People v Stone
2017 NY Slip Op 03559 [29 NY3d 166]
Decided on May 4, 2017
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Issue:
Did Detective’s Testimony Violate Defendant’s Rights?
Whether defendant Stone was denied the right to confrontation where a detective testified that after speaking with defendant’s wife, defendant had been identified as a suspect in the stabbing of his wife’s boyfriend.
Holding:
Defendant’s Right Not Violated, Court Offered Curative Jury Instructions
The Court of Appeals held that defendant Stone’s right to confrontation was not violated, as the trial court struck the detective’s testimony from the record and offered curative instructions to the jury to disregard it.
Facts:
At trial, the victim testified that while hailing a cab with defendant’s estranged wife and daughter, someone came up from behind him and stabbed him several times. The victim turned around and identified defendant Stone as the attacker. Defendant then ran over to his wife and the victim heard Stone reiterate that she was not to have other men around his daughter.
At the time of the trial, the People were unable to locate the wife to testify, and her absence was a central issue of dispute between counsel. The People let the court know that although she identified defendant as the attacker shortly after the incident, she then told the prosecutor that she did not see Stone at the scene and did not wish to testify. When they could not find her, the People sought to have a detective testify as to their efforts to locate her. Defense counsel objected, and the court denied the People’s request. The court instead instructed the jury that the wife was “unavailable and, therefore, could not be called as a witness.”
After the victim testified, the People called to the stand a detective who had investigated the case. During his testimony, the detective said that he spoke the defendant’s wife by telephone immediately after the incident. After the interview, the detective “did several computer checks on the person that had been indicated as a suspect, John Stone.” Defense counsel objected to the “whole implication” in the detective’s testimony, and asked that it be stricken. The People agreed that the court could address the issue by striking the testimony and directing the jury not to draw any inferences from the detective’s statements. Defense counsel moved for a mistrial as the testimony implied that the wife had identified defendant as the assailant, without providing information about her later denial that defendant was at the scene. The court denied the mistrial motion but granted the request to strike the detective’s testimony. The court instructed the jury that to disregard “means exactly that. It means it is no longer evidence in the case, it’s been stricken. It means you are to disregard it, meaning set it out of your mind, not consider it for any purpose at all.”
The jury acquitted defendant of attempted murder in the second degree, and convicted him of assault in the first degree. Prior to sentencing, defendant moved pursuant to CPL 330.30 (2) to set aside the verdict based on juror misconduct, claiming that after the verdict his fiancée observed an interaction on the street between the victim and a juror. The court denied the motion on the merits without a hearing, and the court sentenced defendant to 22 years’ imprisonment and five years’ post release supervision. The Appellate Division affirmed, holding that the court properly denied the 330.30 motion and prevented any prejudice to defendant by striking the detective’s testimony.
Analysis:
Confrontation Clause Rights
A defendant has a constitutional right to confront his accusers, and this right applies to testimonial statements, like the hearsay at issue here (US Const Amend VI, NY Const, art I, § 6; Crawford v Washington, 541 US 36, 51 [2004]). A potential inference from the detective’s testimony is that the wife identified Stone as a suspect and, therefore, defendant claims he was deprived of his right to confront this witness. But the Court of Appeals contended that this was not the only fair inference to be drawn, as the detective had also spoken to the Night Watch Unit about the case and the jury heard the victim’s testimony that he identified defendant to the police at the hospital. The jury could have inferred that defendant was a suspect based on the victim’s statements to the police prior to the detective’s call to the wife.
An error impacting a constitutional right may only be considered harmless when the evidence is overwhelming and “there is no reasonable probability that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237 [1975]). There is no reasonable probability that the error contributed to the guilty verdict, as the single eyewitness, the victim, knew the defendant and had no doubt that he was the attacker. Furthermore, the court offered curative jury instructions to disregard the portion of the testimony that counsel objected to.
‘Powerfully Incriminating’ Testimony
Defendant argues, however, that the error could not be overcome by the jury instructions, that the testimony was “powerfully incriminating.” (People v Cedeno, 27 NY3d 110, 117 [2016], quoting Gray v Maryland, 523 US 185, 192 [1998]). To determine whether a testimony cannot be cured by striking a court must consider its context. Here, the detective did not state that the wife was a witness and that she had identified the defendant as the attacker. Though the detective’s statements supported such an inference, the detective also spoke with the Night Watch Unit and with the victim. Additionally, the jury had just heard from the victim prior to the detective’s testimony, so the Court of Appeals concluded that the testimony was neither powerfully incriminating nor did it alone transform the case from one with a single eyewitness to a case with two eyewitnesses identifying Stone as the perpetrator. The Court also concluded that defendant’s claim that he is entitled to a hearing on the CPL 330.30 motion is without merit, and the order of the Appellate Division was affirmed.