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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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1 No. 92
The People &c.,
Respondent,
v.
Samuel James,
Appellant.
David Lazer, for appellant.
Peter Hinckley, for respondent.
LEVINE, J.:
Defendant was convicted after a jury trial of two
counts of perjury in the first degree (Penal Law 210.15). The
conviction was premised on defendant's denial, during a Grand
Jury investigation, that he had been present at an October 20,
1990 meeting at which information pertaining to an upcoming New
York City Transit Police Department promotional examination was
illegally revealed to defendant and other potential examinees.
FACTS AND PROCEDURAL HISTORY
The following evidence was adduced at defendant's
trial. Defendant, his partner and acquitted co-defendant David
Tarquini, Lizette Lebron, Debra Gillians and Joyce Sellers were
all New York City Transit Police officers assigned to District
One under the command of Lieutenant Michael Gordon. These
individuals, including Gordon, were also personal friends who
socialized together. In 1990, Gordon was assigned to help draft
an examination scheduled to be given near the end of the year to
those Transit Police officers seeking promotion to the rank of
sergeant. Defendant, Tarquini, Lebron and Gillians were all
preparing to take the promotional examination.
On Friday, October 19 and Saturday, October 20, 1990,
Gordon set up by telephone a meeting for late Saturday night to
be attended by defendant, Lebron, Tarquini and Gillians at which
the contents of the promotional examination would be disclosed.
The October 20 telephone conversation between Gordon and Lebron
was inadvertently recorded on Lebron's telephone without the
knowledge of either party. At trial, Lebron testified that she
was present at the October 20 midnight study session at Gordon's
apartment, along with defendant, Tarquini and Gillians. At that
meeting, Gordon distributed various questions that were
ultimately included on the promotional examination and Lebron and
the others each copied the questions, which they took with them.
On October 23, Lebron's live-in boyfriend, Transit
Police Detective John Lohan, returned from a weekend away,
discovered evidence of Lebron's October 20 visit to Gordon's home
and, in questioning Lebron about it, was told that Gordon had
made a sexual overture toward her that night. In an angry
confrontation between Gordon and Lohan the next day, the October
20 cheating session was accidentally disclosed to Lohan.
Immediately afterward, Gordon called Lebron, asking that she not
turn over her notes of that session to Lohan but rather give them
to defendant or Joyce Sellers. That call also was taped without
the knowledge of either Gordon or Lebron.
The sergeant's examination was given on February 2,
1991. Defendant and the other District One officers who
attended Gordon's study group, with the exception of Lebron, took
the examination. Shortly thereafter, an investigation was
launched concerning allegations of cheating on the test. When
that investigation became public, Lebron delivered photocopies of
the examination materials that she had copied, along with the
tapes of her telephone conversations with Gordon, to the
Department's Internal Affairs Bureau. Before turning over the
audio recordings, however, Lebron taped over certain
conversations which she claimed were personal in nature and
irrelevant to the investigation. She also taped over at least
one conversation with Gordon, allegedly by accident.
The February 1991 promotional examination was
eventually invalidated, and a substitute examination was given on
February 2, 1992. Defendant, Tarquini and Gillians all took the
substitute examination and their rankings on the technical
knowledge section of the examination dropped significantly below
their performance on the 1991 examination. Defendant was called
before the Grand Jury investigating the allegations of cheating
and, after being granted immunity, testified that he had never
been to Gordon's home in 1990, that he had never been to Gordon's
home when Lebron was present and that he did not attend a study
session at Gordon's home on October 20, 1990. He was
subsequently indicted for six counts of perjury based upon those
sworn denials.1
At trial, Gordon was called as a People's witness and
invoked his privilege against self-incrimination. Over
defendant's objections, the October 20 recorded conversation
between Gordon and Lebron concerning the intended meeting of the
exam takers at Gordon's home later that evening was admitted in
evidence under the state of mind exception to the hearsay rule,
and the October 24 recorded call in which Gordon asked Lebron to
dispose of her notes was introduced as a declaration against
penal interest.
On appeal, defendant's principal arguments for reversal
focus on the claimed errors of the trial court in admitting in
evidence against him the recordings of the October 20 and October
24 telephone conversations between Gordon and Lebron. He also
claims that the trial court committed reversible error in
refusing to give an adverse inference charge as a sanction
against the People for Lebron's admitted destruction of audio-
taped evidence. The Appellate Division affirmed defendant's
conviction in all respects (247 AD2d 251), as do we.
ADMISSIBILITY OF GORDON'S OCTOBER 20 STATEMENT
TO LEBRON UNDER THE STATE OF MIND EXCEPTION
TO THE HEARSAY RULE
On Friday, October 19, 1990, Lieutenant Gordon
telephoned both defendant and Lizette Lebron. On Saturday,
October 20, at about 10 p.m. he again called Lebron and, as
previously noted, that conversation was recorded. First, Gordon
reminded her of the meeting which had been set up in the previous
telephone conversation, to which Lebron replied that he had not
told her the time when it was to take place. Gordon then stated
"I got Sam and Dave they're coming to my house around, between
11:00 and 12:00 o'clock tonight * * * [f]or what * * * I told you
yesterday." Lebron asked for confirmation that the purpose of
the meeting that night was "[s]o you're just going to tell me
what to study and I'll study it?" Gordon replied affirmatively.
Lebron testified that "Sam" referred to defendant and "Dave" was
David Tarquini, both of whom were planning to take the sergeant's
promotional exam.
The October 20 recorded conversation between Gordon and
Lebron concerning the intended meeting of all of them at Gordon's
home later that evening "to tell [them] what to study" was
admitted into evidence against defendant under the state of mind
exception to the hearsay rule. It was offered in this perjury
prosecution of defendant to prove, contrary to defendant's Grand
Jury testimony, that the planned meeting of defendant, Lebron and
other officers to discuss the promotional exam questions, did in
fact take place.
The seminal precedent on the admissibility of Gordon's
October 20 statement is the celebrated 1892 decision of the
United States Supreme Court in Mutual Life Ins. Co. v Hillmon,
145 US 285).2 Because the issue is an important one of first
impression in our Court, and because we disagree with the
defendant's reading of Hillmon, a recital at length of the facts,
issues and the holding in the case is necessary.
The plaintiff in Hillmon was the wife of John W.
Hillmon, suing the insurers on three recently purchased policies
covering his life. Her evidence of Hillmon's death was that in
early March 1879 he left Wichita with a friend named Brown
looking for land to purchase for use as a cattle ranch. Two
weeks later, while encamped in Crooked Creek, Kansas, Hillmon was
killed by the accidental discharge of Brown's gun. He was buried
in a neighboring town. The defendant insurance companies
introduced evidence that the body was not that of Hillmon, but of
Frederick Walters, who had disappeared at the same time. The
body was exhumed and Walters' relatives identified it as his.
At issue in the Hillmon case was the admissibility of
two letters Walters wrote in early March 1879, to his sister and
fiancee, in which he related his intention to accompany "a
certain Mr. Hillmon," and "a man by the name of Hillmon" on a
trip from Wichita. In Walters' letter to his fiancee he told her
that Hillmon's purpose was "to start a sheep ranch, and as he
promised me more wages than I could make at anything else I
concluded to take it." The defendant insurers sought to
introduce the letters in support of their defense that Hillmon
induced Walters to accompany him to some remote place where he
would be killed in order to provide a corpse on which to base
Mrs. Hillmon's fraudulent claim to the proceeds of the policies
insuring her husband's life.
The Hillmon trial court excluded the letters on the
ground that they were hearsay. A jury found in favor of
Hillmon's wife. The United States Supreme Court reversed and
ruled that upon retrial, the letters would be admissible under
the state of mind exception to the hearsay rule. The Court held
that a declarant's extra-judicial statement of intention can be
admitted into evidence under that exception "whenever the
intention is of itself a distinct and material fact in a chain of
circumstances" (145 US, at 295). In support of the admissibility
of Walters' declarations, Justice Gray, writing for the Court,
pointed to factors in the case of the kind that Wigmore and other
scholars identify as justifying most common law hearsay
exceptions, i.e., "a circumstantial probability of
trustworthiness, and a necessity, for the evidence" because of
the unavailability of the declarant (V Wigmore, op. cit., 1420,
at 251). Justice Gray wrote: "Letters from [Walters] to his
family and his betrothed were the natural, if not the only
attainable, evidence of his intention" (id., at 145 US, at 295
[emphasis supplied]). The Court also emphasized that
trustworthiness was bolstered because the letters were "written
by [Walters] at the very time and under circumstances precluding
a suspicion of misrepresentation" (id. [emphasis supplied]).
Because Walters was unavailable to testify to
accompanying Hillmon on his search for suitable ranch land, and
because of the foregoing salient indicia of trustworthiness of
Walters' declarations of his intent to do so, the court ruled
that his letters were of sufficient probative value on the
insurers' defense theory to be admissible "as evidence that
[Walters] had the intention of going [away from Wichita], and of
going with Hillmon, which made it more probable both that he did
go and that he went with Hillmon, than if there had been no proof
of such intention" (id., at 296 [emphasis supplied]).
In its Hillmon decision, the Supreme Court quoted
extensively from an 1878 New Jersey high court decision in a
Camden murder case, Hunter v State (40 NJL 495). In the
prosecution of Hunter, the New Jersey court upheld the
admissibility of the victim's oral and written declarations to
his family the day before that he was going to travel from
Philadelphia to Camden with Hunter on business. In Hillmon,
Justice Gray excerpted portions of the Hunter opinion, in which
the New Jersey court similarly supported its admissibility ruling
on the basis of factors demonstrating the trustworthiness of the
declaration (id., at 299).
Defendant argues that this case differs from Hillmon in
several major respects. According to defendant, the October 20
statement is being offered not at all to prove the future intent
and subsequent act of Gordon, the declarant, but solely to prove
the future intent and subsequent act of defendant, a
nondeclarant. Defendant would read Hillmon to support
admissibility of a statement of future intent to prove only the
solitary acts of the declarant. He claims that using Gordon's
statement to prove his acts expands Hillmon "far beyond its
logical and intended limits." Additionally, defendant contends
that here the declaration implicitly asserts and is being used to
prove not just future intent and subsequent acts, but also acts
prior to the declaration -- Gordon's implied assertion that
defendant had previously agreed to meet at his home.
In our view these criticisms misconstrue the probative
value of Gordon's October 20 statement in defendant's perjury
trial and misread Hillmon. Gordon's statement of his future
intent and his subsequent actions with the prospective examinees
taken upon that intent were highly relevant to the perjury
prosecution of defendant. Defendant was charged with false
testimony before a Grand Jury inquiring into his joint action
with Gordon and Lebron at their meeting at Gordon's home
regarding the forthcoming promotional examination. Gordon's
intent to hold that meeting and to reveal the examination
questions supplied the materiality element of the questions
defendant falsely answered. Without proof of Gordon's plan and
his joint action upon it with the recipients of the illegal
disclosures, defendant's answers to the questions posed before
the Grand Jury would be meaningless to a trial jury.
Likewise, the defendant's narrow interpretation of
Hillmon as holding that a declarant's statement of intention can
be admitted only for the purpose of proving the declarant's
solitary future action cannot be squared with Justice Gray's
articulation of the Court's ruling on the state of mind exception
and his description of the probative value of Walters'
declaration on the ultimate issue -- whether the body Brown had
buried near Crooked Creek was Hillmon or Walters.
The Supreme Court in Hillmon ruled that Walters'
declarations of intent to leave Wichita were "competent" not only
to permit a trier of fact to infer that he went away (the limited
application of the Hillmon doctrine advocated by defendant) but
also to permit the inference, so the Court explicitly stated,
"that he went with Hillmon" (Mutual Life Ins. Co. v Hillmon,
supra, 145 US, at 296). Indeed, excision of Walters'
declarations of intention to leave with Hillmon would have
rendered his letters irrelevant to the insurers' defense that the
body held out as Hillmon was really Walters.
The very same analytical infirmities identified and
objected to by defendant in admitting Gordon's October 20
statement under the state of mind exception were present in
Hillmon. Just as here, where Gordon's October 20 statement
implies the existence of a prior discussion and agreement
concerning the meeting that night, in Hillmon, Walters' statement
of intention to accompany Hillmon implied that a prior discussion
had taken place in which they had agreed to embark together on a
trip to search for suitable ranch land.
Thus, Hillmon does fully support the admissibility
under the state of mind hearsay exception of Gordon's October 20
pre-meeting statement as proof of the joint or cooperative action
of Gordon, defendant and others (see, authorities cited at
footnote 2, supra). Indeed, even early commentators who
expressed concern that Hillmon would be expanded to support
admissibility of declarations of memory of past events
(essentially destroying the hearsay rule) did not read Hillmon in
the narrow manner that defendant advocates here (see, Seligman,
op. cit., passim; Maguire, op. cit., at 711; see also, Shepard v
United States, 290 US 96, 105-106 [Cardozo, J.]).
Defendant argues alternatively that we should not adopt
the entire Hillmon doctrine, but limit its application to make a
statement of future intent admissible solely to prove the
individual act of the declarant. In doing so, our Court would
align itself with only one other appellate court in this country
in this century in narrowly restricting the state of mind
exception to prove solitary acts of the declarant in criminal
cases (see, Clark v United States, 412 A2d 21 [D.C. Ct of App]).3
Jurisdiction after jurisdiction of State and Federal courts have
determined to follow the lead of Hillmon and Hunter in admitting
against criminal defendants (upon establishment of an appropriate
foundation) the statements of a declarant's intention to perform
acts entailing the participation jointly or cooperatively of the
nondeclarant accused.4 We also adopt that rule.
Wigmore in his introductory treatment of the exceptions
of the hearsay rule said:
"The needless obstruction to
investigation of truth caused by the
hearsay rule is due mainly to the
inflexibility of its exceptions, to the
rigidly technical construction of those
exceptions by the courts * * * and to
the enforcement of the rule when its
contravention would do no harm, but
would assist in obtaining a complete
understanding of the transaction" (V
Wigmore, op cit., 1427, at 257
[emphasis supplied]).
Rigid construction of the state of mind exception was
rejected in United States v Annunziato (293 F2d 373 [2d Cir],
cert denied 368 US 919). There, Judge Friendly, writing for the
Court, was faced with a hearsay challenge to the admissibility of
a declaration of a future plan (that of a contractor to execute a
bribery scheme with a corrupt union official) on the ground that
the declaration also looked backward to a past event, the
arrangement the contractor previously made with the union
official. That objection is one of defendant's principal grounds
for opposing the admissibility of Gordon's October 20 pre-meeting
statement -- because of its implication of a prior agreement with
defendant. Judge Friendly's reasoning in dismissing the same
objection is instructive.
First, he noted, as we have here, that Hillmon itself
was a case where the declaration of Walters' intention to travel
with Hillmon implicitly "represented a previous arrangement
between them" (293 F2d, at 377). Judge Friendly opined that the
"'vigorous leap'" in expanding the state of mind exception to the
hearsay rule was the initial application of the exception to
admit statements of intent solely to prove the declarant's later
acts (id., at 378). Once the act of the declarant could be
proved through a declaration of intent to do the act, Judge
Friendly saw no reason automatically to exclude a declaration of
joint activity with a named criminal defendant merely because it
expressly or impliedly refers to a prior arrangement with the
defendant. "To say that this portion of his statement [of
intention to send a bribe to the union official] is sufficiently
trustworthy for a jury to consider without confrontation, but
that his reference to the telephone call from Annunziato which
produced the decision to send the money is not, would truly be
swallowing the camel and straining at the gnat" (id., at 377-378
[emphasis supplied]). The declaration's inclusion expressly or
impliedly of past events involving others, motivating or
explaining the declarant's plan "does not demand exclusion or
even excision, at least when, as here, the event is recent, is
within the personal knowledge of the declarant and is so
integrally included in the declaration of design as to make it
unlikely in the last degree that the latter would be true and the
former false" (id., at 378 [emphasis supplied]).
The Hillmon doctrine is not a revolutionary concept
among hearsay exceptions, the dangers in adopting it are not
unique, and they can be addressed by imposing foundational
safeguards the same as or similar to those we have fashioned with
other hearsay exceptions.5 This would not be the first hearsay
exception in which the future acts of a nondeclarant, expressly
or impliedly based on previous understandings, are admitted
against the nondeclarant. Admissibility of just such a
declaration is sanctioned under the statements of co-conspirators
exception to the hearsay rule, one so "firmly enough rooted in
our jurisprudence that * * * a court need not independently
inquire into * * * reliability" (Bourjaily v United States, 483
US 171, 183). In Bourjaily, the Supreme Court upheld the
admission of a co-conspirator's declaration of future actions of
the defendant on trial, that a "friend [later identified as
defendant] had agreed * * * to buy a kilogram of cocaine and to
distribute it [and also] that the friend would be at the hotel
parking lot, in his car, and would accept the cocaine from
Greathouse's car after Greathouse gave Leonardo the keys" (483
US, at 180 [emphasis supplied]; see also, People v Sanders, 56
NY2d 51, rearg denied 57 NY2d 674).
Moreover, as with other hearsay exceptions, statements
of intent to engage in future conduct with another person largely
obviate the dangers of a declarant's faulty memory or perception,
two of the four testimonial infirmities (along with insincerity
and ambiguity) which the hearsay rule requires to be tested
through cross-examination (see, Williamson v United States, 512
US 594, 598-599; Prince, Richardson on Evidence 8-102, 8-603
[Farrell 11th ed]; 5 Weinstein, op. cit., 802.02). This is
generally sufficient to justify an exception, when there is
independent evidence of reliability (see, Tribe, op cit., 87 Harv
L Rev, at 966).
It is not difficult to fashion foundational safeguards
appropriate to ensure against both the dangers of unreliability
common to most hearsay exceptions and those peculiar to this one.
Thus, before a statement of intent to engage in joint or
cooperative activity is admissible against the named
nondeclarant, it must be shown that (1) the declarant is
unavailable (cf., People v Thomas, 68 NY2d 194, cert denied 480
US 748; V Wigmore, op. cit. 1420, 1421); (2) the statement of
the declarant's intent unambiguously contemplates some future
action by the declarant, either jointly with the nondeclarant
defendant or which requires the defendant's cooperation for its
accomplishment (see, Shepard v United States, supra, 290 US, at
106; People v Chambers, 125 AD2d 88, 94, lv dismissed 70 NY2d
694; Maguire, op cit., 38 Harv L Rev, at 719); (3) to the extent
that the declaration expressly or impliedly refers to a prior
understanding or arrangement with the nondeclarant defendant, it
must be inferable under the circumstances that the understanding
or arrangement occurred in the recent past and that the declarant
was a party to it or had competent knowledge of it (see, United
States v Annunziato, supra; cf., People v Thomas, supra); and (4)
there is independent evidence of reliability, i.e., a showing of
circumstances which all but rule out a motive to falsify (People
v Blades, supra; People v Thomas, supra), and evidence that the
intended future acts were at least likely to have actually taken
place (United States v Sperling, 726 F2d 69, 74 [2nd Cir], cert
denied 467 US 1243; see also, People v Malizia, 92 AD2d 154,
160).
Gordon's pre-meeting October 20 statement easily meets
the foregoing requirements. Gordon was unavailable as a
witness, having invoked his privilege against self-incrimination.
His October 20 statement unequivocally involved Gordon's future
conduct in conjunction with that of defendant and the other exam
takers. Gordon was not to be just a passive recipient of a visit
from defendant at his home (cf., People v Chambers, supra). The
plan was to hold a meeting at which information regarding the
questions on the promotional exam was to be given and received.
The place of the meeting was largely irrelevant to the plan.
To the extent that expressly or by implication Gordon's
declaration may have included an assertion that a prior
arrangement to hold the meeting occurred, it was inferable from
the evidence that the arrangement was a recent one and that
Gordon was a party to it. Gordon personally telephoned Lebron on
October 19 to make the initial date for the examination session
the following evening. He also telephoned defendant on October
19. These facts, together with the highly sensitive and
incriminating nature of the meeting certainly would permit the
trial court to infer that when Gordon told Lebron "I got Sam," he
based this on personal contact.
There was also independent corroborative evidence
supporting the trustworthiness of Gordon's October 20 declaration
to Lebron. Gordon in fact was in a position to reveal
information regarding the questions that would be on the
examination. Gordon's motive to ingratiate himself with Lebron
would have been undercut had he not been telling the truth.
Gordon's statement opened him up to criminal prosecution and the
destruction of his career as a superior officer in the Transit
Police. "[E]ven reasonable people who are not especially honest,
tend not to make self-inculpatory statements unless they believe
them to be true" (Williamson v United States, supra, 512 US, at
599).
Finally, there was independent evidence that the
intended meeting likely and indeed actually took place. The
evidence established a likelihood that defendant and the other
officers under Gordon's command who were planning to take the
promotional exam would comply and cooperate with Gordon's plan to
hold the cheating session on the evening of October 20.
Reliability is especially enhanced under the Hillmon doctrine
when the declarant holds power or control over the persons whose
joint or cooperative conduct is necessary to accomplish the
declarant's intentions (see, Friedman, op. cit., 96 Yale LJ, at
711-715). Lebron actually testified in detail that the meeting
took place and that test information was shared. All of these
facts and circumstances more than satisfy the corroboration
standard we adopted with regard to declarations against penal
interest -- evidence establishing a reasonable possibility of the
statement's veracity (see, People v Thomas, supra, 68 NY2d, at
200), and that standard also suffices here. Thus, the trial
court properly admitted Gordon's October 20 statement under the
state of mind exception to the hearsay rule.
ADMISSIBILITY OF GORDON'S OCTOBER 24, 1990 STATEMENT
AS A DECLARATION AGAINST PENAL INTEREST
As previously described, a face-to-face confrontation
between John Lohan and Gordon occurred on October 24, over the
latter's sexual advances toward Lizette Lebron. During that
confrontation, Gordon inadvertently disclosed the October 20
cheating session attended by Lebron and other officers at
Gordon's home. Lohan threatened to disclose this to the Internal
Affairs Bureau of the Transit Police. Immediately following that
meeting, Gordon made the telephone call to Lebron in which he
requested that she turn over to "Sam or Joyce or somebody" the
"papers," which she understood to mean the notes she took at the
late night October 20, 1990 meeting. He specifically asked her
not to give the papers to Lohan. Lebron testified that she had
copied information Gordon furnished them on the actual questions
which would be included in the Transit Police promotional exam.
She also testified that "Sam" referred to defendant, and "Joyce"
to Joyce Sellers, another personal friend of Gordon's and a
District I Transit Police officer under his command.
On this appeal, defendant has not contested that
Gordon's October 24 recorded telephone call to Lebron meets all
four of the prerequisites of our case law for admissibility as a
declaration against penal interest (see, People v Thomas, 68
NY2d, supra, at 197). First, Gordon was unavailable as a
witness, having invoked his constitutional privilege against
self-incrimination. Second, it was clearly inferable that
Gordon, a career police officer, was aware at the time that his
October 24 statement was highly incriminating, involving the
suppression or potential destruction of evidence establishing his
criminal conduct in giving out answers to the exam. Third,
Gordon certainly had competent knowledge of the matter under
discussion.
The fourth requirement was also satisfied. There was
ample independent, direct and circumstantial evidence to assure
the trustworthiness of Gordon's statement linking him to the
cheating scheme and its attempted cover-up. Unquestionably,
Gordon knew from the immediately preceding circumstances that
what he said was of the highest importance. He was at risk of
criminal prosecution and the ruination of his career if Lebron
did not comply with his request. Thus, he had every reason to be
sincere and honest in speaking to her. Lebron corroborated
defendant's participation in the October 20 session on the exam
questions. Independent corroboration was also supplied by the
evidence of the officers' significantly poorer rankings on the
second exam after the results of the first test were invalidated.
Cumulatively the foregoing evidence amply satisfied the fourth
requirement for admissibility of a declaration against penal
interest that "circumstances independent of the hearsay
declaration itself are present which fairly tend to support the
assertions made and thereby assure their trustworthiness" (People
v Thomas, supra, 68 NY2d, at 200 [emphasis supplied]).
Defendant's contention is that the trial court
committed reversible error in admitting Gordon's October 24
statement without redacting his and Sellers' names. He argues
first that, under our precedents, redaction of the name of a
nondeclarant defendant is always required because admissibility
is strictly limited to the portion of the statement that
inculpates the declarant and no other person. We have not, and
should not adopt any per se rule requiring invariable redaction
of the name of a co-perpetrator in any declaration against penal
interest. The United States Supreme Court's decision in
Williamson v United States (512 US 594, supra) teaches why such
an iron-clad rule would unduly restrict the declaration against
penal interest exception to the hearsay rule. In Williamson, the
Supreme Court interpreted Rule 804(b)(3) of the Federal Rules of
Evidence (the hearsay exception for declarations against penal
interest) much as our Court has established by common law, to
limit admissibility to those portions of the hearsay statement
which are actually self-inculpatory to the declarant (see, People
v Brensic, 70 NY2d 9, 16; People v Thomas, supra, 68 NY2d, at
198; People v Maerling, 46 NY2d 289, 298).
Justice O'Connor, writing for the majority in
Williamson, expressly eschewed application of broad general rules
to determine whether a given statement is against the declarant's
penal interest. "[W]hether a statement is self-inculpatory or
not can only be determined by viewing it in context" (512 US, at
603), and can "only be answered in light of all the surrounding
circumstances" (id., at 604). To illustrate that point, Justice
O'Connor demonstrated that, in a particular context, the
identification of a co-perpetrator in a statement may indeed be
so additionally inculpatory of the speaker as to itself
constitute a declaration against penal interest:
"Even statements that are on their face
neutral may actually be against the
declarant's interest. 'I hid the gun in
Joe's apartment' may not be a confession
of a crime; but if it is likely to help
the police find the murder weapon, then
it is certainly self-inculpatory. 'Sam
and I went to Joe's house' might be
against the declarant's interest if * *
* being linked to Joe and Sam would
implicate the declarant in Joe and Sam's
conspiracy" (id., at 603-604 [emphasis
supplied]).
Justice Scalia, in a concurring opinion in Williamson,
also recognized that naming an accomplice may well add to the
incriminatory nature of a statement and, therefore, qualify it as
a declaration against penal interest:
"Moreover, a declarant's statement is
not magically transformed from a
statement against penal interest into
one that is inadmissible merely because
the declarant names another person or
implicates a possible codefendant. For
example, if a lieutenant in an organized
crime operation described the inner
workings of an extortion and protection
racket, naming some of the other actors
and thereby inculpating himself on
racketeering and/or conspiracy charges,
I have no doubt that some of those
remarks could be admitted as statements
against penal interest" (id., at 606-607
[emphasis supplied]).
The same position was taken by the Advisory Committee
on the then-proposed Federal Rules of Evidence:
"Whether a statement is in fact against
interest must be determined from the
circumstances of each case. Thus, a
statement admitting guilt and
implicating another person, made while
in custody, may well be motivated by a
desire to curry favor with the
authorities and hence fail to qualify as
against interest * * * On the other
hand, the same words spoken under
different circumstances, e.g., to an
acquaintance, would have no difficulty
in qualifying"(Advisory Comm Notes,
reprinted following FRE 804, at 449).
Our own decisions are not to the contrary. Indeed,
while expressing similar skepticism regarding the reliability of
statements inculpating others given during custodial
interrogation, we opted against a per se rule of redaction of the
accusatory portion of the declaration in the prosecution of a co-
defendant, in favor of a nonconclusive presumption against
reliability, with the ultimate determination dependent upon the
circumstances of the individual case (see, People v Brensic,
supra, 70 NY2d, at 26; People v Geoghegan, 51 NY2d 45, 49; see
also, People v Blades, __NY2d___ [4/6/99]).
Alternatively, defendant argues that, in this case, the
specific naming of defendant as the requested recipient of
Lebron's exam notes was not self-inculpatory of Gordon and
therefore should have been redacted. We disagree. As the
preceding discussion shows, a determination of whether the
specific naming of defendant in Gordon's October 24 telephone
conversation with Lebron constitutes a declaration against penal
interest requires an assessment of the incriminatory potential of
the instruction to give the papers to defendant and not to
Lohan, in the situational context in which it was made. That
context was Gordon's urgent need to have Lebron's papers turned
over to a reliable ally before Lohan got them from her. The
papers constituted conclusive documentary proof that he had
divulged the contents of the exam questions. Gordon was aware of
Lohan's hostility because of his sexual overtures toward Lebron
and feared that she had revealed the scheme for cheating on the
examination. In the confrontation between Gordon and Lohan on
October 24, Gordon admitted that Lebron's papers contained
answers to the exam and implored Lohan not to turn the papers
over to the Internal Affairs Bureau, because it would ruin him.
When Lohan rejected his entreaties, Gordon threatened him.
Significantly, Gordon told Lohan that disclosure of Lebron's
notes on the exam questions would be futile because he had
friends who would destroy them and quash the investigation.
It was immediately after that meeting that Gordon
telephoned Lebron to instruct her not only to withhold her notes
from Lohan -- a personal enemy -- but also to turn them over to
defendant, or another trusted subordinate in the District I unit,
or "somebody" -- presumably someone within the same intimate
circle. Surely, it was reasonably inferable by the trial court
that Gordon's motive for requesting that the papers be released
to the specific persons named was that they would be willing
confederates in an obstruction of justice -- the destruction of
evidence of his official misconduct in disclosing the answers to
the Sergeant's promotional exam -- the very same threat he
expressed to Lohan at their meeting just before his call to
Lebron (see, Penal Law 215.40 [Tampering with physical
evidence]).
Thus, it seems indisputable that the call and naming of
defendant were indivisible components of the second set of
Gordon's criminality, the attempted cover-up of his earlier
crime. The naming of defendant, a friend and participant in the
first crime, was, therefore, unequivocally self-inculpatory and
hence, admissible as a declaration against penal interest. By no
means could Gordon's naming of defendant as the requested
recipient of Lebron's papers be considered neutral (and therefore
not against penal interest), because Gordon did not expect
defendant to be a neutral party if he obtained possession of the
papers. In those respects, the specific naming of defendant in
Gordon's urgent call on October 24 for Lebron to deliver the
papers to defendant bears a remarkable likeness to Justices
O'Connor's and Scalia's examples of when a declarant's inclusion
of another person in the statement falls within the declaration
against penal interest exception to the hearsay rule and is
therefore, admissible in the prosecution of the person named.
Moreover, the facts and circumstances surrounding the
October 24 statement completely rule out any motive on Gordon's
part to falsify in his declaration (see, People v Blades, supra,
__NY2d, slip opn, at 11-12). Contrasted with the "sliding scale
[plea] bargain" (id., slip opn, at 12) in Blades, which gave the
co-defendant an incentive to allocute in aid of the prosecution's
case irrespective of the true facts, here, Gordon's incentive was
to be absolutely accurate and sincere in directing Lebron to
transfer the incriminating documents to defendant. For all of
these reasons, admission of the October 24 statement in
unredacted form was well within the "sound discretion" (People v
Thomas, supra, 68 NY2d, at 199) of the trial court, "'which is
aptly suited to weigh the circumstances surrounding the
declaration and the evidence used to bolster its reliability"
(id., at 198 [quoting People v Settles, 46 NY2d 154, 169]).
CONFRONTATION CLAUSE ANALYSIS
Defendant's contention that the admission of the pre-
meeting and post-meeting statements violated his right to
confront witnesses guaranteed by the Federal and New York
Constitutions is also unavailing (see, US Const, 6th Amend; NY
Const, art I, 6). The Supreme Court has developed a two-part
test "for determining when incriminating statements admissible
under an exception to the hearsay rule also meet the requirements
of the Confrontation Clause" (Idaho v Wright, 497 US 805, 814).
First, the Sixth Amendment establishes a "rule of
necessity" which typically requires the prosecution to
demonstrate that the declarant is unavailable to testify (id.).
Gordon's unavailability, by invoking his Fifth Amendment rights
at defendant's trial, is not contested here. Second, a statement
admitted under a hearsay exception avoids conflict with the
confrontation clauses only if it bears adequate "indicia of
reliability" (Idaho v Wright, supra, at 815). The indicia of
reliability requirement can "be met in either of two
circumstances: where the hearsay statement 'falls within a firmly
rooted hearsay exception,' or where it is supported by 'a showing
of particularized guarantees of trustworthiness'" (id. [quoting
Ohio v Roberts, 448 US 56, 66]). Hearsay exceptions recognized
as firmly rooted include dying declarations, cross-examined
prior-trial testimony, business and public records (Ohio v
Roberts, at 66, n 8, supra) and statements of co-conspirators
(Bourjaily v United States, 483 US, at 182-184, supra).
A Supreme Court majority has never held that statements
against penal interest or statements of future intent are among
the firmly rooted hearsay exceptions. The prevailing view among
the Federal Circuit Courts, however, is that the statement
against penal interest exception is sufficiently rooted to
satisfy the reliability requirement of the Confrontation Clause
(see, United States v Barone, 114 F3d 1284, 1302 [1st Cir], cert
denied 118 S Ct 614; Neuman v Rivers, 125 F3d 315, 319 [6th Cir],
cert denied 118 S Ct 631; United States v York, 933 F2d 1343,
1363 [7th Cir], cert denied 502 US 916; United States v Keltner,
147 F3d 662, 671 [8th Cir], cert denied 119 S Ct 574; Lagrand v
Stewart, 133 F3d 1253, 1269 [9th Cir], cert denied 119 S Ct 422;
but see, United States v Flores, 985 F2d 770, 776 [5th Cir];
Earnest v Dorsey, 87 F3d 1123, 1131 [10th Cir], cert denied 519
US 1016).
There is also precedent holding that the state of mind
exception to the hearsay rule is a firmly rooted hearsay
exception (see, Lenza v Wyrick, 665 F2d 804, 811 [8th Cir]; Moore
v Reynolds, 153 F3d 1086, 1107 [10th Cir], cert denied 119 S Ct
1266; Forest v State, 721 A2d 1271, 1277 [Del]; Arizona v Wood,
180 Ariz 53, 64, 881 P2d 1158, 1169, cert denied 515 US 1147).
Indeed, the Eighth Circuit directly addressed the state of mind
exception in the context of statements of future intent and held
that the exception is firmly rooted for Confrontation Clause
purposes (Lenza v Wyrick, supra).
Here, however, because both of the statements at issue
bear sufficient "particularized guarantees of trustworthiness,"
we need not rely upon a conclusion that these hearsay exceptions
are "firmly rooted" for purposes of Confrontation Clause analysis
(see, Latine v Mann, 25 F3d 1162, 1166 [2d Cir], cert denied 514
US 1006). When considering whether a statement is sufficiently
supported by particularized guarantees of trustworthiness, its
reliability "must be shown from the totality of the
circumstances, but * * * the relevant circumstances include only
those that surround the making of the statement and that render
the declarant particularly worthy of belief" (Idaho v Wright, 497
US, at 819, supra).
Included in the factors that the Supreme Court
previously has considered to determine if a statement is
sufficiently trustworthy are spontaneity, repetition, the mental
state of the declarant, absence of motive to fabricate (Idaho v
Wright, supra, 497 US, at 821), unlikelihood of faulty
recollection and the degree to which the statement was against
the declarant's penal interest (Dutton v Evans, 400 US 74, 89).
Other courts have considered the status or relationship to the
declarant of the person to whom the statement was made (i.e., to
a law enforcement officer or to a trusted friend), whether there
was a coercive atmosphere, whether it was made in response to
questioning and whether the statements reflect an attempt to
shift blame or curry favor (see, United States v Matthews, supra,
20 F3d, at 546; United States v Barone, supra, 114 F2d, at 1302;
Earnest v Dorsey, supra, 87 F3d, at 1133-1134; United States v
York, supra, 933 F2d, at 1362-1363).
Under the foregoing factors, the circumstances
surrounding Gordon's statements bear amply sufficient indicia of
reliability to satisfy constitutional requirements. Neither
statement was made in a custodial setting to a person acting in
the capacity of a law enforcement officer. Instead, Gordon was
speaking to a trusted friend, someone he was willing to help
cheat on an exam and someone whom he thought would help him cover
up his misconduct. Both statements were unsolicited and
spontaneous.
Reliability is also inferable because each statement
was "truly self-inculpatory" (see, Earnest v Dorsey, supra, 87
F3d, at 1134). As previously discussed, the pre-meeting
statement implicated Gordon in misconduct concerning the exam,
and thus is the type of admission that we can presume he would
not express unless it were true. Similarly, the post-meeting
statement was self-inculpatory because it clearly demonstrated
Gordon's motive to conceal or destroy the evidence of his earlier
crime. Thus, the statement, in and of itself, incriminated
Gordon by establishing his attempt to suppress physical evidence
by his accomplices' acts of concealment or destruction (see,
Penal Law 215.40, supra).
Neither statement evinces any attempt to shift the
blame to another person and Gordon had no apparent motive, when
talking to Lebron, to fabricate. Indeed, Gordon's mental state
at the time he made these statements further supports their
reliability. He made the pre-meeting statement to inform Lebron,
in whom he had a romantic interest, of a meeting to take place at
his home that evening, surely because he wanted her to
participate. As to the October 24 post-meeting statement,
Gordon was in a desperate situation and was clearly motivated by
his desire to convince Lebron to get the papers into trusted
hands. All of the events took place within a four-day period,
concerning matters which must have been vividly emblazoned in
Gordon's memory. Thus, defendant's constitutional rights to be
confronted by the witnesses against him were not violated here.
PERMISSIVE ADVERSE INFERENCE CHARGE
We find no abuse of discretion in the trial court's
refusal to grant defendant's request for a permissive adverse
inference charge as a sanction against the People for Lebron's
destruction of evidence. The People do have an affirmative
obligation to preserve all discoverable evidence within their
possession (People v Martinez, 71 NY2d 937, 940; People v Kelly,
62 NY2d 516, 520). "Accordingly, where discoverable evidence
gathered by the prosecution or its agent is lost, the People have
a heavy burden of establishing that diligent, good-faith efforts
were made to prevent the loss" (People v Kelly, 62 NY2d, supra,
at 520 [emphasis supplied]). Otherwise, the trial court will
exercise its discretion in choosing an appropriate sanction (id.,
at 521; see, People v Martinez, 71 NY2d, supra, at 940).
Here, when the evidence was destroyed, it had not been
"gathered by the prosecution or its agent" and, thus, the People
had no affirmative obligation at that point to preserve it.
Typically, sanctions are imposed where a law enforcement officer
acting within the scope of his or her official duties loses or
destroys evidence already committed to the police's custody (see,
e.g., People v Joseph, 86 NY2d 565; People v Wallace, 76 NY2d
953; People v Haupt, 71 NY2d 929; People v Martinez, 71 NY2d 937,
supra; People v Kelly, 62 NY2d 516, supra). In this case,
however, Lebron was not acting as an agent of the People when,
acting for personal motives, she destroyed parts of her own tapes
before handing them over to the authorities. In addition,
Lebron's credibility was attacked in extensive cross-examination
regarding her willful destruction of the tapes. Thus, although
the People might be held accountable for a key witness' actions
in some situations, under these facts we perceive no error in the
trial court's refusal to instruct the jury that they were
permitted to infer that the destroyed evidence would have been
harmful to the People's case.
Defendant's remaining contentions are also without
merit.
Accordingly, the order of the Appellate Division should
be affirmed.
FOOTNOTES
1. The Grand Jury separately indicted Gordon with two counts of
official misconduct in violation of Penal Law 195.00 and four
counts of obstructing civil service rights in violation of Civil
Service Law 106. In March 1994, Gordon was convicted of both
counts of official misconduct and three of the four counts of
obstructing civil service rights.
2. Hillmon is probably the most often and intensely examined case
in all of American evidence jurisprudence. It is specifically
analyzed at length in the evidence treatises (see, e.g., VI
Wigmore, Evidence 1725 [Chadbourne Ed. 1976]; McCormick,
Evidence 275 [4th ed 1992]; Weinstein, Federal Evidence
803.07 [2d ed]). In addition, there are numerous articles
discussing Hillmon in depth (see, e.g., Seligman, An Exception to
the Hearsay Rule, 26 Harv L Rev 146 [1912]; Maguire, The Hillmon
Case - Thirty-Three Years After, 38 Harv L Rev 709 [1925];
Hutchins & Slesinger, Some Observations on the Law of Evidence --
State of Mind to Prove an Act, 38 Yale LJ 283 [1929]; Tribe,
Triangulating Hearsay, 87 Harv L Rev 957 [1974]; McFarland, Dead
Men Tell Tales: Thirty Times Three Years of the Judicial Process
After Hillmon, 30 Vill L Rev 1 [1985]; Friedman, Root Analysis of
Credibility and Hearsay, 96 Yale LJ 667 [1987]).
3. One other jurisdiction, Missouri, arguably may reject any
application of the state of mind exception to prove even the
future act of the declarant (see, State v Fitzgerald, 130 Mo 407,
32 SW 113 [1895]; but see, State v Sentillan, 1996 Mo App LEXIS
1904 [treating issue of whether Hillmon doctrine recognized in
criminal cases as an open question]).
4. See VI Wigmore, op. cit., 1725 n 1, at 130-136. Wigmore
cites authority from no less than 18 states that have adopted
Hillmon in this context. In addition, numerous other
jurisdictions have more recently applied the Hillmon rule in this
manner (see, Alaska v McDonald, 872 P2d 627 [Ct App]; State v
Adamson, 136 Ariz 250, 665 P2d 972, cert denied 464 US 865;
Connecticut v Santangelo, 205 Conn 578, 534 A2d 1175; Delaware v
McDonald, 598 A2d 1134 [Super Ct]; Thomas v State, 67 Ga 460;
People v Jones, 84 Ill App 3d 896, 406 NE2d 112; Maine v
Cugliata, 372 A2d 1019, cert denied 434 US 856; Michigan v
Atwood, 188 Mich 36, 154 NW 112; Montana v Sharbono, 175 Mont
373, 563 P2d 61; Lisle v State, 113 Nev 679, 941 P2d 459, cert
denied 119 S Ct 81; Ohio v Brewer, 48 Ohio St 3d 50, 549 NE2d
491, cert denied 498 US 881; United States v Houlihan, 871 F Supp
1495 [D Mass]; United States v Sperling, 726 F2d 69 [2d Cir],
cert denied 462 US 1243; Brown v Tard, 552 F Supp 1341 [DNJ];
United States v Calvert, 523 F2d 895 [8th Cir], cert denied 424
US 911; United States v Pheaster, 544 F2d 353 [9th Cir], cert
denied sub nom. 429 US 1099).
5. We note that the Law Revision Commission, in its most recent
proposal for a State evidence code, essentially adopted a version
of the full Hillmon doctrine making admissible a "declaration of
intent to engage in conduct with another person to establish the
conduct of that other person," with foundational safeguards to
ensure reliability (Proposed NY Code of Evidence 804[b][5]
[1991], at 220 [emphasis supplied]).
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Judge Levine. Chief Judge Kaye and
Judges Bellacosa, Smith, Ciparick, Wesley and Rosenblatt concur.
Decided July 1, 199