Blink: Court of Special Appeals of Maryland Finds Eye Blinking by Shooting Victim Admissible as Dying Declaration

On November 26, 2010, Prince George's County Detective Latasha Green visited the Shock Trauma Unit to see if Pate could identify a picture of his shooter from a photographic array. Just prior to the session, Nurse Keener had asked Pate a series of questions to determine whether he was “alert and oriented.” She determined that he was. Nurse Keener later testified that blinking hard is a primary method of communication for patients who are unable to speak. She elaborated on how the technique works.

Detective Green showed Pate a series of six photographs and asked him to blink hard3 if he saw a picture of the person who shot him. Pate blinked hard when he was shown the third picture in the photographic array but did not blink hard when shown any of the other five pictures. The third photograph was that of the appellee, Jermaine Hailes. The photographic array procedure was recorded on videotape and was entered into evidence at the suppression hearing. State v. Hailes, 2014 WL 2191405 (Md.App. 2014).

Was Pate's eye blinking admissible as a dying declaration? 

Similar to its federal counterpart, Maryland Rule of Evidence 5-804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for an offense based upon an unlawful homicide, attempted homicide, or assault with intent to commit a homicide or in any civil action [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 his or her impending death.

In Hailes, 

Melvin Pate was shot in the face on November 22, 2010. He was initially taken to the Prince George's County Hospital for emergency stabilization. On November 24, he was flown to the Shock Trauma Unit in Baltimore, where he came under the supervising care of, among others, a neuro-trauma critical care nurse, Registered Nurse Tina Keener. When admitted to Shock Trauma, Pate's condition was listed as “critical” and “very unstable.” His spinal cord was severed at the fifth cervical vertebra in his neck, rendering him a quadriplegic. He was also suffering “neurogenic” shock and had a collapsed lung. Because he could not breath on his own, the doctors attached him to a ventilator and regulated his breathing to ten breaths per minute. A neurosurgical operation screwed a “halo” into Pate's skull to support his severed spinal cord. He was attached to a feeding tube for both nutrition and medication.

This set the stage for Pate's eye blinking on November 26th, which was later admitted at Hailes's murder trial and formed the basis for his ensuing appeal.

On appeal, however, the Court of Special Appeals of Maryland found the eye blinking was admissible as a dying declaration. With regard to the requirement that a dying declaration be made while the declarant believes his death to be imminent, the appellate court found that the trial judge was not clearly erroneous in concluding that

The video taken at Shock Trauma shows an anxious young man completely dependent on machines. Pate in fact is being ventilated so that he receives 10 breaths per minute, a breath every 6 seconds. He was told several days before his statements to police officers that he should be dead. A person in this situation clearly would have the belief that death is imminent, close to certain. Pate sees police coming into the hospital room with evidence and a video camera to record these matters because the doctors, police, and hospital staff do not believe he will survive. In his situation, the court finds that Pate believed his death was imminent. The court finds that the statements are dying declarations.

Of course, as with a witness at trial, a dying declarant must also be competent, and Hailes contended that Pate's eye blinking, as opposed to talking, proved his incompetence. The court disagreed, concluding that

Although the use of the spoken word is a common communicative modality, it is by no means a unique one. Writing, of course, is a strong second. It is, moreover, almost universally recognized that a vertical shaking of the head means, “Yes”; a horizontal shaking of the head means, “No”; and the shrugging of the shoulders means, “I don't know.” Many deaf persons, both in court and out, communicate with manual gestures rather than with spoken words. It is not at all unusual for an identification to be made, at a trial or at a hearing or at a police line-up, by pointing a finger or nodding the head. Let us not forget semaphore and Morse Code. Recent history has furnished dramatic examples of tortured American prisoners of war in North Korea or Viet Nam, while ostensibly confessing on videotape to some form of national guilt, relying on a combination of blinking and Morse Code to communicate a very different message.

What about the fact that Pate didn't die until more than 2 years after his eye blinking? The court correctly concluded that imminent death is not required to admit a dying declaration; instead, all that mattered was that Pate believed his death to be imminent.

That left the court with the question of whether the admission of evidence of Pate's eye blinking violated the Confrontation Clause. Relying upon statements in Crawford v. Washington and Giles v. California -- "We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying," the court concluded that dying declarations are admissible without regard to the Confrontation Clause.

This places the Court of Special Appeals of Maryland in conformity with courts across the country. According to the court, "[s]ixteen of our sister states have considered whether the Dying Declaration is exempted from the coverage of the Confrontation Clause. Sixteen out of sixteen have concluded that it is."

(Hat tip to my former colleage Marc Ginsberg for the link)

-CM