assault was improperly admitted at trial as an excited utterance. The Appellate Division affirmed. Because we conclude that the trial court’s error was harmless beyond a reasonable doubt, we also affirm.

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 and Grey staggered to a nearby laundromat, where he wiped the blood from his eye with a wet paper towel. One to two minutes later, Lutz entered the laundromat and the victim asked the officer whether “his eye was still intact.” Grey, accompanied by Lutz, was then taken to Bellevue Hospital by ambulance. Throughout the ride, as emergency medical technicians began to treat him, Grey continued to state that he had been stabbed, and continued to express concern that he had lost his eye, asking repeatedly whether it was still there.

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.][] Mr. Johnson was standing approximately fifteen or so yards away. Approximately. Mr. Grey then went and confronted Mr. Johnson. A struggle ensued. Which resulted in Mr. Grey being stabbed.”

Later that night, the victim’s cognitive function began to deteriorate, resulting in the need for emergency brain surgery. After several months of treatment in Bellevue’s rehabilitation program, Grey left the hospital without being discharged. Despite a diligent search by the police and prosecution, Grey could not be located for trial and the People sought to introduce his hearsay statements as excited utterances. On this appeal, defendant does not challenge Grey’s statements at the scene, in the laundromat or in the ambulance, but claims that the final statement to the officer, quoted above, should not have been received in evidence.

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, 192 NY 470, 483-487 [1908]). The principle is easily stated. An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication. “Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy” (People v Edwards, 47 NY2d 493, 497 [1979]). Accordingly, “under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control. . . . [An excited] utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection” (People v Marks, 6 NY2d 67, 71 [1959], quoting 6 Wigmore, Evidence § 1747 [I] [3d ed]).

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 sufficient 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.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance” (People v Brown, 70 NY2d 513, 518 [1987] [internal quotation marks omitted]). Ultimately, “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” (People v Vasquez, 88 NY2d 561, 579 [1996] [internal quotation marks omitted]). Nor does the fact that statements are made in response to police questioning, “standing alone—any more than do other specific circumstances—defeat the admissibility of the responses as excited utterances” (Brown, 70 NY2d at 522).

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 victim 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 prompting—a full hour after the startling event (cf. People v Cotto, 92 NY2d 68, 79 n 3 [1998] [statement made in ambulance less than 10 minutes after declarant was shot admissible as excited utterance]; Edwards, 47 NY2d at 498 [statement made in response to a “simple inquiry”]). Moreover, the declarant had become more relaxed. According to his uncontroverted medical records, he was awake, alert and oriented; he was able to follow complex instructions; and his speech was fluent. In this condition, despite pain, clearly declarant was no longer without the ability to engage in reasoned reflection upon the content of his statement. Indeed, when asked by the prosecutor whether there had been “any pauses or a long time to reflect” when the victim explained his version of events to the officer at the hospital, Lutz responded, “There were moments of reflection.”

Given the victim’s disappearance, this case had to proceed to trial in the absence of a live complaining witness subject to cross-examination. Where the only direct evidence of a defendant’s guilt is in the form of hearsay testimony, courts must be especially vigilant to ensure that only evidence that rises to the level of “inherent reliability” (Edwards, 47 NY2d at 499) underlying such firmly rooted hearsay exceptions as excited utterances is admitted at trial (see 6 Framer and Biskind, Bender’s New York Evidence—CPLR § 24.03 [1], at 24-8 [2003] [factors in determining whether a declaration constitutes an excited utterance include “the fact that the complainant was subject to cross-examination”]).

Nevertheless, we conclude that the error here was harmless beyond a reasonable doubt. Even without the victim’s final statement, eyewitness police testimony established that defendant was holding a blood-stained ice pick while straggling with the victim, who was bleeding heavily from his eye. The victim’s immediate cries—“[h]e stabbed me, he stabbed me”—properly admitted as excited utterances and not challenged on this appeal, proved the identity of defendant as the perpetrator of the crime. Moreover, Grey had been stabbed twice, negating any possibility of accident. Finally, inasmuch as defendant did not argue self-defense at trial, the People had no burden to disprove that defense beyond a reasonable doubt {see Penal Law § 25.00 [1]). Indeed, during the charge conference, the court—“just to make one thing a hundred percent clear”—stated for the record that there had been no evidence of justification. Defense counsel responded, “That is correct.” In short, the evidence of defendant’s guilt was overwhelming.

Finally, we have no disagreement with the bulk of the dissent: The right of confrontation is indeed 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 not be located. On these facts, the conviction should be sustained.

Accordingly, the order of the Appellate Division should be affirmed.

. 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, 36 NY2d 230, 237 [1975]; Chapman v California, 386 US 18 [1967]). But we cannot agree with the dissent that a per se violation of the Confrontation Clause is dispositively established whenever a declarant fails to testify at trial and therefore is not subject to cross-examination.