Court of Appeals Holds Defendant Out of Luck

In People v. Trevor Burns, 2006 N.Y. Slip Op. 01109, the Court of Appeals considered whether an alleged exculpatory hearsay statement should have been admitted at trial under the exception for declarations against penal interest and whether the preclusion of the statement violated the defendant's constitutional right to present a defense.

The Court described the relevant facts as follows:

Defendant took part in a shootout in which he was wounded and the victim killed. Before implicating himself and two associates in the killing, he gave several different accounts of what had happened, including the claim that both he and the victim had been shot by a gang of Hispanic men.

At trial, the People disclosed a signed statement given to police by a declarant whose last-known address the People supplied. Declarant placed five armed Hispanic men a few New York City blocks away from the scene of the shootout on the same day and at roughly the same time. He stated that one of the armed men gave him three bags of heroin and told him to leave the area because "they" had to talk about "something [they were] going to do" that night. After declarant had walked about two blocks from the site of this encounter, he heard gunshots and sirens; he also saw the five men get into two cars. The next day, declarant happened upon one of the five men, who told him that "[e]verything was taken care of last night."

The Court concluded that the only portion of the statement that arguably fell within the declarations against penal interest exclusion, that the declarant had admitted possessing heroin, was not relevant to the issues at trial.

The Court also concluded that the defendant's right to present a defense was not violated, even though the Court did not allow the admission of the hearsay statement through the testimony of a police officer.  The Court's holding in this regard was based upon the fact that the lower court had allowed the defendant to use a "so ordered" subpoena for declarant to testify and the opportunity to make an offer of proof.  In upholding the lower court's ruling, the Court stated:

[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Small  solace to the defendant, given that even if the declarant was able to be located and served with the subpoena, he likely would not have actually shown up to testify at trial. And, if he had, he probably would have recanted his statement once on the stand out of fear of retribution.

Indignent Indigent posted about this decision here.