EvidenceProf Blog

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

Thursday, July 21, 2022

Court of Appeals of Indiana Finds Statement Made by Victim After Being Shot 11 Times Qualified as 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.

Sometimes, it is clear that the declarant believes her death to be imminent, such as when she makes an explicit statement (e.g., "I can't believe I'm going die at 21."). Other times, a court can infer such belief based on the circumstantial evidence. An example of this can be found in the recent opinion of the Court of Appeals of Indiana in Smith v. State, 2022 WL 2349868 (Ind.App. 2022).

In Smith

In September 2018, Smith and Arnel Davis were rival drug dealers who had “issues” with each other....Additionally, Smith and Davis were allegedly “both were messing with some girl named Sharonda.”...Around the same time, Davis “got a hold of some bad heroin”...and lost customers to Smith. Davis subsequently confronted Smith at a local bar regarding Davis's loss of revenue and Smith told Davis that Davis could come work with Smith. In response, Davis “cussed him out” and “got belligerent” with Smith....After the initial confrontation, Smith brought an assault rifle into the bar and stood next to Davis. Davis asked if Smith intended to use the gun to shoot him, and Smith responded, “[n]o, if it was for you, you would know it.”...After the confrontation in the bar, Smith left the assault rifle at Sharonda's house, and she gave it to Davis. Smith put a $10,000 bounty on Davis, but no one accepted it. Smith then decided “he was going to have to do it himself.”...

On the morning of September 29, 2018, Davis left the residence of his fiancée, Daughana Curothers, and drove away in a white GMC Yukon to go to the barbershop. Smith learned Davis was going to the barbershop and followed Davis there in Smith's black Dodge Ram. Once Davis left the barbershop, he started to drive to the liquor store, and Smith continued to follow him. While on the way to the liquor store, Davis called Curothers. Smith pulled alongside Davis's vehicle and shot Davis at least eleven times. Curothers testified she heard a “tapping” sound and then Davis said, “Baby, Keith shot me.”

In finding that Curothers properly testify about Davis's statement, the Court of Appeals of Indiana concluded that

Here, Curothers testified Davis told her “Baby, Keith shot me”...after he had been shot at multiple times. It is hard to imagine that someone shot at least eleven times, with many of those bullets striking his chest or stomach, would NOT believe his death was imminent. Officer Hornaday testified he was located at “38th and High School Road” when he heard “gunshots[.]”...Officer Hornaday then made a u-turn so he could “head north on High School Road” in the direction of the gunshots....He located Davis in his Yukon at 3902 High School Road, one block away. When he arrived at the scene, he observed Davis who “appeared to [him] to be deceased.”...Thus, Davis succumbed to his injuries very shortly after he received those wounds. Therefore, we conclude the trial court did not abuse its discretion when it concluded Davis believed his death was imminent after Smith shot him at least eleven times and therefore, admitted Davis's statement to Curothers as a dying declaration



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