Petition for Writ of Certiorari — Malizia v. New York

Supreme Court brief1984

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84-225 ii

oT Court, U.S.

ee eS

No. AUC 8 1964

7 ENE LOTS VAS

eal a CLERY:

In Che anna

Supreme Court of tye United States

October Term, 1983

RICHARD MALIZIA,

Petitioner,

vs.

STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

FRANK A. LOPEZ

LONDON & LOPEZ

188 Montague Street

Brooklyn, N.Y. 11201

(212) 522-2900

NATHAN Z. DERSHOWITZ

DERSHOWITZ & EIGER, P.C.

225 Broadway

New York, N.Y. 10007

(212) 513-7676

ALAN M. DERSHOWITZ

Of Counsel

Yuck Bailey Fuiate, 203 Richmond Avenue @ Staten Island, New York 10302

Tel.: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

QUESTIONS PRESENTED

In a prosecution for murder, where

the key factual issue was whether

the defendant was present at the

scene of the shooting, did the

admission of hearsay testimony that

the decedent had told the witness

that he intended to meet with the

defendant on the night he was shot,

purportedly under the Hillmon

exception to the hearsay rule,

violate the defendant's rights under

the Confrontation Clause where the

hearsay was introduced to prove, not

the intent or conduct of the

declarant-decedent, but the conduct

of the defendant?

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o a Petar err wry ris page ee . - m "

i , 7 ¥ 7 2 . —_ 4 .

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Does the determination by the Jew

“York Court of Appeals that the

defendant had not properly preserved

the issue for its review having

objected, prior to his first trial

but not during the course of the

second trial, constitute an

independent and adequate state

ground which defeats review by this

Court?

TABLE OF CONTENTS

Questions Presented ......

Table of Authorities .....

Opiniones Below . +. sss © es

Jurisdiction & . * a . o ° : 7

Constitutional Provision

Involved 7 7. = = e a: e ie .

Statement of the Case .....

Reasons for Granting the Writ .

Il.

THE ADMISSION OF HEARSAY

STATEMENTS OF INTENT TO

PROVE, NOT THE CONDUCT

OF THE DECLARANT, BUT THE

CONDUCT OF A THIRD-PARTY

-- THE DEFENDANT --, VIO-

LATED THE PETITIONER'S

RIGHTS UNDER THE SIXTH

AMENDMENT'S CONFRONTA-

TION CLAUSE. ...-e«« -«

THE DETERMINATION BY THE

NEW YORK COURT OF APPEALS

THAT PETITIONER HAD NOT

PROPERLY PRESERVED THE

ISSUE FOR REVIEW DOES NOT

DEFEAT REVIEW BY THIS

COURT ON CERTIORARI. ..

lili

Cenpegiuegieonh « «© © «+ © © 6 © 6

Appendix °° 2 o » . ee — aa a a e

Opinion of the Court of

Appeals .. «++. -e«e. e

Opinion of the Supreme Court,

Appellate Division, First

Department ... «ee. e«

TABLE OF AUTHORITIES

Abie State Bank v. Bryan,

UeBe FED UtPStF «2 6

282

California v. Green, 399 U.S.

[ae SUeTeE aw 6% 8

Clark v. United States, 412

B.2G 2) (O.Ce CO. ABD~

Davis v. Alaska, 415 U.S.

(eval &¢ ke +

1980)

308

Davis v. Wechsler, 263 U.S.

[tease 5 6 ee +

Fay v. Noia, 372 U.S.

(1963) . . 6 * . . .

Gual Morales v. Hernandez Vega,

391

579 F.2d 677 (1st Cir.

1978) e 2 e e * = *

Hathorn v. Lovorn, 457 U.S.

S19GS) « sw ew ew we 2

255

Henry v. Mississippi, 379 U.S.

443 (1965) . 2. « © «

40,

McCormick, Evidence, §294 at 695

(2d ed. 1972) 7 - o * . . * * . o

Michigan v. Long, 103 S.Ct. 3469

(1983) . . + * . . . . o . oe . .

Michigan v. Tyler, 436 U.S. 499

(19 8) * 7 7 _ . * > 7 * — . * 40,

Mutual Life Insurance Co.

v. Hillmon, 145 U.S. 285

(1982) . - . 7 _ . 7. . - 36 13,

Ohio v. Roberts, 488 U.S. 56

(1980) 7. - ~ . . . . . + - + 7 7 .

Parrot v. cite of Tallahassee,

381 Uebe 1 5) 7 . 7 = + . ”

People v. Alcalde, 24 Cal.2d 177,

126 Wea Gar Steen) « oe ss | BB e

People v. Lauro, 91 Misc. 2d 706,

358 N.Y.S.20 503 (Sup. Ct.

Westchester County, 1977) ... .

People v. Michael, 48 N.Y.2d 1,

420 N.Y.S.20 371, 394 N.E.2d

1134 (1979) 7 7 7 * * > * > > * >

Pointer v. Texas, 380 U.S.

EE 5 6 6» 6 6 0 © 6 0 0 « «

shepors v. United States, 290 U.S.

) . * . . . . * ° . * , 20, 22

State v. seg liatay 372 A.2a 1019

(Me, 19 + . 7 7 . . . . 7 * . .

State v. Vestal, 273 N.C. 561,

emer ees 0 UOTI) 6. lg 6 tt

United States v. Brown, 490 F.24

DC TEE? CWPSD 5 » « 0 0 « c

United States v. Cohen, 631 F.2d

DEED 5 6 0 6 8 fo

United States v, Taian 510 F.2d

GS r. *. . 7 . 7 . 24,

U.S. Vv. Mangan, 575 F.2d 32, (24d

Cir.), cert. denied, 439 U.S.

931 (1978) . . . . 7 . 7 . . *. 7 .

United States v. Phaester, 544

~~ F.2d 353 (9th Cir. 1976),

cert. denied, 429 U.S. 1099

(1977) . + *. 7 . . . . . . . 7 18,

Wright v. Georgia, 373 U.S. 284

(1963). . . * . * * > 7. 7 > 7 * 7 .

vii

aca See TE

OPINIONS BELOW

The opinion of the Court of Appeals of

the State of New York is reported at

N.Y.2d P N.Y.S.2d , (1984) and

is reproduced at A-1. The opinion of the

Supreme Court of New York, Appellate

Division, First Department is reported at

92 App. Div. 24d 154, _——Ss N.Y¥.S.2d |

(1983) and is reproduced in the Appendix

at A-5.

JURISDICTION

The judgment of the Court of Appeals,

State of New York was entered on May 10,

1984, The judgment and order of the

Appellate Division was entered on March

8, 1983. Petitioner moved for an

viii

SPREE POLE ERNE LED REIS LRTI NTL OE NOELLE ENOL MINI Sa ste a : 2. RAPIER IE DEN

extension of time within which to file

his Petition for a Writ of Certiorari,

and by order dated June 7, 1984, this

Court extended the time within which to

file the Petition to August 8, 1984. The

Court has jurisdiction to review the

judgment by Writ of Certiorari pursuant

to 28 U.S.C. $1257(3).

CONSTITUTIONAL PROVISION INVOLVED

In all criminal prosecutions, the

accused shall enjoy the right ... to be

confronted with the witnesses against

BaM@scscs V8.8. COnet. Amend. VI. Cl. 5.

FA EERIE PNR AO DET ED Tew eet Pee e in a Ais ia a

Jt RD 2 ad * VOOR 9 - r

EI TT LOS

STATEMENT OF THE CASE

On December 19, 1978, the dead body of

William ("Jimmy") Terrell was found near

the New York Thruway. He had been shot

by an unknown assailant. The decedent's

brother, Harry Terrell, had also been

shot and wounded.

Shortly after the shooting, Harry

Terrell identified the gunman -- who had

shot at him at midnight from a moving car

with no lights -- as an Hispanic male.

He later accused the Petitioner, Richard

Malizia -- who is not Hispanic --

claiming that, while he had not actually

seen Malizia, he knew he was at the scene

of the shooting.

SE EER GE IM RIE Ny

Appellant was indicted on four counts:

(1) second degree murder of William

("Jimmy") Terrell by acting in concert

with unidentified others; (2) second

degree murder of William ("Jimmy")

Terrell by acting in concert with

unidentified others while engaged in a

robbery; (3) attempted murder of Harry

Terrell while acting in concert with

unidentified others; and (4) assault on

Harry Terrell while acting in concert

with unidentified others.

Malizia was first tried in February

1980 before a jury in the Supreme Court,

New York County. The primary factual

issue was the identification of Malizia.

A critical legal issue at that trial was

secciceiiiaiiitiaaaiiiiiiiia

the admissibility of certain hearsay

statements -- Harry Terrell's testimony

that, on the evening preceding the

shooting, his brother, the decedent, had

told him that he was going to meet the

Petitioner to purchase some drugs and to

repay a debt. In a ruling made prior to

trial in response to defendant's motion

in limine, the court declared the hearsay

testimony admissible under the authority

of this Court's decision in Mutual Life

Insurance Co. v. Hillmon, 145 U.S. 285

(1892). The trial ended with a hung

jury.

The Petitioner's second trial began on

October 2, 1980.

According to the prosecution's main

witness, Harry Terrell, he and his

brother Jimmy had driven a Toyota to

206th Street in Manhattan, near a

Pathmark supermarket, bringing with them

a bag of money. On their arrival, Jimmy

got out of the car, entered a blue Ford

positioned across the street, and spent

several minutes there. He returned to

the Toyota and told Harry to get a second

bag of money. Harry returned with the

money; Jimmy took it and reentered the

Ford. Shortly after, the Ford, with its

lights out, started: toward the car in

which Harry was seated. Harry heard a

burst of gunfire and dropped to the floor

of his car. He claimed to have caught a

Glimpse of the Petitioner pointing a gun

at him, Warry Terrell was injured in his

arm, leg and finger. Jimmy was found

dead of bullet wounds in his back early

in the morning of December 19, on the

side of the New York State Thruway.

At this trial, too, the hearsay

evidence of the decedent's stated

intention to meet the Petitioner on the

night of the shooting was admitted into

evidence. No fewer than three critical

hearsay statements were admitted

apparently under Hillmon and the state of

mind exception to the rule against

hearsay. First Harry Terrell testified

that on the evening of December 18, his

brother Jimmy asked him "to go with him

to meet Richy at 12:00 ... at the

Pathmark.” Later, according to Harry,

Jimmy told him that he was going to see

if Richy had any drugs and that he owed

Richy some money which he wanted to

repay. Still later that night, at about

twenty minutes before midnight, Harry

testified that Jimmy said "I am going to

go now to meet Richy.”

The primary trial issue was again the

identification of Malizia, proof of which

rested on Harry Terrell's testimony. The

defense attempted to impeach Terrell's

identification by challenging his

credibility and by exposing the adverse

circumstances under which Terrell had

allegedly seen Malizia. Thus the defense

brought out that Terrell had originally

identified the assailant as Hispanic, and

that only later did he accuse Malizia,

not because he had not seen him, but

because he “knew he was there.” At

trial, after suggestive hypnosis during

which he was told to hold in his mind an

image of Malizia pointing a gun at hin,

Terrell claimed that "in a flash” prior

to the shooting he had glimpsed Malizia

pointing a gun at him from the moving

car. Under these circumstances the

hearsay statements about the decedent's

intention to meet with Malizia on the

night of the 18th were essential to the

case, serving to bolster substantially

Terrell's weak and suspect

identification,

This time, on October 9, 1980, the

Petitioner was convicted on all four

counts. He was sentenced to concurrent

terms of 25 years to life on Counts I and

II; 8-1/3 to 25 years imprisonment on

Count III to run consecutively with the

sentence on Counts I and II; and five to

15 years imprisonment on Count IV to run

concurrently with the sentence on Count

III, but consecutively with the sentence

on Counts I and II.

By order dated March 8, 1983, the

Appellate Division, First Department,

affirmed.

On appeal, several issues were raised

regarding the sufficiency of the evidence

and the propriety of several evidentiary

rulings. The Appellate Division ruled

that there was sufficient evidence to

Support the conviction, but that the

trial court had erred in permitting

questions with regard to Harry Terrell's

assumption of family obligations for his

deceased brother's children and in

precluding cross-examination of Harry

Terrell intended to elicit that the

witness had received a promise of

favorable consideration from the federal

prosecutor's office in connection with

his cooperation in a separate case. The

Appellate Division, however, ruled that

the errors were harmless.

The Appellate Division focused

primarily on the Confrontation Clause-

Hillmon hearsay issue:

Recognizing that the application of

this principle in criminal cases to

permit an inference with regard to

an event that involves the conduct

or cooperation of a person other

than the declarant has been the

subject of scholarly and judicial

disagreement, that the issue has not

previously been authoritatively

addressed in this State, and that

some scholarly opinion is opposed to

such an application to such state of

mind exceptions, we are nonetheless

persuaded that the testimony in

question was here properly admitted

under the circumstances presented.

A-6-A-7. Again, the Appellate Division

denied that, even if the admission of the

testimony was error, it was harmless

error.

The Court of Appeals for the State of

New York affirmed. The Court did n

reach the evidentiary and constitutional

issues concerning the admission of the

hearsay testimony about the victim's

declaration of future intended conduct

the night of the homicide. The Court

noted that, deeming himself bound by the

pretrial evidentiary ruling made at

Petitioner's first trial and on the

understanding that the prosecutor also

viewed that pretrial ruling as binding,

counsel for Malizia had made no objection

which appears on the record to the

hearsay testimony at the second trial.

The Court of Appeals, stating that

"[e)videntiary rulings made at one trial

+++ @re normally not binding in a

subsequent trial,” concluded that the

point was not preserved for its review.!

1 This issue is discussed at length in

Point II, infra. In addition, if the New

York Court of Appeals is without

jurisdiction to decide this issue, then

this Court should grant the Writ of

Certiorari to review the final judgment

of the New York Appellate Division.

I. THE ADMISSION OF HEARSAY STATE-

MENTS OF INTENT TO PROVE, NOT

THE CONDUCT OF THE DECLARANT,

BUT THE CONDUCT OF A THIRD-PARTY

-- THE DEFENDANT ~~, VIOLATED

THE PETITIONER'S RIGHTS UNDER

THE SIXTH AMENDMENT'S

CONFRONTATION CLAUSE.

On the authority of this Court's well-

known decision in Mutual Life Insurance

Co. v. Hillmon, 145 U.S. 285 (1892),

Harry Terrell testified to a series of

hearsay statements of the decedent Jimmy

Terrell. The statements were expressions

of Jimmy Terrell's intention to meet the

Petitioner, Richard Malizia, at a certain

location on a certain night. The

Statements were not admitted as evidence

from which the jury could infer that

Jimmy Terrell had acted in accordance

with his stated intention -- that is,

that he had gone to 206th Street in the

Bronx on the night he was shot. There is

and was no dispute that he went to that

location and that he did so with his

brother Harry Terrell.

Rather, the hearsay declarations were

introduced to show that a third party,

the Petitioner Richard Malizia, had gone

to 206th Street on the night in question.

Petitioner maintains that this extension

of the “state of mind” exception to the

rule against hearsay is in conflict with

decisions of other state and federal

courts, is without basis in either law or

i i a i i el, i i

= ee ee ae};

logic, and resulted in the denial of his

rights under the Constitution's

Confrontation Clause.

The Confrontation Clause, which is

applicable to the States through the

operation of the Fourteenth Amendment,

Pointer v. Texas, 380 U.S. 400, 403-05

(1965); Davis v. Alaska, 415 U.S. 308,

315 (1974), provides:

In all criminal prosecutions the

accused shall enjoy the right ... to

be confronted with the witnesses

against him.

The Clause reflects policies similar to

those which underly the evidentiary rules

against hearsay. See, e.g., California

v. Green, 399 U.S. 149 (1970). While not

every hearsay problem is a Constitutional

problem, see, e.g., id., “The historical

evidence leaves little doubt ... that the

Clause was intended to exclude some

hearsay." Ohio v. Roberts, 448 U.S. 56,

63 (1980). This Court has not sought to

"map out a theory of the Confrontation

Clause that would determine the validity

of all ... hearsay exceptions."

California v. Green, supra, at 162. In

Ohio v. Roberts, 448 U.S. 56, 66 (1980),

however, the Court did set out the

general rule:

In sum, when a hearsay declarant is

not present for cross-examination at

trial, the Confrontation Clause

normally requires a showing that he

in unavailable. Even then, his

statement is admissible only if it

bears adequate “indicia of

reliability." Reliability can be

inferred without more in a case

where the evidence falls within a

firmly rooted hearsay exception. In

other cases, the evidence must be

excluded, at least absent a showing

of particularized guarantees of

trustworthiness.

(footnote excluded, emphasis added).

Here, the declarant's unavailability is

not at issue, but the reliability of his

declaration surely is. The admission of

a statement under the state of mind

exception to the hearsay rule to prove

subsequent acts of someone other than the

declarant is an unjustifiable expansion

of the Hillmon rule, not a firmly rooted

hearsay exception. Moreover, the

statements at issue bear no indicia of

reliability or trustworthiness as to the

fact sought to be proved -- Petitioner's

whereabouts on the night in question,

In Hillmon, a civil case, this Court

upheld the admissibility of a hearsay

statement that the decedent intended to

go to a particular location at a future

time. Although the Court held only that

the hearsay statement was admissible on

the question of the declarant's intent

under the “state of mind” exception to

the rule against hearsay, its reasoning

would also suggest that the hearsay would

also be admissible to prove the

declarant's conduct, that is, that he

acted in conformity with his statement of

intent. Hillmon, so read, has always

been deemed extraordinary and

controversial. See, e.g., United States

v. Pheaster, 544 F.2d 353, 376 (9th Cir.

1976), cert, denied, 429 U.S. 1099

(1977).

But it is a further extension of the

Hillmon doctrine which is at issue here:

whether a hearsay statement that A

intended to do something with B is not

only some evidence that A followed

through on his intention but that B also

acted in accord with A's intention.

While some courts have accepted such an

extension of the Hillmon rule, these

decisions have come under trenchant

criticism, The issue is an important and

recurring one and it merits this Court's

attention.

Fifty years ago, in Shepard v. United

States, 290 U.S. 96 (1933), Justice

Cardozo suggested that Hillmon must be

limited to proof of the declarant's state

of mind and stated unambiguously that

Hillmon does not render admissible

hearsay statements as proof of third

parties’ intentions or conduct. In

Shepard, the defendant was accused of

poisoning his wife. The prosecution

introduced a statement of the wife that

she had been poisoned by her husband.

Holding that this testimony should have

been excluded, Justice Cardozo wrote:

There are times when a state of

mind, if felevant, may be proved by

contemporaneous declarations of

feeling or intent. Mutual Life Ins.

Co. v. Hillmon, 145 U.S. 285,

(further citations omitted). Thus,

in proceedings for the probate of a

will, where the issue is undue

influence, the declarations of a

testator are competent to prove his

feelings for his relatives, but are

incompetent as evidence of his

conduct of theirs,

* * *

Declaration of intention, casting

light upon the future, have been

sharply distinguished from

declarations of memory, pointing

backwards to the past. There would

be an end, or nearly that, to the

rule against hearsay if the

distinction were ignored.[*]

The testimony now questioned faces

backward and not forward. This at

least it did in its most obvious

* In fact, it could be argued that

hearsay statements as to the past are

more reliable than statements looking

toward the future. After all, the

declarant may know and may report

accurately what he felt or did in the

past. No mortal can know with any

certainty what will come to pass in the

future.

implications. What is even more

important, it spoke to 4 past act,

and more imporant than that, to an

act by someone not the speaker.

Temphasis added)

Shepard v, United States, 290 U.S. at

104, 105-06 (emphasis added),

While the case law is not consistent,

most courts which have confronted the

issue in recent years have concluded that

the Hillmon doctrine does not and cannot

render an extrajudicial statement by the

declarant about his state of mind

admissible to prove the state of mind or

conduct of a third party. In United

States v. Brown, 490 F.2d 758 (D.C. Cir.

1974), the United States Court of Appeals

for the District of Columbia Circuit

discussed the issue at length. In that

case, also a prosecution for murder, the

trial court permitted the victim's wife

to testify that her husband had told her

prior to his death that he was frightened

that he would be murdered by the

defendant. The jury was instructed that

the testimony should be considered only

in connection with evaluating the

victim's state of mind and its effect on

his conduct and could not be considered

to evaluate the state of mind or conduct

of the defendant. The Court of Appeals

nevertheless reversed the conviction,

holding that the admission of the

testimony was prejudicial and that the

limiting instruction was incapable of

undoing the harm. The court stated that

hearsay statements by the victim of a

homicide which inferentially implicate

the defendant even where the victim's

state of mind is actually in issue are

fraught with inherent dangers and

require the imposition of rigid

limitations. The principle danger

is that the jury will consider the

victim's statement ... as somehow

reflecting on defendant's state of

mind rather than the victim's --

i,e., as a true indication of

defendant's intentions, actions or

culpability. Such inferences are

highly improper and where there is a

strong likelihood that they will be

drawn by the jury the danger of

injurious prejudice is particularly

evident.

Id. at 765-60 (footnotes omitted). See

also United States v. Cohen, 631 F.2d

1223, 1225 (5th Cir. 1980); Gual Morales

v. Hernandez Vega, 579 F.2d 677, 6580 n.2

(1st Cir. 1978); United States v. Kaplan,

510 F.2G 606, 610 (2d Cir. 1974); Clark

v. United States, 412 A.2d 21, 25 (D.C.

Ct. App. 1980); State v, Vestal, 273 N.C.

561, 180 S.E.2d 755 (1971). Contra:

United States v. Phaester, 544 F.2d 353,

376-80 (9th Cir. 1976); State v,

Cugliata, 372 A.2d 1019 (Me. 1977);

People v. Alcalde, 24 Cal.2d 177, 148

P.2d 627 (1944).

Here, of course, the hearsay testimony

was introduced solely to prove

Petitioner's conduct. The declarant's

state of mind and conduct were simply not

at issue; no one disputes that Jimmy

Terrell was present at 206th Street on

the night in question. And, of course,

no limiting instruction was given

confining the use of the testimony to

determining Jimmy Terrell's state of mind

or actions, The hearsay was introduced

to the jury, and was obviously used by

it, a8 evidence of the Petitioner's

whereabouts during the night of December

18-19. Such an extension of the Hillmon

doctrine ia unjustified and runs afoul of

the requirements of the Confrontation

Clause,

The statements do not bear the

requisite indicia of reliability or

trustworthiness to justify the creation

of a new hearsay exception or to satisfy

the Confrontation Clause's requirements.

The Appellate Division itself, adverted

to the unreliability of an inference

which implies conduct on the part of one

other than the declarant. The court did

not find this argument compelling because

"the inference in question is one of

degree rather than kind, and merely goes

to the weight of the evidence.” But

whatever force there may be in the

inference that A has in fact acted in

accordance with his expressed intent does

not extend to an inference that another

will act in conformity with A's intent.

How easy life would be if what we desired

from others was so generally achieved.

But, alas, life is simply not so

predictable.?2

2 Assume that A tells a friend that he

intends to drive to Connecticut to lunch

ileal

The unreliability of the inference is

so great that it cannot merely go to the

"weight" of the evidence. Surely, no lay

jury would appreciate the weakness of the

evidence, at least without clear

with a potential client. We know that

any number of contingencies can interfere

with the plan -- A's car will not start,

or he suffers an attack of appendicitis,

for instance, or the client calls and

cancels the appointment. To whatever

extent it may be logically inferred that

A in fact went to Connecticut and met

with the client, it surely cannot be said

that A's statement is meaningful proof

that his car did start, that he did not

develop appendicitis, that his client did

not cancel or that the client ever

intended to meet A. Similarly the

decedent's statement that he intended to

meet with Petitioner is not proof that

Petitioner kept the appointment. So many

inferences are reguired to reach a

contrary conclusion that, given the

dangers which led to the creation of the

rule against hearsay, and the

Constitution's guarantee of a right to

instructions as to the problem. See

United States v. Kaplan, 510 F.2d 606,

610 (2d Cir. 1974).

The Appellate Division also recognized

"the apparent inconsistency with the

state of mind exception cf an inference

relating to the conduct of another

person, the inference conceptually

implying, in addition to the declarant's

confront witnesses, the statement cannot

be deemed competent proof of Petitioner's

acts.

Indeed, there is no way to know the

basis of Jimmy Terrell's statement that

Petitioner would meet him at the

Pathmark. While it may have been based

on a conversation Jimmy had had with the

Petitioner, it is just as likely that

some unknown other party had told Jimmy

that Petitioner would meet him there.

That makes the statement double hearsay

and wholly unreliable as proof of

Petitioner's conduct.

wtate of mind, a conclusion with regard

to the state of mind of the third

person." Th. problem is not merely

"theoretically awkward"; it is real.

Exceptions to the hearsay rule are

generally premised on the necessity for

the hearsay evidence and the intrinsic

| reliability of the hearsay. Thus, the

state of mind exception itself exists

because there is often no more reliable

way to derive a person's state of mind

than to look to that person's own

Statement. As a branch of the "current

sense impression doctrine,” reliability

is suggested because the spontaneity and

contemporaneity of the expression

minimizes the chances of

ere

Pe Se

untrustworthiness. See McCormick,

Evidence, $294 at 695 (2d ed. 1972). But

any reasons justifying the recognition of

the “state of mind” exception simply lose

their force and do not apply to an

extension to third party's acts. A's

senses, impressions, feelings or

intentions are simply not the only

available or the best evidence of B's

senses, impressions, feelings or

intentions. Moreover, the factors

suggesting reliability and

trustworthiness just do not exist in the

context of a third party. The

"theoretical awkwardness” is more than

that; it is the virtual absence of a

logical rationale for the “new” exception

to the hearsay rule.

Justice Traynor put it well in his

now-classic dissent in People v. Alcalde,

24 Cal. 24 177, 148 P.2d 627 (1944):

A declaration as to what one person

intended to do, however, cannot

safely be accepted as evidence of

what another probably did .... The

declaration of the deceased in this

case that she was going out with

[the defendant] is also a

declaration that he was going out

with here .... The only purpose

that could be served by admitting

such declarations would be to induce

the belief that the defendant went

out with the deceased, took her to

the scene of the crime and there

murdered her .... Her declarations

cannot be admitted for that purpose

without setting aside the rule

against hearsay. 24 Cal. 2d at

189-190, 1481 P.2d at 633. Accord,

U.S. v. Cohen, 631 F.2d 1223,

(5th Cir. 1980); U.S. v. Pheaster,

544 F.2d at 384 (Ely, J., concurring

and dissenting); U.S. v. Kaplan, 510

F.2d 606 (2d Cir. 1974).

In this case, the decedent's statements

that he intended to go to the scene of

the crime reflect his state of mind.

They would have been admissible under

Hillmon to prove that he intended to go

and, inferentially, that he did go there.

But that fact was never at issue. It was

3 Despite the holding in Kaplan,

subsequent Second Circuit cases treat the

guestion as an open one. See, e.g., U.S.

v. Mangan, 575 F.2d 32, 43 n.12

Cir.), cert. denied, 439 U.S. 931 (1978).

uncontested that Jimmy Terrell was at the

scene of the crime when the incident

occurred, 4

The court below acknowledged this but

suggested a number of reasons why the

hearsay was, in this case, trustworthy.

But virtually all of the factors it

4 People v. Lauro, 91 Misc. 2d 706, 398

N.Y.S. Sup. Ct. Westchester

County, 1977), the only New York case

dealing with the subject, noted that, as

interpreted in Alcalde and Pheaster,

Hillmon is an extraordinary doctrine.

e Lauro court did not pass on the scope

of Hillmon because it found that the

testimony there proferred required the

drawing of too many inferences. The

Lauro court did suggest that different

rules may be appropriate for civil and

criminal cases. Id. at 709. The

Confrontation Clause, after all, applies

only in criminal cases and thus suggests

&@ neat distinction explaining the

different results in Hillmon and Shepard.

Oe Behe hh ee he ee ee ee

listed would confirm only the

Lrustworthiness of the decedent's

statement of his intent to meet with the

Petitioner, a fact not in issue.°>

The scope of the Hillmon exception to

the rule against hearsay and the

exception's compatability with the

> The one exception is, in the Appellate

Division's words, as follows:

"Experience suggests that someone who

wishes to pay a large sum of money to

another with whom he has been meeting on

a regular basis over a period of time is

not likely to encounter insuperable

difficulties in the way of paying the

debt." The defect in this analysis is

that the "fact" that the decedent

intended to pay a debt is also

established only by the inadmissible

hearsay.

Confrontation Clause are important and

difficult questions which deserve this

Court's attention.

1 iS TRA ith SP Ste Stee

II. THE DETERMINATION BY THE NEW

YORK COURT OF APPEALS THAT

PETITIONER HAD NOT PROPERLY

PRESERVED THE iSSUE FOR REVIEW

DOES NOT DEFEAT REVIEW BY THIS

COURT ON CERTIORARI.

Deeming himself bound by the pretrial

ruling made before Petitioner's first

trial, and on the understanding that the

prosecutor also viewed that pretrial

ruling as binding, Petitioner's counsel

made no objection that appears on the

record to admission of the critical

Hillmon-hearsay in the course of

Petitioner's second trial. The admission

of that testimony and the resultant

violation of Petitioner's rights under

the Confrontation Clause was, however,

the primary claim of error on appeal, and

the issue the Appellate Division chose to

address at length. On that appeal, the

State made no claim that the evidentiary

issue had been waived because no

objection was made to the testimony when

it was introdeced.

In Petitioner's application for leave

to appeal to the Court of Appeals of the

State of New York, the hearsay issue was

again the issue on which Petitioner

focused in his attempt to convince that

Court to review his case. Again, in its

papers in opposition, the State raised no

claim that the issue had been waived by a

failure to object again at the second

trial to the introduction of the

testimony. The Court of Appeals granted

leave to appeal.

In its brief to the Court of Appeals,

the Hillmon-Confrontation Clause issue

was briefed at length. Then, for the

first time, the State took the position

that the issue was not preserved for the

court's review. The Court of Afpeals

agreed, stating without citation of

authority, "[e]videntiary rulings made at

one trial ... are normally not binding in

a subsequent trial,” A-4.

It is well-settled that this Court will

not review a judgment of a State court

which rests on an adequate and

independent state ground. Michigan v.

LI ——

Long, 103 S.Ct. 3469 (1983). The

adequate state ground rule is a function

ef the limitation of appellate review.

Fay v. Noia, 372 U.S. 391, 429 (1963).

It is also well settled that the

failure to comply with a state procedural

rule may constitute an adequate state

ground barring this Court's review of a

federal question. Michigan v. Tyler, 436

U.S. 499, 512 n.7 (1978). But a minor

procedural default does not constitute an

adequate independent state g-ound.

Parrot v. City of Tallahassee, 381 U.S.

129 (1965); Wright v. Georgia, 373 U.S.

284 (1963).

Whatever springes the State may set

for those who are endeavoring to

assert rights that the State

confers, the assertion of Federal

rights, when plainly and reasonably

made, is not to be defeated under

the name of local practice.

Davis v. Wechsler, 263 U.S. 22, 24 (1923)

(Mr. Justice Holmes), quoted in Fay v.

Noia, 372 U.S. 391, 432 (1963).

It is incumbent upon this Court to

ascertain for itself whether an asserted

non-federal ground independently and

adequately supports the judgment.

Michigan v. Tyler, supra, at 3474,

quoting Abie State Bank v. Bryan, 282

U.S. 765 (1931). The question of when

and how defaults in compliance with state

procedural rules can preclude this

Court's consideration of a federal

guestion is itself a federal question.

Fay v. Noia, supra, at 447. Failure to

present a federal question in conformance

with state procedure constitutes an

adequate and independent ground of

decision barring review by this Court

only if the state has a legitimate

interest in enforcing its procedural

rule, Michigan v. Tyler, 436 U.S 499, 512

n.7 (1978), and only if the state's

insistence on compliance with its rule is

necessary to vindicate the state's

interest in the particular case at bar.

Henry v. Mississippi, 379 U.S. 443, 447-

49 (1965).

Our decisions ... stress that a

state procedural ground is not

"adequate” unless the procedural

rule is "strictly or regularly

followed.” Barr v. City of

Columbia, 378 U.S. 146, 149 (1964).

State courts may not avoid deciding

federal issues by invoking

procedural rules that they do not

apply evenhandedly to all similar

claims.

Hathorn v. Lovorn, 457 U.S. 255, 262-63

(1982).

In the instant case, while it cannot be

denied that the rule requiring objection

to evidence sought to be introduced at

trial serves the legitimate State purpose

of affording the Court an opportunity to

consider the nature of the objection and

to make an informed legal ruling, it is

also clear that the purpose of that rule

was served here. Before Petitioner's

first trial, lengthy argument was had on

the Hillmon hearsay issue and a ruling

was made. Petitioner's counsel believed

that the Petitioner was bound by that

pre-trial ruling and believed that the

prosecutor -- the same prosecutor who had

tried the first trial -- believed it to

be binding as well.® Moreover, even if

an express objection had been made during

the course of the second trial and had

the second trial judge determined that he

was not bound by the previous ruling

under the "law of the case" doctrine, it

is clear from his other evidentiary

rulings that he would have come to the

Same conclusion with regard to

admissibility. Under these circumstances

6 Surely there was no knowing and

intelligent waiver, no knowing bypass of

an opportunity to litigate the issue.

the purpose of the rule reguiring an

objection at trial was substantially

served.

In addition, the Court of Appeals has

itself held that there are exceptions to

the general rule that a timely objection

is necessary to create a question of law

reviewable by the Court of Appeals. See

People v. Michael, 48 N.Y.2d 1, 420

N.Y¥.S.2d 371, 394 N.E.2d 1134 (1979).

It is not at all clear that the

procedural rule invoked by the New York

Court of Appeals is anything but a

transparent excuse for a refusal to

confront a difficult and substantial

federal question. Indeed, that Court

itself only goes so far as to say that

evidentiary rulings made it one trial are

normally not binding at a subsequent

trial, suggesting by its own ambiyuous

words that counsel's understanding on the

binding nature of the first ruling was

not entirely without basis in New York

law.

Under these circumstances, counsel's

failure to object at the second trial

should not be deemed an adequate and

independent state ground depriving this

Court of jurisdiction to review the

important Constitutional issue involved./?

7 To the extent that the New York Court

of Appeals was without jurisdiction to

decide the issues raised, then the

Appellate Division was the highest court

of the state in which a decision could be

had and Petitioner prays that the Writ of

CONCLUSION

For the reasons stated, Petitioner

respectfully prays that this Court grant

a writ of certiorari.

Respectfully submitted,

Frank A. Lopez

London & Lopez

188 Montague Street

Brooklyn, NY 11201

(212) 522-2900

Nathan Z. Dershowitz

Dershowitz & Eiger, P.C.

225 Broadway

New York, NY 10007

(212) 513-7676

Alan M. Dershowitz

Of Counsel

August 6, 1984

Certiorari be granted to review the

judgment of the Appellate Division.

MEMORANDUM

STATE OF NEW YORK

COURT OF APPEALS

THE PEOPLE etc.,

Respondent,

-against-

RICHARD MALIZIA,

Appellant.

This memorandum is uncorrected and subject to revi-

sion before publication in the New York Reports.

Alan M. Dershowitz, N.Y. City, & Frank A. Lopez,

Brooklyn, for appellant.

Robert M. Morgenthau, DA, NY County (Bruce

Allen & Robert M. Pitler of counsel) for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirm-

ed (see 92 AD2d 154).

On this appeal, defendant contends the evidence of

guilt is insufficient, particularly because of the lack of

credibility of Harry Terrell, the People’s principal witness,

and that the trial court committed reversible error in

several evidentiary rulings.

After an earlier trial had resulted in a hung jury,

defendant was convicted in a second trial of felony murder

(robbery) and common law murder resulting in the death

of William Terrell and of the attempted murder and

assault first degree of Harry Terrell, the decedent’s

brother. The facts are set forth in detail in the opinion of

the Appellate Division and need not be repeated here.

Briefly, however, the crime occurred in New York City on

the evening of December 18, 1978 after the decedent and

his brother drove to a street which was deserted at that late

hour, where decedent met with defendant and others

waiting there in a parked car. Harry Terrell waited down

the street in the Terrell vehicle. The purpose of the meeting

was to buy drugs and to deliver money to defendant to pay

him for past drug purchases. The jury found that defen-

dant shot decedent and then attempted to kill Harry Ter-

rell, sitting in the parked Terrell car, as defendant and his

associate sped away from the scene. Decedent’s body was

found later several miles from the scéne of the meeting.

We agree with the Appellate Division that the verdicts

are supported by the evidence. In reviewing the evidence

we are obliged to do so in the light most favorable to the

People (People v. Kennedy, 47 NY2d 196) bearing in mind

that credibility is matter to be determined by the trier of

the facts (People v. Parks, 41 NY2d 36, 47). Since the

record contains evidence sufficient in quantity and quality

to support the verdicts, our review function is exhausted

(see People v. Gruttola, 43 NY2d 116, 122; People v.

Joyiens, 39 NY2d 197, 203).

Nor do we find grounds for reversal on the court’s

evidentiary rulings. Defendant claims that the court erred

in permitting evidence that Harry Terrell had cared for the

victim’s son after the homicide and in limiting defense

counsel’s cross examination of Terrell about favorable

treatment he expected from the authorities on pending

criminal charges in exchange for his testimony in this ac-

tion. Even if defendant’s contention be accepted, reversal

is not required for there was no reasonable possibility that

these rulings contributed to defendant’s conviction and

thus they were harmless beyond a reasonable doubt (see

People v. Crimmins, 36 NY2d 230, 237). Harry Terrell’s

character, particularly his extensive criminal activities,

was fully developed for the jury. It also was told that he

had been granted immunity for past crimes by the pro-

secutor and that the prosecutor had offered to contact

other law enforcement authorities on his behalf after he

testified against defendant. If defendant wished to pursue

the subject further, counsel should have requested a voir

dire to explain the area he wished to examine and the

necessity for it.

Nor has defendant preserved for review by ap-

propriate objections his further contentions that the court

committed error in permitting Terrell to testify after an at-

tempt to hypnotize him (see People v. Hughes, 59 NY2d

523) and in permitting him to give hearsay testimony con-

cerning the victim’s declarations of future intended con-

duct the night of the homicide (see Mutual Life Insurance

Co. v. Hillmon, 145 US 285). Defendant maintains that he

has preserved his objection to the testimony concerning

decedent’s future intention because at the beginning of the

first trial the judge ruled over his opposition that it would

permit Harry Terrell to testify about statements made by

decedent to him on the night of the crime that he intended

to meet defendant that evening. He contends that this rul-

ing constituted the law of the case and that it was binding

on the parties and the court in the second trial before a

new judge.

Evidentiary rulings made at one trial, however, are

normally not binding in a subsequent trial, In this case

there is nothing in the record to indicate that the earlier

ruling was brought to the attention of the second judge or

that he or counsel considered themselves bound by it. Nor

did counsel object when Terrell testified ‘concerning

statements of the victim made the night of the crime. He

did object to a statement of decedent’s intent made two

weeks before the homicide, upon grounds of relevancy not

competence, but at the time of that objection defense

counsel stated that he had not objected to the earlier

evidence of the victim’s statements made on the night of

the crime because counsel! considered them part of the res

gestae. Accordingly, the point is not preserved for our

review.

axa *x**#* * * * *

Order affirmed in a memorandum. Chief Judge

Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons

and Kaye concur.

Decided May 10, 1984

——

DECISION

SUPREME COURT APPELLATE DIVISION

FIRST DEPARTMENT

November 1982

HON. LEONARD H. SANDLER, J.P.

HON. JOHN CARRO

HON, J. ROBERT LYNCH

HON. E. LEO MILONAS, J.J.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

RICHARD MALIZIA,

Defendant-Appellant.

Appeal by the defendant-appellant from a judgment

of the Supreme Court, New York County (Fitzer, J.),

rendered on February 11, 1981, which convicted defen-

dant, after a jury trial, of murder in the second deg-<e, at-

tempted murder in the second degree and assault in the

first degree.

Alaa M. Dershowitz, of counsel (Nathan Z. Der-

showitz with him on the brief; Frank A. Lopez, attorney)

for the defendant-appellant.

Bruce Allen, of counsel (Norman Barclay with him on

the brief; Robert M. Morgenthau, attorney) for the

respondent.

SANDLER, J.

The defendant was convicted after a jury trial of two

counts of murder in the second degree (common law and

felony murder), attempted murder in the second degree

and assault in the first degree, and was sentenced to two

concurrent terms of 25 years to life, and also to two con-

current terms of 8% to 25 years and 5 to 15 years, to be

served consecutively to the life sentence.

Of the several issues presented on this appeal, the one

ihat seems to us to merit extended analysis is raised by the

contention that reversible error occurred when the trial

court admitted into evidence a statement of the deceased

on the evening of the homicide that he was going to see the

defendant. This testimony was admitted by the trial court

under the state of mind exception to the hearsay rule pur-

suant to principles that derive from the well-known deci-

sion of the United States Supreme Court in Mutual Life

Insurance Co. v. Hillmon, 145 U.S. 285. The governing

principle allows, under appropriate circumstances,

declarations of intention offered to show subsequent acts

of declarant where the acts are relevant to a trial issue. The

declarant’s statement is permitted to show his existing in-

tent, and from this intent the trier of fact is permitted to

infer that the act was carried out.

Recognizing that the application of this principle in

criminal cases to permit an inference with regard to an

event that involves the conduct or cooperation of a person

other than the declarant has been the subject of scholarly

and judicial disagreement, that the issue has not previous-

ly been authoritatively addressed in this State, and that

some scholarly opinion is Opposed to such an application

of the state of mind exception, we are nonetheless per-

suaded that the testimony in question was here properly

admitted under the circumstances presented. We are also

persuaded that if the admission of this testimony were er-

ror, the error would have been harmless since, wholly

apart from the challenged Statement, the totality of the

evidence inescapably leads to the conclusion that the

deceased had in fact intended to meet the defendant, and

indeed did so. |

some money from people who wanted to make a drug pur-

chase, that he was gOing to see if Richy had any drugs, and

that he also owed Richy some money and wanted to pay

him. Harry Terrell understood the name Richy to be a

preceding two months, usually in the company of the

deceased, and on several occasions near the Pathmark

store located on 206th Street between Ninth and Tenth

Shortly before midnight the two men left for the

Pathmark in a car driven by Harry. In the car was a

Shoulder bag which contained bundles of money. The

deceased told Harry that the bag contained the money that

he owed the defendant. Harry drove to the intersection of

Tenth Avenue and 206th Street, a two-way street, parking

on the south side of 206th Street facing Ninth Avenue. The

deceased left the vehicle with the bag and walked down the

block to a blue Ford parked on the north side of the street

near the corner of Ninth Avenue. Harry recognized the car

as one that he had seen the defendant use on ail but one of

the prior occasions on which he had seen the defendant.

The license plates disclosed it to be a rental car. The

deceased entered the front of the blue Ford, emerging a

few moments later without the bag, and told his brother to

return to the Beasley apartment to secure more money.

Harry returned to the Beasley apartment and received

from her another bag in which he again observed bundles

of money. At 206th Street Harry parked his car in the

same spot. The deceased appeared moments later, took

the new bag, returned to the blue Ford and entered it.

Suddenly the Ford took off at a rapid pace,

headlights off, in the direction of the car in which Harry

was waiting. He heard a burst of noise, which sounded like

firecrackers. As the car reached Harry’s car he saw the

defendant in the middle of the back seat pointing a gun

directly at him. Harry dropped immediately to the floor as

a burst of gunfire knocked out the windows of his car. In

addition to the defendant, Harry also saw the driver, who,

like the defendant, was a white man.

In the early morning of December 19, 1978, a State

Trooper found the dead body of the deceased on the side

of a northbound lane of the New York State Thruway, a

series of bullet holes running from his back to his head.

No bullets or bullet fragments were observed in the sur-

rounding area.

The medical examiner testified that the deceased had

died of multiple bullet wounds. Nine bullets had entered

his body almost simultaneously, all from the back, and

eight of them had travelled on a left-to-right track. An ex-

pert witness testified that the upward swing of the line of

fire indicated that a single semi-automatic weapon had in-

flicted the wounds in a matter of seconds. An examination

of the deceased’s hat and coat disclosed 17. bullet holes,

seven with gunshot residue around them, indicating that

the gun had been fired eight to twelve inches from the

holes.

From evidence found at the location of the car oc-

cupied by Harry Terrell on 206th Street, it was determined

that thirteen bullets had been fired at the driver’s side of

the car that nine had pierced the frame, that the path of

the bullets suggested that they had been fired from a mov-

ing car, and that at least two automatic or semi-automatic

weapons had been used in that attack.

At about 5:00 P.M. on December 19 the defendant

and his brother, John Malizia, went to a Ford dealership

in Spring Valley, New York, where they told the rental

manager that a car rerited by John over a period of several

months, a 1979 blue Ford Granada, had been stolen the

previous day. The two brothers explained that they had

not reported the larceny of the car because: each had

thought that the other had the car. The police were unable

to find the car.

Brenda Beasley testified that she had spoken on the

telephone on several occasions to someone who had iden-

tified himself as Richy in the weeks prior to the homicide.

She had twice accompanied the deceased to the area of the

Pathmark. On each occasion the deceased had left her and

had entered a rental blue Ford car. Or one occasion, leav-

Al0

ing the scene of the meeting, she had observed the defen-

dant in the car.

In addition, there was testimony that the portion of

the New Yor State Thruway where the body of the deceas-

ed was found was along the route that would be taken by a

car proceeding from 206th Street to Monsey, New York,

where the defendant’s brother resided.

By any standard the evidence here summarized im-

pressively and convincingly supported in every respect the

jury’s verdict. We find wholly without merit the defen-

dant’s contention that the proof was insufficient because

no one had observed the defendant actually shooting the

deceased. The defendant was seen within seconds after a

burst of gunfire had killed the deceased, gun in hand,

about to undertake the murder of Harry Terrell. He was

identified by someone who had met him on a number of

occasions and had no discernible reason to lie with regard

to the identity of the person who had killed his brother and

who had attempted to kill him. The identification was sup-

ported by a host of circumstances which inexorably point

to the defendant as a participant in the murder and at-

tempted murder.

It is of no moment whether the defendant himself kill-

ed the deceased or the killing was done by someone ob-

viously his accomplice, although the evidence strongly

points to the defendant as the actual killer. Nor do we find

any infirmity in the evidence supporting defendant’s con-

viction of felony murder. Although the killing may have

been motivated by other, unknown considerations, the

manner in which it was carried out strongly supports the

jury’s implicit conclusion that the taking of the money was

no mere afterthought.

Se Gr eS ree cee

oan tt ove

—

Ren Sada Na

ee km

nena oheae

——————————

All

Turning to the principal issue presented on this ap-

peal, defendant’s challenge to the admissibility of the

deceased’s statement that he was going to see the defen-

dant invites our consideration of an issue that has divided

both scholarly and judicial opinion since the central prin-

ciples of the pertinent hearsay exception were set forth by

the Supreme Court in Mutual Life Insurance Co. v.

Hillmon, supra. The principle is of course now universally

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 where the

act is relevant to an issue in the case. See Maguire, ‘‘The

Hillmon Case—Thirty Three Years After,’’ 38 Harv. L.

Rev. 709; but see Seligman, ‘‘An Exception to the Hearsay

Rule,’’ 26 Harv. L. Rev. 146. Controversy has developed

over the admissibility of such a statement where the in-

ference sought to be drawn implies some conduct on the

part of one other than the declarant or to some extent re-

quires that person’s cooperation. See McCormick on

Evidence [1972 ed.] §295. Most commonly the issue has

been addressed in the context of criminal trials in which a

deceased declarant’s statement of intent to see or meet a

defendant is sought to be admitted as evidence that such a

meeting in fact took place.

In the Hillmon case itself, an action to recover on a

‘ life insurance policy, the Supreme Court sustained the ad-

missibility of a declarant’s statement that he was going to

be with another person for a period of time as evidence

that such an event in fact took place. A large majority of

the courts which have considered essentially that issue in

criminal case followed Hillmon in sustaining admissibility.

See 6 Wigmore on Evidence, §1725 [3rd ed., 1976], foot-

note | including a detailed ‘isting of the relevant decisions.

However, relatively few decisions have undertaken a

systematic analysis of the problem, and these few disclose

Al2

a division of judicial opinion. Compare United States v.

Pheaster, $44 F.2d 353 [9th Cir., 1976] and People v.

Alcalde, 148 P.2d 627 [Calif., 1944] (both sustaining ad-

missibility) with Clark v. United States, 412 A.2d 21 [D.C.

Ct. of App., 1979] (denying admissibility). See also

Shepard v. United States, 290 U.S. %, 105; United States

y. Cohen, 631 F.2d 1223, 125.

In United States v. Pheaster, supra, which sustained

the admissibility of a deceased declarant’s statement of in-

tent to meet the defendant, the Court set forth with

scrupulous fairness the arguments that had been advanced

in opposition to the result it reached. Two such arguments

were noted.

The first is based on the supposed unreliability of an -

inference which implies conduct on the part of one other

than declarant. The Court in Pheaster concluded, correct-

ly in our view, that this objection was not compelling,

observing that where the inference in question requires the

cooperation of another person, the contingency added is

ohe of degree rather than of kind, and merely goes to the

weight of the evidence.

The second objection was perceived in the apparent

inconsistency with the state of mind exception of an in-

ference relating to the conduct of another person, the in-

ference conceptually implying, in addition to the

declarant’s state of mind, a conclusion with regard to the

state of mind of the third person. Recogizing the

theoretical avkwardness of this application of the state of

mind exception, the Court nonetheless sustained the ad-

missibility of the statement, relying on the analysis set

forth in Hillmon itself and the weight of existing judicial

authority.

Al3

We are persuaded that a statement by a deceased that

he intends to meet another is admissible where the state-

ment is made under circumstances that make it probable

that the expressed intent was a serious one, and that it was

realistically likely that such a meeting would in fact take

place. See People v. Alcalde, supra, at 631. The concep-

tual difficulty noted in Pheaster seems to us to obscure the

common sense reality of the problem presented. Everyday

experience confirms that people frequently express an in-

tent to see another under circumstances that make it ex-

tremely likely that such a meeting will occur. Indeed, it is

not uncommon for such expressions of intent to be more

trustworthy evidence that the meeting took place than

many statements of intent with regard to the performance

of acts not involving any inference with regard to another

person.

This was the very analysis that led the United States

Supreme Court in Hillmon to find admissible a statement

of intent to be with another person as evidence that such

an event occurred. And although Hil/mon itself was a civil

case, it is not without significance that the Supreme Court

quoted extensively, and with approval, from a decision in

a criminal case involving precisely the same kind of in-

ference at issue here which sustained admissibility on the

basis of the probative trustworthiness of the evidence.

Hunter v. State, 11 Vroom (40 N.J. Law) 495, 534, 536,

538.

The facts in this case are illustrative. The deceased

was a major drug dealer who, over a period of several

months prior to the day of the homicide, had seen the

defendant on a number of occasions. Several meetings had

taken place in the precise location to which he and his

brother went on the evening he was killed. The deceased

told his brother, an associate in his narcotics business, that

Al4

he owed money to the defendant and that he wished to pay

him. That the deceased in fact intended to see the defen-

dant is convincingly confirmed by the circumstance that he

asked his brother to accompany him. That the deceased in

fact owed money to the defendant, which he intended to

pay, was confirmed by the presence in the car of a bag

containing bundles of money which he took with him

when he went to enter the blue Ford. Experience suggests

that someone who wishes to pay a large sum of money to

another with whom he has been meeting on a regular basis

over a period of time is not likely to encounter insuperable

difficulties in the way of paying the debt. In short, the

challenged statement seems to us to have been properly ad-

missible in light of the totality of the circumstances which

confirm that the expressed intent to meet the defendant

was a serious one, and that it was likely that such a

meeting would in fact take place.

Even if we had determined that the statement was er-

roneously admitted, it would seem to us that the error

would have been harmless indeed under all the cir-

cumstances. Deleting from the trial evidence the statement

that the deceased was going to meet the defendant, the in-

ference from the rest of the evidence that he expected to

meet the defendant, and did so, is all but inescapable. The

prior meetings of the deceased and the defendant in the

neighborhood of the Pathmark, his acknowledgment of a

dehi to the defendant, the bag with the bundles of money,

the rented blue Ford waiting in the area of the store, the

taking of the bag of money, entering the blue Ford as he

had on prior occasions when the defendant was in the

car—all of these factors taken together would have made

it unmistakably clear to the jury that the deceased ex-

pected to see the defendant.

Al5

As to the other trial errors alleged by the defendant,

we agree that it was an error to have permitted questions

with regard to Harry Terrell’s assumption of family

obligations, questions apparently intended to make the

witness appear more sympathetic than would otherwise

have been the case. Under the circumstances, including

particularly the witness’ detailed testimony that he had

been actively engaged in the narcotics trade for many

years, the error was clearly harmless.

We also think that the trial court erred in precluding

cross-examination intended to elicit that the witness had

received a promise of favorable consideration from

another prosecutor’s office in connection with his

cooperation in a separate case. Although the arrangements

sought to be brought out did not directly involve the

testimony of the witness in this case, it would have been

wiser to have permitted the area to have been explored by

Gefense counsel. This error, too, seems to us to have been

harmless. This was not a case in which the witness con-

firmed a prior police suspicion as to the identity of a killer

under circumstances indicating that he was seeking

favorable treatment for himself in exchange for his infor-

mation. It was the witness who first identified defendant

as the killer, and a realistic evaluation of the record

discloses no reason why he would have falsely identified

the defendant as the one who killed his brother and at-

tempted to kill him.

Accordingly, the judgment of the Supreme Court,

New York County (Fitzer, J.), rendered February 11,

1981, convicting defendant after a jury trial of two counts

of murder in the second degree, attempted murder in the

second degree and assault in the first degree, and sentenc-

ing him to two concurrent terms of 25 years to life, and

Al6

two concurrent terms of 8% to 25 years and 5 to 15 years,

to be served consecutively to the life sentence, should be

affirmed.

All concur.

Order filed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.