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Univ. of South Carolina School of Law

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Tuesday, July 13, 2010

Killing Me Softly: Court Of Appeals Of Ohio Case Reveals That Dying Declaration And Excited Utterance Exceptions Are Often Intertwined

Like its federal counterpart, Ohio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay "[i]n a prosecution for homicide or in a civil action or proceeding" for

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause of what the declarant believed to be his or her impeding death.

And, like its federal counterpart, Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for

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.

And, as the recent opinion of the Court of Appeals of Ohio, First District, in State v. Washington, 2010 WL 2697078 (Ohio App. 1 Dist. 2010), makes clear, statements covered by the former hearsay exception will almost always also be covered by the latter hearsay exception.

In Washington, Todd Kendal Washington was convicted of aggravated murder and aggravated robbery based upon the shooting death of Donald Williams. According to testimony presented at trial, after Williams was shot four or five times, he fell to the ground, stating, "my stomach is burning." As nearby neighbors called 911, Williams squeezed his fiancée's hand as she implored him to stay with her. Thereafter, Sergeant Michael Machenheimer and Officer Ronald Fuller from the Cincinnati police arrived on the scene while Williams was still lying injured in the street. Machenheimer asked Williams if he knew who had shot him, and he said, "Yes, his name is Kendal." Meanwhile, Fuller testified that Williams had told him that "Kendal shot me." Moments after making these statements, Williams died.

After he was convicted, Washington appealed, claiming, inter alia, that Williams' statements identifying him were inadmissible hearsay. The Court of Appeals of Ohio disagreed, finding that Williams' statements were admissible under Ohio Rule of Evidence 804(B)(2) because

[t]he evidence in this case supports the trial court's finding that Williams believed that his death was imminent. He had been shot four to five times at close range, and he had fallen to the ground, stating "my stomach is burning." He squeezed his fiancée's hand as she implored him to stay with her. His eyes kept rolling back in his head, and his breathing was labored. Although he was able to tell police officers that "Kendal" had shot him, he died moments later. Under the circumstances, we cannot hold that the trial court abused its discretion in admitting the statements into evidence as dying declarations.

Moreover, the court found that

[e]ven if Williams's statements were not dying declarations, the trial court found that they would also have been admissible under the hearsay exception for excited utterances. Evid.R. 803(2)  defines an excited utterance as "[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."...In this case, Williams was under the stress of an undoubtedly startling condition-he had been shot four to five times. He immediately identified "Kendal" as the person who had just shot him.

Indeed, it is difficult to think of a case in which a statement would qualify as a dying declaration but not qualify as an excited utterance. I guess that the only such case would be one in which the victim wanted to die or calmly accepted his fate before making his statement. In such a case, the victim would not (still) be under the stress of the startling even causing his death, making the excited utterance exception inapplicable.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/07/dyin-dec--state-v-washingtonslip-copy-2010-wl-2697078ohio-app-1-dist2010.html

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