EvidenceProf Blog

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

Saturday, October 24, 2009

As I Lay Dying: Court Of Criminal Appeals Of Texas Artfully Explains Dying Declaration Exception

Like its federal counterpartTexas 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. 

(An important distinction between the two rules is that the federal rule only applies in civil cases and criminal homicide cases, whereas it appears that the Texas rule applies in any case). In describing this rule to students, I always say that courts admit these statements under the theory that a person doesn't want to die with a lie on his lips, supplying the necessary reliability (and then I explain how people who have been shot or stabbed are often in a hypoxic or anoxic state, meaning that modern science gives us reasons to doubt the reliability of such statements). 

In its recent opinion in Gardner v. State, 2009 WL 3365652 (Tex.Crim.App. 2009), the Court of Criminal Appeals of Texas explained the dying declaration in an especially artful and clear way, and I think that I will use its two part explanation in teaching the rule to students in future classes,

In Gardner, John Gardner was convicted of capital murder for shooting his wife, Tammy Gardner, in the course of committing or attempting to commit burglary or retaliation. John Gardner was convicted in large part based upon the testimony of Erin Whitfield, who testified that he received a 911 call on the night of the shooting from a person identifying herself as "Tammy," who  

said that she needed an ambulance. She said that her husband, Steven Gardner, had shot her, and that he had left in a white pickup truck with Mississippi license plates (exactly the type of truck that appellant was driving that night). When police and paramedics finally arrived at the location that the caller had given them, they found Tammy Gardner in her bed, bleeding profusely from a gunshot wound to her head.

After John Gardner was convicted, he appealed, claiming that Whitfield's testimony was improperly admitted under the dying declaration exception because Whitfield could not identify the caller as Tammy Gardner and because there was insufficient evidence to establish that the caller believed that her death was impending. The Court of Criminal Appeals disagreed on the first point, noting that the caller identified herself as "Tammy," that the caller referenced Steven Gardner as well as his truck, and that Tammy Gardner was at the location passed along by the caller. The court also disagreed on the second point, finding that the following facts supported a finding that Tammy believed her death to be imminent:

(1) The single bullet entered her right temple, went through her brain, and exited below her left ear. This was a mortal wound;

(2) Ms. Whitfield testified that Tammy's voice was very slurred and hard to understand;

(3) Tammy kept repeating that her head hurt and that she could not hear very well “because her ears were ringing from the gunshots”;

(4) She said that her husband had shot her, there was blood everywhere, and she needed an ambulance;

(5) Before the phone disconnected, Ms. Whitfield heard what sounded like Tammy choking and vomiting;

(6) When the first deputy arrived, he found Tammy on the blood-soaked bed, trying to sit up; she appeared to be in shock and was bleeding badly from both the back and top right of her head;

(7) There was a trail of blood leading into the bathroom, around the toilet, and in the trash can;

(8) When the paramedics finally arrived, Tammy was “spitting up a lot of blood” and mumbling incomprehensibly;

(9) She was in a vegetative state and died at the hospital two days later.

Meanwhile, in describing the basis for the dying declaration, the court set forth this artful explanation:

It is both (1) the solemnity of the occasion-the speaker peering over the abyss into the eternal-which substitutes for the witness oath, and (2) the necessity principle-since the witness had died, there was a necessity for taking his only available trustworthy statements-that provide the underpinning for the doctrine.  

I like the sound of that explanation, and I plan to pass it along to students in the future.



| Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference As I Lay Dying: Court Of Criminal Appeals Of Texas Artfully Explains Dying Declaration Exception:


Very nice and informative post... keep it up and looking forward to read more of your articles.. I really had a great time reading your post..

Posted by: digger derricks | Nov 25, 2009 6:31:44 AM

What about nonverbal dying declaration?

Posted by: Henry | Jan 20, 2022 8:18:43 PM

Post a comment