People v. Davis

¶1dissents in a memorandum as follows: The defendants contend that they came to the apartment of the deceased at midnight in order to buy narcotics; that there was an agrument over the purchase price, which resulted in an altercation, and the deceased’s wife fired a rifle at one of the defendants and, instead, hit her husband. She then fled the apartment and the defendants took a rifle, which they found in the apartment, with them when they also fled, theorizing that someone might try to kill them and that they would need protection. They also took a jacket to cover the rifle. They were running on the street when they saw the wife talking to strangers who turned out to be police. The police testimony was to the effect that they were not fleeing the neighborhood but were pursuing the wife of their victim, because they were not running away, as they claimed, but rather after the wife. The proof was sufficient beyond a reasonable doubt for the jury to find the defendants guilty. The majority would reverse only on the basis that testimony was excluded as hearsay which was not designed to prove the truth of the statements, and, therefore, was not hearsay. The majority analysis is inconsistent. There was clearly enough in the record presented to show what the *544contention of the defendants was and their version of what happened was presented to the jury. If the exact language used by the parties at the critical time should have been permitted in evidence, then it can only have been for the purpose of showing the truth of the statements. The defendants contend it was error to bar them from testifying concerning the statements of the deceased when he admitted them to his apartment. They argue that the evidence was admissible to show the defendants’ state of mind and to explain their acts and those of the deceased and his wife. The People contend that the defendants’ state of mind is irrelevant because there was no contention of self-defense or extreme emotional distress, but, rather, that it was the wife who, by accident, shot her husband. Technically, the statements excluded were hearsay as to the deceased and his wife, and the majority opinion substantiates the fact that the declarations were unneeded as declaratory of the circumstances and, therefore, must have been offered for their truth. (See People v McCullough, 73 AD2d 310, 313, app dsmd 50 NY2d 1003.)