Whether the Court
Into Evidence Testimony
Of Witnesses Pursuant
To the Prompt Outcry
Exception to the
Such Testimony Was
- The Issue was properly preserved for review
At page 202 of the Preliminary Hearing transcript (PH 202), the prosecutor made her motion in limine to obtain the Court’s authorization to elicit testimony from two witnesses, allegedly friends of the Complainant, to the effect that the Complainant had told them about the alleged sexual assaults committed upon her by the Defendant, pursuant to the “Prompt Outcry” exception to the hearsay rule. At pages 210 through 213 of the Preliminary Hearing transcript (PH 210), the Defendant opposed the prosecutor’s application. At page 219 of the Preliminary Hearing transcript (PH 219), the Court ruled upon this issue as follows:
Pursuant to the Molineaux hearing and the Ventimiglia hearing and the Molineaux application, the People will be able to elicit testimony regarding prompt outcry of the Complainant to Ulysses via the 2008 note and/or conversation and to Kelly, the second time to Kelly after there was a comment allegedly made by the Defendant regarding having seen the Complainant naked, the People are permitted to inquire and bring out on their direct case from Kelly the prompt outcry of the Complainant at that time and thereafter, the People can bring out on their direct case that Kelly went with the Complainant and spoke with the victim’s mother without the content of that outcry.
On page 221 of the Preliminary Hearing transcript (PH 221), at the end of several pre-trial evidentiary rulings including that cited above pertaining to the prosecutor’s “Prompt Outcry” application, at lines 7 – 8, the Court ruled: “To the extent I have not granted relief by either side, you each have an exception.”
Pursuant to CPL §470.05(2), by opposing the prosecutor’s application for authorization to submit “Prompt Outcry” evidence, and by obtaining from the trial court an exception to her ruling, the Defendant preserved the issue of the trial court’s ruling for appeal.
- The Legal Requirements for Prompt Outcry
“In this state, evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place.” People v. McDaniel, 81 NY2d 10, 16 (1993). “One limitation on admissibility of such evidence is that, as its name suggests, the complaint must have been made promptly after the crime.” Id., at 17. “A complaint is timely for purposes of the prompt outcry exception if made ‘at the first suitable opportunity (internal citations omitted). There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified. (internal citations omitted). Thus, promptness is a relative concept dependent on the facts – what might qualify as prompt in one case might not in another.” Id., at 17.
Significantly, the “Prompt Outcry” involved in the case of McDaniel occurred the mornings immediately following two sexual assaults. Indeed, in most of the cases cited by the prosecutor in her Motion in Limine, the outcry was indeed what any reasonable person would deem “prompt”:
In the case of People v. Shelton, 307 AD2d 370 (2nd Dept. 2003), the outcry occurred on the day following the sexual assault.
In Matter of Gregory A.A., 20 A.D. 3d 726, 727 (3rd Dept. 2005) the outcry occurred only two months after a sexual assault.
In the case of People v. Kornowski, 178 AD2d 984, 985 (4th Dept. 1991), the outcry occurred within two to three weeks after the last incident of abuse.
In the case of People v. Farwell, 26 Misc.3d 26 (2nd Dept. 2009), it appears that the outcry was immediately after, if not contemporaneous with the assault.
In the case of People v. Rodriquez, 284 AD2d 952 (4th Dept. 2001), the complaint was made nine days after the last incident of abuse occurred.
In the case of People v. Vanterpool, 214 AD2d 429 (1st Dept. 1995), the complaint was made within three weeks and was considered prompt outcry.
In the case of People v. Stuckey, 50 AD3d 447 (1st Dept. 2008), the complaint was made “approximately three days following the last incident.”
In the cases of People v.Rice, 75 NY2d 929 (1990), and People v. Williams, 181 AD2d 474 (1st Dept. 1992), the complaints were made within hours of the assaults.
In some of the cases cited by the prosecutor in support of her position, the alleged “outcry” was not held to be prompt:
In the case of People v. Rizzo, 189 Misc.2d 649, 651 (N.Y. Dist. Ct. 2001), the Court ruled that the “Prompt Outcry” exception did not apply to the facts of the case because it was not a sex offense, and in any event, a complaint made the day after the incident at hand was not sufficiently “prompt.”
In the case of People v. O’Sullivan, 104 NY 481, 486 (1887), it was ruled that “a disclosure made nearly eleven months after the commission of the alleged assault was too remote to be received in evidence. There was nothing whatever to justify the delay.”
In the case of People v. Allen, 13 AD3d 892 (3rd Dept. 2004), it was ruled that the testimony “by two of the victim’s friends regarding the victim’s initial disclosure of the incident almost two months later” was not sufficiently prompt, and therefore “improperly bolstered her credibility and testimony (id., at 894).
In the case of People v. Workman, 56 AD3d 1155, (4th Dept. 2008), it was ruled that “the court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch as ‘evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place’ (internal citation omitted).” “Promptness is a relative concept dependent on the facts”, and we agree with defendant that the victim’s disclosure in this case was not prompt.”
- The Lack of Promptness in the Case at Bar:
In stark contrast to the facts in all of the cases cited by the prosecutor in which an outcry was found to be prompt, in the case at bar, the first report occurred over a year after the last alleged incident: the alleged abuse stopped in the summer of 2007, when Redacted was eleven years old (Prosecutor’s Motion in Limine, page 5), and Redacted made her first report of the incident when she was twelve years old, in the beginning of her 8th grade school year, when she told a classmate via a note. If there are any cases in New York State that stand for the proposition that an outcry made over a year after an assault is “prompt” within the definition of the law, the prosecution has failed to make citation to it. To the contrary, it would seem that the case of People v. Allen, 13 AD3d 892 (3rd Dept. 2004), in which an outcry almost two months after the alleged incident was deemed not sufficiently prompt, supports the Defendant-Appellant’s position that the alleged outcry in the case at bar was insufficiently prompt to be admitted into evidence.
The error of the trial court in admitting the report to Redacted’s classmate in 2008 was compounded by the admission of a subsequent report to Redacted’s classmate, Kelly Redacted, and Redacted’s mother, Wendy Redacted, which did not occur until October 27, 2010, over three years after the last incident. As to this second round of “outcry” testimony, both People v. Allen, id., and People v. Workman, 56 AD3d 1155 (4th Dept. 2008), stand for the proposition that the report is not sufficiently prompt to be admitted into evidence.
- Permissible Delay in Reporting:
The case of People v. Allen, 13 AD3d 892 (3rd Dept. 2004), stands for the proposition that where there is a delay in reporting, an outcry may nonetheless be deemed “prompt” provided there are “legally sufficient circumstances which would excuse the victim’s delay.” Id., at 896. An example of “legally sufficient circumstances” cited by the Court is the victim “being under the control or threats of defendant during (the period of delay).” This is the circumstance relied upon by the prosecution in the case below. However, the facts in the case below do not bear out the prosecutor’s theory regarding prompt outcry.
Although in her direct testimony Redacted described the relationship between her mother and the Defendant-Appellant as less than ideal, and stated that it included yelling and throwing of objects (T557 – 561), she never articulated a specific fear of physical violence in the home. Redacted never described her mother or herself being pushed or hit by the Defendant-Appellant. Redacted testified that the police were never called to the home by her mother. Although Redacted testified that the Defendant-Appellant threatened to “kill us all,” she stated that it only happened “probably two times, I think,” and she never articulated that it was anything more than angry hyperbole (T588).
In fact, Redacted described one incident in which the Defendant-Appellant was “bothering (her) and then (she) slapped him in the back” (T559). Redacted also testified that she didn’t tell her mother what the Defendant-Appellant was allegedly doing to her because “I was scared like I didn’t know how she would react or what she would do like if she would just question him herself or if she would just call the cops because if she questioned him herself, I thought like he would go on this raging fit and then start throwing stuff” (T560).
In other words, Redacted wasn’t afraid that if she told her mother it would prompt a violent response from the Defendant-Appellant, she was merely concerned it would prompt another argument. In both instances, it does not appear that Redacted was sufficiently afraid of the Defendant-Appellant to sufficiently explain her extensive delay in reporting the incident to a school mate, and her even more extensively delayed report to her mother.
The far more accurate explanation provided by Redacted involved her concern that her mother would go directly to the police. Redacted testified, “And then if my mom would have called the cops back then I wouldn’t have spoken…I wouldn’t have spoken back then because I wasn’t really comfortable” (T561). Thus, it would appear from a close reading of the Complainant/victim’s testimony that the cause of her delay in reporting stemmed less from fear than from squeamishness.
- The Philosophical Underpinings of the Prompt Outcry Rule:
The Court of Appeals explained (while implying skepticism) in the case of People v. McDaniel, 81 NY2d 10 (1993), “The contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, such conduct being ‘natural’ for an ‘outraged female’” (id., at 16). However, the Court also explained the countervailing concerns: “A witness’ trial testimony ordinarily may not be bolstered with pretrial statements (internal citations omitted). Several rationales underlie the rule: untrustworthy testimony does not become less so merely by repetition (internal citation omitted); testimony under oath is preferable to extrajudicial statements (internal citation omitted); and litigations should not devolve into contests as to which party could obtain the latest version of a witnesses story” (id., at 17). The Court goes onto make clear that “Prompt Outcry” is an exception to the rule against “Bolstering.”
Although the courts have clearly attempted to exercise flexibility when reviewing the unique circumstances of individual cases, the decisions have consistently held that to be considered “prompt,” an outcry must occur at the “first suitable opportunity” (id. at 17). While a clearly articulated fear of a violent outcome might make an outcry occurring more than a year after an alleged incident “prompt” within the meaning of the law, this is not the circumstance presented by the case at bar. Accordingly, the Court below erred by admitting testimony and evidence of prompt outcry.
Because there is no “legally sufficient circumstances which would excuse the victim’s delay” in the case at bar, the Court below erred in admitting testimony and evidence of prompt outcry.
Whether the Court
Inquiry During the Cross
Examination of Defendant
Into Alleged Bad Acts
And the Underlying Facts
Thereof, That Unfairly
Right to a Fair Trial?
Such Inquiry Was
- The Inquiry in Question:
During the Cross Examination of the Defendant-Appellant, pursuant to the Sandoval Ruling of the Court (PH217-218), the prosecutor was permitted to inquire about a set of incidents, and the underlying facts thereof, which strongly suggested that Defendant-Appellant had a propensity to commit the crimes charged, and which were only tenuously related to the issue of Defendant-Appellant’s veracity on the witness stand.
- The Sandoval Rule:
In the case of People v. Sandoval, 34 NY2d 371 (1974), the Court of Appeals set out the following rule:
The rules governing the admissibility of evidence of other crimes represent a balance between the probative value of such proof and the danger of prejudice which it presents to an accused. When evidence of other crimes has no purpose other than to show that a defendant is of a criminal bent or character and thus likely to have committed the crime charged, it should be excluded.
Thus, a balance must here be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant.
Id., at 375, quoting People v. Schwartzman, 24 NY2d 241, at 247(1969).
In the case of People v. Hayes, 97 NY2d 203 (2002), the Court of Appeals considered the issue of the admissibility of evidence of “similar crimes,” declining “to prohibit cross examination (of a criminal defendant) solely because of the similarity of prior acts to the crimes charged” (Id., at 208). However, the Court continued to emphasize the need for a balance, observing that:
While the credibility of witnesses generally may be challenged by their prior crimes or bad acts, permitting impeachment of a criminal defendant in this fashion risks…that the trier of fact will view such evidence as proof of propensity to commit the crime charged
(Id., at 207).
In the case of People v. Dickman, 42 NY2d 294 (1977), the Court of Appeals discussed the reviewability of trial court determinations regarding the appropriate scope of cross examination:
With full recognition that the trial court is vested with authority, to be exercised in a sound discretion, to determine the permissible scope of cross-examination in each particular case, we note, nevertheless, that the exercise of this discretion is not beyond the reach of appellate review.
(Id., at 297).
The Court in Dickman went on to hold that the trial court had abused its discretion by allowing, in a trial on a charge of reckless driving, cross examination regarding a prior conviction for reckless driving, noting “the inescapable reality in this circumstance is that, whatever the clarity and vigor of any restrictive instructions, there was a very great, and to us unacceptable, risk that the jury might have considered the conviction…as demonstrating more persuasively that defendant was disposed to drive recklessly, than that he might be disposed to lie on the witness stand” (Id., at 297).
- The Prosecutor’s Sandoval Application:
In the case at bar, in its Sandoval application, the prosecutor requested authorization to make inquiry into fourteen (14) separate alleged bad acts should the Defendant-Appellant take the stand (PH158 – 202):
- That Defendant-Appellant forged the signature of the Complainant’s mother on a debt instrument (PH159);
- That Defendant wrote a letter from jail to his natural daughter instructing her to speak with the Complainant’s mother, in derogation of a court order (PH165);
- That Defendant utilized a badge he possessed as a security officer to intimidate a motorist (PH169);
- Withdrawn by the prosecutor (PH170);
- That Defendant-Appellant committed the acts of trespass and harassment in 1983 (PH171);
- That Defendant-Appellant committed the above-described acts of harassment on February 13, 1990 against his then-girlfriend, Gina Herrara (PH172);
- On March 4, 1990, Defendant-Appellant harassed Gina Herrara (PH175);
- That Defendant-Appellant was repeatedly fired from three previous employers (PH178);
- That Defendant-Appellant assaulted the Complainant’s mother in the presence of the Complainant (PH180);
- That the Defendant-Appellant, while driving and engaged in an argument with the Complainant’s mother, pulled the emergency brake on the vehicle while it was moving thereby losing control of the vehicle (PH181);
- That the Defendant-Appellant became angry and smashed the Complainant’s i-phone (PH182);
- That Defendant-Appellant held a knife to the Complainant’s mother’s abdomen and threatened to kill her (PH184);
- That Defendant-Appellant disobeyed a directive from a Childrens’ Protective Services worker to refrain from speaking with his natural daughter (PH187);
- That Defendant-Appellant failed to provide child support for the child he had with Gina Herrera (PH193).
- The Trial Court’s Sandoval Ruling:
In her Sandoval ruling, the Trial Court held as follows:
After weighing the potential for undue prejudice against the probative value of each of the Defendant’s prior convictions and/or bad acts, the Court will permit the People to impeach the Defendant’s credibility on cross examination should he choose to take the stand concerning the following acts:
A February 13, 1990, bad act, the People are permitted to inquire of the Defendant regarding the underlying facts with respect to the incident involving Gina Herrera.
* * * * * * * *
Again, referencing the People’s Sandoval application, Incident Number 2, a November 20, 2010, uncharged act of the Defendant’s statement through his natural daughter via the letter to the Complainant and the Complainant’s mother.
Finally pertaining to, this is Page 9, Incident Number 11, date of crime, 2010, an uncharged crime or uncharged incident wherein the Defendant, it is alleged, took a cell phone from Redacted and smashed it into pieces.
With regard to the other prior convictions and/or bad acts, the Court in the exercise of its discretion will not permit the People to make reference to those incidents during cross examination of the Defendant.
- The Inquiry that Resulted from the Trial Court’s Sandoval Ruling:
The February 13, 1990
Pursuant to the Trial Court’s ruling, the prosecutor was allowed to make the following inquiries during the cross examination of the Defendant-Appellant regarding an altercation that occurred in February of 1990 between Gina Herrera, his girlfriend at the time, and him:
Q: On February 13 of 1990 Gina Herrara was pregnant, correct (T988)?
Q: And you slapped her in her face and punched her in the face, correct (T988)?
Q: You force Gina Herrara into her own Mitsubishi car, is that correct (T988)?
Q: And you struck her in the stomach despite the fact she was pregnant, correct (T988)?
Q: And ;you dragged her from the car on Pier 45 in Manhattan, correct (T988)?
Q: You pulled her out of the car and told her that you wanted to take a walk and dragged her, correct (T989)?
Q: You then slammed Gina Herrara’s head against the hood of your car, correct (T989)?
Q: And you told Gina that if she wanted an abortion you will give her an abortion, you will throw her in the water, correct (T989)?
Q: And when Gina ran away from you, you grabbed her and hit her again, correct (T989)?
Q: Then a complete stranger intervened and told you to stop hitting her and you told the stranger to mind their own business, isn’t that correct (T989)?
Q: Didn’t you tell the woman that intervened that Gina Herrara was your woman and she had no business in the matter, correct (T989)?
Q: Then you dragged Gina by her coat back to the car, is that correct (T990)?
Q: Then a security guard tried to intervene and you told him to stay away from you and Gina Herrara because she was your woman, correct (T990)?
Q: And then Gina Herrara grabbed the woman’s coat for dear life and you fled in her car, correct (T990)?
Q: And after that you suggested you had contact with Gina Herrara and talked about the fact that you knew embarrassing things about her, isn’t that correct (T990 – 991)?
Q: After that an order of protection was issued directing you not to have any contact with Gina Herrara, is that correct (T991)?
Q: During the period of time you called Gina Herrara and told her that you knew embarrassing things about her, isn’t that correct (T991)?
Q: And you similarly in this case many times during the call with Wendy Redacted you told her that you had embarrassing photographs of her, isn’t that true (T991)?
Q: You indicated if she were to take this matter to court that you would reveal the photographs you had taken of her, isn’t that true (T991)?
Q: And you told her that if she supported her daughter and pressed the charges that you would go into court and tell people that she was an irresponsible mother and she would lose her child (T991 – 992)?
Q: Do you recall telling her that fine then we got to go to court and you would come into court and tell people how she used to get drunk every fucking weekend and that she didn’t give a fuck about Redacted (T992)?
Assuming the prosecutor had a good faith basis for posing the questions, the most that should be concluded is that a highly emotional altercation occurred between the Defendant-Appellant and an intimate partner. Any rush to impute blame for the altercation upon the Defendant-Appellant must be tempered by the fact that only one side of the story is posed by the prosecutor, and is steadfastly refuted by the Defendant-Appellant.
Not only was the above line of questioning of very limited value on the issue of the Defendant-Appellant’s veracity, it clearly is intended by the prosecutor to show a propensity on the part of the Defendant-Appellant to be violent towards women. Any doubt of the true intent of the prosecutor with this line of questioning is stripped bare when she seamlessly transitions from the alleged incident with Gina Herrera to a nearly identical and recent incident involving Wendy Redacted. The line of questioning was unlikely to suggest to the jurors that the Defendant-Appellant was being untruthful, and was highly likely to suggest that he has a propensity for violence towards women. Accordingly, the line of questioning was highly and unfairly prejudicial to the Defendant-Appellant, and contributed significantly towards an overall denial of a fair trial.
The November 20, 2010,
Statement Via Defendant-
Appellant’s Natural Daughter
And the 2010 Incident regarding
A Broken Telephone
The Defendant-Appellant was not effectively cross examined regarding either the letter he wrote to his natural daughter from jail, or the allegation that he broke Redacted’s i-phone.
- The Trial Court’s Abuse of Discretion:
The prosecutor’s Sandoval Application offered the Trial Court two alleged bad acts that directly addressed the veracity of the Defendant-Appellant, without creating a risk that the trier of fact would conclude that the Defendant-Appellant had a propensity to commit the crime charged: The allegation that Defendant-Appellant forged a signature upon a debt instrument, and the allegation that the Defendant-Appellant utilized a police-like identification to intimidate a motorist. Instead, the Trial Court allowed the Defendant-Appellant to be questioned about an incident, the resulting colloquy of which created a strong impression that the Defendant-Appellant had a propensity to commit violent acts against women (the crimes charged), and which further supported the prosecutor’s theory that the Complainant was in fear of the Defendant-Appellant, thereby supporting the prosecutor’s theory as to why there was such an extensive delay in reporting the crimes charged. Further, the resulting colloquy offered nothing to suggest that the Defendant-Appellant’s veracity should be doubted.
Because the inquiry allowed by the Trial Court during the prosecutor’s cross examination of the Appellant-Defendant weighed heavily on the propensity of the Appellant-Defendant to commit the crimes charged, and offered little on the issue of Defendant-Appellant’s credibility on the witness stand, the Trial Court abused its discretion and denied the Defendant-Appellant a fair trial.
Whether the Error of the
Trial Court in Allowing
Evidence of Prompt Outcry,
And in Allowing Inquiry
Into Allegations that Show
A Propensity to Commit the
Crimes Charged, Is
The Error of the Trial
Court is not Harmless
- The Harmless Error Rule:
In the case of People v. Crimmins, 36 NY2d 230 (1975), the Court of Appeals set out the required analysis for non-constitutional error:
First Question: Is the proof of Defendant’s guilt, without reference to the error, overwhelming?
Standard for Overwhelming Evidence: Whether the quantum and nature of proof, excising the error, is so logically compelling and therefore forceful in the particular case as to lead to the conclusion that a jury composed of honest, well-intentioned and reasonable men and women on consideration of such evidence would almost certainly have convicted the defendant.
If the Answer is “No,” reversal is required.
If the Answer is “Yes,” go to the second question.
Second Question: Whether, notwithstanding the overwhelming proof of the defendant’s guilt, the error infected, tainted or prejudiced the verdict.
Standard for Infected, Tainted or Prejudiced Verdict: Whether there is a significant probability, rather than only a rational possibility, in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred.
If the Answer is “Yes,” reversal is required.
- The Proof of Defendant’s Guilt, Without Reference to the Error, is not Overwhelming:
In the case at bar, there is no physical evidence to corroborate the Complainant’s allegations. Although there was expert testimony, its value, if any, was limited to providing some explanation for clear deficiencies in the testimony of the Complainant. Although there was an inculpatory statement allegedly taken by the police and attributed to the Defendant-Appellant, he took the witness stand and denied the veracity of the statement as well as all of the allegations made by the Complainant.
The task for the Triers of Fact in this particular case came down to a narrow determination: Who is the more credible, the Complainant or Defendant-Appellant. In the case of People v. Crimmins, id., the Court acknowledged that “overwhelming proof of guilt cannot be defined with mathematical precision,” and “surely does not invite merely numerical comparison of witnesses or of pages of testimony; the nature and the inherent probative worth of the evidence must be appraised. As with the standard, ‘beyond a reasonable doubt’, recourse must ultimately be to a level of convincement” (id, at 241).
Based upon the standard articulated in Crimmins, and in all deference to the Triers of Fact who actually saw and heard the Complainant’s and the Defendant-Appellant’s testimony, when stripped bare of the error set forth above, it cannot be said that the evidence remaining against the Defendant-Appellant is overwhelming.
With the error is excised from the case, the remaining evidence against the Defendant-Appellant is not overwhelming. Reversal is therefore required.
- Even If The Proof of Defendant’s Guilt, Without Reference to the Error, is Overwhelming, the Error Has Infected, Tainted and Prejudiced the Verdict:
Because the outcome of this case was contingent upon the credibility of the complainant versus that of the defendant, the fact that the Trial Court allowed testimony of “Prompt Outcry” that was not prompt, and inquiry regarding prior bad acts that showed a propensity to commit the crimes charged while offering nothing on the issue of veracity, the verdict arrived at was most certainly infected, tainted and prejudiced by this compound error.
As the verdict was most certainly infected, tainted and prejudiced by the compound error of allowing improper testimony of “Prompt Outcry,” and improper inquiry into “Bad Acts,” reversal is required.
For all of the reasons set out above, with the error excised the evidence was not overwhelming, and the verdict was most certainly infected, tainted and prejudiced by the compound error. For both of these reasons, reversal of the verdict in this case is required.
CERTIFICATION OF COMPLIANCE
Pursuant to Rule 670.10.3(f)
MICHAEL F. DAILEY, an attorney duly licensed to practice under the laws of the State of New York, does hereby certify, pursuant to the rules of this Court, that the heretofore produced Brief was prepared on a computer, the typeface is Times New Roman, the point size is 14, the line spacing is double except for quotations and headings, and the word count as per my processing system used to prepare the brief is 6,837.
Dated: January 17, 2014
Michael F. Dailey
Attorney for Defendant-Appellant
One Riverdale Avenue
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