People v. Nieves, 67 N.Y.2d 125 (1986)

For a statement to be admissible as a dying declaration, the declarant must have a settled, hopeless expectation that death is near at hand, and the admissibility of evidence cannot be sustained on appeal based on a theory (e.g., excited utterance) not raised before the trial court.

Summary

Angel Nieves was convicted of manslaughter based largely on statements made by the stabbing victim, Josephine Gonzalez, before she died. The trial court admitted these statements as dying declarations. The Appellate Division affirmed the conviction, but on the grounds that the statements were admissible as excited utterances, a theory the prosecution had disavowed at trial. The Court of Appeals reversed, holding that the statements did not qualify as dying declarations because the victim’s state of mind did not indicate a settled expectation of imminent death and that the Appellate Division erred in relying on the excited utterance theory because it was not raised at trial, thus depriving the defendant of the opportunity to counter it.

Facts

Josephine Gonzalez was brought to the emergency room suffering from a stab wound. Initially in shock and unable to speak, she later identified Angel Nieves as her assailant, stating he stabbed her out of jealousy at a party. She complained of chest pains and stated she did not want to die. The wound punctured her heart and the sac around it. Medical staff did not inform her that her condition was critical or that death was imminent. Gonzalez died approximately one and a half hours after arriving at the hospital.

Procedural History

Nieves was indicted for second-degree murder. The trial court denied Nieves’ motion to dismiss the indictment but ordered a pre-trial hearing on the admissibility of Gonzalez’s statements. At the hearing, the prosecution argued solely for admissibility as dying declarations, expressly disclaiming reliance on the excited utterance exception. The trial court admitted the statements as dying declarations. Nieves was convicted of second-degree manslaughter. The Appellate Division affirmed, finding the statements inadmissible as dying declarations but admissible as excited utterances. The Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the victim’s statements were admissible as a dying declaration.
2. Whether the Appellate Division erred in affirming the trial court’s admission of the statements based on the theory of “excited utterance,” when that theory was not raised by the prosecution at trial.

Holding

1. No, because the victim’s state of mind did not reflect a settled, hopeless expectation of imminent death.
2. Yes, because the defendant was denied the opportunity to present evidence to counter the factual theory supporting the admissibility of the evidence.

Court’s Reasoning

The Court of Appeals stated the requirements for the dying declaration exception to the hearsay rule require that the declarant speaks “under a sense of impending death, with no hope of recovery.” The court emphasized that a belief that death is possible or even probable is insufficient. The court found that Gonzalez’s statements expressing a desire not to die, the lack of any statement by medical personnel about the severity of her condition, and the fact that her condition was improving at the time of the statements, all indicated she did not have the requisite state of mind for a dying declaration.

Regarding the excited utterance theory, the Court held that the Appellate Division erred in relying on it because the prosecution had disclaimed it at trial. The court reasoned that the defendant was prejudiced because he was denied the opportunity to present evidence to counter the factual basis for the excited utterance argument, such as the time elapsed between the stabbing and the statements, the victim’s condition during that time, and whether she appeared excited or stressed when she spoke. The Court explicitly rejected the argument that because the pre-trial hearing was discretionary, the People should be allowed to raise new arguments on appeal. The court stated: “If the Appellate Division’s determination were allowed to stand, the defendant would still be denied the opportunity to present evidence to counter a factual theory advanced by the People in support of the admissibility of evidence.”