Michael J. Hutter

In People v. Cummings, 2018 NY Slip Op. 03306 (May 8, 2018), the Court of Appeals addressed New York’s long recognized excited utterance exception to the hearsay rule. While this exception has been the subject of numerous decisions, the court’s opinion is notable for two separate reasons. First, the court in a carefully written opinion authored by Judge Rowan Wilson clearly doubles-down on the need to establish a sound foundation to invoke the exception, emphasizing especially the requirement that the declarant personally observed the event described in the excited utterance. Second, the concurring opinion, authored by Judge Jenny Rivera, but not joined in by any other judge, raised concerns about the exception’s continuing validity based upon recent scholarship by some courts and commentary questioning its underlying theory of reliability and thus admissibility. These two reasons are sufficiently significant to prompt a discussion of Cummings.

The Exception’s Elements

Discussion starts with a revisiting of the basics of the exception. The exception encompasses a statement made by a declarant relating to a startling event or condition made while the declarant was under the stress of excitement stemming from the event or condition. See generally Guide to NY Evidence Rule 8.17, Excited Utterance (rev. May 2018. The underlying reliability factor that justifies the admission of the hearsay statement is that the stress or excitement will preclude fabrication because that stress stills the declarant’s reflective capacity, as in People v. Nieves, 67 NY2d 125, 135 (1986). Supporting this theory of reliability, the Court of Appeals has set forth four requirements for admissibility under the exception: the occurrence of an event or condition sufficiently startling to produce a spontaneous and unreflective statement; the statement was made while under the influence of that startling event or condition; the statement is about that startling event or condition; and the declarant was a participant in the event or condition, or personally observed it, see Nieves, 67 NY2d at 135; People v. Coviness, 38 NY2d 227, 230-231 (1975); Rule 8.17. The Court of Appeals has historically stressed the need for the trial judge when asked about a hearsay statement under the exception to ensure that these foundation elements are met lest a statement of questionable reliability is admitted. See, Michael J. Hutter, “Excited Utterances and Present Sense Impressions: Time To Reevaluate?”, NYLJ, August 7, 2014, p. 3, col 1 (discussing the Court’s historical approach).

Application of the Elements

With this background, Cummings can now be discussed. On a March afternoon around 2:28 p.m., a man wearing a hoodie and jeans, and with his face obscured, got out of a minivan and shot three men who were talking together on a street corner in Manhattan. The gunman then quickly reentered the minivan, which sped off. One of the shooting victims called 911 somewhere between 2:29 p.m. and 2:32 p.m., seeking help. In the background, an unidentified voice is also heard saying, “Yo, it was Twanek, man! It was Twanek, man!” The 911 tape clearly reflected that the unidentified person made these statements excitedly.

A woman who had apparently witnessed the shooting provided the police, responding to the 911 call, with a partial license plate for the minivan. An officer spotted and stopped a minivan matching the description and partial license plate a short distance from the crime scene. The driver and passenger exited the minivan, and the driver was arrested but the passenger, the suspected gunman, slipped away. Subsequent investigation resulted in the arrest of the passenger who was identified as Twanek Cummings. He was later indicted, charged with the crimes of attempted murder, assault and criminal possession of a weapon.

Cummings’ initial trial ended in a mistrial after the jury failed to reach a verdict. At the retrial, an issue arose as to the admissibility of the 911 tape insofar as its recording of the unidentified voice implicating “Twanek.” At the first trial, the People had unsuccessfully sought the admission of the unidentified voice’s statement. At the retrial before a different judge the People renewed their application for admission, but it was denied. However, the judge took ill and was replaced by another judge, who allowed the admission of the statement as an excited utterance. Cummings was convicted of the assault and weapon-possession charges but acquitted of the attempted murder charges.

The Court of Appeals reversed, concluding reversible error was present because of the admission of the statement. While the court ruled the trial judge was not bound by the law of the case doctrine to follow the earlier rulings excluding the statement, it found the statement was erroneously admitted as an excited utterance. The reason was the failure to establish that the unidentified person personally observed the shooter.

The excited utterance foundation issue, as framed by the parties’ briefs, was whether there was a sufficient factual showing as to whether the declarant, the unidentified person, had personal knowledge of the shooting. Cummings argued that there was no evidence presented by the People which showed that the person who uttered “Yo, it was Twanek, man,” however excited he may have been, in fact saw the shooting. On the other hand, the People argued that while there was no direct proof that the person saw the shooting, such conclusion was inferable from the circumstances.

The court found there was insufficient proof to support a finding that the unidentified declarant had personally observed the shooting. In ruling in favor of Cummings and rejecting the People’s argument, the court made three basic points about the personal observation element of the exception. Initially, the court clearly expressed its view that this requirement was important and was not to be taken lightly since its establishment minimized the risk of fabrication or misrepresentation. It noted: “Direct observation by the person making the excited utterance ensures that the declarant is in fact reacting to and asserting the circumstances of the event causing the excitement.”

The other two points involved the proof necessary to establish the requirement. The court noted first that in most instances the requirement is satisfied “‘self-evidently from the circumstances that the declarant was an actual participant in the event which is the subject of the declaration,’” quoting People v. Fratello, 92 NY2d 565, 571 (1998). The court also emphasized that the requirement can be met by circumstantial evidence. In this regard, statements by witnesses or bystanders to the event or condition, even if unidentified, as in the case before it, can satisfy the requirement provided they have indicia of personal observation, or there is other proof from which it can be inferred. In support, the court cited People v. Coleman, 16 AD3d 254 (1st Dep’t 2005), wherein the First Department concluded the declarant’s description of an attack in progress against a man and woman at a specified location, together with the 911 operator’s report and the obtaining a description of the assailant, formed a basis from which the declarant’s personal observation of the attack could reasonably be inferred.

Notably, Judge Wilson in writing for the court was careful to indicate that when circumstantial evidence is relied upon to establish the requirement of personal observation, it must be carefully scrutinized by the trial court. This view finds support in the court’s rejection of the People’s argument. Thus, the court was “unpersuaded” that from evidence of Cummings’ fingerprints on the minivan it could be inferred the declarant had personally observed the shooting as the court could not see how such evidence supported the declarant’s personal observation. Likewise, the court rejected the People’s argument that as the 911 call was made close in time to the shooting, the declarant had to have been either at the corner where the shooting occurred or extremely nearby when the shooting occurred. The court rejected the argument as the proof also showed that right after the shooting many people ran toward the site of the shooting, and there is no way to know whether any of these persons could have seen the shooter and if so, was the declarant.

In sum, the court made clear that the foundation proof for the personal observation element must clearly show that the declarant personally observed the event or condition and is not simply hypothesizing or repeating what someone else said. There should be no quarrel with this conclusion.

Revisit the Exception?

In recent years, some judges and commentators have questioned the continuing existence of the excited utterance exception as a basis to admit hearsay statements. This is based upon concerns about the exception’s underlying theory of reliability.

The Court of Appeals has not yet entered that fray. Based upon Cummings, it most likely will not in the foreseeable future as the court seems satisfied that its insistence on establishing the exception’s four foundation elements will greatly minimize the risk of an unreliable statement being admitted under the exception, and that a wholesale rejection of the exception may preclude otherwise reliable hearsay statements from being admitted.

However, Judge Jenny Rivera, separately concurring, expressed her agreement with those who would abolish the exception. She observed: “It appears that only tenuous support exists for the proposition that a declarant’s even-concurrent statements should evade traditional evidentiary requirements, and thus for this judicially created ‘excited utterance’ exception. Science, fact, and common sense suggest that we should cabin, if not outright abandon, the exception.” Nonetheless, as this specific issue was not raised by Cummings, Judge Rivera felt compelled to concur on the constraint of prior case law and not reverse on the basis that the exception should be rejected “whole cloth.”

While Judge Rivera mentions some scholarship and a judicial ruling that supports the elimination of the exception, there is compelling contrary opinion that challenges the naysayers. See, Mara D. Afzali, “Letting Sleeping Dogmas Lie: A Response to Judge Posner’s Call To Reform The Res Gestae Exceptions To the Rule Against Hearsay,” 80 Alb. L. Rev. 595 (2016/2017) (collecting and discussing such commentary); see also Arthur M. Diamond, “Don’t Mess With Present Sense Impression!”, 64 Nassau Lawyer 12 (Oct. 2014). This commentary makes the case that judges have sufficient tools to prevent abuse. In essence, “If it isn’t broke, don’t fix it” is the conclusion.  Judge Rivera in her concurring opinion does not cite to this commentary.

In this columnist’s view, the Court of Appeals, as evidenced by Cummings, has embraced the exception with caution, setting forth and implementing thoughtful rules that will exclude unreliable statements. There is no need to abandon or modify the exception.

Michael J. Hutter is a professor of law at Albany Law School where he teaches, among other courses, Evidence and New York Practice, and is special counsel to Powers & Santola. He is currently serving as the reporter to the judicial committee preparing the Guide to NY Evidence.