EvidenceProf Blog

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

Monday, January 28, 2013

As I Lay Dying?: Court of Appeals of Michigan Finds Written Statement to be a Dying Declaration

Similar to its federal counterpartMichigan 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 the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Usually, this "dying declaration" exception applies to oral statements, but, as the recent opinion of the Court of Appeals of Michigan in People v. Thompson, 2013 WL 276042 (Mich.App. 2013), makes clear, it can also apply to written statements.

In Thompson, Ronald Bishop Thompson was convicted of first-degree premeditated murder and possession of a firearm during the commission of a felony. The victim was shot in the throat and wrote out that Thompson shot him after police officers arrived in response to a 911 call and the victim was incapable of speaking.

After Thompson was convicted, he appealed, claiming, inter alia, that the victim's written statement was improperly admitted under Michigan Rule of Evidence 804(b)(2) primarily because it was not made while the victim believe that his death was imminent. The Court of Appeals of Michigan disagreed, finding that

The “apparent fatal quality” of the victim's gunshot wound is evident given its nature and location in the middle of his throat. Id. This is especially so in light of the victim's progressively worsening condition over the duration of the 911 call, as evidenced by his increased difficulty speaking and breathing, and also his heightened desperation for assistance, as indicated by the increased frequency of his pleas for help, his apparent concern if and when help would arrive, and the 911 operator's comments clearly attempting to calm him down. FN1 Testimony indicated that, by the time responding police officers arrived at the scene, the victim was physically distressed, he was no longer able to verbally communicate, his labored breathing had become more pronounced, and he was “hysterical” and “panicking.” Testimony also indicated that the victim's condition was life-threatening and that efforts were made at the hospital to “ save his life.”

From these circumstances surrounding the statement, the court could reasonably infer that the victim feared for his life and believed his death was imminent when he identified defendant as the assailant, despite his apparent mobility and consciousness and the lack of “gushing” blood from his throat.

In reaching this conclusion, the court also found that

although there was no evidence indicating that the victim was actually informed of his critical condition or that he made any specific statements signifying his belief that his death was imminent, "it is not necessary for the declarant to have actually stated that he knew he was dying in order for the statement to be admissible as a dying declaration."...Further, the victim's failure to identify defendant as the assailant during the 911 call does not necessarily indicate a belief that his death was not imminent. To the contrary, it was also reasonable to infer from the victim's numerous, continual pleas for help during the 911 call that he was solely focused on obtaining assistance because he feared for his life.

Finally, the court found that it did not need to address Thompson's argument "that, on the next day at the hospital, the victim wrote '10 days' to indicate how long he would be on the ventilator, which, according to defendant, support[ed] a finding that he did not believe his death was imminent." The court concluded that "this fact was not in evidence, and thus, cannot be considered on appeal." 



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