Tennessee Case Reveals Recent Changes to Volunteer State's Dying Declaration Exception

The opinion of the Court of Criminal Appeals of Tennessee in State v. Crockett, 2016 WL 769890 (Tenn.Crim.App. 2016), contains a pretty straightforward application of the dying declaration exception to the rule against hearsay. The case, however, also noted two important recent additions to the exception and one remaining question.

Crockett was a murder case in which they victim, who was in a lot of pain and had blood pouring out of him, told Robert Rooks several times, “Bull blocked me in.” According to Rooks, the defendant went by the nickname, "Bull."

At trial, the prosecution introduced these statements as dying declarations under Tennessee Rule of Evidence 804(b)(2), which 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 and concerning the cause or circumstances of what the declarant believed to be impending death.

Historically, there were five requirements for admitting a statement under this exception:

(1) the declarant must be dead at the time of the trial;

(2) the statement is admissible only in the prosecution of a criminal homicide;

 

(3) the declarant must be the victim of the homicide;

 

(4) the statement must concern the cause or the circumstances of the death; and

(5) the declarant must have made the statement under the belief that death was imminent.

The defendant challenged the victim's statement under the fifth requirement, claiming that there was no overt evidence that the victim believed his death to be imminent when he told Rooks that "Bull blocked me in."

The Court of Criminal Appeals, however, easily turned this argument aside, concluding that,

As recognized by the trial court, “[I]t is not necessary that the declarant have stated unequivocally his belief that his situation is hopeless.”... “Awareness of impending death may be inferred from the facts and circumstances, the language and condition of the declarant, and the seriousness of the wounds."...Our supreme court has stated that “our cases attach much importance to the character of the wound; and that where the wound is obviously of a desperate nature the wounded man can scarcely contemplate it with any expectation of life.”...Additional circumstances that this court has found significant in determining awareness of impending death include difficulty breathing, a frantic or frightened demeanor, fading in and out of consciousness, and final expressions of love to a romantic partner....

In this case, although the victim never made an express statement that he knew he was about to die, the circumstances as summarized by the trial court support a finding that the victim was aware of his impending death. Multiple witnesses that had been with the victim following the shooting testified as to the victim's grave condition. The victim was bleeding profusely, sweating heavily, and screaming that he was in pain, and he had difficulty breathing. Photographs of the scene where the victim collapsed depict several blood-soaked towels used to stanch the bleeding, the victim's bloody shirt, and a large area of blood on the ground. In addition to the photographs and eyewitness testimony concerning the extent of the victim's injuries, the words the victim exchanged with those gathered around him support a conclusion that he was aware his death was imminent. The victim told Ms. Keeler that he loved her, and Ms. Keeler's description of their exchange suggests that they viewed their declarations of love as final. Mr. Rooks described how he cradled the victim's head in his arms and tried to comfort the victim by reminding the victim he had previously survived a gunshot wound. However, the victim responded, “He got me this time,” and he complained to Mr. Rooks about the severity of the pain he was experiencing. 

Therefore, the defendant was not entitled to relief.

In dicta, the Crockett court also noted two recent changes that were made to Tennessee's dying declaration exception in 2009. One change was made to the old requirement that "the statement is admissible only in the prosecution of a criminal homicide." As you can see from the previously posted language of the current rule, the exception now applies in civil cases as well (but not non-homicide criminal cases.

The second change was made to the old requirement that "the declarant must be the victim of the homicide." This portion was removed in 2009 based upon the recognition that charges can be severed and tried separately. For instance, assume that Dan allegedly kills Victor and Victoria, with the charges being severed and trial 1 being based upon the murder of Victor and trial 2 being based on the murder of Victoria. Under the old rule, Victoria's dying declaration wouldn't be admissible at trial 1, and Victor's dying declaration wouldn't be admissible at trial 2. Under the new rule, both of these statements would be admissible at both trials.

The remaining question is whether, pursuant to the old first requirement, the declarant has to be dead at the time of the trial. Obviously, this requirement applied when the exception was only triggered in criminal homicide trials. But does it still apply when the exception now ostensibly applies in any civil case?

For instance, assume that Dan shoots Vince, who tells an EMT that Dan shot him while believing his death to be imminent. Vince goes into a coma but is later miraculously revived, but he retains no memory of the shooting. If Vince brings a civil battery action against Dan, would his "dying" declaration be admissible? Possibly.

-CM