| People v Gibian |
| 2010 NY Slip Op 06381 [76 AD3d 583] |
| August 10, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Zachary R. Gibian, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Steven A. Hovani, Guy Arcidiacono,and Glenn Green of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle,J.), rendered January 17, 2007, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Suffolk County, for a new trial.
The defendant identifies three significant grounds for reversal of his conviction; to wit: thepreclusion, on hearsay grounds, of statements purportedly made by the defendant's mother; jurormisconduct during deliberations; and the summary curtailment of defense counsel's closingstatement.
The trial court erred in precluding the defendant from testifying about a statement which hismother allegedly made to him on the day the decedent was killed concerning how she killed thedecedent. The defendant contended that only after his mother made this detailed statement to himdid he confess to the police that he had killed the decedent in an effort to protect her. Thedefendant argued that his testimony as to his mother's statement would establish his motive toprotect his mother by removing evidence from the crime scene and confessing to the police, inaddition to explaining his ability to provide accurate details of the crime in his confession. Thespecific details of the crime contained in the defendant's confession were not inconsistent withthe expert forensic evidence presented to the jury.
The trial court improperly excluded such testimony on the ground that it constitutedinadmissible hearsay. It is settled law that " '[t]he mere utterance of a statement, without regardto its truth, may indicate circumstantially the state of mind of the hearer or of the declarant' " (People v Cromwell, 71 AD3d414, 415 [2010], quoting Prince, Richardson on Evidence § 8-106, at 502 [Farrell11th ed]; see People v Stevens, 174 AD2d 640, 641 [1991]).
The right to present a defense is one of the "minimum essentials of a fair trial"(Chambers v Mississippi, 410 US 284, 294 [1973]; see People v Diallo, 297AD2d 247 [2002]; People v Smith, 195 AD2d 112, 121 [1994]). Under certaincircumstances, it encompasses the right to place before the jury [*2]secondary forms of evidence, such as hearsay (see Chambers vMississippi, 410 US at 294). Depriving a defendant of the opportunity to offer into evidenceanother person's admission to the crime with which he or she has been charged, even though thatadmission may only be offered as a hearsay statement, may deny a defendant his or herfundamental right to present a defense (id. at 302; see People v Smith, 195 AD2dat 121; People v Esteves, 152 AD2d 406, 413 [1989]). Moreover, "where constitutionalrights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not beapplied mechanistically to defeat the ends of justice" (Chambers v Mississippi, 410 USat 302).
Here, the defendant's testimony as to his mother's statement was admissible, as it was "not tobe elicited for the purpose of establishing the truth thereof, but merely to establish thedefendant's state of mind" upon hearing it (People v Boyd, 256 AD2d 350, 351 [1998];see People v Davis, 58 NY2d 1102, 1103 [1983]; People v Barr, 60 AD3d 864 [2009]; cf. People v Reynoso,73 NY2d 816, 818-819 [1988]). The substance and accuracy of the mother's out-of-courtstatement is important to the state of mind purpose for which the defendant sought to offer suchtestimony. Under the defendant's theory of the case, such testimony established why thedefendant confessed and how the defendant knew the exact details of the murder.Therefore, the mother's statement should not have been excluded (see People vCromwell, 71 AD3d at 415; Peoplev Kass, 59 AD3d 77, 86 [2008] ["Evidence of a statement offered not to prove the truthof its contents but only to prove that the statement was made is not hearsay"]; People vJordan, 201 AD2d 961 [1994]; see also People v Boyd, 256 AD2d at 351).
The dissent's application of the "state of mind" exception to the hearsay rule is morerestrictive than controlling precedent otherwise dictates (see e.g. People v Kass, 59AD3d at 86). Our precedent clearly permits the admission of the statement, but requires the trialcourt to provide a limiting instruction to the jury as to the use of the statement solely for thepurpose of determining the defendant's state of mind, and not for the purpose of actuallyestablishing the truth of the matter asserted in the statement (see e.g. People v Kass, 59AD3d at 85 [after properly receiving testimony pursuant to the state of mind hearsay exception,the trial court erred in failing to "deliver a strong limiting instruction cautioning the jury that thetestimony . . . was not to be considered as any evidence that the defendant actuallymade any such statement"]). Thus, the concern that the defendant's excluded testimony wasoffered for the purpose of accusing the mother of being the killer could have been allayed by alimiting instruction delivered by the trial court (id.).
Moreover, the dissent relies upon People v Reynoso (73 NY2d 816 [1988]), findingit controlling here. The key factor in Reynoso is that the statement offered by thedefendant was made two hours after the crime was committed; thus, it was not offered "to showthe declarant's state of mind at the time the statement was made" (id. at 819[emphasis added]). Rather, the Court of Appeals found "the only relevanc[e] of defendant'sstatement [was] to support his justification defense and establish the past fact of defendant's priorbelief[ ]" (id.). That is not the case here. In the present case, the defendant sought to offera conversation which he had with his mother immediately preceding his removal of evidencefrom the crime scene, thus defining the defendant's "then-present" state of mind. Thedetermination in Reynoso is, therefore, not controlling upon the facts in this case.
In addition, the excluded testimony would not have been cumulative of other testimonyelicited from the defendant with respect to his state of mind. The admitted testimony alone didnot provide the jury with sufficient information to properly evaluate the defendant's claim that hehad been able to accurately describe the killing to the police by relying on details which wereconveyed to him by his mother during their conversation (see People v Kass, 59 AD3d at87; cf. People v Black, 180 AD2d 806, 807 [1992]). The cases relied upon in the dissentdo not suggest a different view. Moreover, the evidence of the defendant's guilt was notoverwhelming where no blood was found on the defendant or his clothing, despite the bloodinessof the crime scene, and where the police observed blood on the mother upon responding to thehouse on the day of the murder. Accordingly, the exclusion of the defendant's state of mindtestimony cannot be viewed as harmless (see People v Minor, 69 NY2d 779, 780[1987]; People v Boyd, 256 AD2d at 350-351).
We note that the defendant offered the testimony wholly under the state of mind [*3]exception to the hearsay rule, with no mention or attempt to admitthe testimony as a statement by the mother against her penal interest. In light of this fact, we donot reach the issue of whether the proffered testimony constituted a statement against penalinterest, as it is of no moment on this appeal.
A jury verdict may be set aside on the basis of juror misconduct which, inter alia, "may haveaffected a substantial right of the defendant" (CPL 330.30 [2]; see People v Clark, 81NY2d 913, 914 [1993]; People vGiarletta, 72 AD3d 838 [2010]). However, "not every misstep by a juror rises to theinherently prejudicial level at which reversal is required automatically" (People vBrown, 48 NY2d 388, 394 [1979]; see People v Irizarry, 83 NY2d 557, 561 [1994];People v Giarletta, 72 AD3d838 [2010]). The Court of Appeals has noted that "each case . . . must beexamined [on its unique facts] to determine the nature of the [misconduct] and the likelihood thatprejudice [was] engendered" (People v Brown, 48 NY2d at 394; see People vClark, 81 NY2d 913, 914 [1993]).
We conclude that the trial court's response to evidence of potential juror misconduct duringjury deliberations was inadequate to protect the defendant's right to a fair trial. The defendantproperly preserved this issue for appellate review by filing a motion for a mistrial based uponjuror misconduct pursuant to Criminal Procedure Law § 330.30.
Several instances of juror misconduct arose during deliberations. The trial court was advisedby a member of the jury that juror number 11, who worked as a court officer in another county,was interjecting her professional knowledge into the jury deliberations by voicing certain legalopinions. Although the trial court expressed concern that it did not know "if we got somebodyelse charging the jury in the back while they are deliberating" and whether a member of the juryhad taken "it upon herself to provide her insights as to what jurors can and cannot do duringdeliberations," it failed to undertake any further inquiry into the matter before concluding that nomisconduct had occurred (see e.g.People v Brown, 21 AD3d 1035, 1035-1036 [2005]; People v Simon, 224 AD2d458 [1996]). The record is insufficient to eliminate the potential of undue prejudice to thedefendant by reason of juror number 11 interjecting her professional expertise into the jury'sdeliberation. Under the circumstances, the trial court's failure to conduct a further inquiry leavesus to speculate as to the extent to which said juror's expertise was interjected and the degree towhich the jury's deliberations were tainted as a result thereof (see People v Giarletta, 72 AD3d 838 [2010]). Further, jurornumber 11's conduct, as outlined in the dissent, underscores the need for the trial court to havemade a reasonable inquiry of the jury, which it did not do. On this record, we believe that theconduct of juror number 11 and the trial court's failure to make adequate, reasonable inquiry intoeach aspect of juror number 11's conduct (to wit, threatening that a mistrial would be declared asa result of a fellow juror's note-taking and juror number 11's apparent contribution to thecharacterization of the deadlock charge as an "Allen charge") leads us to conclude thatsuch unchecked conduct rose to a level such that the defendant's right to a fair trial wasprejudiced.
Finally, we find that the trial court improvidently exercised its discretion when, midwaythrough defense counsel's summation, it imposed a time limit on the remainder of his summationwhen no prior limitation had been announced. The closing argument is a basic element of thedefense in a criminal trial and the right of defense counsel to make an effective closing argumentis impaired when counsel is unjustifiably and without timely warning limited during summation(see People v Middleton, 212 AD2d 809, 811 [1995]; People v Brown, 136AD2d 1, 16 [1988], cert denied 488 US 897 [1988]), and without any suggestion by thetrial court that defense counsel's summation was redundant or repetitive (see Herring v NewYork, 422 US 853, 862 [1975]). This right cannot be diluted by the amount of time taken bythe prosecution for its summation.
Here, the trial court did not give any advance warning to defense counsel that it would limitthe length of his summation (cf. People v Brown, 136 AD2d at 16), and it did not imposea time limit on the prosecutor's summation (cf. People v Love, 244 AD2d 431 [1997]).Under the circumstances of this lengthy trial, the sudden midclosing imposition of a time limitupon the defense's summation constituted an unjustifiable limitation which impaired thedefense's right to make an effective closing argument. While the trial court has discretion to limitsummations which are repetitive and redundant (see Herring v New York, 422 US 853,862 [1975]), there is no indication that this was the basis [*4]forthe limitation of the defense's closing argument. Rather, it appears from the record that the trialcourt improperly restricted the defense's time for summation to defense counsel's previousestimate of time without warning defense counsel that no further time would be permitted(see People v Middleton, 212 AD2d at 811).
The Court of Appeals defines two standards for nonconstitutional reversible error. Whereproof of a defendant's guilt is not overwhelming, "every error of law (save, perhaps, one ofsheerest technicality) is, ipso facto, deemed to be prejudicial and to require a reversal,unless that error can be found to have been rendered harmless by the weight and the nature of theother proof" (People v Crimmins, 36 NY2d 230, 241 [1975]; see People vMaldonado, 97 NY2d 522, 530 [2002] [applying this less rigorous standard where proof ofdefendant's guilt is not overwhelming]). However, where the proof of guilt is overwhelming, the"error is prejudicial . . . if the appellate court concludes that there is a significantprobability . . . in the particular case that the jury would have acquitted thedefendant had it not been for the error or errors which occurred" (People v Crimmins, 36NY2d at 242; see People v Grant, 7NY3d 421, 424 [2006]).
The aforementioned errors cumulatively require reversal of the defendant's conviction.When, as here, proof of a defendant's guilt is not overwhelming, there is no occasion to apply theharmless error doctrine, and reversal is required (see People v Maldonado, 97 NY2d at531; People v Bailey, 58 NY2d 272, 278 [1983]; People v Crimmins, 36 NY2dat 241-242). Moreover, even if there were such occasion to apply the rigorous harmless errorstandard of Crimmins and Grant, "it cannot be said that there is no significantprobability that the verdict would have been different absent [the cumulative effect of] theseerrors" (People v Montoya, 63AD3d 961, 965-966 [2009]).
In sum, we find the conclusion inescapable "that the verdict of guilt in this case may not bethe result of honest fact-finding," but rather, the result of the combination of errors by the trialcourt (People v Badine, 301 AD2d 178, 183 [2002]; see People v Montoya, 63AD3d at 965; People v Dean, 50AD3d 1052, 1056 [2008] ["the conduct of the trial, when viewed as a whole, evinces suchundue prejudice to the defendant that she was deprived of her constitutional entitlement to a fairtrial"]). Accordingly, the judgment of conviction must be reversed, and a new trial ordered(see CPL 470.20).
In light of the foregoing, we need not reach the defendant's remaining contentions. Skelos,J.P., Austin, Roman, JJ., concur.
Eng, J., dissents, and votes to affirm the judgment appealed from, with the followingmemorandum:
On February 27, 2005, at sometime after 1:00 p.m., officers of the Suffolk County PoliceDepartment were summoned to a home on McArthur Boulevard in Hauppauge, the residence ofScott and Laura Nager, to investigate a report of a break-in and possible homicide. Uponentering the Nager residence, the police discovered the body of the victim, 51-year-old ScottNager, slumped on a living room sofa. It was later determined that the victim had been killed bya blow to the neck inflicted with an antique Japanese samurai sword, which had nearlydecapitated him. Hours after the discovery of the body, the victim's 18-year-old stepson, thedefendant, Zachary R. Gibian, fully confessed to the crime, giving the police extensive writtenand videotaped statements. However, at trial more than one year later, the defendant repudiatedhis confession, and claimed that his 48-year-old mother, Laura Nager, physically debilitated bymultiple sclerosis, was the true killer. Although the defendant was permitted to testify, withoutany limiting instructions to the jury whatsoever, that his mother killed his stepfather, the majoritynevertheless concludes that the defendant was deprived of a fair trial largely because he was notallowed to recount, in step-by-step detail, precisely what his mother supposedly told him abouthow she had committed the crime. I believe that the trial court properly excluded the defendant'sproposed testimony because it did not genuinely fall within the scope of the state of mindexception to the hearsay rule, and was offered, in reality, as proof of his claim that his motherwas the killer. Accordingly, I respectfully dissent, and vote to affirm the judgment of conviction.[*5]
The defendant's trial commenced on October 23, 2006,and continued for more than three weeks. During the course of trial, 19 witnesses testified for theprosecution, and the defendant took the stand to testify in his own behalf. In addition to thedefendant's confession, the prosecution relied upon the testimony of several of the defendant'sfriends, police officers involved in the investigation, and experts who examined the crime sceneand conducted DNA testing.
The defendant's friends T.J. Harrelson and Joseph Rappa both testified that they were awarethat the defendant had a troubled relationship with his stepfather, and that the defendant hadmade statements about killing him prior to the murder. Rappa testified that on the night beforethe murder, the defendant told him that he was thinking of killing his stepfather. Although Rappadid not take the defendant seriously, he attempted to discourage him by telling him that he didnot think it was a good idea. Harrelson similarly stated that the defendant had told him in thepast that he wanted to kill his stepfather, but that he, too, had not taken the defendant seriously.
Harrelson further testified that the defendant slept over at his house the night before themurder, and that he dropped the defendant at home at about 11:00 a.m. the following day, whichwas Sunday, February 27, 2005. Harrelson was on his way to meet his girlfriend and her parentsfor a 12:30 p.m. brunch when he received a phone call from the defendant asking that he be agood friend and come pick him up. When Harrelson arrived at the Nager residence a few minuteslater, the defendant ran out, wearing clothing different from what he had had on that morning,and carrying a black garbage bag. The defendant, who appeared distraught and was breathinghard, told Harrelson that he had killed his stepfather, and asked if he had any blood on him.Although the defendant did not have any blood on him, Harrelson noticed a cut on the back ofhis hand. The defendant also told his friend that the garbage bag he was carrying containedclothes and a knife, and that he had to get rid of it. Harrelson drove the defendant to the Vet'sMall, where the defendant disposed of the garbage bag in a dumpster behind the building.Harrelson then dropped the defendant off at the home of a mutual friend. Before the defendantleft Harrelson's car, the defendant handed Harrelson some containers of Oxycontin pills, andasked him to hide them. Later in the day, when detectives arrived at his home, Harrelson toldthem what had happened, and showed them where he had hidden the pills. Harrelson alsobrought the detectives outside to see his car, which was parked in the driveway. While showingthe detectives his car, Harrelson noticed a latex glove on the floor near the front passenger seat,where the defendant had been sitting.
The police arrived at the Nager residence at about 1:11 p.m. on the afternoon of the murder.According to the testimony of two responding officers, the defendant's mother opened the doorof the residence and led them inside, where they saw the victim's body slumped down on a sofa,partially covered by a white sheet. The mother had a small amount of blood on her hands, andindicated that she had been administering CPR. One of the responding officers also observed thatthe mother appeared weak, and walked very slowly with the assistance of a cane. A detectivewho arrived at the scene about an hour later concluded, based upon his investigation, that theblood on the mother's hands was consistent with that of a person rendering first aid.
The defendant returned home at about 4:30 p.m., and initially told a homicide squaddetective that both his mother and stepfather were asleep when he left the house at 11:30 thatmorning. Shortly before 6:00 p.m., the defendant voluntarily agreed to accompany DetectivesGiordano and Ciccotto to police headquarters. After the defendant was advised of hisconstitutional rights and agreed to speak to the detectives, they began questioning him aboutwhat he had done that weekend. The defendant explained that he had spent Saturday night at theHarrelson residence, and claimed that he had returned home for only a few minutes on Sundaymorning to change clothes. The defendant maintained that both his mother and stepfather wereasleep on separate couches in the living room when he arrived home, and that they were stillasleep 10 to 20 minutes later, when Harrelson picked him up. When the defendant completed hisaccount of his weekend, Detective Ciccotto asked him directly whether he had killed hisstepfather, and the defendant replied that he had not. Detective Ciccotto then asked the defendantwhether he thought his mother was physically capable of killing his stepfather, to which thedefendant answered "no." Detective Ciccotto pressed the defendant to explain who else couldhave killed his stepfather since he and his mother were the only two people in the house, and toldhim that the police were in the process of gathering evidence [*6]which would tell them who the killer was. After voicing his beliefthat the defendant was the killer, Detective Ciccotto once again asked him whether he had killedhis stepfather. At this point, the defendant put his head down, sobbed a little bit, and admitted hisguilt. The defendant stated that he had killed his stepfather with a sword, and explained that hehad done so because his stepfather was abusive and treated him and his mother badly.
In a six-page written statement, the defendant described his stepfather as verbally abusive,and provided a narrative of how the murder had occurred. According to his written confession,when the defendant arrived home Sunday morning, his mother woke up, started crying, andrevealed that she had been fighting with his stepfather all night. The defendant felt "really bad"for his mother, and knew he had to do something. The defendant told his mother to go upstairs,and then proceeded to the garage, where he retrieved a Japanese sword. Returning to the livingroom, the defendant stood behind the couch where his stepfather was sleeping, and hit him onthe left side of the neck. However, the defendant did not swing hard enough, and his stepfathersat up, holding his neck and demanding to know who had hit him. The defendant, who washiding behind a small wall in back of the couch, moved out from behind the wall. When thedefendant's stepfather saw him, he cursed at him and said that he "should have killed" thedefendant. The defendant then hit his stepfather with the sword in the back of the neck, killinghim. The defendant placed the sword, along with the clothes and latex gloves he had beenwearing, in a black plastic bag, which he later disposed of in a dumpster behind Vet's Mall. Thedefendant also placed other items, including a silver revolver and some pills, in the plastic bag,in the hope that if it were to be discovered, the police would think that somebody had brokeninto the house to steal these things. After signing his written confession, the defendant drewthree sketches illustrating the position of the furniture in his family's living room, and indicatingwhere he was standing when he struck the first and second blows. The defendant later repeatedhis confession on videotape.
At about 9:00 p.m. that evening, the police recovered the black plastic bag, which contained,among other things, the defendant's jeans and sweatshirt, and a razor sharp 23-inch Samuraisword, which weighed approximately 1½ pounds. Only the first 9½ inches of thesword, from the tip down, were stained with blood, and there were no bloodstains on the clothingrecovered from the bag. However, a serologist employed by the Suffolk County Crime Labtestified that two different bloodstains on a T-shirt found in the defendant's room matched thevictim's DNA profile. A forensic scientist thereafter explained that the blood stains on the T-shirtwere contact stains, of the type which would be caused if a bloody object had been placed on topof the garment. The forensic scientist further testified that the description of the murder set forthin the defendant's confession was consistent with the blood splatter patterns found at the crimescene, and that given the position where the perpetrator was standing when the blows wereinflicted, he would not expect to find blood on the handle of the murder weapon, or on theperpetrator.
Additional expert testimony was provided by the Suffolk County Deputy Medical Examiner,who explained that her autopsy revealed that the victim had sustained sharp force injuries to theleft side of the face, the back of the neck, and the fingers on the left hand. In her opinion, themost likely scenario was that the killer inflicted two blows with a sharp cutting instrument. Thefirst injury was consistent with the victim lying down on the couch and being struck by anassailant positioned behind the couch. The injuries to the victim's fingers were consistent withthe infliction of the second blow while the victim was in a seated position, with his hand to theside of his neck. The Medical Examiner further testified that in view of the assailant's positionbehind the couch, it was not surprising that the killer would have no blood on any part of hisbody.
Although the defendant's confession indicated that his stepfather was verbally abusive, attrial he portrayed himself as the victim of sexual abuse, which allegedly began when he was 15years old. The first incident occurred when his stepfather, who was drunk, pointed a 9 millimetergun at the defendant, and told him that he had to give him oral sex or he would kill the defendantand the defendant's mother. On that same occasion, the defendant's stepfather also ordered thedefendant to take photographs of him with a tommy gun in his mouth. Two photographs of thedefendant's stepfather posing with a gun in his mouth were published to the jury. The defendantfurther maintained that the sexual abuse continued up until the night before the murder. [*7]According to the defendant, his mother walked into the room whilethis final act of sexual abuse was occurring, and began yelling at his stepfather. The defendantthen ran out of the room, and called his friend Harrelson, who picked him up.
The defendant further testified that he slept over at the Harrelson residence, and returnedhome at about 11:00 a.m. on Sunday morning. When the defendant entered the house, he saw hisstepfather sitting up on one couch with a big cut to the back of his neck and the side of his face.The defendant's mother was seated on another couch, crying and holding a bloody towel. Therewas also blood on the mother's face and on her pajamas. The defendant stated that he asked hismother what had happened, but before he could reveal her reply, the prosecutor raised a hearsayobjection. During a discussion outside the presence of the jury, defense counsel claimed that hewished to elicit testimony about the mother's statements to the defendant, not for the truth of thematter asserted in those statements, but as evidence of the defendant's state of mind and todemonstrate why he confessed. Defense counsel further advised the trial court that if thedefendant was permitted to testify about what his mother told him, he would state that she hadbeen "very specific," and had told him "she went to the garage, got the sword, came back. Hewas asleep, he was laying down on the couch. She hit him on the left side. He sat up. He grabbedhis ear. He started yelling things. She hit him again behind the back of the neck and he wasdead." Defense counsel further claimed that "[t]he only way I can explain to the jury why, whathe said in his written . . . [confession], is to have him say the words she said to him,which then created his state of mind and his motivation to do what he did." The court sustainedthe prosecutor's objection.
Although the defendant was not permitted to specifically recount what his mother allegedlytold him about the murder, he was able to testify that he sat down with her for several minutes,and that after she gave him "an explanation" about what had occurred, he told her to go upstairsand clean up. The defendant then took the sword, which was leaning against the couch, andplaced it in a black plastic bag, along with the clothes he had been wearing, and other itemsincluding Oxycontin pills, a revolver, and two knives. The defendant stated that he noticed thesword because his mother had pointed it out to him. The defendant further testified that hisstatements to the police about killing his stepfather were untrue, and repeatedly maintained thathe had confessed to protect his mother. He similarly claimed that protecting his mother was hismotivation for attempting to make it appear as if the Nager residence had been burglarized. Thedefendant also explained that he was able to draw sketches depicting where he was standingwhen he struck his stepfather, and provide a confession that coincided with the forensicscientist's scenario of how the murder had occurred, because his mother had told him "exactlywhat happened." The defendant added that he merely told the police "what I was told. I showedthem what happened that my mother told me." When specifically asked on cross-examinationwho had killed his stepfather, the defendant answered, "my mother." The defendant also assertedthat his mother had promised to come forward and admit that she was the killer, but had not doneso.
On summation, defense counsel explicitly argued that the defendant's mother was the realkiller, and suggested that the police had rushed to judgment by failing to consider her as apossible suspect. Defense counsel submitted to the jury that there had been no proof that themother was indeed physically incapable of using the razor sharp Samurai sword to inflict thecutting wounds which the victim sustained. He also pointed out that the police had failed toexamine the bathroom where the mother cleaned up after the killing because the defendant hadalready confessed. Defense counsel further suggested to the jury that what the mother in fact toldthe defendant when he arrived home on the morning of the murder was that "she retrieves thesword, she goes behind the couch, she hits him. He sits up, he holds his face, she hits him again,he's dead. At that point, [the defendant] makes a decision, I'm going to cover-up for my mom."He concluded by urging the jury to remember that the mother had continually promised thedefendant that she was going to do the right thing and come forward.
After extensive deliberations which included numerous readbacks of testimony, the juryultimately reached a verdict, convicting the defendant of murder in the second degree.
On appeal, the defendant raises several issues, including a claim that the trial court [*8]committed reversible error by precluding him from testifying,pursuant to the state of mind exception to the hearsay rule, as to exactly what his motherallegedly told him about how she had killed his stepfather. The defendant contends that thisevidence was critical because "[t]he only way the jury would understand why he [took the blamein his confession] and how he was accurate, was to tell them the exact words that she used indetailing the crime . . . The evidence would have explained how his state of mindwas created, how he could accurately describe the crime and his motivation to protect hismother." The People respond that despite defense counsel's claim that the proposed testimonywas being offered as circumstantial proof of the defendant's state of mind, in reality, "counselwas attempting to present the jury with hearsay evidence offered for the truth of itsassertion—that [the defendant's] mother committed the murder." I agree that the defendantwas attempting to use his proposed testimony as direct evidence that his mother had killed hisstepfather, and that the exclusion of this testimony was not error.
An out-of-court statement which is offered to prove the truth of its content is hearsay(see Prince, Richardson on Evidence § 8-101 [Farrell 11th ed]; People vHuertas, 75 NY2d 487, 491-492 [1990]; People v Kass, 59 AD3d 77, 86-87 [2008]). Such out-of-courtstatements have traditionally been excluded "because they lack the conventional indicia ofreliability: they are usually not made under oath or other circumstances that impress the speakerwith the solemnity of his [or her] statements; the declarant's word is not subject tocross-examination; and he is not available in order that his demeanor and credibility may beassessed by the jury" (Chambers v Mississippi, 410 US 284, 298 [1973]).
However, it has long been recognized that in some instances, "[t]he mere utterance of astatement, without regard to its truth, may indicate circumstantially the state of mind of thehearer or of the declarant" (Prince, Richardson on Evidence § 8-106, at 502 [Farrell 11thed]; see People v Reynoso, 73 NY2d 816, 819 [1998]). Thus, under what has beentermed an "apparent exception" to the hearsay rule, an out-of-court statement which is offerednot for the truth of its content, but solely for the effect of its utterance, is admissible evidence(see People v Ricco, 56 NY2d 320, 328 [1982]; People v Minor, 69 NY2d 779,780 [1987]; People v Kass, 59 AD3d at 87; People v Stevens, 174 AD2d 640,641 [1991]). For example, in Minor, the defendant was charged with criminal sale of acontrolled substance in the third degree, arising from the sale of drugs to an undercover officer.At trial, he raised an entrapment defense, which he sought to prove by testifying aboutstatements allegedly made by the police informant who had introduced him to the undercoverofficer. The trial court sustained the prosecutor's objections to these statements upon the groundthat they were hearsay, and instructed the jury to disregard any testimony regarding theinformant's statements. In reversing, the Court of Appeals briefly noted that the informant'sstatements were admissible to show inducement and the defendant's state of mind, which wasrelevant to his entrapment defense.
Another illustration of a situation in which an out-of-court statement was found to beadmissible as state of mind evidence is provided by this Court's recent decision in People v Kass (59 AD3d 77[2008]). In that case, the defendant allegedly asked a fellow inmate to help him hire hit men tokill two witnesses who were expected to testify against him. The inmate, a registered jailhouseinformant, reported the defendant's request to the police, and an investigation was beguninvolving undercover officers posing as contract killers. At trial, the defendant claimed that itwas the informant who had first suggested, and then insisted, that the defendant speak with thesupposed hit men, and that he did so only because he was afraid of the informant. In the courseof his testimony, the defendant recounted a conversation during which the informant describedhimself as " 'a very big drug dealer in Washington Heights' " (id. at 86). The prosecutorobjected to this statement as hearsay, and the trial court sustained the objection. In concludingthat it was error to preclude the subject testimony, this Court stated that, "[w]hether theinformant was, in fact, 'a very big drug dealer in Washington Heights' was, of course, entirelyirrelevant to the issues at the defendant's trial. But, given the defendant's testimony that he hadmet and spoken with the 'hit men' only out of fear of the informant, what the defendant thoughtabout the informant was an essential part of the defense. Thus, the informant's boast about being'a very big drug dealer in Washington Heights,' although not relevant for its truth, was veryrelevant for the effect its utterance may have had in contributing to the defendant's fear of theinformant" (id. at 86-87).
In contrast, here, the out-of-court statements the defendant sought to introduce were notnecessary to elucidate his state of mind and explain why he confessed. This is not a situation in[*9]which the defendant sought to testify that his motherimplored him to take the blame for the murder, perhaps because of her fear of imprisonment orpoor health. Rather, defense counsel advised the court that the defendant intended to testify thathis mother told him, in step-by-step detail, exactly how she had committed the crime. Althoughthis testimony was ostensibly offered as state of mind evidence, its purpose was not toshow what motivated the defendant to confess. Rather, it was to explain how the defendant wasable to provide the police with a description of the murder which was fully consistent with theforensic evidence presented at trial. The only import to be drawn from such testimony was thatthe defendant's mother was able to provide him with the details of the crime because she was thekiller. Thus, the proposed testimony was not within the bounds of the state of mind exception.
Analogously, in People v Reynoso (73 NY2d 816 [1988]), the defendant claimedthat the trial court had erred in excluding a statement he had made to his sister, within two hoursafter the shooting, that he believed the victim had been armed. In rejecting the defendant'sargument, the Court of Appeals concluded that "[a]lthough defendant argued that this evidencewas offered solely to establish his state of mind, and thus was not hearsay . . . thestatement was irrelevant unless offered to prove the truth of the matter asserted—thatdefendant believed the victim was armed—and for that purpose it was inadmissiblehearsay" (id. at 819). Here too, while the defendant's proposed testimony was offeredunder the guise of providing insight into his state of mind, its true purpose was to provideevidence that the defendant's mother was, in fact, the killer.
It is also important to note that the defendant failed to establish the necessary foundation forthe admission of his mother's statements into evidence as declarations against penal interest.Declarations against penal interest are regarded as more reliable than other forms of hearsaybased on the assumption that people normally do not make statements damaging to themselvesunless they are true (see People v Brensic, 70 NY2d 9, 14 [1987]; People vSettles, 46 NY2d 154, 167 [1978]). "The exception has been recognized out of necessity andin the belief that the self-inculpating nature of the declaration serves as an adequate substitute forthe assurance of reliability usually derived from the administration of an oath and the testing ofthe statements by cross-examination" (People v Brensic, 70 NY2d at 14). However,since "these traditional guarantees are absent when out-of-court declarations against penalinterest are offered, such evidence is admitted cautiously and only after reliability is firmlyestablished" (id.). Before a declaration against penal interest may be admitted for itstruth, the proponent must establish that: (1) the declarant is unavailable to testify, whether byreason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds; (2)the declarant was aware at the time of the statement was made that it was contrary to his or herpenal interest; (3) the declarant had competent knowledge of the underlying facts; and (4) thereis sufficient competent evidence independent of the declaration to assure its trustworthiness andreliability (id. at 15; see People v Thomas, 68 NY2d 194, 197 [1986], certdenied 480 US 948 [1987]; People v Settles, 46 NY2d at 167).
Discussing the importance of the requirement that there be independent proof of reliability inSettles, the Court of Appeals observed that while the rationale for allowing declarationsagainst penal interest into evidence stems from the belief that a person would not ordinarilymake a statement which would subject himself or herself to criminal prosecution, "[a]s with allgeneralizations . . . human motivation and personality renders the stated reason forpermitting these declarations immediately suspect. Simply stated, people may prevaricate,despite the consequences to themselves, to exculpate those they love or fear, to inculpate thosethey hate or because they are inveterate or pathological liars" (People v Settles, 46 NY2dat 168). Thus, to circumvent fabrication and ensure the reliability of these statements, "theremust be some evidence, independent of the declaration itself, which fairly tends to support thefacts asserted therein . . . By imposing such a requirement a balance is struckbetween the interest of defendant to introduce evidence on his own behalf and the compellinginterest of the State to preserve the integrity of the fact-finding process" (id. at 168-169).
Here, the first prong of the test for admissibility, that the declarant be unavailable, was atleast arguably satisfied by defense counsel's representation that the mother's attorney had advisedhim that she would invoke her Fifth Amendment right against self incrimination if called [*10]to testify. Further, given the circumstances under which themother's statements against penal interest were made, and the nature of those statements, thesecond and third prongs of the test may be deemed satisfied. However, the fourth prong of thetest—that there be sufficient competent evidence independent of the declaration to assureits trustworthiness and reliability, was far from satisfied here. As discussed, the rationale foradmitting statements against penal interest into evidence is that they are more trustworthy thanother forms of hearsay because human experience teaches that people do not ordinarily makestatements which will subject them to criminal prosecution unless those statements are true.However, this rationale loses its force where, as here, the declaration against penal interest hassupposedly been made to the defendant charged with committing the very crime which is thesubject of the declaration. Reliability cannot be presumed where the person with the greatestincentive to prevaricate seeks to assert that someone else admitted the commission of the crime.
Furthermore, there is little, if any, independent evidence to corroborate the truthfulness ofthe mother's purported admission. While the first police officers who responded to the sceneobserved a small amount of blood on the mother's hands, there was testimony that the blood onher hands was consistent with an effort to perform first aid. Moreover, the presence of the bloodon the mother's hands was inconsistent with the forensic evidence, which supported theconclusion that the killer struck both blows while standing behind the sofa. No other independentevidence even remotely links the mother to the homicide, establishing a reasonable possibilitythat the statements the defendant attributes to her were true. Accordingly, the defendant'sproposed testimony could not properly be admitted into evidence as direct evidence of hismother's guilt on the theory that her statements were declarations against penal interest (see People v Ennis, 11 NY3d 403,413 [2008], cert denied 556 US —, 129 S Ct 2383 [2009]; People v Coleman, 69 AD3d 430,431-432 [2010]; People v Manor,38 AD3d 1257, 1258 [2007]; People v Washington, 31 AD3d 795, 796 [2006]; People vRoberts, 288 AD2d 403, 404 [2001]; People v Otero, 288 AD2d 67 [2001]).
In contrast to Chambers v Mississippi (410 US 284 [1973]), upon which the majorityrelies, this is not a case in which the trial court mechanistically applied the hearsay rule in amanner which denied the defendant his right to present a defense. Although the right to present adefense is fundamental, "[i]n the exercise of this right, the accused, as is required of the State,must comply with established rules of procedure and evidence designed to assure both fairnessand reliability in the ascertainment of guilt and innocence" (id. at 302). InChambers, the trial court, in accordance with Mississippi law which did not at that timerecognize declarations against penal interest as an exception to the hearsay rule, refused to allowthree witnesses to testify to statements in which a third party admitted that he had committed themurder with which the defendant was charged. In finding that the exclusion of this testimonydeprived the defendant of a fair trial, the United States Supreme Court noted that the testimonyrejected by the trial court both "bore persuasive assurances of trustworthiness," and was criticalto the defense (id.). While the testimony excluded here can be viewed as critical to thedefense, unlike the testimony excluded in Chambers, it bore no assurance oftrustworthiness. Thus, the exclusion of this testimony did not violate a fundamentalconstitutional right (see People vColeman, 69 AD3d 430 [2010]; People v Williams, 291 AD2d 897 [2002];People v Esteves, 152 AD2d 406 [1989]).
While I believe that the exclusion of the defendant's proposed hearsay testimony was entirelyproper, even assuming that it was not, the defendant's right to present a defense was not curtailedin any meaningful way, because the substance of his proposed testimony was clearly conveyed tothe jury. After describing his own observations when he arrived home on the morning ofFebruary 27, 2005, which circumstantially suggested that his mother was the killer, thedefendant was permitted to testify that after speaking to his mother, he directed her to go upstairsand clean herself up, and then placed the murder weapon—which she had pointed out tohim—in a plastic garbage bag. In addition, the defendant explicitly testified that he wasable to provide the police with an account of the crime, and sketches of the crime scene, whichcoincided with the forensic evidence because his mother had told him exactly what happened.Lest the import of this testimony escape the jury, defense counsel asserted during his closingargument that what the mother actually told the defendant when he arrived home was that shehad retrieved the sword, gone behind the couch, hit the victim once while he was lying down,and hit him again after he sat up. Far from being [*11]prejudiced,the defendant actually benefitted from the indirect manner in which the substance of hisexcluded testimony came before the jury. Had the defendant's hearsay testimony regarding hismother's statements been admitted as state of mind evidence, as the defendant requested, itwould have been incumbent upon the trial court to issue a limiting instruction explaining thatthese statements could not be considered for their truth. However, since the mother's allegedstatements to the defendant were not admitted as state of mind evidence, no such limitinginstruction was given here. The jury was, thus, allowed to freely consider the readily inferablesubstance of the mother's statements to the defendant as direct evidence that she was the killer,which placed the prosecution in the position of having to disprove her guilt. Moreover, despitethe trial court's exclusion of the mother's statements, the defendant was permitted to repeatedlytestify that he confessed to protect her and, thus, was afforded ample opportunity to convey hismental state to the jury (see People v Umonzor, 210 AD2d 516 [1994]). In addition, theevidence of the defendant's guilt, which included the admission he made to his best friend aswell as the detailed statements he gave to the police, was overwhelming. Under thesecircumstances, any error in precluding the proposed testimony was harmless (see People vCrimmins, 36 NY2d 230, 237 [1975]; People v Barr, 60 AD3d 864 [2009]; People v Black, 180AD2d 806, 807 [1992]; People v Martinez, 154 AD2d 401, 402 [1989]).
Nor do I agree that the imposition of a reasonable limit on the length of defense counsel'ssummation was an improvident exercise of discretion. The record reveals that before closingarguments began, the trial court asked both defense counsel and the prosecutor, for schedulingpurposes, to estimate how much time they would need. According to the trial court, both defensecounsel and the prosecutor replied that they would need an hour to an hour and a half. Afterdefense counsel had been speaking for approximately one hour, he requested a brief recess.During the recess, defense counsel advised the trial court that he would need an additional 45minutes to one hour to complete his summation. The trial court noted that defense counsel hadestimated that he would need an hour to an hour and a half for summation, not two hours, andagreed to give defense counsel an additional 45 minutes. When defense counsel resumed hissummation, he told the jury "[f]olks, I'm going to have to move a lot quicker, so please stay withme." Nevertheless, defense counsel completed his summation, which spans over 80 pages of thetrial transcript, without being cut off by the trial court. At the conclusion of the prosecutor'sconsiderably shorter summation, which spans close to 60 pages of the trial transcript, defensecounsel moved for a mistrial, claiming, inter alia, that he had not had sufficient time to completehis summation "in a proper fashion." The trial court denied the motion, stating that defensecounsel had "more than ample time to sum up on this case."
It is beyond cavil that "closing argument for the defense is a basic element of the adversaryfactfinding process in a criminal trial" (Herring v New York, 422 US 853, 858 [1975];see People v Love, 244 AD2d 431 [1997]; People v Brown, 136 AD2d 1, 16[1988], cert denied 488 US 897 [1988]). However, as the United States Supreme Courtexplained in Herring, "[t]his is not to say that closing arguments in a criminal case mustbe uncontrolled or even unrestrained. The presiding judge must be and is given great latitude incontrolling the duration and limiting the scope of closing summations. He [or she] may limitcounsel to a reasonable time and may terminate argument when continuation would be repetitiveor redundant. He [or she] may ensure that argument does not stray unduly from the mark, orotherwise impede the fair and orderly conduct of the trial. In all these respects, he [or she] musthave broad discretion" (Herring v New York, 422 US at 862). Here, both the prosecutorand defense counsel originally estimated that they would need an hour to an hour and a half forclosing arguments. When defense counsel indicated, approximately one hour into his summation,that he would need 45 minutes to one hour more, the court stated that he could have anadditional 45 minutes. Defense counsel later asserted that he was not afforded sufficient time tocomplete his summation in a proper manner, but nothing in the record indicates that he was cutoff, and his summation was considerably longer than the prosecutor's summation. Under thesecircumstances, the trial court did not improperly exercise the broad discretion with which it isvested by limiting the duration of closing arguments, and the defendant's right to present aclosing argument was not impaired (see People v Love, 244 AD2d 431 [1997];People v Troy, 209 AD2d 943, 944 [1994]; People v Brown, 136 AD2d at 16).
Finally, I believe that the record demonstrates that there was no juror misconduct in [*12]this case which would rise to the level of warranting a reversal. Asdeliberations neared their conclusion, the trial court received a note from juror number 7, statingthat he had made some notes at home after the first day of deliberations, and read them to thepanel the next day. When the trial court announced its intention to conduct an inquiry, defensecounsel objected, expressing his belief that juror number 7 was in the minority favoringacquittal, and that calling the juror in for questioning would be "coercing him, as well as the restof the jury panel." Over objection, the trial court asked that juror number 7 be brought in. Jurornumber 7 confirmed, as indicated in his note, that when he went home after the first day ofdeliberations, he made some notes which he then read to his fellow jurors the next morning. Healso made notes during the second day of deliberations, and brought them home. Juror number 7stated that the purpose of the notes was essentially to remind himself of points he wished tobring up during deliberations, and questions he wanted to ask the other members of the panel,and assured the trial court that he had not shown these notes to his family. Juror number 7 furtherrevealed that when juror number 11, who was employed as a court officer in New York City,learned that he had taken notes, she accused him of "trying to get a mistrial," and told the panelthat there would be a mistrial if the note-taking came to the trial court's attention. Juror number 7tore his notes from his notepad and gave them to the jury foreperson, who placed the notes in anenvelope. Juror number 7 also indicated that he continued to write notes during deliberations,which the foreperson would take at the end of the day, and return the next morning.
After the inquiry of juror number 7 was completed, defense counsel moved for a mistrial,arguing that the conduct of juror number 11 in accusing juror number 7 of attempting to cause amistrial, and hiding the note-taking from the trial court, was putting pressure on juror number 7"to back off his position in favor of my client." Defense counsel also contended that jurornumber 11 was "giving advice on the law as to what would happen if the court found out abouthim reading the notes to them." The prosecutor responded that he did not believe that it wasimproper for jurors to take notes during deliberations to augment their discussions, and that itwas not improper for the foreperson to take possession of these notes as the leader of the jury.The trial court expressed concern that juror number 11 had taken "it upon herself to provide herinsights as to what jurors can and cannot do during deliberations." The trial court also noted thatat an earlier point in deliberations when the jurors were given a supplemental charge afterindicating they were deadlocked, they thereafter requested a read back of the "Allencharge" (see Allen v United States, 164 US 492 [1896]), despite the fact that the term"Allen charge" had not been used. As the trial court and the attorneys were in the midstof discussing this issue, the trial court received another note from the jury stating that it was "stilldeadlocked." The trial court then advised the attorneys that it would ascertain from the jurorswhether further deliberations would resolve their differences before determining how to proceedwith respect to juror number 7's note. After the jurors indicated that they wished to continuedeliberating, the prosecutor suggested that before deliberations resume, juror number 7 beadvised that he had done nothing wrong by taking notes, and that he should disregard the opinionother jurors had regarding his note-taking. However, defense counsel objected, asserting that anyconversation with juror number 7 would be inappropriate. Following the resumption ofdeliberations, defense counsel renewed his motion for a mistrial based upon the allegedmisconduct of juror number 11. The trial court denied the motion, stating that after furtherconsideration, it had concluded that "it is clear that nothing improper occurred by this juror, orany other juror on this jury."
To the extent that the defendant now contends that the trial court failed to conduct anadequate inquiry into the issue of misconduct by juror number 11, his contention is unpreservedfor appellate review. Defense counsel protested the trial court's decision to conduct an inquiry ofjuror number 7 in the first instance, and after the questioning of juror number 7 was completed,counsel never requested that an inquiry be made of juror number 11, or any of the other jurors(see People v Hicks, 6 NY3d737, 739 [2005]; People v Albert, 85 NY2d 851, 852 [1995]; People vGonzalez, 232 AD2d 204, 205 [1996]).
In any event, reversal is not required because this is not a situation in which a jurorinterjected his or her professional experience into deliberations in a manner which prejudiced thedefendant by creating the possibility that the verdict might not be based solely on evidencereceived [*13]in open court (see Sheppard v Maxwell,384 US 333, 351 [1966]; People v Arnold, 96 NY2d 358, 364 [2001]). Generally, jurormisconduct constitutes reversible error where "(1) jurors conduct[ ] personal specializedassessments not within the common ken of juror experience and knowledge (2) concerning amaterial issue in the case, and (3) communicat[e] that expert opinion to the rest of the jury panelwith the force of private, untested truth as though it were evidence" (People v Maragh,94 NY2d 569, 574 [2000]; see People vSanti, 3 NY3d 234, 249 [2004]). "Jurors are not, however, required to 'check their lifeexperiences at the courtroom door' " (People v Santi, 3 NY3d at 249, quoting Peoplev Arnold, 96 NY2d at 366). Here juror number 11's professional experience as a courtofficer had no bearing on any of the material issues in the case, and her alleged misconductessentially consists of having identified the instruction the jury was given when deadlocked as an"Allen charge," and having expressed her opinion that bringing juror number 7'snote-taking to the trial court's attention would result in a mistrial. While the better course wouldhave been for either juror number 11 or the jury foreperson to have brought the issue of jurornumber 7's note taking to the trial court immediately to clarify whether this conduct wasprohibited, "not every misstep by a juror rises to the inherently prejudicial level at which reversalis required automatically" (People v Brown, 48 NY2d 388, 394 [1979]; see People vClark, 81 NY2d 913, 914 [1993]; People v Lemay, 69 AD3d 757 [2010]). Considering the nature ofthe alleged misconduct, which was wholly unrelated to the jury's core fact-finding function ofdetermining the defendant's guilt or innocence, there was no significant risk of prejudice to asubstantial right. In the absence of a such a showing of prejudice, the defendant is not entitled toa new trial on the ground of juror misconduct (see People v Rodriguez, 100 NY2d 30, 35[2003]; People v Lemay, 69 AD3d757 [2010]).