People v. Davis

86 A.D.2d 542

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1982
• Status: Published

Opinions

Judgments, Supreme Court, Bronx County (Warner, J.), rendered February 28, 1978 convicting defendants upon a jury verdict of murder in the second degree and criminal possession of a controlled substance in the fifth degree, and sentencing each of them to concurrent terms of imprisonment of 25 years to life on the murder counts and a maximum of 15 years on the controlled substance counts, reversed, on the law, and the matter remanded for a new trial. The prosecution’s theory was that defendants came to the apartment of the decedent to commit robbery, in the course of which they shot and killed the decedent. The defendants’ contention was that they were there to buy narcotics and that, in the course of an argument which escalated into a fight about the purchase price, the decedent’s wife came in with a rifle and fired the rifle intending to hit one of the defendants and instead shot and killed her husband. The major error which leads us to reverse and order a new trial is the consistent ruling of the court during the testimony of the defendants that while each defendant could testify as to what he had said during the criminal incident, he could not testify as to what anyone else had said, including even what his codefendant had said. The court excluded all such testimony as hearsay. The defendants’ testimony as to what was said by anyone other than that defendant at the time of the incident was not excludable under the hearsay rule, as it was not offered as proof of the truth of the facts asserted in the statements thus made (Richardson, Evidence [10th ed], § 200); and the court’s ruling excluding the testimony as hearsay was error. Whether that error was prejudicial is a closer question: Whenever evidence is excluded, an appellate court is in a better position to rule on both the propriety and the harm of the exclusion if the record makes clear what the excluded testimony was. In the present case the defendant Johnson’s attorney, without using the words “offer of proof,” attempted to tell the court what his client would testify to as to the conversations; the court improperly refused to permit defendant’s attorney to do so. However, enough is in the record to give us some idea as to what the excluded testimony would have been, e.g., the1 argument as to price, and most particularly, the decedent’s statement that he ought to shoot the defendants and his calling on his wife to shoot them. As the factual dispute simply related to who had the rifle and who did the shooting — a defendant or the decedent’s wife — the exact language used in the dispute may not be terribly significant. Defendants were permitted to testify to their version of what happened and to the fact that there was an argument and a fight about narcotics. Indeed the jury had a good idea of the language of the alleged conversations (including that decedent was telling his wife to shoot the defendants) from the witness’ interrupted testimony (interrupted by rulings sustaining objections or striking testimony). In one sense, the language used, including whether the decedent called upon his wife to shoot, might be deemed only an incidental detail of the over-all situation and dispute. Defendants having testified that it was decedent’s wife who had the rifle and did the shooting, the jury’s judgment as to their credibility on this issue would not be particularly affected by whether or not the defendants said that at the time of the fight decedent told his wife to shoot (a contention which they obviously were aware of). But it is surely a basic right of a party to a lawsuit, and particularly a defendant in a criminal case, to present his defense and his version (within the rules of evidence) as to what happened at the critical time. As one defendant’s attorney said, “This is the defendant’s moment, a lot rides on it. He is an inarticulate person with limited education.” We think that the defendants, on trial for murder, were so sharply restricted about these conversations that the defendants did not have a full and fair opportunity to present their version of what happened at the time of the killing. The repeated erroneous rulings excluding the conversations probably interfered with defendants’ opportunity to tell their side of the story in a natural and coherent way. Instead, they were repeatedly hampered from doing so by the court’s strict rulings excluding the evidence of each defendant trying to tell what was said as part of the whole story. Concur — Sandler, Silverman and Lynch, JJ.