Friday, May 30, 2008
As I Lay Dying: North Carolina Court Finds That The Admission of "Testimonial" Dying Declarations Doesn't Violate The Confrontation Clause
The recent opinion of the Court of Appeals of North Carolina in State v. Bodden, 2008 WL 2095544 (N.C.App. 2008), reaffirms pre-Crawford North Carolina precedent holding that dying declarations do not violate the Sixth Amendment's Confrontation Clause. In Bodden, Roy Oswald Bodden appealed a judgment entered upon a jury verdict finding him guilty of second-degree murder of Nathan Alston. The relevant facts of the case were as follows:
In February 2004, Lathan Smith and Alston obtained drugs from one of Bodden's drug suppliers for the purpose of selling drugs for Bodden; however, instead of selling the drugs, Smith and Alston used them. Bodden later confronted Alston at a store adjacent to an Amoco gas station, telling him. "you better get my money." Bodden also told Alston that he would be right back, left the gas station store, and came back with a friend about an hour later. When Alston noticed Bodden and his friend, he started running down the sidewalk, whereupon he was shot five times in front of his apartment building at around midnight. Alston called 911, and 3.5 minutes later told his mother that he was going to die.
Durham City Police Officer A.M. Cristaldi responded to a dispatch call just after midnight, arrived at the Alston's apartment, and found the Alston bleeding, lying on the floor and screaming for help. Officer Cristaldi asked Alston who shot him, and Alston responded that he did not know who the shooter was, but that Bodden was with him. Alston was transported by ambulance to the emergency room at Duke Hospital, whereupon Durham City Police Officer Dana Keith asked Alston who shot him. Alston responded that "Roy" shot him, which prompted Keith to ask him if Roy's last name was Bodden. Alston answered affirmatively before dying later that day from the gunshot wounds. Bodden was subsequently charged with the first-degree murder of Alston.
At trial, the prosecutor admitted Alston's statements to police as dying declarations under North Carolina Rule of Evidence 804(b)(2), which allows for the admission of a statement made by a now unavailable declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death (The court found that the fact that Alston's statements were contradictory went to the weight of the evidence, not admissibility). On appeal, Bodden claimed, inter alia, that Alston's statements were inadmissible under the Sixth Amendment's Confrontation Clause in that, pursuant to the Supreme Court's 2004 opinion in Crawford v. Washington, they were "testimonial" in that they were made with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution, making them inadmissible because (1) Alston was unavailable to testify. and (2) Bodden did not have the opportunity to cross-examone him.
The Court of Appeals of North Carolina noted that in pre-Crawford opinions, North Carolina courts had found that dying declarations do not violate the Sixth Amendment right of confrontation. Under the "testimonial" test laid out in Crawford, however, "testimonial" dying declarations would be inadmissible under the Confrontation Clause, but, as I have noted before, the Supreme Court implied that dying declarations were exempt from this rule, holding at footnote 6 of its opinion that "[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis."
The Court of Appeals of North Carolina noted that, since Crawford, most courts have held that the admission of "testimonial" dying declarations does not violate the Confrontation Clause, and it followed suit, reaffirming its pre-Crawford precedent. Based upon the language in Crawford, I think that the North Carolina court (as well as courts in Nevada, llinois, New York, and Minnesota) got it right.