People v. Brooks

133 A.D.2d 411, 519 N.Y.S.2d 404, 1987 N.Y. App. Div. LEXIS 49898

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered July 9, 1985, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant stands convicted of manslaughter in the first degree as a result of an incident which occurred on September 22, 1984. On that date, the defendant became embroiled in an altercation with the victim, Carlton Mack, concerning the defendant’s alleged involvement in the robbery of a relative of the victim. The defendant eventually shot Mack, who later died as a consequence of the shotgun wounds he sustained. At the trial, the defendant interposed the defense of justification, claiming that he had fired the weapon after the victim chased him, beat him with a pistol and threatened to kill him.

Although the testimony of three defense witnesses tended to support the justification defense, the witnesses called by the prosecution effectively undermined this defense by indicating in their testimony that the victim was not in possession of a weapon and that he had been in the process of retreating from the defendant when the latter approached his automobile, retrieved a shotgun and fired the fatal shots.

The principal issue which divides this court on appeal is whether certain statements made by the victim of the crime to a nurse who had attended him at the hospital following the shooting—statements which corroborated the testimony of the prosecution witnesses regarding the question of justification— were properly admitted under the excited utterance exception to the prohibition against receipt of hearsay evidence. We answer this question in the affirmative.

At a hearing conducted outside of the presence of the jury, pertaining to the specific issue of whether the victim’s statements did, in fact, constitute excited utterances, Nurse Carol Kostulias testified that she had initially encountered the victim in the emergency room of the hospital at approximately 2:30 p.m. on September 22, 1984. She noted that he appeared to be in shock and had no discernible blood pressure. An oxygen mask as well as intravenous tubing had been utilized by the medical staff in an effort to stabilize the victim. At approximately 4:00 p.m., Mack, who, until that time, had been lapsing in and out of consciousness, regained some degree of lucidity and informed Nurse Kostulias that he had been involved in a fistfight with an individual who had previously robbed his uncle. Mack further declared that in the aftermath of the fight, his opponent approached a car, retrieved a rifle from the trunk and shot him.

According to Nurse Kostulias, although Mack’s condition had improved between 2:30 p.m. and 4:00 p.m., he was, nevertheless, in pain throughout this period of time. Furthermore, despite the fact that during his intermittent and brief intervals of consciousness, Mack had indicated an awareness that he was in a hospital and had, at one point, expressed a desire to sit up and leave, Nurse Kostulias’ efforts, prior to the 4:00 p.m. statement, to converse with Mack in order to assess his level of consciousness revealed that he was essentially unresponsive. Indeed, Nurse Kostulias specifically testified that at 4:00 p.m., when Mack finally explained the source of his injuries, it was the first time he was lucid enough to speak. Although the nurse indicated in her testimony that hospital physicians had apparently spoken with the victim prior to 4:00 p.m., she did not recall whether the incident was discussed. Nurse Kostulias, who was with the victim from the moment he was brought to the emergency room, additionally testified that immediately prior to 5:00 p.m., the victim’s wife had attempted to converse with him; however, he was unable to respond to her inquiries.

Based on the foregoing testimony, we conclude that the trial court did not commit reversible error by admitting into evidence, as excited utterances, the statements made by Mr. Mack. It is evident from the information provided by Nurse Kostulias that the serious and ultimately fatal injuries suffered by Mr. Mack were of the type that could readily still his reflective faculties, prevent the opportunity for deliberation and hamper his ability to fabricate the circumstances surrounding his unfortunate encounter with the defendant (see, People v Edwards, 47 NY2d 493; People v Flowers, 128 AD2d 634, lv denied 69 NY2d 1003; People v Brown, 125 AD2d 320, lv granted 69 NY2d 877).

The testimony adduced at the hearing established that the victim was in shock when initially brought to the hospital and that he was unable to maintain a steady level of consciousness for a prolonged period of time thereafter. While he may have spoken with hospital physicians prior to the challenged statements, the substance of the conversation is unknown and there is no conclusive indication in the record that his comments at that time were rational or even coherent. The fact that Mr. Mack informed hospital employees that he felt well enough to leave the hospital while he was in the process of being prepared for surgery reinforces the conclusion that he lacked the facility to deliberate.

We therefore find that although the victim’s declarations were not coincident in time with the startling event, they were, nevertheless, "uttered while [he] remained under the influence of a startling event, i.e., the shooting and resulting injuries, and not after a period of reflection or deliberation which might have led him to be untruthful” (People v Vigilante, 122 AD2d 900, 901, lv denied 68 NY2d 1005; see also, People v Connors, 121 AD2d 556, lv denied 68 NY2d 768). It is also significant, in this vein, that the statements which the defendant now challenges merely confirmed that which had been attested to by several other prosecution witnesses.

In sum, since the declarations in question were made when the declarant was still under the stress of and wholly dominated by the overwhelming event which caused him to be hospitalized and later caused his death, these declarations were properly held to be admissible by the trial court and a reversal of the judgment of conviction is not warranted on this ground.

Equally unavailing is the defendant’s contention that the sentence imposed was harsh and excessive.

We have reviewed the defendant’s remaining contentions and find them to be without merit. Weinstein, Eiber and Kunzeman, JJ., concur.