Paul Shechtman
Paul Shechtman (NYLJ/Rick Kopstein)

People v. Patterson, which the New York Court of Appeals decided just before Christmas, would make a challenging question on an evidence exam. 2016 N.Y. Slip Op. 08582.

Background

Robert Patterson was convicted of second-degree burglary and robbery. The People’s theory was that Daichelle Goree went to the victim’s apartment at his invitation, and then contacted two male accomplices, who entered the apartment wearing bandanas and carrying pistols; forced the victim to the ground; taped his mouth, wrists and ankles; and took cash and personal property from him. At trial, the sole issue was whether Patterson was one of the robbers. Although the victim gave the 911 operator only a scant description (young black men about six feet tall), he later identified Patterson as one of the robbers in a lineup and at trial.

To corroborate the victim’s identification, the People offered evidence that, shortly before and after the robbery, Goree had made eight calls to, and received three calls from, a Sprint cell phone that was registered to “Darnell Patterson” with an address and date of birth that were the defendant’s. The evidence also showed that Patterson had the name “Darnell” tattooed on his hand.

Prior to trial, the defense moved to exclude the subscriber information portion of the Sprint records, arguing that it was inadmissible hearsay. A Sprint witness testified that “it was Sprint’s regular course of business to make and keep these records, but … Sprint did not verify the information and, therefore, disclaimed responsibility” for its truthfulness. Someone else could have used the name “Darnell Patterson,” and Sprint would have no way of knowing it. On this record, the trial court admitted the subscriber information, not for its truth, but for the non-hearsay purpose of showing that “this particular cell phone was activated by someone who supplied identifying information linked to defendant.”

Notably, the People also offered other evidence linking the defendant to the Darnell Patterson phone. A Department of Corrections investigator testified that during defendant’s pre-trial incarceration, he had called five numbers from jail phones that matched numbers the Darnell Patterson phone had called, or received calls from, on the night of the robbery. While in jail, the defendant had called the numbers 1,371 times, 103 times, 58 times, 48 times, and 31 times, respectively.

The Court of Appeals upheld the admission of the subscriber information as non-hearsay evidence. Writing for the majority, Judge Leslie Stein concluded that the subscriber information was not admitted to prove the truth of the matters asserted in it:

Indeed, it was simply irrelevant whether that information was true or false … . Rather … the information was admitted for the limited purpose of showing that the individual[] who activated the cell phone number[] identified [himself] as Darnell Patterson … and that “Darnell Patterson” gave certain pedigree information that was otherwise associated with defendant. In other words, the purpose of the subscriber information was not to prove that “Darnell Patterson,” or even defendant, had activated the prepaid Sprint account, but to show that the account had some connection to defendant—regardless of how tenuous—because such a connection would be helpful to the jury in assessing the reliability of the victim’s identification of defendant as the perpetrator.

In the majority’s view, all of the evidence “gave rise to an inference that defendant was the user of the phone, although perhaps not the subscriber, a subtle but critical distinction for purposes of the evidentiary issue before us.”

Judge Jenny Rivera concurred on a different ground. The subscriber information, she wrote, was admissible to “complete the narrative”—”to explain the events leading to [the defendant's] arrest.”

Authentication

Did the Court of Appeals get it right? A strong argument can be made that the subscriber information was hearsay but admissible against the defendant as his own statement. (It was “an admission”—the equivalent of “I Darnell Patterson am the subscriber to this cell phone.”) Consider this hypothetical. A note is found pinned to a tree at the scene of an arson saying “I, John Doe born 6/27/90 and living at 20 Jane St., committed this arson.” Admissible at Doe’s trial for the crime? The note is plainly an out-of-court statement that the prosecution wishes to offer for its truth. Anyone could have written it to frame Doe and divert suspicion. Thus, absent some proof showing that Doe wrote the note, it would be inadmissible hearsay. But what if Doe’s fingerprints were found on the note (or it was his distinctive handwriting)? That should change the answer. A reasonable juror could believe that Doe wrote the note, and therefore the jury should be able to consider it in deciding his fate.

Lurking in Patterson is an authentication issue that the late Prof. John Kaplan discussed in a law review article on preliminary questions of fact.J. Kaplan, “Of Mabrus and Zorgs,” 66 Cal. L. Rev. 987 (1978). Kaplan posed these closely related hypotheticals.

P v. D, an auto accident case: W, a police officer, testifies for the plaintiff that after an intersection collision, he approached the defendant’s car and asked, “what happened?” A voice answered, “I couldn’t see because the windshield was all fogged up.” It is disputed, however, whether this statement was made by defendant driver, D, or by D’s passenger, F.

• Same as above except, in answer to the question, the voice from the car said, “I don’t know, I fell asleep just before the accident.” Again, it is disputed whether D or F made the statement.

Kaplan concluded that in the first hypothetical, the preliminary question—who spoke?—was for the judge to decide to a preponderance of the evidence. If the driver made the statement, it is admissible as a statement of a party opponent (an admission). If the passenger made the statement, it is inadmissible hearsay, albeit still quite probative. (If the windshield was fogged up, D should not have been driving.) As Kaplan wrote, “[i]f we want someone to apply the [hearsay] rule, it will have to be the judge.” In such cases, the judge serves as a gatekeeper keeping out inadmissible hearsay from infecting the jury.

Now consider the second hypothetical. If the driver said the statement, it is a damning admission. If the passenger said it, it is irrelevant. (There is nothing wrong with having a dozing passenger.) Here, the jury should decide who spoke, as long as any reasonable juror could find that it was the defendant. Put simply, if a juror believes that the passenger was the speaker, she will simply ignore the statement as inconsequential.

(Under Federal Rules of Evidence, the first hypothetical is governed by Rule 104(a) and the second by Rule 104(b).)

In the note-pinned-to-the-tree hypothetical, the lesson from Kaplan’s article is that the jury should be able to consider the note, as long as a reasonable juror could find that D wrote it. And the fingerprint (or handwriting) evidence would be sufficient to meet that relatively low standard. So, too, in Patterson. If Patterson subscribed to the phone, that makes it more likely that he used it on the night of the robbery to speak with Goree. (If he did not subscribe to the phone, then the subscriber information is irrelevant.) And there is sufficient evidence to find that Patterson was the subscriber. Not only does the subscriber information include his name (recall that “Darnell” is tattooed on the defendant’s hand) address and birthdate, but the phone was used to call numbers that he regularly called from jail.

If this analysis is correct, then the subscriber information is admissible for its truth.

Concluding that the subscriber information is admissible for its truth avoids the need for an incomprehensible jury instruction. If the subscriber information is not admitted for its truth, then the jury should be told this: “You have heard that a person using the name ‘Darnell Patterson’ subscribed to the cell phone in question. You may not consider that evidence for its truth but only as circumstantial evidence that the defendant was the user of the phone.” To which, a thoughtful juror might ask: “If the subscriber information is not true, how is it relevant to this case”? To borrow a phrase, we should not be asking jurors to perform feats of mental gymnastics in the jury room. Nash v. United States, 54 F.2d 1006, 1007 (1932) (L. Hand, J.).

Judge Rivera’s Concurrence

An article on Patterson should include a brief discussion of Judge Rivera’s concurring opinion, which argues that the subscriber information was admissible to “complete the narrative” of the events leading up to Patterson’s arrest. The opinion is surprising because in other cases, Rivera has criticized the use of a completing-the-narrative theory “where investigative purpose is not in issue.” People v. Ludwig, 24 N.Y.3d 221, 235 (2014) (Lippman and Rivera dissenting); People v. Morris, 21 N.Y.3d 588, 600-01 (2013)(Rivera dissenting). Here, there was no reason for the jury to learn the events leading to Patterson’s arrest. Consider another hypothetical: Suppose an informant had told the police that Patterson was one of the robbers. Surely, no one would allow an officer to testify to what the informant had said. The “completing-the-narrative” exception is too often misused to smuggle prejudicial hearsay before the jury; it should be limited, as Judge Rivera has argued forcefully in the past, not expanded.