EvidenceProf Blog

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

Sunday, March 18, 2018

Court of Appeals of South Carolina Grants Man a New Trial Based on Improper Exclusion of Dying Declaration in Which the Victim Named Someone Else as His Shooter

Like its federal counterpart, South Carolina 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, dying declarations consist of the victim saying that the defendant harmed him (e.g., Vince/victim telling an EMT that Dan/defendant shot him). Sometimes, however, a defendant will seek to present a dying declaration in which the victim identified someone else as the assailant. These exculpatory dying declarations are just as admissible as their inculpatory counterparts, which is why a South Carolina man just won a new trial.

In State v. Green, 2018 WL 1040325 (S.C.App. 2018), Dalonte Green was charged with murder in connection with the shooting death of Xavier Rodd. At trial, the defense proffered the testimony of the responding Sergeant outside the presence of the jury:

[Green:] Did he answer the question of who killed him?

[Sergeant Wells:] Well, I do believe he said a name.

[Green:] Do you recall that name?

[Sergeant Wells:] Yes, I do.

[Green:] What was it?

[Sergeant Wells:] The name I heard him say at that time was Douglas.

[Green:] And you were sure enough to write that time in an incident report?

[Sergeant Wells:] Yes, sir, I did.


After this colloquy,

The State argued against the admission of Sergeant Wells's testimony because the rule regarding evidence of third-party guilt required Green to provide more testimony regarding the person, time, or place detailing who did the killing. In response, Green asserted he did not solicit the testimony to assign guilt to a third party; rather, he only wished to introduce the statement as a dying declaration. The circuit court stated that while the statement could be admissible as a dying declaration, it needed to examine the evidence under the third-party guilt rule. The court determined Green's evidence “must be limited to such facts as are inconsistent with [his] own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence.” Accordingly, the court sustained the State's objection, finding Sergeant Wells's testimony merely “raise[d] the bare suspicion of third[-]party guilt without any other evidence to support that conclusion,” and ruled Sergeant Wells could not testify to hearing the name Douglas.

After Green was convicted, he appealed. The Court of Appeals of South Carolina began by quickly concluding that Rodd's statement easily satisfied the dying declaration hearsay exception:

[The] Victim was unavailable as a witness, Green was on trial for murder, the circumstances showed Victim believed his death was imminent, and Victim's statement concerned the cause of what he believed to be his impending death—the name of the person who shot him.

The court then found that the third-party guilt rule did not preclude admission of this statement:

After the circuit court determined Sergeant Wells's testimony qualified as a dying declaration, it became a jury question whether Victim actually told Sergeant Wells that Douglas was the shooter. The determination of the weight to give Sergeant Wells's testimony was within the exclusive province of the jury.... Green did not have a burden to establish Douglas's identity or the likelihood that Douglas, and not Green, was the actual shooter. Green's right to present witnesses in his own defense was fundamental, and the jury had a right to evaluate the strength of both parties' evidence

Therefore, the court granted Green a new trial.



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Off subject, I know. Apologize. But--what the heck up with Justin Brown's tweet weeks ago about Adnan's COSA ruling coming up? I am worried about this. Thanks so much for all your hard work.

Posted by: Cathy McLain | Mar 20, 2018 8:43:43 AM

Oh the Gamecocks state. When will our citizens learn?

Posted by: Brandon P | May 21, 2018 3:47:09 PM

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