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A trial court’s ruling admitting identification of an attacker by a victim as an excited utterance exception to the hearsay rule does not violate a recent U.S. Supreme Court case that buttressed the rights of defendants under the U.S. Constitution’s confrontation clause, New York’s Appellate Division, 1st Department, ruled Tuesday. In People v. Diaz, 5083, the 1st Department upheld the introduction of the phrase “that’s them” by a victim who was lying in an ambulance after the attack, but did not appear at trial to testify about the identity of defendant Jose Diaz. The court said the admission fell outside the U.S. Supreme Court’s recent ruling in Crawford v. Washington, 541 U.S. 36 (2004). Crawford said that the admission of any “testimonial” statement gives the accused an absolute right to cross-examine the person who made the statement under the Sixth Amendment right to confront witnesses. Those testimonial statements, the Court said, are inadmissible where the witness is unavailable and the defendant has not had an opportunity to cross-examine the witness. Diaz was one of three men who allegedly attacked Neno Espejo and Eduardo Carillo in a gang assault outside of a bar in the Inwood section of Manhattan on July 16, 2001. Carillo, slashed repeatedly with a box cutter, was lying on a stretcher when an officer who had found Diaz and a co-defendant crouching in an alley, both with blood on their hands or clothing, brought the two men over to Carillo. A second officer present at the scene testified at trial that Carillo’s “face lit up” when he saw the two men and that he said, “That’s them.” Diaz was convicted of gang assault in the first degree before Manhattan Supreme Court Justice Renee A. White. His appeal, which focused on the insufficiency of the evidence and the alleged Crawford violation, was decided by a panel of Justices Angela M. Mazzarelli, George D. Marlow, Betty Weinberg Ellerin, Luis A. Gonzalez and James M. Catterson. Mazzarelli, writing for the unanimous panel, said that judges around the country have been “grappling” with the issue of the definition of testimonial evidence since Crawford was issued. “In all of these discussions, close attention has been paid to the facts of the particular case under consideration, as the determination of whether a statement is ‘testimonial’ or not can only be made by examining how the statement came about,” Mazzarelli said. Here, she said, “Mr. Carillo’s statement was made spontaneously and not in response to any question by the police,” and he made the statement while “lying on a stretcher in an ambulance, bleeding heavily and severely injured.” The justice said some of the factors that are considered by courts in weighing whether a statement qualifies for the excited utterance exception to the bar on hearsay testimony “may also disqualify it from being testimonial under Crawford.” One concern noted in Crawford, and one reflected in the case law on the excited utterance exception, concerns statements that are made with the involvement of government officers “with an eye toward trial.” “Rather, such declarations are more appropriately considered among the group of utterances made ‘unwittingly’ to a government agent whose admission would not implicate Confrontation Clause concerns,” said Mazzarelli. And while there might be circumstances where an excited utterance would “arguably” be testimonial, such as a response to deliberate questions from a police officer, Mazzarelli said Carillo’s statement was a “visceral response,” and not the result of “structured police questioning.” The court went on to reject Diaz’s claim that the evidence was insufficient and a second claim based on the trial judge’s refusal to give a “missing witness charge” to the jury, which would have allowed the panel to draw an unfavorable inference from Carillo’s absence at trial. Laura R. Johnson and Cheryl P. Williams of The Legal Aid Society represented Diaz. Assistant District Attorneys Hilary Hassler and Eleanor J. Ostrow represented the state on the appeal.

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