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New York Court of Appeals: Excited Utterance Must Be Based on Personal Observation to Be Admissible as Exception to Hearsay Rule

by Dale Chappell

The New York Court of Appeals reversed a conviction in which an “excited utterance” overheard in the background on a 911 call ostensibly identifying the shooter was used as evidence against a defendant because it could not be established that the person making the utterance personally observed the incident, and none of the victims was able to identify the defendant as the shooter.

“Yo, it was Twanek, man!” someone exclaimed in the background during a 911 call reporting a shooting. That and a fingerprint on the alleged getaway vehicle were what the State used to convince a jury that defendant Twanek Cummings shot and wounded three people that day. He was convicted of assault, attempted assault, and possession of a weapon. Cummings argued on appeal that because there was no evidence the unidentified speaker in the background on the 911 call personally observed the shooting, admission of the statement at trial was error. The Appellate Division rejected that argument and affirmed the trial court’s judgment. The New York Court of Appeals granted Cummings’ leave to appeal.

Hearsay is generally inadmissible because it “deprives the defendant of the right to test the accuracy and trustworthiness of the statement by cross-examination,” the New York Court of Appeals has explained. People v. Brown, 610 N.E.2d 369 (N.Y. 1993). However, an “excited utterance” made at the time of the event that is “observed by the declarant” is an exception to the prohibition on hearsay statements. “It must be inferable that the declarant had an opportunity to observe personally the event described in the spontaneous declaration.” People v. Fratello, 706 N.E.2d 1173 (N.Y. 1998). The reason excited utterances are admissible is because it is thought that an “impulsive and unreflecting response” of the declarant is trustworthy, courts have explained.

The declarant need not be involved in the incident but must have personally observed the incident to be reliable. The declarant need not even be identified, as long as he or she observed the incident.

In the present case, surveillance video showed numerous people arriving at the scene before the 911 call. The shooter, wearing a hoodie, was not identifiable in the video, and at a later police line-up, none of the three victims could identify Cummings as the shooter. The Court of Appeals concluded that no reasonable inference could be shown that the declarant of the excited utterance personally observed the shooting.

Further, the error admitting the statements was not harmless, the Court said. The evidence without the statement was “not nearly as strong,” and the State’s “heavy reliance” on the statement swayed the jury.

Accordingly, the Court of Appeals reversed Cummings’ conviction and remanded for a new trial. See: People v. Cummings, 99 N.E.3d 877 (N.Y. 2018). 

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