People v. Jackson

Catterson, J.

dissents in a memorandum as follows: I dissent because the trial court improperly admitted an out-of-court statement allegedly made by the defendant about the complainant. The admission of that statement was based on misinterpretation of the Hillmon doctrine. Furthermore, the court compounded its error by permitting testimony about uncharged acts allegedly committed by the defendant so that jurors could “make sense” of the inadmissible statement. The conviction of the defendant Edward Jackson on three counts of second-degree rape should therefore be vacated by this Court and the matter remanded for a new trial.

In January 2002, the complainant (hereinafter referred to as MB) lived with her mother, two younger brothers aged 10 years and five months, and an 18-year-old babysitter, Crystal G., in a four-bedroom apartment. After the defendant, a family friend, was evicted from his home he was given a key to the apartment by MB’s mother and was allowed to sleep in the mother’s room while she worked nights as a security guard. MB accused the defendant of raping her on three occasions in February and March 2002, three months before her fifteenth birthday, and a few weeks after the defendant allegedly engaged in nonconsensual sex with the babysitter, Crystal G.

Crystal G. testified at a Molineux hearing and at trial that in January 2002, while she was sleeping in MB’s room with her charge, MB’s five-month-old brother, the defendant came in and told her he could not sleep on the couch because he had hurt his *417back. Crystal G. testified that she “moved over closer to the baby, which is closer to the wall and I just laid back down” and the defendant got into bed with her.

According to Crystal G., the defendant then proceeded to engage in sexual intercourse with her against her will.1 At the hearing and subsequently at trial, Crystal G. testified that she asked the defendant to stop. Allegedly, the defendant then made the statement in issue. Crystal G. testified: “He told me that [MB] was lucky I was there, because if I wasn’t there, it would be her.”

Crystal G. further testified that she felt that MB was in a “little danger” but she figured “if I continued to let him do it, he would leave her alone.” She claimed she had sex with the defendant “to protect MB.” Allegedly, a couple of days later, the defendant had nonconsensual sex with Crystal G. again, but this time he did not mention MB.

At trial, MB testified that the defendant raped her three times between February 14 and March 12, 2002. She described circumstances that were almost identical to the circumstances described by Crystal G.2 MB further testified that initially, after telling Crystal G. what the defendant did to her, she did not want to tell her mother about the incidents because she felt that her mother would not believe her; and that her mother would suspect she was attempting to retaliate against the defendant for an incident where the defendant discovered an 18-year-old boy had spent the night in MB’s bedroom.

At trial, the court instructed the jury that the statement allegedly made by the defendant to Crystal G. about MB was not a future threat, but was “more like amorous design since it showed appellant was purportedly attracted to the complainant.” The trial court ruled the statement was “key” because it showed “motive, state of mind and future intent.” After deliberating for five days and requesting a number of read-backs, the jury acquitted the defendant of three counts of forcible rape and convicted him of statutory rape.

The defendant appeals his conviction on the grounds that the trial court erred in admitting his alleged statement to Crystal G. and her testimony about the incidents of alleged nonconsensual sex. The prosecution asserts on appeal, and contrary to the rationale of the trial court, that “the chief purpose [of introduc*418ing the statement] was to demonstrate defendant’s state of mind under the Hillmon doctrine.” The prosecution further contends that statement was properly admitted under Hillmon’s “particular species of the state of mind exception” as inferential proof that the defendant carried out his intention to rape MB.

The prosecution’s assertions are based on a complete misreading of the Hillmon doctrine. In Mutual Life Ins. Co. v Hillmon (145 US 285 [1892]), an action brought to recover on an insurance policy, the Supreme Court held that the trial court erroneously excluded letters of the deceased as inadmissible hearsay. In the letters, the decedent had informed members of his family that he was traveling to a particular location with a man named Hillmon. The Court held that the statement could be properly admitted as an exception to the hearsay rule, and further that the letters tended to corroborate the evidence that, the man had, in fact, made the journey. (Hillmon, 145 US at 294-295.)

More recently, the Ninth Circuit elaborated on the Hillmon doctrine as a state of mind exception that “provides that when the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act.” (United States v Pheaster, 544 F2d 353, 376 [1976], cert denied sub nom. Inciso v United States, 429 US 1099 [1977].)

We relied on Pheaster to become the first New York court to uphold admissibility of a statement under the Hillmon doctrine in People v Malizia (92 AD2d 154 [1983], affd 62 NY2d 755 [1984]). It is now generally accepted that “under appropriate circumstances a declarant’s statement of intent to perform an act may be admissible as evidence that he performed the act.” (Id. at 159.)

The prosecution, however, fails to recognize that the Hillmon exception operates within very narrow, strict confines: the out-of-court declarant is never the defendant and is generally unavailable because he/she is deceased, usually as the victim of the charged crime. Further, in virtually every reported case involving the Hillmon exception, the act in issue involves a meeting between the declarant and a third party. Indeed, in People v Chambers (125 AD2d 88 [1987], appeal dismissed 70 NY2d 694 [1987]), one of the decisions specifically cited by the prosecution, we clearly observed that the type of statement sought to be admitted under the Hillmon doctrine “typically involves a highly prejudicial statement by the declarant-deceased that he intended to meet the defendant at a particular place and is of*419fered to prove circumstantially that defendant and the declarant did meet and that defendant had the opportunity to kill the declarant.” (People v Chambers, 125 AD2d at 91 [emphasis added]; see also People v Malizia, supra [statement made by deceased to his brother that he was going to meet the defendant was admissible]; People v Maddaloni, 214 AD2d 325 [1st Dept 1995], lv denied 86 NY2d 737 [1995] [deceased’s statement to his wife made immediately after phone call from defendant was admissible under the state of mind exception to the hearsay rule involving a deceased victim’s declaration of future intent to meet the defendant].) The Second Department has a similar understanding of Hillmon. (See People v Bongarzone, 116 AD2d 164 [1986], affd 69 NY2d 892 [1987] [admitting statement in a situation that “commonly presents” itself where the declarant states his intention to meet—or as here to place a telephone call—to a third person].)

In our holdings, we painstakingly detailed our reasons for admitting such statements. In Malizia, we concluded that “a statement by a deceased that he intends to meet another is admissible . . . [because] [e]veryday experience confirms that people frequently express an intent to see another under circumstances that make it extremely likely that such a meeting will occur.” (People v Malizia, 92 AD2d at 160.)

At the outset then, the instant case is easily and obviously distinguishable because the declarant is the defendant, and so is not deceased. Nor does the alleged statement refer to any intent to meet with a third party. Moreover, while the common law has expanded the doctrine to allow inferential proof that an act was performed by a defendant, this only occurs when the defendant is the third party referred to in the statement of intent made by the deceased-declarant, and when the statement is admissible as corroborative evidence tending to establish that the deceased met the defendant. (People v Chambers, 125 AD2d at 91 [hearsay statement is circumstantial proof that the act did occur, and by necessary implication, that the other person participated in the act].) In virtually every case in which the Hillmon issue has arisen, the declarant is unavailable because he or she was the victim of the charged crime. (Glen Weissenberger, Hearsay Puzzles: An Essay on Federal Evidence Rule 803[3], 64 Temp L Rev 145 [1991].)

Again, the declarant in the case at bar clearly does not fall into this category. Here, the statement was made by the defendant himself and his unavailability arose as a result of his decision not to take the stand, and not because he had disappeared under suspicious circumstances.

*420In any event, even if we were to choose to expand the narrow class of Hillmon doctrine declarants, the defendant’s statement still fails the rigid test we enunciated in Malizia. There, we decided on the test after examining the rationale for upholding admissibility of statements of future intent within the above-mentioned narrow confines. We found them admissible due to their “probative trustworthiness.” (People v Malizia, 92 AD2d at 161.)

The Court of Appeals, in a case of first impression, reiterated the rationale for the Hillmon hearsay exception when it observed that the factors enunciated for admissibility of those statements are the same factors that are used for “justifying most common-law hearsay exceptions, [that is], a circumstantial probability of trustworthiness, and a necessity, for the evidence because of the unavailability of the declarant.” (People v James, 93 NY2d 620, 629 [1999] [citation and internal quotation marks omitted], quoting Mutual Life Ins. Co. v Hillmon, 145 US at 295 [trustworthiness was bolstered because the letters were written at the very time and under circumstances precluding a suspicion of misrepresentation]; see also People v Chambers, 125 AD2d at 93 [the reasons for admitting such statements are that they are often expressed under circumstances “virtually assuring their verity”]; Hunter v State, 11 Vroom [40 NJL] 495, 534, 536, 538 [1878] [“he who uttered (such declarations) was bent on no expedition of mischief or wrong”].)

For this reason, we set very exacting standards in Malizia as to the admissibility of such statements. We held that out-of-court statements of intent to perform future acts are admissible only where (a) the statement is made under circumstances that make it probable that the expressed intent is a serious one, and (b) it is realistically likely that such event would take place. (People v Malizia, 92 AD2d at 160; see also People v Chambers, 125 AD2d at 95 [referring to the circumstances in Hillmon and Hunter where it was the “natural, nonsuspicious, business-like manners” in which the statements were made “which provided a solid and articulable basis for establishing for the reliability of those statements”].)

The circumstances in the instant case are the very antithesis of “nonsuspicious, business-like” circumstances that would give “verity” to the utterance. On the contrary, the circumstances as testified to by Crystal G. might more aptly be described as precisely the kind of situation where, to paraphrase Hunter (supra) the defendant was “bent on an expedition of mischief and wrong.”

According to Crystal G., the statement was made by the de*421fendant after he had manipulated his way into her bed and was attempting to engage in consensual sexual intercourse with her. Nothing in the record contradicts the possibility that the defendant’s words, if indeed he said them, were a type of manipulation to persuade Crystal G. to succumb to his advances.

Moreover, the second prong is not satisfied because the statement cannot be viewed as a statement of future intent, and therefore it becomes a logical and linguistic impossibility to determine whether it is “realistically likely that such event would take place.”

According to the trial transcript, Crystal G. testified about the defendant’s statement in the following words: “He told me that MB was lucky because if I was not there it would be her,” but the record does not reveal the actual words allegedly spoken. Assuming arguendo that Crystal G. paraphrased them accurately, then the defendant, if speaking grammatically, may have said: “MB is lucky because if you weren’t here, I’d be doing this to her” or in the prosecution’s version: “MB is lucky because if you weren’t here to rape, I’d be raping her.”

Regardless of which version comes closest to the actual words allegedly spoken, it requires a perversion of the English language to describe those words as a statement of future intent, future threat or future inclination. The statement in issue refers patently to the here and now, to the situation that the defendant and Crystal G. found themselves in on the night the statement was made. The defendant, if indeed he made the statement, made it “in the moment” and there was no reference to any future act or future inclination on his part. It was expressed simply as a present thought.

Nor can the statement be viewed as a threat probative of motive, or even evidence of amorous design as the trial court deemed it to be. First, a threat implies the intent to carry out an injurious action. In the instant case, the defendant’s alleged statement reflects, if anything, a forbearance or lack of intent towards the complainant. Second, the fact remains that contrary to any purported attraction to MB or amorous design, the defendant, in fact, got into bed with Crystal G, and stayed with Crystal G., and focused his attentions, unwanted though they may have been, totally on her. Moreover, days later he engaged in allegedly nonconsensual sex with Crystal G. again, this time with no mention of MB at all.

In People v Chambers, we reversed a trial court ruling that admitted an out-of-court statement because we held there was no evidence from which one could determine “if defendant had made a firm or tentative plan, whether he was hoaxing or even *422threatening.” We concluded that there was no way to “measure the seriousness of the intent.” (125 AD2d at 95.) The circumstances and evidence of the instant case require that we do no less here.

The majority’s reliance on People v Bierenbaum (301 AD2d 119, 150 [1st Dept 2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003]), is similarly unavailing. Bierenbaum involved a series of threats made by the defendant husband directly against the victim wife. There are no analogous statements in the instant case. Had the prosecution concerned the alleged rape of the babysitter rather than the 14-year-old complainant, Bierenbaum would have been relevant.

Significantly, while conceding that mens rea is not an issue, the prosecution maintains that without the statement “there would have been little motive in the jury’s eyes for the defendant’s sudden sexual assault on MB.” In other words, rather than making the case for the testimony’s probative value, the prosecution concedes it needs Crystal G.’s highly prejudicial testimony about the defendant’s alleged statement to bolster the complainant’s credibility.

Thus, ultimately, an inadmissible, highly prejudicial statement together with testimony that the trial court would not have allowed in if not for the statement tipped the balance in a case which was unquestionably a close call.3 For the foregoing reasons, I believe the conviction should be vacated, and the case remanded for a new trial.

. In allowing Crystal G. to testify to this uncharged act, the trial court observed that: “She is not going to call it rape, and she didn’t call it rape. She calls it sex against her will.”

. MB testified that the defendant came into her room and complained that his back bothered him, and that he did not want to sleep on the couch.

. The jury deliberated for five days, asked for numerous read-backs, and acquitted the defendant of the forcible rape charges.