# Petition for Writ of Certiorari — Malizia v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2601%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 932 ## Text 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 EE HS 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? a rn ae ees a OS ae ee ee, ee ae a wel oS o a Petar err wry ris page ee . - m " i , 7 ¥ 7 2 . —_ 4 . : é 7 a . | | La : - a ™ .. Ca , ’ s « : ’ : 1? t ean Il. 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? ii 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 . I. 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 13 13 37 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« iv 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 22 579 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, 41 15 25 15 41 4} 24 43 42 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 * * > * > > * > vi 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. ix 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. 10 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 11 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. 12 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 13 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 14 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 15 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 16 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, 17 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 18 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. 19 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, 20 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. 21 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 22 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 23 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, 24 510 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 25 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 26 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 27 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 28 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. 29 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 30 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 31 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, 32 544 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). 33 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. 34 Oe Behe hh ee he ee ee ee 1 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. 35 Confrontation Clause are important and difficult questions which deserve this Court's attention. 36 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 37 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 38 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. 39 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 40 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 4) 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 42 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 43 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. a4 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 45 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 46 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. Al 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, A2 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 A3 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. A4 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 —— AS 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-