EvidenceProf Blog

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

Thursday, January 12, 2012

Dead Again: NJ Appellate Court Finds Dying Declarations Were Nontestimonial

Similar to its federal counterpartNew Jersey Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death.

Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), every case that I have seen dealing with Rule 804(b)(2) has found that the admission of a testimonial dying declaration per se does not violate the Confrontation Clause. But what about the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Whitehurst, 2012 WL 28670 (N.J.Super A.D. 2012)?

In Whitehurst, Tiquan Whitehurst was convicted of the first-degree purposeful or knowing murders of Joseph Cox and Charles Jackson and related crimes. These murders allegedly took place with Whitehurst in the back seat of a car being driven by Jackson, with Cox as the front seat passenger. Police Officer Gregory Hamilton

and police officer Lisa Sanchez arrived at the scene after...fire fighters and EMTs. Hamilton saw the front-seat passenger, Cox, had been shot in the head and was dead. He also saw defendant in the backseat, unconscious. Jackson was trying to unbuckle his seat belt, and said to Hamilton, "Officer, I'm dying, I want to get out the seat belt." Hamilton tried to calm Jackson, who repeated that he felt like he was dying and wanted to get out of his seat belt. When Hamilton asked what happened, Jackson responded, "[T]he guy in the back seat shot us." Jackson told Sanchez, "I'm dying. Ma‘am, I'm dying."

The trial court allowed for the admission of Jackson's statements as dying declarations, prompting Whitehurst's appeal after he was convicted. Specifically, Whitehurst claimed that these statements were testimonial, rendering them inadmissible under the Confrontation Clause.

the Superior Court of New Jersey, Appellate Division, disagred, noting that in Michigan v. Bryant,

the defendant challenged the admission of the murder victim's statements at trial claiming a violation of the Confrontation Clause. On the night of the crime, police found the victim, who had "a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty."...The officers asked the victim "what had happened, who had shot him, and where the shooting had occurred."...The victim died shortly after telling the police that the defendant had shot him and where the shooting occurred....

The Court held that "the ultimate inquiry is whether the 'primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.'"...The questions asked of the victim—"what had happened, who had shot him, and where the shooting occurred"—"were the exact type of questions necessary to allow the police to 'assess the situation, the threat to their own safety, and possible danger to the potential victim' and to the public."..."When, as in Davis, the primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause."

The court then found Bryant analogous to the case before it despite Whitehurst's protestations to the contrary:

Defendant contends that the situation was different from that posed by Bryant because he was unconscious in the backseat of the car and the police did not face an ongoing emergency regarding the location or threat of a gunman at large. Of course, this argument overlooks the fact that the police knew defendant was the gunman only as a result of Jackson's responses to their questions. We believe it is clear that admission of Jackson's dying declarations did not violate the Confrontation Clause.

What's interesting about this conclusion is that the court even bothered to go through the analysis of whether Jackson's statements are testimonial. The implication seems to be that there would have been a Confrontation Clause violation if Jackson's statements were testimonial. That would be contrary to what other courts have found, and it will be interesting to see what the court does if presented with that factual circumstance in an upcoming case.



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