EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, July 28, 2011

The Bullet & The Damage Done: Court Of Appeals Of Mississippi Finds No Error In Admission Of Dying Declaration Based On Nature Of Wound

Like its federal counterpart, Mississippi 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 his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

But let's say that a declarant makes a statement relatively soon before dying without being told that his death is imminent or any overt indication that he believes his death to be imminent. Can the court infer such a belief based solely on the nature of the declarant's injuries? According to the recent opinion of the Court of Appeals of Mississippi in Moore v. State, 2011 WL 3066211 (Miss.App. 2011), the answer is "yes."

In Moore, Joshua Moore was convicted of conspiracy to commit armed robbery, six counts of armed robbery, and manslaughter. The evidence adduced at trial indicated that

On the evening of March 18, 2007, Leon Andrews had approximately twelve individuals at his home to shoot dice in Columbia, Mississippi. The gamblers were in the game room, which was a separate building from Andrews's house. At approximately 10:15 p.m., two men with dark stockings over their heads burst into the game room. One of the men said "stop playing," raised a gun, and fired it. Everyone was ordered to get on the floor. The two men demanded everyone's money or they would kill someone. The gamblers put their money on or near a pool table in the room. At least two other shots were fired during the robbery. Before leaving, the two robbers forced the gamblers to remove their clothes. Once the robbers left, most of the gamblers quickly exited the game room, leaving through the window or door. At some point during the robbery, Flowers was shot; later he was pronounced dead at the hospital. Several individuals at the dice game identified the two robbers as Moore and Carlos Varnado.

Moreover, at trial, a witness testified 

that during the incident, but after several shots had been fired and everybody had gotten down on the floor, Flowers told him: "One of those boys just shot me." Defense counsel promptly moved for a mistrial because the deceased Flowers could not be cross-examined. The trial judge denied the motion.

After he was convicted, Moore appealed, claiming that Flowers' statement was improperly admitted. The Court of Appeals of Mississippi disagreed, finding that the statement qualified as a dying declaration under Mississippi Rule of Evidence 804(b)(2). According to the court, while there was no explicit evidence indicating that Moore believed his death to be imminent at the time that he made the statement,

it can be inferred from the situation that at the time Flowers made the statement to Holmes, Flowers knew of his impending death and had no hope of recovery even if he did not specifically declare it. As Dr. Hayne testified, Flowers had been shot through the heart, and the bullet was lodged in his lung cavity. He was profusely bleeding internally, and while he might not have passed away immediately after being shot, he did shortly thereafter. One of the officers that first responded to the dispatch call stated Flowers was lying on his back on the floor in the game room, and he did not appear conscious. Another officer testified that Flowers was pronounced dead upon his arrival at the hospital. We find because of the circumstances surrounding Flowers's shooting, the trial court did not err in admitting Holmes's testimony about Flowers's dying declaration.



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