People v. Fenner

283 A.D.2d 516, 727 N.Y.S.2d 117, 2001 N.Y. App. Div. LEXIS 5021

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 2001
• Status: Published

Opinions

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered November 7, 1994, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered, with leave to the People to re-present any appropriate charges to another Grand Jury.

The defendant’s conviction arose from an incident in which a witness heard a shot, and then observed the defendant ride away from the victim on a bicycle, holding a gun in his hand. After watching the defendant ride away, the witness rushed over to the victim. The witness told the victim “I can’t believe Les shot you,” and asked “Do you believe that was him?” The victim replied that he could not believe Les shot him.

The decedent’s girlfriend arrived at the scene and asked “[W]ho did this?” The victim replied that he would tell her “later.”

Emergency medical technicians subsequently arrived to transport the victim to the hospital. The victim told his brother, who was in the ambulance with him, to “calm down” and then whispered in his ear that the defendant shot him. Thereafter, at the hospital, the victim told his girlfriend that the defendant shot him.

At a pretrial hearing, over the defendant’s objections that the statements were inadmissible hearsay, the court determined that the victim’s statements to the three witnesses were admissible as excited utterances. We disagree.

In order to admit the victim’s statements as excited utterances, the People were required to establish that the statements were made under the influence of the startling event (see, People v Norton, 79 NY2d 808). In contrast, the evidence in the record clearly indicates that the victim’s first statement was made in response to suggestive comments and questioning by the eyewitness. The victim’s statement reiterating what the eyewitness told him lacked the inherent reliability of an excited utterance (see, People v Edwards, 47 NY2d 493, 496-497; United States v Phelps, 168 F3d 1048; State v Larson, 472 NW2d 120 [Minn 1991], cert denied 502 US 1071).

The victim’s subsequent statements to his brother and girlfriend were made after the victim was no longer under the influence of excitement, and was capable of urging his brother to remain calm. The fact that he whispered the allegation that the defendant was the shooter in his brother’s ear, and told his girlfriend he would tell her who did it “later” indicates he was capable of concealment from personnel in the ambulance. This constituted further evidence that he was capable of studied reflection.

We note that the only other evidence against the defendant was the testimony of the eyewitness, who did not actually see the shooting. Accordingly, the admission of the victim’s out-of-court statements cannot be deemed harmless. S. Miller, J. P., Goldstein and Florio, JJ., concur.