People v. Tapia
NY Slip OP 02442 [33 NY3d 257]
Decided on April 2, 2019
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Issue:
Sixth Amendment Right to Confrontation and Past Recollections
Whether 1) defendant Tapia’s Sixth Amendment right to confrontation was violated and 2) whether the trial court erred in admitting a testifying witness’s prior grand jury testimony as a past recollection recorded.
Holding:
Confrontation Clause Not Violated, Past Recollection Properly Admitted
The Court held that 1) defendant’s Sixth Amendment right to confrontation was not violated since the witness was at trial and available for cross-examination and 2) the trial court did not abuse its discretion in admitting a testifying witness’s grand jury testimony as there was a proper foundation for receipt of the evidence.
Facts:
Officers Charlie Bello and James Cosgrove saw defendant Carlos Tapia body slam a man in the street outside a bar. They exited their vehicle and separated the defendant from the victim, who was bleeding from his face and neck. Bello observed a shattered beer bottle on the ground where the victim had been assaulted, and five lacerations on his face and neck were “consistent with being struck with a sharp cutting instrument.”
During the People’s case, defense counsel notified the court and the People that she would be seeking a missing witness charge if Lieutenant Cosgrove, who had retired from the police department, was not called as a witness. In response, the People produced Cosgrove who, four years later, could not independently recall the incident. The People therefore sought to have his prior grand jury testimony admitted as a past recollection recorded. Defense counsel objected, asserting that Cosgrove could not be cross-examined due to his claimed lack of memory and that admitting the grand jury testimony would therefore violate defendant’s Sixth Amendment right to confrontation. Counsel also contended that the grand jury testimony was inadmissible under CPL 670.10, which governs the use of prior testimony of a “witness…unable to attend” trial (CPL 670.10 [1]).
The court found the appropriate evidentiary foundation established to admit Cosgrove’s grand jury testimony as a past recollection recorded, as he appeared before the grand jury just days after the offense when the event was fresh in his mind. Cosgrove’s review of the prior testimony did not refresh his present recollection of the events; he stated that he responded to many fights outside of a bar during his career and this one did not stick out in his mind. The grand jury testimony was brief and not particularly detailed, though it added the fact that Cosgrove saw the defendant kick the victim in the head. The court immediately gave the jury the limiting instruction that, “a memorandum of a past recollection is not of itself independent evidence of the facts contained therein. It is auxiliary to the testimony of the witness.”
The following day, after the close of evidence, defense counsel moved to strike Cosgrove’s grand jury testimony, asserting that the officer’s inability to independently verify the accuracy of the transcription removed the foundation for its admissibility. The court rejected the argument. The jury convicted Tapia of attempted assault in the first degree.
The Appellate Division affirmed, holding that it was a proper exercise of discretion for the trial court to admit Cosgrove’s grand jury testimony as a past recollection recorded, as there was proper foundation for the admission of the testimony. Additionally, the court found that there was no violation of the Confrontation Clause because Cosgrove testified at trial and was subject to cross-examination. The Court of Appeals affirmed.
Analysis:
Foundation for Admissibility of Past Recollections Recorded
At trial, when a witness testifies in the presence of the defendant and before the trier of fact, the evidentiary doctrine of past recollection recorded allows a “memorandum made of a fact known or an event observed in the past of which the witness lacks sufficient present recollection [to] be received in evidence as a supplement to the witness’s oral testimony” (People v Taylor, 80 NY2d 1, 8 [1992]).
The foundational requirements for admissibility of a past recollection recorded are 1) the witness must have observed the matter recorded; 2) the recollection must have been fairly fresh at the time when it was recorded; 3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and 4) the witness must lack sufficient present recollection of the information recorded.
Here, the defendant argues that the requirements were not met based on an alleged typographical error in the minutes and Cosgrove’s testimony that he did not verify for accuracy the transcript of his grand jury testimony near the time it was recorded. The Court held that this argument was without merit, as the transcript of the grand jury minutes was certified by the court reporter as a true and accurate record of the testimony. The trial court did not, therefore, abuse its discretion in finding that each of the four requirements for admissibility was met.
CPL 670.10 and the Sixth Amendment’s Confrontation Clause
The Sixth Amendment states that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
CPL 670.10 sets forth three specific types of former testimony to be admitted into evidence when the declarant is subsequently proven “unable to attend” trial for certain reasons. The admissible categories of prior testimony adhere to the constitutional right to confrontation by providing the defendant the opportunity to cross-examine the declarant on testimony that was given 1) at a trial on the accusatory instrument, 2) at a preliminary hearing on the felony complaint, or 3) at a conditional examination under CPL article 660 (see CPL 670.10[1]).
The declarant is “unable to attend” within the meaning of the statute when, “by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court” (CPL 670.10 [1]).
Memory Failure and Cross-Examination
Notwithstanding the core fact that Cosgrove was a testifying witness at the trial and thus not “unable to attend” within the meaning of the statute, the defendant maintained that the use of the past recollection violated the Sixth Amendment’s Confrontation Clause as Cosgrove’s memory failure rendered him unavailable for cross-examination within the meaning of the Sixth Amendment. But Cosgrove took the stand before the trier of fact as a People’s witness, without objection by defendant, and defense counsel had the opportunity to cross-examine Cosgrove. The Court held, then, that the very purpose of CPL 670.10 is inapplicable in this case.
The right to confrontation under the Sixth Amendment guarantees not only the right to cross-examine witnesses, but also the ability to literally confront the witness who is providing testimony against the accused in a face-to-face encounter before the trier of fact (see Coy v Iowa, 487 US 1012, 1016-1020 [1988]; California v Green, 399 US 149, 157-158 [1970]).
The US Supreme Court has directly addressed the situation where a witness was unable to explain the basis for a prior out-of-court identification due to memory loss (United States v Owens, 484 US 554 [1988], see also CPL 60.25). In Owens, the Court held that “the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way…the defense might wish.”(484 US at 559). To that end, “it is sufficient that the defendant has the opportunity to bring out such matters as the witness’s bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination)…the very fact that he has a bad memory” (Owens, 484 US at 559). The Court held, then, that Cosgrove’s presence at trial precluded the defendant’s Confrontation Clause argument, and the order of the Appellate Division was affirmed.