People v. Chambers

125 A.D.2d 88, 512 N.Y.S.2d 89, 1987 N.Y. App. Div. LEXIS 40745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1987
• Status: Published

Opinions

OPINION OF THE COURT

Carro, J.

While we reject defendant’s argument that the circumstantial evidence against him was insufficient to prove his guilt of murder in the second degree and other related crimes beyond a reasonable doubt, we do agree that he was deprived of a fair trial when the trial court admitted into evidence the double hearsay statement of the deceased that defendant told her he intended to visit her at her apartment at a particular time on the very day she was killed. In view of the fact that the prosecutor relied on this hearsay statement to place defendant at the scene of the crime and that the jury specifically requested to have that portion of the trial testimony read back to it, we cannot conclude that this error was harmless. Accordingly, we reverse defendant’s convictions of murder in the second degree, robbery in the first degree and burglary in the second degree and remand for a new trial.

On February 4, 1981, Lilly Frenkel was found dead in her apartment. Her wrists were slit and a pillow lay over her face. A plastic bag had been tied around her head. An autopsy revealed that she died of a head wound and asphyxiation. The wrist cuts were determined to have been made by her murderer while she was still alive.

There was no sign of a forced entry into the apartment. The apartment door was found locked. The living room was left basically undisturbed. In the bedroom all the drawers had been removed from a jewelry box on the dresser. There was some blood on the side of a stepstool in the bathroom and a great deal of blood in the kitchen, viz., on the refrigerator, the floor, cabinets, drawers and under the counter. The blood was determined to be that of the deceased. From the refrigerator door the police were able to lift a palm print which was identified as that of the defendant. The palm print, which contained no blood, was located on an area of the door where the blood of the deceased had been splattered and was directly underneath fingerprints which were too smeared for identification, but which contained blood. In the refrigerator, a %th ounce bag of cocaine was found.

The evidence at trial revealed that the 33-year-old Lilly Frenkel lived alone in her apartment, earning a living as a bookkeeper and leg waxer and by selling cocaine and Quaaludes. On February 3, 1981, between 9:00 and 10:00 a.m. Frenkel called her friend Steven Resnick, requesting that he come to her apartment to bring her some things. Resnick arrived between 11:00 and 11:30 a.m. Frenkel told Resnick that she had received a telephone call from defendant who said he planned to visit her that day at 12:30 p.m. She expressed concern to Resnick that defendant was trying to frame her and asked Resnick to take with him bags containing cocaine residue and some pills she had in the house. Between 12:30 and 1:00 p.m. another friend, Trudy King, telephoned Frenkel. Frenkel answered and told her that she would call her back, because she was "doing someone,” which King took to mean that Frenkel was giving someone a leg waxing. King testified that Frenkel sounded strange. King called again at 2:00 p.m. and at other times in the afternoon and evening, each time receiving a busy signal.

Another friend, Steven Cohen, also tried reaching Frenkel on the telephone that evening in order to return her car and also received a busy signal. On the next day, he and a friend decided to go to Frenkel’s apartment. After receiving no answer upon ringing her doorbell, Cohen and his companion went to the superintendent’s office. The superintendent’s wife took the two men to Frenkel’s apartment and unlocked the door. As the door was opened an envelope from Frenkel’s travel agent, which had been placed on the door between 5:30 and 6:00 p.m. the day before, fell to the floor. When Cohen pushed the door open he saw Frenkel lying on the floor. The police were summoned immediately.

On March 2, 1981, defendant’s car was recovered in Dover, Vermont. The car was taken to Dover Town Garage. On April 9, 1981, it was towed to an impound garage in Wilmington, Vermont. When the man towing the car stepped into the driver’s side to release the brake and put the car in neutral, he pressed his foot down and heard glass break. He reached down and put his hand through holes in the carpet, retrieving a gold pocket watch and a platinum pin with three stones. These jewelry items were identified as the property of Frenkel. Defendant was subsequently indicted for the murder of Frenkel.

Defendant was convicted of three counts of murder in the second degree, one count of robbery in the first degree and one count of burglary in the second degree. He was sentenced to concurrent terms of imprisonment of 15 years to life on the murder counts and 5 to 15 years on the other counts. The only issue meriting our review is the propriety of the admission into evidence of the hearsay statement of the deceased that defendant told her he was going to visit her.

It is well recognized that the hearsay rule does not exclude the admission of out-of-court statements demonstrating the state of mind of the declarant when that state of mind is an issue in the case. (United States v Pheaster, 544 F2d 353, 376; United States v Brown, 490 F2d 758, 762.) A particular species of the state-of-mind exception, derived from the seminal case Mutual Life Ins. Co. v Hillmon (145 US 285), additionally holds that when a particular act of the declarant is at issue, the declarant’s statement of a future intent to perform that act is admissible as proof of the declarant’s intent on that issue and as inferential proof that the declarant carried out his intent (supra, at pp 295-296; United States v Pheaster, supra; United States v Brown, supra; People v Malizia, 92 AD2d 154, 155, affd 62 NY2d 755). The majority of courts, beginning as early as the late 1800’s in such cases as Hunter v State (11 Vroom [40 NJL] 495) and Mutual Life Ins. Co. v Hillmon (supra) have further extended this species of the state-of-mind exception, although not without considerably cogent objections from legal scholars and a minority of judicial critics, to hearsay statements of a declarant’s future intent to perform an act with another person as circumstantial proof that the act did occur and, by necessary implication, that the other person participated in the act. (See, 6 Wigmore, Evidence § 1725, n 1 [Chadbourn rev 1976], for a full listing of relevant decisions.)

This issue has evoked especially substantial controversy in criminal cases where the statement sought to be admitted typically involves a highly prejudicial statement by the declarant-deceased that he intended to meet the defendant at a particular place and is offered to prove circumstantially that defendant and the declarant did meet and that defendant had the opportunity to kill the declarant. Because no New York court had previously addressed this issue in a thorough and analytical fashion, this court, in People v Malizia (supra), undertook such an analysis. After carefully weighing the major arguments raised in opposition to extension of the evidentiary exception to such facts, this court joined the overwhelming majority of jurisdictions in upholding the admissibility of such evidence due to its high degree of trustworthiness and its necessity, given the lack of alternative or more reliable evidence. (92 AD2d, at pp 155, 160; but see, Clark v United States, 412 A2d 21, 29-30 [DC App].)

However, to reduce the potential for prejudice against a defendant in applying the state-of-mind exception to such facts, the Malizia court exacted a rigid test for admission of a statement by a deceased of intent to meet another. Such a statement is admissible only "where the statement is made under circumstances that make it probable that the expressed intent was a serious one, and that it was realistically likely that such a meeting would in fact take place.” (92 AD2d, at p 160.) In requiring that the statement contain these strong indicia of reliability and trustworthiness, the court in Malizia was also able to neutralize the otherwise potent arguments raised in opposition to extending the hearsay exception to such statements.

One objection often raised against admitting into evidence statements of intent to perform an act with another as proof that the act occurred is that a considerable contingency is added to the fulfillment of the act in requiring the other person’s cooperation, which contingency, it is argued, detracts from the reliability of the inference that the act indeed occurred. (United States v Pheaster, supra, at p 376; People v Malizia, supra, at p 160.) In Malizia we accepted as persuasive the opposing analysis which regards this added contingency as but one of a host of contingencies which could materialize to frustrate fulfillment of the act. Such contingencies affect the weight to be accorded the statement, not its admissibility, provided sufficient indicia of reliability and trustworthiness are preliminarily met. However, when the contingencies are so copious as to accord the statement little probative value, it scarcely needs argument that the statement’s weak probative value can be so outweighed by the extreme prejudice to the defendant as to warrant its exclusion.

A second objection is that the inference to be drawn from expressions of intent to perform some act with another person is essentially inconsistent with the purpose of the state-of-mind exception, which is to prove the declarant’s intent and inferentially his conduct. To infer from a statement of intent to perform an act with another that the act took place, the trier of fact must infer that the third person also had the intent of performing the act and acted upon that intent, an inference which has nothing to do with the declarant’s state of mind. The reasons for admitting such statements nevertheless are that they are often expressed under circumstances virtually assuring their verity, that they may be the only means available of resolving the issue at hand and that everyday experience supports the view that people are often likely to meet with those whom, in the normal course of events, they say they are going to meet. (People v Malizia, 92 AD2d, at p 160.)

Illustrative of this reasoning is a New Jersey criminal case, Hunter v State (11 Vroom [40 NJL] 495, supra) quoted approvingly and at length in Mutual Life Ins. Co. v Hillmon (145 US, at p 299). In Hunter, the deceased told his son and wrote to his wife that he was on his way to Camden, New Jersey, for a business meeting with Hunter. In admitting this information to infer that the meeting occurred, the court stated: "In the ordinary course of things it was the usual information that a man about leaving home would communicate for the convenience of his family, the information of his friends, or the regulation of his business. At the time it was given, such declarations could, in the nature of things, mean harm to no one; he who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that for which they were obviously designed. If it be said that such notice of an intention of leaving home could have been given without introducing in it the name of Mr. Hunter, the obvious answer to the suggestion I think is, that a reference to the companion who is to accompany the person leaving, is as natural a part of the transaction as is any other incident or quality of it. If it is legitimate to show by a man’s own declarations that he left his home to be gone a week, or for a certain destination, which seems incontestable, why may it not be proved in the same way that a designated person was to bear him company? At the time the words were uttered or written, they imported no wrong-doing to any one, and the reference to the companion who was to go with him was nothing more, as matters then stood, than an indication of an additional circumstance of his going. If it was in the ordinary train of events for this man to leave word, or to state where he was going, it seems to me it was equally so for him to say with whom he was going.” (Hunter v State, supra, at p 538.)

The most significant factor for the Hunter court was that the statement was not uttered under circumstances demonstrating any ulterior purpose or under circumstances presenting any indicia of unreliability. In the context in which the statement was made as Hunter was about to embark on a scheduled business trip, it projected great trustworthiness. Using this same reasoning, this court, in Malizia, joined the overwhelming majority of courts in permitting the admission of hearsay statements of intent by a declarant to meet the defendant as proof that the meeting took place, provided, of course, that the statements are shown to have been made under circumstances making it highly probable that the intent to meet was a serious one and that it was realistically likely such a meeting would, in fact, take place. (People v Malizia, 92 AD2d, at p 160.) That test was met under the Malizia facts. There was evidence there that the declarantdeceased had previously met the defendant at the precise location for similar transactions, was meeting the defendant to give him money the deceased owed him, asked his brother to accompany him to the meeting, took bags of money with him and was seen getting into a car identified as that of the defendant. These facts provided strong evidence of the serious intent of the meeting and that it was realistically likely to occur.

The facts of this case are so lacking in indicia of reliability as to bear little or no comparison with those of Malizia (supra) and cannot be admitted under the state-of-mind exception, even as extended under the Hillmon/Pheaster line of cases. In a conversation with a friend, the deceased related that the defendant had telephoned her earlier and said he intended to visit her that same day at 12:30 p.m. A critical difference here is that the declarant expressed what she believed was another person’s, the defendant’s, intent to perform and act, and we are completely unaware of the circumstances under which defendant expressed that intent to her.

If the pertinent issue at trial had been the reaction of the declarant to the allegedly planned meeting, her apprehension about the meeting or her reason for having certain drugs removed from her apartment, then the statement about the meeting would arguably have been relevant to her state of mind on these issues. Obviously, those were not the purposes intended in having the statement admitted. The sole intended purpose was to prove defendant’s state of mind, that he planned the meeting, and to prove that he carried out his intent. The deceased was obviously not the best person situated to know or surmise what the defendant’s intentions were. Yet, implicit in admitting this evidence to prove that the meeting occurred is the presumption that decedent correctly heard, analyzed and interpreted defendant’s communication to her, even when there is absolutely no evidence before the trier of fact of the context or circumstances under which this communication was made. There is no evidence from which anyone can determine if defendant had made a firm or tentative plan, whether he was hoaxing or even threatening. There is no way to measure the seriousness of the intent.

Furthermore, when the occurrence of the meeting necessarily depended in its entirety on defendant’s motivations, actions and intent, which are unknown under these facts, there is also no plausible manner of calculating whether the meeting was realistically likely to occur. The deceased was a completely passive actor with regard to this proposed meeting. It matters little that she may have thought the meeting was impending, since it is the likelihood of the meeting from defendant’s point of view which must be determined, and that is impossible to estimate. There is not a scintilla of information upon which we can rely to gauge the trustworthiness and firmness of defendant’s intent as stated to the deceased.

Due to the double hearsay nature of this testimony, there is not even adequate proof of defendant’s exact statement. In the usual situation, the trial witness testifies as to what he heard the declarant say regarding an intent to do a certain act. Thus, at least the trial witness heard the statement in question and can be cross-examined as to the exact words he heard and the context in which or the circumstances under which the statement was made. However, the witness in this trial did not hear defendant’s conversation and can only testify to the interpretation given by the decedent and the circumstances under which she related the hearsay conversation, circumstances which are irrelevant in determining, for purposes of admissibility, the trustworthiness of the defendant’s communication.

What must be known in order to meet the Malizia test are the circumstances under which defendant expressed his intent, circumstances absolutely unbeknownst to us. In Hillmon (145 US 285, supra) and Hunter v State (11 Vroom [40 NJL] 495, supra) it was the natural, nonsuspicious, business-like manners in which the statements therein were made which provided a solid and articulable basis for establishing for the reliability of those statements so as to justify relaxation of the hearsay rules in order to admit those statements into evidence. Because the trustworthiness of the statement at bar is not susceptible to evaluation and quantification, the statement should have been excluded. Given the prejudicial effect this statement undoubtedly had on this case, where only circumstantial evidence placed the defendant at the apartment on the day of the killing, we cannot say the error was harmless.

Accordingly, the judgment of the Supreme Court, New York County (Joan Carey, J.), rendered May 3, 1984, convicting defendant, after a trial by jury, of three counts of murder in the second degree and one count each of robbery in the first degree and burglary in the second degree and sentencing him to three indeterminate terms of imprisonment of from 15 years to life on the murder counts, to run concurrently with each other and with concurrent sentences of 5 to 15 years on the robbery and burglary counts, should be reversed, on the law, and the matter remanded for a new trial.