People v. Nieves-Andino

872 N.E.2d 1188, 9 N.Y.3d 12, 840 N.Y.S.2d 882

• Court: New York Court of Appeals
• Decided: June 28, 2007
• Status: Published

Opinions

OPINION OF THE COURT

Pigott, J.

Jose Millares was shot in the early hours of November 28, 2000 on the Bronx street where he sold drugs. His associate Michael O’Carroll called 911. Within minutes, two police officers arrived on the scene, and immediately went to Millares, who was lying, half on the street, half on the sidewalk, between two parked cars. There was a small crowd of onlookers. Officer Doyle bent down to observe the victim more closely. He was bleeding and. grimacing with pain. As soon as Officer Doyle had summoned an ambulance, he spoke with Millares, who replied in a low voice. The officer asked for, and Millares gave, his name, address and phone number. The officer then asked Millares what had happened. Millares responded that he had argued with a man named Bori, who had shot him three times, and he told the officer Bori’s address. Officer Riordan, meanwhile, searched the location for shell casings, finding four discharged casings from a .380 caliber pistol.

O’Carroll had witnessed the shooting and, after Millares died of his injuries, he informed the police that he had seen defendant Juan Nieves-Andino, who was known as Bori, shoot Mill-ares. O’Carroll knew defendant, who had sold drugs for Mill-ares; in 1999, defendant apparently ventured out on his own, and the two men quarreled.

After being apprehended in Puerto Rico and returned to New York, defendant was charged with second-degree murder and other crimes. He moved in limine for an order excluding, as hearsay, Millares’s statement that he had been shot by a man named Bori. Citing Crawford v Washington (541 US 36 [2004]), defendant argued that admission of the statement would violate his Sixth Amendment right to confront a witness against him. The People responded that the statement was admissible as an excited utterance and that its admission would not violate the Sixth Amendment. Supreme Court agreed with the People.

At trial, Officer Doyle testified that Millares told him he had been shot by a man named Bori, and that Millares had told him where Bori lived. O’Carroll testified that he saw defendant approach Millares, pull a .380 caliber pistol from the pouch of his “hoodie,” and fire four or five shots at Millares, before running away. In addition, autopsy evidence indicated that the cause of death was complications from a gunshot wound. The jury convicted defendant of second-degree murder.

The Appellate Division agreed with Supreme Court that defendant’s right of confrontation was not violated by the admission of Millares’s response to the officer’s questioning. A Judge of this Court granted leave to appeal, and we now affirm.

Our decision is guided by Crawford v Washington (541 US 36 [2004]) and Davis v Washington (547 US 813 [2006]). In those cases, the Supreme Court held that the Federal Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination” (id. at 821). Only statements that are testimonial make the absent declarant a “witness” within the meaning of the Confrontation Clause (see id.). In Davis, the Supreme Court explained that statements made in response to police inquiries are not testimonial when the circumstances “objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” (id. at 822).

Last year, in People v Bradley (8 NY3d 124 [2006]), we had occasion to apply the “primary purpose of the interrogation” analysis set forth in Davis to a statement, made by a woman to a police officer, that her boyfriend had assaulted her. The officer testified that, following a 911 call, he arrived at the door of an apartment to find the shaken woman who was bleeding profusely and walking with a limp. He asked her what had happened and she said her boyfriend had thrown her through a glass door. The officer then found the defendant in the apartment and observed a broken glass door. We held that “defendant’s right of confrontation was not violated by the admission into evidence of a statement made in response to a question from a police officer, where the officer’s evident reason for asking the question was to deal with an emergency” (8 NY3d at 125). Because the victim’s “statement was made when the officer could reasonably have assumed, and apparently did assume, that he had an emergency to deal with” (8 NY3d at 128), it was not testimonial.

Defendant argues that when the assailant, having left the crime scene, no longer poses a physical threat to the victim, the primary purpose of a police officer’s questioning of the victim cannot be to meet an ongoing emergency. We do not believe that Davis imposed such a restricted interpretation of what constitutes a continuing emergency. Whether an officer’s primary reason for making an inquiry was to deal with an emergency is a fact-based question that must necessarily be answered on a case-by-case basis. Even when the assailant has fled, the circumstances of the police officer’s questioning of the victim may objectively indicate that the officer reasonably assumed an ongoing emergency and acted with the primary purpose of preventing further harm.

Officer Doyle arrived at the scene of a recent shooting and, as soon as he had summoned medical help, asked the victim what had happened. Given the speed and sequence of events, the officer could not have been certain that the assailant posed no further danger to Millares or to the onlookers. His brief solicitation of pedigree information and information about the attacker’s identity was part of Officer Doyle’s reasonable efforts to assess what had happened to cause Millares’s injuries and whether there was any continuing danger to the others in the vicinity. In other words, the primary purpose of his inquiry was to find out the nature of the attack, “so that he could decide what, if any, action was necessary to prevent further harm” (Bradley, 8 NY3d at 127). “[T]he nature of what was asked and answered . . . viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past” (Davis, 547 US at 827). In short, Officer Doyle, like the officer in Bradley, reasonably assumed that there was an ongoing emergency. It follows that Millares’s responses to Officer Doyle’s inquiries were nontestimonial (see Bradley, 8 NY3d at 128) and that their admission did not implicate defendant’s right to confrontation.

Contrary to defendant’s urging, Officer Doyle’s questioning of Millares is distinguishable from the interrogation in the companion case to Davis, Hammon v Indiana, in which the Supreme Court held that the victim’s statement was testimonial. In Hammon, the officers questioned a husband and wife in separate rooms following a report of domestic disturbance, and the wife filled out a battery affidavit (see Davis, 547 US at 820). The husband remained under the control of the police during the wife’s questioning in Hammon, so that the police knew that the emergency had ended when they began their inquiries. By contrast, Officer Doyle had no knowledge of the assailant’s whereabouts when he began questioning Millares.

Our holding today is also consistent with the Supreme Court’s dictum in Davis that statements made by a victim of domestic violence to a 911 operator might be testimonial if they were made after the victim told the operator that the assailant had fled (see Davis, 547 US at 828-829). When a 911 operator or a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may “evolve” from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (see Davis, 547 US at 828). On this record, however, the initial purpose of Officer Doyle’s inquiry did not change.

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