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DEFENSE OPENED THE DOOR TO ALLOW EVIDENCE OF OTHERWISE INADMISSIBLE TESTIMONIAL HEARSAY STATEMENTS MADE TO A POLICE INVESTIGATOR

The Third Department determined testimonial statements made by a co-defendant, Denno, to a police investigator were properly allowed in evidence because the defense “opened the door” by questioning the investigator about one of the statements:

Although testimonial statements by a nontestifying witness are inadmissible as violative of the Confrontation Clause, “a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause” … . Denno, a witness to and participant in the crimes, gave three statements to the investigator, and Denno invoked his Fifth Amendment right not to testify at defendant’s trial. Defendant called the investigator as a witness to elicit information about Denno’s second statement, which was favorable to defendant. This opened the door for the People to cross-examine the investigator about the content of the two other Denno statements, which provided context and were less favorable to defendant. People v Taylor, 2015 NY Slip Op 08873, 3rd Dept 12-3-15

CRIMINAL LAW (TESTIMONIAL HEARSAY STATEMENTS PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)/EVIDENCE (TESTIMONIAL HEARSAY STATEMENTS PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)/TESTIMONIAL HEARSAY STATEMENTS (PROPERLY ADMITTED, DEFENDANT OPENED THE DOOR)

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Defendant’s Hospital Records Properly Admitted—Physician-Patient Privilege Waived by Defense Counsel’s Attempt to Show (During Cross-Examination of Police Officers) that Defendant’s Conduct Was Related to a Medical Condition, Not Intoxication

The Second Department determined defendant’s hospital records were properly admitted into evidence because the defendant waived the physician-patient privilege by placing his medical condition in issue.  During cross-examination of the police officers, defense counsel attempted to show defendant’s conduct was the result of a medical condition, not intoxication. People v Williams, 2015 NY Slip Op 03391, 2nd Dept 4-22-15

 

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“Door-Opening Rule” Applied to Allow Otherwise Inadmissible Evidence/Jury-Note Error Not Preserved

The Fourth Department determined evidence of a phone conversation which was otherwise inadmissible was properly admitted to rebut a “misleading impression” created by the defendant under the “door-opening rule.”  In addition the court held that the failure to notify defense counsel of the contents of a jury note, although error, was not preserved for appeal:

Under the “door-opening” rule …, otherwise inadmissible evidence, such as the telephone conversation at issue here, may be admitted in evidence for the purpose of rebutting a “misleading impression” created by the defendant … . Here, defendant was attempting to evoke the jury’s sympathy by testifying about her remorse and anguish over the victim’s death. Specifically, defendant testified that, upon learning of the victim’s death, she “started flipping out,” “bouncing my head off walls,” “screaming,” and “going nuts.” She further testified that she “didn’t want to live,” “refused to eat,” and was “on suicide watch.” We conclude that the court properly permitted the People to introduce the telephone conversation in evidence to rebut defendant’s testimony of remorse and anguish … . * * *

Defendant contends in the supplemental brief submitted by appellate counsel with leave of this Court that the court failed to apprise her of a jury note and that such a failure constitutes a mode of proceedings error requiring reversal of the judgment, even if unpreserved … . We reject defendant’s contention that preservation was not required. Here … “the record does not indicate that the court gave defense counsel notice of the contents of the note outside the presence of the jury, but it establishes that the court read the note verbatim before the jury, defense counsel, and defendant. Defense counsel raised no objection” … . Under such circumstances, defendant was required to preserve the alleged error by objection … . We decline to exercise our power to address defendant’s contention as a matter of discretion in the interest of justice … . People v Stoutenger, 2014 NY Slip Op 06688, 4th Dept 10-3-14

 

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Conviction of Endangering Welfare of a Child Against Weight of Evidence; Defendant Did Not Open Door to Questioning About Prior Bad Acts Ruled Off Limits in Sandoval Hearing; Rape Shield Law Exception Applied

In reversing the conviction, the Second Department determined that the acquittal on a rape count rendered the conviction on a related “endangering the welfare of a child” count “against the weight of the evidence.”  The Second Department also ruled that questions posed by defense counsel did not “open the door” to questioning by the prosecutor about prior “bad acts” which the trial court had ruled off limits in a Sandoval hearing.  The Second Department further ruled that an exception to the “rape shield law” was applicable and evidence the complainant had sex with defendant’s brother should have been admitted because it was relevant to a defense-theory alleging the brother had committed acts with which the defendant was charged. In ordering a new trial on one of the counts, the Second Department found that “the cumulative effect of certain trial errors deprived defendant of a fair trial…”.  In discussing the Sandoval error, the Second Department wrote: 

The purpose of a Sandoval hearing is to provide the defendant with “definitive advance knowledge of the scope of cross-examination as to prior conduct to which he will be subjected,” so that the defendant can decide whether to take the witness stand … . In the interest of fairness, a trial court’s authority to change its Sandoval ruling is limited once the defendant has decided to testify in good faith reliance on that ruling … . “When a defendant testifies to facts that are in conflict with the precluded evidence, he opens the door on the issue in question, and he is properly subject to impeachment by the prosecution’s use of the otherwise precluded evidence” … .

With respect to the rape shield law, the Second Department wrote:

A woman’s character or reputation for chastity is irrelevant to a charge that she was sexually abused … . Thus, the Rape Shield Law, codified in CPL 60.42, provides that “[e]vidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law [i.e., sex offenses].” CPL 60.42 also provides five statutory exceptions. The first four exceptions allow the admission into evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances, which are inapplicable here … . The fifth exception, however, “vest[s] discretion in the trial court” … . Pursuant to CPL 60.42(5), evidence of a victim’s prior sexual conduct may be introduced upon a determination by the court that such evidence is “relevant and admissible in the interests of justice” (CPL 60.42[5]…). The Court of Appeals has recognized that, “in the interests of justice,” evidence of a complainant’s sexual conduct may be admissible if it is relevant to a defense … . In contrast, such evidence must be precluded if it does not tend to establish a defense to the crime, and will only harass the victim and possibly confuse the jurors … .  People v Fisher, 2013 NY Slip Op 01847, 2011-06453, Ind No 3421/09, 2nd Dept. 3-20-13​

 

 

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