Thursday, February 22, 2007

CA: erroneous admission of evidence that defendant raped the babysitter before raping the victim is harmless error

People v Jackson, 2007 NY Slip Op 01424 [available here]

In an unsigned memorandum opinion, the Court of Appeals held that any error the trial court made by allowing evidence that the defendant raped the complainant's babysitter before he raped the complainant was harmless error. (Jackson, 2007 NY Slip Op 01424.) Judge Smith concurred and wrote separately; the facts, from his opinion:

Defendant was charged with the forcible and statutory rape of a 14-year-old girl. He had been staying as a guest in the apartment of the girl's family. A young woman who also lived in the apartment, the baby-sitter for the younger child, was allowed to testify that, shortly before the event on which the prosecution was based, defendant had raped her, and had remarked while doing so "that [the 14-year-old] was lucky I was there, because if I wasn't there, it would be her."

(Jackson at __ [SMITH, J., concurring].)

The majority refused to consider whether the trial court erred in admitting evidence of the prior rape as Molineux evidence, rather holding rather curtly that "[a]ssuming that it was error to admit both the statement and the uncharged criminal conduct, the error was harmless." (Id. at __.) You would think the evidence against defendant must have been overwhelming even without the arguably erroneous Molineux evidence for such damning evidence to be harmless; you would be wrong. The victim testified and recounted the rape, and there was evidence of a prompt outcry by the victim the morning after the rape. (Id. at __.) That was basically it--there was no physical evidence of the rape, and the victim was sketchy as to the dates the rape took place. (Id. at __.) Given the state of the proof, it is hard to see how the challenged evidence--that defendant raped the babysitter, too--could not have tipped the jury in favor of conviction. Yet the majority held just that; the verdict would have been the same even without evidence of the prior rape, and therefore any error was harmless. (Id. at __.)

(Here we will take a brief pause while I reconcile myself to the fact that every error in every case I have scheduled for argument in the next six months or so would be held harmless under the Jackson majority's unnecessarily strict interpretation of the harmless error doctrine. *Sigh*.)

Judge Smith concurred because he would not have found the error harmless, but rather would have held the evidence of the prior rape was (barely) proper under Molineux. Judge Smith argued (and I agree) that the defendant's statement made during the rape of the babysitter was "an expression of desire . . . to commit the very crime for which he was on trial" and thus admissible. (Id. at __ [SMITH, J., concurring].) While noting that the uncharged act--the rape of the babysitter--would ordinarily be barred under Molineux, it was properly admitted in this case to give context to the defendant's statement. (Id. at __.)

Judge Pigott dissented, and got it exactly right in my view--the trial court "could have fashioned a remedy that would have permitted the witness to testify to the alleged statement separately and apart from the alleged sexual assault." (Id. at __ [PIGOTT, J., dissenting.) Thus, there was no need to put the extremely inflammatory evidence of the prior babysitter rape before the jury, it was error to do so, and "[t]his critical error deprived defendant of a fair trial, and could hardly be considered 'harmless beyond a reasonable doubt.'" (Id. at __.)