Tuesday, March 5, 2013
Suicide Solution?: Supreme Court of West Virginia Finds Suicide by Witness for the Prosecution to be a Dying Declaration
Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay
In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
A student in my Evidence class and the esteemed Fred Moss both raised the same question with regard to this "dying declaration" hearsay exception today: Can it apply to a declarant who is not the homicide victim? Here is what Fred Moss wrote in a comment to yesterday's post:
We always believe, I think, that the declarant in the homicide case must be the victim of the homicide, that is, the person the defendant is accused of killing. But the rule refers to "the declarant," not "the victim," so they can be -- theoretically -- different people.
How about this hypo? A is on trial for the murder of B by shooting him. A shot several times in killing B. C -- the declarant -- was hit by one of the shots. As he lay on the street he tells the EMT, "I hear the wings of the Angel of Death hovering over me. Tell my wife I love her. And, by the way, I was shot by A as he was shooting at B." C either dies or cannot testify at A's trial because he's in a coma. Under the FRE, the statement is admissible at A's trial, no?
I think that this analysis is correct, which takes me to the strange case of State v. Satterfield, 457 S.E.2d 440 (W.Va. 1995).In Satterfield, Shawn Satterfied and his half-brother were charged with murdering Billy Harper. A key witness for the prosecution at trial was Brian Moore, and
During the trial the appellant's attorney aggressively cross-examined Moore and even suggested that Moore may have committed the murder. In fact, the appellant's attorney implied that Moore had told people that he struck the first blow on the victim during the murder. After recross-examination, Moore concluded his testimony, but was subject to recall by the State. Before the trial court reconvened the next day, Moore committed suicide. The appellant's attorney stated that he would not be calling witnesses to testify that Moore stated that he struck the first blow. However, subsequent to the suicide, Del Vincent testified that Moore did not come by his place on that night. Additionally, pursuant to the appellant's questioning, Del Vincent testified that Moore asked him to provide an alibi, and that on previous occasions Moore had bragged that he was going to kill people.
Because of the appellant's attack on the credibility of Moore after his death and because the appellant suggested that Moore had committed the murders, the trial judge permitted the State to introduce a suicide note left by Moore which stated: "I didn't kill Harper and I won't do time for something that I didn't do. I'm sorry but I just can't take the presure [sic] of going through a trial. Good-by [sic]. [Signed] Bucky Moore. Tell Teresa [Bucky Moore's girlfriend] I loved he [sic] more than any thing in the world." The jury convicted the appellant of first degree murder with a recommendation of mercy based on the above evidence.
After he was convicted, Satterfield appealed, claiming, inter alia, that the trial court improperly admitted the suicide note as a dying declaration. The Supreme Court of West Virginia disagreed, concluding that
In the case before us, the dying declaration was in the form of a suicide note. Few courts have addressed whether a suicide note would ever fall into the dying declaration exception to the hearsay rule. Common sense dictates, however, that just as the rules of evidence have broadened the common law to include declarants who are not murder victims, the rules of evidence would also contemplate situations in which a dying declaration could be contained in a suicide note.
Accordingly, we hold that a suicide note may be admissible pursuant to W.Va.R.Evid. 804(b)(2) as a dying declaration exception to the hearsay rule. In order for a statement found in a suicide note to be admissible as a dying declaration the following must occur: the statement must have been made when the declarant was under the belief that his death was imminent, and the dying declaration must concern the cause or circumstances of what the declarant believes to be his impending death....
Is Moore's suicide note a dying declaration? Clearly, there was evidence that Moore wrote the suicide note with the belief that he was facing imminent death because he killed himself soon after writing the note. Additionally, the suicide note explained why Moore killed himself thereby explaining the causes or circumstances which led to his death. Therefore, Moore's suicide note falls within the dying declaration exception to the hearsay rule.
I'm not sure that I agree with the court that a suicide note can be a dying declaration, but that's a question for another day. For now, all I want to note is that I agree with the court that there is nothing in Rule 804(b)(2) that precludes a dying declaration from coming from a non-victim, and I see no reason to impose such a limitation.