As I Lay Dying: Court Of Appeals Of Michigan Finds Dying Declarant Had Personal Knowledge Based Upon Details Of Shooting

Like its federal counterpart, Michigan Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil action or proceeding, [for] 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  

This dying declaration exception also requires that the declarant be "unavailable" at trial, which usually isn't a problem because the declarant of a dying declaration almost always dies. There is, however, another requirement for the admission of a dying declaration, and it is a requirement that applies to almost all hearsay: The declarant must have personal knowledge under Rule 602. 

This is something that I find students often miss in Evidence class. I give them a fact pattern where an EMT comes upon Vince, who has been shot in the back of the head. The EMT tells Vince that he only has a few minutes left, and Vince tells the EMT, "Dan shot me!" The EMT asks Vince how he knows, and he responds, "I just know." The problem that many students fail to recognize is that a prosecutor trying to introduce Vince's statement as a dying declaration likely could not establish that Vince had personal knowledge of his shooter; instead, it looks as if he is making a guess about his shooter's identity. As the recent opinion of the Court of Appeals of Michigan in People v. Holbrook, 2010 WL 99010 (Mich.App. 2010), makes clear, however, the circumstances are quite different when the victim is shot seven times, mostly in the front of his body.

In Holbrook, Cameron Holbrook was convicted of first-degree murder and possession of a firearm during the commission of a felony based upon the shooting death of Gary Nelson, Jr. The Court of Appeals of Michigan in Holbrook did not provide many details about the shooting in its opinion, but it did note that, while he was dying based upon seven gunshot wounds, Nelson told police that his shooter was "Kimmy" -- Holbrook's nickname -- who was in a green Cadillac with another black man. 

The prosecution introduced this statement at trial as a dying declaration, and, after he was convicted, Holbrook appealed, claiming, inter alia, "that the declarant of a dying declaration under MRE 804(b)(2) must also meet the personal knowledge requirement of MRE 602." The Court of Appeals of Michigan agreed with Holbrook on this point but disagreed with his argument that the prosecution failed to establish Nelson's personal knowledge of his shooter. According to the court,

Nelson was shot seven times. Most of the entry wounds were located in the front of his body. This would support an inference that Nelson was facing his attacker and had an opportunity to observe him. In addition, Nelson was also shot in his right hand, which is indicative of a defensive posture. A reasonable inference is that Nelson saw his attacker during the shooting and raised his hand to ward off the attacker. Furthermore, there existed additional evidence that Nelson's statement was not a mere opinion. Nelson was very specific regarding the details of his shooter. He told the police that the shooter was “Kimmy,” who was in a green Cadillac with another black man. The fact that Nelson was able to speak in such specific terms regarding the vehicle used and how many others were with defendant that night supports an inference that Nelson's statements were based on his personal knowledge and direct observation. Consequently, the necessity of meeting any requirements mandated by MRE 602 are satisfied since there was sufficient evidence to support a finding that Nelson had personal knowledge of his shooter. Therefore, the trial court did not err in admitting the statement.

-CM