Thursday, August 5, 2010
As I Lay Dying: Court Of Appeals Of Virginia Notes That Declarant Doesn't Have To Immediately Die For Dying Declaration Exception To Apply
Federal 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.
Virginia does not have codified rules of evidence, but Virginia precedent fully conforms to common law principles governing dying declarations, pursuant to which a statement qualifies as a dying declaration if it was made under a sense of impending death without any expectation or hope of recovery from his mortal wounds. And, as the recent opinion of the Court of Appeals of Virginia in Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010), makes clear, for a statement to qualify as a dying declaration, the declarant merely needs to believe that his death was imminent when he made the statement; he does not actually need to die soon after making the statement.
Tanisha Naar left work on a lunch break and returned to her apartment. She found her boyfriend, Joyner, lying on her bathroom floor. He was covered in blood. Naar called out to Joyner, but he did not answer. She went over to Joyner and knelt down beside him as he gasped for breath. Joyner faded in and out of consciousness. He appeared limp and unable to feel anything. Because Joyner was bleeding so profusely, Naar could not identify the entry wounds. When she asked him where he had been shot, Joyner replied, "everywhere."
Naar called 911. [Joyner] had been bleeding for about half an hour by this time. The 911 operator asked Naar what happened. While still on the phone, Naar asked Joyner "who did it?" Breathing heavily, Joyner replied, "Darin Satterwhite did it." He said it loudly enough for the 911 operator to overhear the statement. Joyner added that Satterwhite had shot him inside Naar's apartment at around 12:45 p.m.
Paramedics arrived within minutes and found Joyner conscious but in critical condition. He had three gunshot wounds to the chest and one to the head. Joyner had no feeling in his legs. Police detectives also arrived on the scene. They, too, asked Joyner what happened. He told them Satterwhite had shot him. The paramedics rushed Joyner to the hospital where he was admitted for emergency surgery. The gunshots had damaged his spine and led to renal failure, liver failure, sepsis, pneumonia, rhabdomyolysis, gastrointestinal bleeding, and coagulopathy. Joyner died in the hospital six weeks later.
At trial, the prosecution introduced Joyner's statements to Naar, and the introduction of these statements former the partial basis for his appeal. Among other things,
Satterwhite ma[de] much of the fact that Joyner did not die immediately. Emergency medical care kept him alive for several weeks following the shooting. Like the trial court, we find this observation misses the point. To be sure, "there seems to be no case in which the time of survival was deemed to exclude the declaration; and various periods have been passed upon as not too long."...It is an immaterial fortuity that modern medicine extended Joyner's life as long as it did, particularly given the extent of his injuries. The only issue is whether his in extremis condition at the time of his statements warranted the trial court's conclusion that they came within the scope of the dying declaration exception. Because "[m]uch weight ought always to be given to the opinion of the court below in determining this question,"...and sufficient evidence supports the trial court's conclusion, we find no basis for overturning the court's exercise of discretion in this case.
Indeed, it is important to note that the dying declaration exception can apply even if the declarant does not die . Assume that Victim is shot by Assailant. Victim is told by Paramedic that he is going to die, and Victim says, "Assailant shot me!" Miraculously, Victim lives but loses his memory based upon the shooting. Victim is now suing Assailant civilly for battery. Victim's statement would be admissible as a dying declaration.
(The court's opinion also noted that dying declarations do not present a problem under the Confrontation Clause)