The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
The government seeks to introduce certain statements by defendant Gregory Pattison made to an individual named Mickey Darling, wherein Pattison told Darling that he killed Richard Alicea, Jr., and that co-defendant Aaron Pike paid him to do it. Defendant Pike objects to the admissibility of that evidence arguing that it violates his rights under the confrontation clause because he cannot cross-examine Greg Pattison (his co-defendant) regarding the statements.
The Court requested briefing on the issue and heard testimony from Mickey Darling outside the presence of the jury. Darling testified that he first saw Pattison in jail on or about May 26, 2001. He and Pattison had been acquainted for several years. When he saw Pattison, Darling asked if Pattison was aware of Richard Alicea, Jr.'s murder. Darling asked because he had just learned of the murder from a television news report. Pattison replied "Yes, I was there" and told Darling that he would talk about it later.
The next day, Darling again saw Pattison. The two had a conversation about researching an issue in the prison law library. The issue about the murders then came up again. Pattison told Darling that he shot Johnny Houston and Houston's eye "popped out." He then shot Richard Alicea, Jr. ("Richie"). Pattison told Darling that after the shooting, he wanted to steal Richie's money and jewelry, but he was afraid that he might be caught with the evidence. Darling testified that this was a friendly conversation, and that Pattison had no reason to believe that Darling would repeat the confession to authorities. Pattison told Darling that he killed Richie because he owed Richie money for drugs, and because Aaron Pike had asked him to do it. Specifically, Pattison told Darling that Aaron Pike said Richie had done something "bad" and that the money owed to Richie was really Pike's money. Pike told Pattison that if he killed Richie, Pike would wipe out the drug debt, provide Pattison with five pounds of marijuana, and Pattison could take Richie's place in the drug conspiracy.
Pike argues that the portion of the testimony that implicates him should be excluded because he does not have an opportunity to cross-examine Pattison about his statements to Darling. For the reasons stated, the Court finds that the statements are admissible under Rule 804(b)(3) and the confrontation clause of the Sixth Amendment.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the confrontation clause bars the admission of testimonial statements made by a witness outside of court, unless the witness is unavailable and the defendant had a previous opportunity to cross examine the witness. For Crawford to apply, however, the out-of-court statement must be testimonial in nature. United States v. Saget, 377 F.3d 223, 226-30 (2d Cir. 2004), cert. denied, 543 U.S. 1079 (2005). Testimonial statements "involve a declarant's knowing responses to structured questioning in an investigative environment or courtroom setting where the declarant would reasonablely expect that his or her responses might be used in future judicial proceedings." Id. at 228. In Saget, the Second Circuit considered the effect of Crawford on non-testimonial statements. The Court held that if the out-of-court statement is not testimonial, then the Sixth Amendment's confrontation clause does not bar its admission into evidence so long as the statement falls within a firmly rooted hearsay exception or contains particularized guaranties of trustworthiness. Id. at 230 (applying Ohio v. Roberts, 448 U.S. 56 (1980), to non-testimonial out-of-court statements in the wake of Crawford). In other words, with respect to non-testimonial out-of-court statements, the Second Circuit held that the pre-Crawford analysis set forth in the Supreme Court's Ohio v. Roberts decision continues to apply, and the confrontation clause does not bar admission so long as the statement falls within a firmly rooted hearsay exception or there exist particularized guarantees of trustworthiness.
The statements at issue in this case are clearly not testimonial in nature. They were not made in an investigative environment or in a courtroom setting or under circumstances where the declarant (Greg Pattison) would reasonably expect that his statements would be used against him in a future judicial proceeding. See Saget, 377 F.3d at 228. In fact, Darling testified that the confession occurred in the context of a friendly conversation, and Pattison had no reason to believe that Darling would repeat his statement to the authorities. Because the statements are non-testimonial, the confrontation clause does not bar their admission as long as the statements fall within a firmly rooted hearsay exception or contain particularized guarantees of trustworthiness and are admissible under the rules of evidence.
In United States v. Matthews, 20 F.3d 538 (2d Cir. 1994), the Second Circuit addressed the admissibility of a co-defendant's statements incriminating himself and another defendant. The Court stated that:
[I]f the statement is made to a person whom the declarant believes is an ally rather than a law enforcement official, and if the circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect that the inculpatory portion is any less trustworthy than the part of the statement that directly incriminates the declarant, the trustworthiness of the portion that inculpates the defendant may well be sufficiently established that its admission does not violate the [c]onfrontation [c]lause.
Id. at 546. Ultimately, the court found that the statements at issue in Matthews did not violate Matthews's rights under the confrontation clause because
[t]he statements were not made to law enforcement authorities, were not made in response to questioning, and were not made in a coercive atmosphere. Rather, they were volunteered by [the defendant] to his girlfriend, an intimate and confidante, in the private recesses of their home. There were no coercive pressures, and there was no attempt to curry favor with authorities. Indeed, when he made the statement to [his girlfriend], [the defendant] had no reason to expect that his admission would ever be disclosed to the authorities.
Id. The court also found it significant that the statements did not reflect any attempt by the declarant to shift ...