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Saturday, April 23, 2011

Knockin' On Heaven's Door?: Superior Court Of Pennsylvania Questionably Finds Statements Qualify As Dying Declarations

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

As the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Priest, 2011 WL 1499828 (Pa.Super. 2011), makes clear, even statements made six hours (or three days) before the declarant's death can qualify as dying declarations. But did the court correctly conclude that the declarant's statements in Priest qualified as dying declarations? I don't know.

In Priest, Markez Priest was convicted by a jury on the charges of first-degree murder and firearms not to be carried without a license. The victim of that murder was Darius Odom, who was shot in his right arm and the back of his neck. After being shot, "Odom was flown to UPMC Presbyterian....Four employees of UPMC involved with the treatment of Mr. Odom (Jaclyn Kuzminsky, a certified respiratory therapist, Dr. Brian Bane, an anesthesiologist, Nathan Sullivan, a registered nurse, and Dr. Raquel Forsythe, a trauma surgeon) testified that Mr. Odom said "Markez shot me" immediately prior to being intubated. Specifically,

Ms. Kuzminsky testified that, when she was providing Mr. Odom the bagging mask, he said, "Please don't let me die," and "Markez shot me."...Dr. Bane testified that, just prior to sedating Mr. Odom, he kept repeating the name "Markez" and said, "Markez shot me."...Nurse Sullivan testified that, when he called out for the sedation medication, Mr. Odom said, "Don't let me die," and "Markez shot me."...Dr. Forsythe testified that, after she told Mr. Odom she was going to insert a breathing tube, he said, "Save me," and "Markez. He shot me." 

The trial court admitted these statements as dying declarations under Pennsylvania Rule of Evidence 804(b)(2), and, on Priest's ensuing appeal, the Superior Court of Pennsylvania found no error with this decision, noting that the prosecution presented a videotape of Odom's treatment that showed him

on a table surrounded and treated by multiple medical personnel. [Mr.] Odom repeatedly tells medical personnel that he does not want to die, he complains of pressure in his chest and difficulty breathing, and he expresses a desire to see his daughter. Following these statements, and shortly before being intubated, [Mr.] Odom identifies "Markez" as the individual who shot him.

Moreover, the court noted that 

the lapse of six hours between [Mr.] Odom's statements and his actual death is not determinative of the issue as to whether statements were admissible under the dying declarations exception to the hearsay rule. In the case of Commonwealth v. Griffin, [supra], the victim was shot in the arm, which severed a major artery. Police came upon the victim lying on the ground, bleeding heavily, and drifting in and out of consciousness....The victim asked the officers to get him to a hospital, asked the officers to "just let me die," and identified [Appellant], Aaron Griffin, as his assailant....The victim died as a result of his injuries, but not for three days following his identification....The Superior Court held as follows:

[A]ppellant would have us rule that the victim's statement could not serve as a dying declaration because the victim did not actually die until three days after the statement was made. However, Appellant cites us no case with such a holding, and in fact ignores several decisions to the contrary.

Now, I agree with the Superior Court of Pennsylvania that a statement can be made hours or days before the declarant's death and still qualify as a dying declaration as long as the declarant believed his death to be imminent when he made the statement. But, to me, the juxtaposition of Griffin and Priest is striking. In Griffin, the declarant was bleeding heavily, drifting in and out of consciousness, and told the officers to let him die. It seems clear to me that this declarant believed that his death was imminent and that he had no hope of survival.

Conversely, in Priest, Odom apparently said, "Please don't let me die" and "save me." The court's opinion gives no indication that he was bleeding profusely or that he was losing consciousness. Now, it is tough for me to question the court(s) when I can't see the videotape of Odom's treatment, but from the court's opinion, Odom seems like a man who felt that he could be saved, who felt that his death was not imminent. And, if that was the case, his statements should not have qualified as dying declarations. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/04/dying-dec-com-v-priest-a3d-2011-wl-1499828pasuper2011.html

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Comments

"save me" isn't something you say when you feel you are going to be alright. and "please don't let me die" DEFINITELY sounds like he believed his life was in the hands of medical professionals, not that he was surely recovering.

Posted by: hmmmm | Apr 25, 2014 9:34:51 PM

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