The People &c.,
Respondent,
v.
Robert Maldonado,
Appellant.
2002 NY Int. 40
Following a trial that turned on the issue of identity, defendant appeals from his convictions for attempted murder, attempted robbery and related crimes. He was arrested as an accomplice on the strength of a composite sketch created by the victim and a police artist. Defendant argues that the Trial Court committed reversible error by admitting the sketch into evidence. We agree and therefore reverse defendant's convictions and order a new trial.
While driving a livery cab in The Bronx, Younis Duopo
was shot from behind by one of two African-American male
A New York Police Department detective obtained photographs of two of the three Hispanic assailants and showed them to Duopo, who ruled them out as suspects. Nearly two months later, Duopo met with an NYPD sketch artist who showed Duopo a series of photographs and created a composite sketch designed to reflect Duopo's recollection of the non-shooter assailant.
The detective showed the sketch to several of Poventud's family members and friends, one of whom referred the detective to defendant's home, believing that defendant matched the sketch. Armed with the sketch, the detective went to defendant's home and, concluding that defendant resembled the sketch, escorted him to the precinct, where Duopo picked him out of a photo array and a line-up. Police then charged defendant as the accomplice in the Duopo case -- the appeal before us.
At trial, Duopo identified defendant as the non-shooter
assailant. On cross-examination, however, when the defense
showed Duopo a photograph of defendant's brother, Duopo twice
On cross-examination, the detective stated that fingerprints found in Duopo's vehicle did not match defendant's, and that the detective did not show Duopo a picture of the third Hispanic assailant in the second shooting. The detective further testified that when he got to defendant's house, there were other males present (perhaps two in all), and that defendant's brother may have been one of them. The detective also stated that he escorted only defendant to the precinct.
At sidebar, the People again offered the composite
sketch into evidence, arguing that in cross-examining the
detective, the defense opened the door to the sketch by creating
the impression that "Duopo's identification is incorrect and that
the investigation is [a] fraud because the People did not look in
the right direction." The People further asserted that the
sketch would show that it "matche[d] Mr. Maldonado almost
perfectly," and asked the court to "let the jury decide whether
Mr. Duopo, in helping the artist to create [the sketch], knew
what he was talking about when he identified [defendant]" in the
line-up. Over defendant's objection, the court admitted the
In its summation, the defense argued misidentification. In response, the People relied on Duopo's identification of defendant and emphasized the importance of the composite sketch, asserting that "[defendant] should have paid the sketch artist. People pay to get this done and he got it for free[.] You should ask for it to be signed by the artist who did it and hang it up in [your] room."
The jury convicted defendant of attempted murder, attempted robbery, assault and criminal possession of a weapon. The Appellate Division affirmed the convictions, concluding that the court properly admitted the sketch based on the prosecution's assertion that defendant created "a misapprehension as to the integrity of the police focus on him as a suspect" (283 2 282 [2001]). A Judge of this Court granted defendant leave to appeal, and we now reverse.
Police composite sketches are critical investigative
tools. They winnow the class of suspects from the infinite down
to a lesser number of people -- still a great many -- who
resemble the sketch. If a witness has good observational skills
and a retentive memory, along with the ability to work in concert
In light of these difficulties, courts and juries have no way to determine reliably whether a witness helped generate a depiction that mirrors the offender or one that in reality looks nothing like the offender. Nevertheless, when a sketch forms the basis for an arrest, one thing is certain: if the sketch is right it will resemble the person accused, and if the sketch is wrong it will resemble the person accused. Indeed, the accused -- innocent or guilty -- is supposed to look like the sketch.
When a jury examines a composite sketch, the temptation to inculpate or exonerate the defendant on the basis of the sketch is all but irresistible. A great many other people may also resemble the sketch, but only the defendant on trial sits before the jury. Despite any influence of the artist's interpretations or possibility that the sketch may be inaccurate, many jurors will be prone to conclude -- if not exhorted to conclude -- that because the defendant sitting before them matches the sketch, the defendant must be guilty. The prejudice of that circular logic is manifest and inescapable.
In the case before us, the People sought to admit the
That is not to say that a composite sketch may never be
received in evidence. As an exception to the hearsay rule, a
composite sketch may be admissible as a prior consistent
statement where the testimony of an identifying witness is
assailed as a recent fabrication (see Coffey, 11 NY2d at 145-
146). In those circumstances, a sketch may be employed to
confirm the identification with "proof of declarations of the
same tenor before the motive to falsify existed" (id., citing
People v Singer, 300 NY 120, 123 [1949]). Under this well-
In the case before us, the Trial Court properly denied
the People's first motion to admit the composite sketch to
rehabilitate Duopo's impeached identification. By showing Duopo
a picture of defendant's brother (and thus inviting Duopo to
identify the brother as the non-shooter assailant), the defense
did not suggest that Duopo had fabricated his identification.
The thrust of the inquiry was to show that Duopo was mistaken,
not that he was lying. Because the defense did not assert that
Duopo had fabricated his testimony, admitting the sketch to
The court erred, however, in admitting the sketch on the People's second application, after defendant had cross- examined the detective. To the extent the People again offered the sketch to rehabilitate Duopo's identification, it remained inadmissible for that purpose because nothing about the cross- examination of the detective suggested that Duopo had lied in identifying defendant as the non-shooter assailant.
In the alternative, the People sought to introduce the sketch to show that the detective was not motivated by bad faith in bringing the sketch to defendant's home or escorting defendant to the police precinct. We decline to accept the People's invitation to equate a challenged police investigation with an allegation of recent fabrication under the hearsay rule. By cross-examining the detective and probing his failure to show Duopo the third Hispanic assailant's picture or bring others found at defendant's home to the precinct, the defense did not suggest that the detective had fabricated his testimony or otherwise acted in bad faith. Rather, that line of inquiry simply questioned the completeness of the investigation against defendant.
Nor by its questioning of the detective did the defense
open the door to admitting the composite sketch. The defense
On these facts, the court's erroneous admission of the sketch was not harmless (cf. e.g. People v Crimmins, , 36 NY2d 230 [1975]). There was no witness to the crime other than Duopo, who described the assailant to the sketch artist two months after an attack from which Duopo suffered life-threatening head injuries. Fingerprints recovered from Duopo's vehicle did not match defendant, who had no criminal record, nor could the gun be linked to him. The only shred of evidence connecting defendant to the crime was his alleged association with Poventud's family. That thinnest of threads falls far short of the level of proof -- overwhelming evidence of guilt -- that is required to apply the harmless error doctrine. We therefore conclude that the admission of the composite sketch against defendant was reversible error.
Having concluded that the court committed reversible error by admitting the composite sketch, we need not reach defendant's remaining contentions.
Accordingly, the order of the Appellate Division should
Footnotes
1 Though tried jointly with defendant, Marcos Poventud is not a party to this appeal.
2 See generally Ellis, et al., "A Critical Examination of the Photofit System for Recalling Faces," 21 Ergonomics 297, 306 (1978); Hall, et al., "Postevent Information and Changes in Recollection," reprinted in Wells & Loftus, Eyewitness Testimony, 128-129 (1984); Note: Hearsay and Relevancy Obstacles to the Admission of Composite Sketches in Criminal Trials, 64 B U L Rev 1101, 1102-1103 (1984) (hereinafter Hearsay and Relevancy Obstacles); cf. Davies, et al., "Face Identification: The Influence of Delay Upon Accuracy of Photofit Construction," 6 J Police Sci & Admin 35, 36, 42 (1978) (hypothesizing little decline in identifying witness retentiveness after one week).
3 SeeUnited States v Zurita, 369 F2d 474, 477 [1966], cert
denied 368 US 1023 [1968] ["A picture may be worth a thousand
words, but it does not record those words or, indeed, even
indicate that they are. Drawing is selective and interpretive,
and an artist, even when attempting to copy or to work from
another's direction, is not merely a stenographer with a peculiar
system of shorthand. His work contains and reveals his
impressions from information given to him."]); see generally
Cohen, "Number of Features, and Alternatives per Feature, in
Reconstructing Faces with the Identi-Kit," 1 J Police Sci & Admin
349, 349-350 (1973); Hearsay and Relevancy Obstacles,
4 See also Taylor, Eyewitness Identification, § 5, at 127 (1982); accord U.S. Department of Justice, Office of Justice Programs, "Eyewitness Evidence: A Guide for Law Enforcement," § 2, at 18-19 (1999).
5 Other states have similarly characterized police composite sketches as hearsay (see e.g. State v Motta, 659 P2d 745, 749-750 [Haw 1983] [admitting composite sketch under exception to hearsay rule as prior consistent statement to rebut claim of recent fabrication]; Commonwealth v McKenna, 244 NE2d 560 [Mass 1969] [classifying police composite sketches as hearsay]; Commonwealth v Morris, 564 A2d 1226, 1230 [Pa 1989], cert denied sub nom. Morris v Pennsylvania, 521 US 1106 [1997] [same]; but see United States v Moskowitz, 581 F2d 14, 21 [2d Cir 1978] [holding that under Federal Rule of Evidence 801(d)(1)(C), composite sketch is not a "statement" and therefore not hearsay], cert denied 439 US 871; State v Packard, 439 A2d 983, 992 [Conn 1981] [following Moskowitz view that composite sketches are not "statements" under rule against hearsay]; State v Patterson, 420 SE2d 98, 102-103 [NC 1992] [same]; see generally Annotation, Admissibility in Evidence of Composite Picture or Sketch Produced by Police to Identify Offender, 23 ALR 5th 672).
6 At least one court and several commentators have suggested
that a police composite sketch is double hearsay when offered to
prove guilt (see People v Turner, 235 NE2d 317, 320 [Ill App
1968] [stating that composite sketch was artist's "out-of-court
belief as to the likeness of the assailant" based on description
of observer narrated in yet another out-of-court statement];
Hearsay and Relevancy Obstacles,