EvidenceProf Blog

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

Tuesday, March 2, 2021

Court of Appeals of Indiana Finds Head Nod Constituted a Dying Declaration

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

A statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

Under this exception, a "dying declaration" can consist of words or nonverbal conduct intended as an assertion. But was the exception satisfied in Hackner v. State, 161 N.E.3d 1287 (Ind.App. 2021)?

In Hackner, Deshay Hackner was charged with two counts of murder and related crimes based on the deaths of Dewone Broomfield and Mary Woodruff. After he was shot, "Broomfield called 911. When asked who shot him, Broomfield responded, 'Why man.'...During the 911 call and as officers began to arrive, Broomfield identified the individual who shot him as 'Deshaw Hacker,' 'Deshay. D. and William Rice,' and 'Deshawn Hackner.'"

Officer Josh Brewer of the Evansville Police Department, who was wearing his body camera, entered the home and found Broomfield lying on the floor moaning. Woodruff was on the bed unresponsive. At some point, Officer Brewer asked Broomfield, “Was it Deshay?”...Broomfield did not provide a verbal confirmation but Officer Brewer stated to other officers on the scene, “Hey I asked him was it Deshay and [Broomfield] shook his head yes[,]” which had not been captured on the body camera footage.

At trial, Brewer testified about this head nod as a dying declaration. After he was convicted, Hackner appealed, claiming that this ruling was erroneous. The Court of Appeals of Indiana disagreed, holding as follows:

Hackner does not challenge that Broomfield's nonverbal act was made with the belief that his death was imminent while abandoning all hope of recovery. Instead, he claims that “[g]iven the suffering of Broomfield and his agonal movements, [we] should find that a nod is too ambiguous to be considered a nonverbal dying declaration.”...However, we believe the interpretation of Broomfield's alleged nonverbal act, which was not captured on Officer Brewer's body camera, is not a question of admissibility; instead, it bears more on Officer Brewer's credibility, a question solely for the finder of fact....

Here, the jury listened to the 911 call during which Broomfield identifies “Why man[,]” “Deshaw Hacker,” “Deshay. D. and William Rice,” and “Deshawn Hackner” as his shooters. Tr., Vol. III at 5-11. It watched the body camera footage and observed the events unfold and listened to Officer Brewer's testimony in court. The extent to which the jury relies on Broomfield's nod and accepts Officer Brewer's interpretation, and whether or not the evidence connects Hackner with the crimes, ultimately goes to the weight the jury may assign evidence, not admissibility....Therefore, we conclude the trial court did not abuse its discretion in admitting this evidence.

I suppose this is the correct ruling, but I want more information about what was and wasn't captured on the body cam footage. Assuming Hackner's body cam was activated, and assuming he was facing Broomfield when he asked the question, why was his head nod not captured?



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Interesting case. Until I read the opinion, the “why man” part didn’t make sense. For a second I thought he was mad at 911 for asking him that. After reading the opinion and finding out the defendant’s nickname is “Wireman” (sort of a strange one), then I understood.

This one seems correct. Even with no camera footage, I think you have a prima facie dying declaration based on the officer’s testimony, and the (nonverbal) statement comes in. The jury then can believe the officer or not.

If the footage did exist, but didn’t show a nod or was ambiguous, I would still argue the statement comes in. The footage would undercut the officer’s testimony in that case though.

Even if the trial court’s ruling had been error, with all the other dying declarations that apparently weren’t challenged, at worst it would have been harmless error.

On this one you could say the defendant failed to get the nod.

Posted by: hardreaders | Mar 2, 2021 10:32:28 PM

PS: I will give credit to defense counsel for making use of "agonal"—that was a new vocab word for me!

Posted by: hardreaders | Mar 3, 2021 6:03:38 AM

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