Thursday, December 20, 2007
Dead Man Talking: South Carolina Case Shows Why Prosecutors Should Prefer Dying Declarations Over Excited Utterances
Recently, I've written about cases dealing with the excited utterance and the dying declaration exceptions to the rule against hearsay. A murder trial in South Carolina brings to light why prosecutors might want to opt to get statements admitted under the latter exception when both are potentially applicable.
Last year, South Carolina Sheriff's Lieutenant John Stokes discovered Stephen Raines on the floor, bleeding from what appeared to be a gunshot wound. According to Stokes, when he found Raines, he was in a lot of pain and his organs were hanging out. According to Stokes, Raines proceeded to claim that he was in a confrontation with two black males and gave a description of his assailants. Based upon Raines' statements, officers arrested Tashi Franklin and Anthony Glover. While Glover's case has not yet gone to trial, Franklin is currently in court defending charges of murder, first degree burglary and possession of a firearm during the commission of a violent crime.
During Franklin's trial, the prosecution sought to have Stokes testify about Raines statements regarding his assailants, but defense counsel countered that these statements constituted inadmissible hearsay. The South Carolina court disagreed, finding that Raines' statements constituted excited utterances. Pursuant to South Carolina Rule of Evidence 803(2), a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition constitutes an "excited utterance," an exception to the rule against hearsay. Ostensibly, then, the judge in Franklin's trial found that Raines being shot was a startling event and that he made his statements regarding his assailants while he was under the stress of excitement caused by the shooting.
I wonder, though, why the prosecution did not argue, or the judge did not accept the argument, that Raines' statements constituted dying declarations. Under South Carolina Rule of Evidence 804(b)(2), "[i]n a prosecution for homicide or in a civil action or proceedings, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death," constitutes a dying declaration, an exception to the rule against hearsay. Here, Raines' statements to Stokes clearly addressed the cause of his death, and it's easy to infer from the fact that his organs were hanging out that he believed his death was impending, likely making his statements admissible as dying declarations.
One might wonder why it makes any difference whether Raines' statements were admitted as excited utterances or dying declarations. Here's why. In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.
In the wake of Crawford, courts have noted that under this test, excited utterances made to law enforcement personnel or other officials "may be testimonial under Crawford" and thus inadmissible if the declarant cannot testify at trial. See, e.g., Rivera v. Ercole, 2007 WL 1988147 at *6 (S.D.N.Y. 2007). Because Raines died soon after making his statements to Stokes and before Franklin could cross-examine him, the South Carolina court's evidentiary ruling could be challenged under Crawford.
In Crawford, however, the Supreme Court seemed to state that dying declarations are admissible, regardless of whether they are testimonial. See Crawford, 541 U.S. at 56 n.6. Thus, if the South Carolina court would have found that Raines' statements were admissible as dying declarations, the ruling likely could not have been challenged under Crawford.