As We Lay Dying, Take 2: The Admissibility of Dying Declarations In Multiple Victim Situations

Following up yesterday's post about the admissibility of dying declarations in multiple victim situations, today let's look at the opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Key, 407 N.E.2d 327 (Mass. 1980).

In Key, 

In the early morning hours of September 7, 1971, an explosion and fire occurred in the first floor apartment at 5 Cedar Street in Roxbury. Firefighters retrieved two men from the burning apartment. One had been found in the living room; the other, in the kitchen. Both men were severely burned. The hands and feet of both had been bound with wire. One had a metal and cloth gag in his mouth. The victims, Louis Fobbs and William Evans, were taken to Massachusetts General Hospital, where Evans died a few hours later and Fobbs, early in the morning of September 8.  

The core of the Commonwealth's case connecting the defendant with these deaths was a series of statements attributed to Fobbs. The first statement simply blamed the defendant; the next two added that the defendant had tied the two victims, poured gasoline on them, and set them afire; the last stated that "Keys" had a gun and had rolled up his sleeve to show Fobbs the "track marks" (injection marks) on his arm before he had blindfolded the two men and poured gasoline on them. The Commonwealth also presented the testimony of a neighbor who had heard an explosion and had seen a tall, slim, black man who wore brown pants and a tan jacket run down the street. One Claude James testified that he had driven down to Cape Cod on September 6, the day before the fire, with Fobbs, Evans, the defendant, and others, and that the defendant was then carrying a gun. He described Fobbs and Evans as a homosexual couple. He stated that he had seen the defendant on Tremont Street on September 9 or 10 with a bandaged arm.

After the defendant was convicted of murdering both Fobbs and Evans, he appealed, claiming, inter alia, "that Fobbs' dying declaration should not have been admitted as evidence of the murder of Evans."

In addressing this issue, the Supreme Judicial Court of Massachusetts noted that

Historically, the common law has admitted dying declarations only where the declarant's own death is the subject of the homicide indictment....At trial, defense counsel advanced the common law rule in an attempt to limit the jury's consideration of Fobbs' statements to the issue of Fobbs' homicide. The judge rejected that rule as "outlandish," and we agree with him.

Specifically, the court concluded that

Where multiple homicides result from one felonious act, the dying declaration of one victim should be admitted to prove the homicides of the other common victims....In admitting Fobbs' declarations to prove the murder of Fobbs, the judge recognized the probable trustworthiness of the proffered evidence. The declarations were not less trustworthy when offered to prove the murder of Evans. Commonsense justified the judge's ruling. There was no error.

-CM