Opinion
ID No. 9908026980
Submitted: April 2, 2001
Decided: April 19, 2001
UPON DEFENDANT'S MOTION IN LIMINE TO EXCLUDE VICTIM'S STATEMENTS. DENIED.
Mark W. Bunitsky, Esquire and Andrew J. Vella, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorneys for the State.
Thomas A. Pedersen, Esquire and Kevin J. O'Connell, Esquire, Wilmington, Delaware, Attorneys for Defendant.
MEMORANDUM OPINION INTRODUCTION
John C. Johnson (Defendant) has filed a Motion in Limine in his pending capital murder trial to exclude statements of the victim Theodore Smallwood (the victim) made immediately after his shooting to police and paramedics, which statements identified or helped to identify Defendant as the person who shot him. The victim died about an hour after the shooting. Defendant contends that these statements "do not qualify under the dying declaration exception to the hearsay rule nor do they possess the requisite level of trustworthiness to qualify under any other recognized exception" because the victim initially gave police a fictitious name when police asked for his (the victim's) identity. The State contends that "the timing and the nature of the victim's statements to both police and paramedics provide the requisite guarantees of trustworthiness required for the statement to be admitted as a dying declaration, an excited utterance, or under the "catch-all" exception to the hearsay rule.
Defendant's Motion in Limine ¶ 5. Although the term "dying declaration" is commonly used to characterize such statements, the phrase in the Delaware Rules of Evidence is "statement made under belief of impending death." D.R.E. 804(b)(2).
State's Response to Defendant's Motion in Limine at ¶ 3.
For the reasons set forth below, this Court concludes that the victim's statements made to the police officers and the paramedics after the shooting and prior to his death are supported by sufficient evidence to qualify as reliable statements admissible under the hearsay exception of "statement under belief of impending death." Alternatively, this Court finds those same statements also meet the requirements of another hearsay exception, that of "excited utterances." All of the victim's statements will be admissible at Defendant's trial.
FACTS AND PROCEDURAL HISTORY
The key facts are these: on August 28, 1999, at approximately 1:00 a.m., Decedent was fatally shot several times with a .40 caliber handgun. Apparently five shots were fired, four of which lodged in the victim's chest. These shots were allegedly fired by Defendant. The State alleges that there was bad blood between Defendant and the victim. A few days before the shooting the victim had apparently stabbed Defendant during a separate confrontation.
State v. Johnson, Del. Super., ID No. 9908026980, Silverman, J. (Oct. 31, 2000) (ORDER) (denying Defendant's motion to suppress his statement) at 2-3.
Id.
Wilmington Police Officer Michael Tuminaro was the first to respond to the "shots fired" complaint at 201 W. 29th Street in Wilmington, Delaware approximately five to ten minutes after the shooting occurred. The victim was lying on his back in the entrance way to an apartment building. The victim made various statements to police and paramedics about the identify of his assailant before he died at about 2 a.m.
Defendant was indicted by a grand jury on for Murder First Degree ( 11 Del. C. § 636(a)(1)), Possession of a Firearm during the Commission of a Felony ( 11 Del. C. § 1447A), and Possession of a Deadly Weapon by a Person Prohibited ( 11 Del. C. § 1448). Defendant has filed a Motion in Limine to exclude various statements made by the victim that identified, or helped to identify, the Defendant as the person who shot him. On March 9, 2001 this Court conducted an evidentiary hearing to determine the admissibility of the statements the victim made to the police officers and emergency medical technicians who surrounded the victim immediately prior to his death. Trial is scheduled to begin on May 8, 2001.
This charge has been severed pursuant to Super. Ct. Crim. R. 14.
Prior to this evidentiary hearing, this Court denied the suppression of certain statements made by Defendant to Wilmington Police officers. State v. Johnson, Del. Super., ID No. 9908026980, Silverman, J. (Oct. 31, 2000)(ORDER).
A. The Victim's Statements to the Police at the Homicide Scene .
Officer Tuminaro testified at the hearing on Defendant's Motion in Limine that when he approached the victim, who was lying on the ground after having just been shot, that the victim initially identified himself to Officer Tuminaro with a fictitious name, that of "Michael Smith." The record is not clear why Theodore Smallwood first gave that name, although Officer Tuminaro suggested at the hearing that the victim might have known that there was an outstanding capias for him. Officer Tuminaro stated at Defendant's hearing that it is common for individuals who are knowingly evading an issued capias to give false names.
Hrg. Tr. at 8.
Hrg. Tr. at 15.
Hrg. Tr. at 11.
Officer Tuminaro testified that while kneeling beside the victim, he attempted to gather as much information as possible. Officer Tuminaro also stated that, while lying on the ground bleeding heavily and unable to move, the victim told Officer Tuminaro that he would tell him everything as long as Officer Tuminaro "saved his life." Officer Tuminaro testified at the hearing that he asked the victim what had happened and who had shot him, and that the victim responded with "I'll tell you everything. I know everything. Just save my life. Just save my life." Officer Tuminaro testified that the victim then told him that "John" had shot him and that it was the same "John" who had "robbed the bank" and that "John" drove a "white Acura." Officer Tuminaro further testified that the victim was "scared. He was afraid he was going to die, and he was still coherent, but he was getting weaker."
Hrg. Tr. at 7.
Hrg. Tr. at 7.
Hrg. Tr. at 8. (It is not clear if the victim meant that "John" was driving a "white Acura" at the time of the shooting or that "John" just drove a "white Acura" in general.)
Hrg. Tr. at 8-9.
Wilmington Police Officer Brian Witte testified that approximately five minutes after Officer Tuminaro had arrived, Officer Witte responded to the scene and observed Officer Tuminaro speaking to the victim, asking the victim "what happened, who did it. . . ." Officer Witte then testified that "[the victim] just kept repeating to [Officer Tuminaro] to save his life, he'll tell us everything, just save his life, don't let him die." Officer Witte also began to speak to the victim as he was lying on the ground and also asked the victim who was responsible for the shooting. The victim continued to plead with the officers to save his life. After Officer Witte advised the victim that "it didn't look good for him [and that] he should tell [the officers] who did this to him," the victim responded by saying "Johnny did it."
Hrg. Tr. at 29-31.
17 Hrg. Tr. at 29-30.
Hrg. Tr. at 30.
Hrg. Tr. at 31.
Officer Witte further testified that approximately five minutes elapsed between the time Officer Witte arrived at the scene and when the paramedics arrived. The victim identified the shooter as "John" or "Johnny" to Officer Witte. Officer Witte also testified that he heard the victim say that the shooter was "Johnny . . . [h]e did a bank robbery the week prior" and that he drove a white Acura. Officer Witte then stated that once the paramedics arrived on the scene, both Officer Tuminaro and Officer Witte backed off and let the paramedics take over in treating the victim.
Hrg. Tr. at 31.
Hrg. Tr. at 31.
Hrg. Tr. at 31.
B. The Victim's Statements to the Paramedics and in the Ambulance .
New Castle County paramedics arrived approximately five minutes after Officer Witte. Richard K. Orkis, one of the paramedics, testified that he observed the victim lying "outside an apartment on a stoop supine on his back in a large pool of blood." Orkis further testified that the victim was "very anxious, nervous, very concerned that he was going to die." Orkis testified that "repeatedly [the victim] made statements such as, "Don't let me die," [and that the victim] asked questions in reference to if he was going to die, things like that."Orkis testified that when he initially approached the victim he informed the victim that he was "very seriously injured and because of the rapid decline in vital signs that the chance was there [that he] could die." Orkis also testified that he communicated the seriousness of the situation to the victim. Orkis testified that the victim identified the person who shot him "multiple times" as "John John." Orkis stated that prior to the victim losing consciousness in the ambulance, the victim repeatedly said the words "John John, John John."
Hrg. Tr. at 51.
Hrg. Tr. at 51.
Hrg. Tr. at 52.
Bruce G. VanHoy, a paramedic, also responded with Orkis to the scene. VanHoy testified at the hearing that he also heard the victim say "John John" before being placed in the ambulance. VanHoy testified that he was positioned at the head of the victim in the ambulance ride to Christiana Hospital. VanHoy testified that in the ambulance he "reiterated some of the questions" Officers Tuminaro and Witte had akeady asked the victim. VanHoy testified that he told the victim that "he had some very serious injuries." VanHoy also testified that he heard the victim mention to the police officers a white Acura. VanHoy further testified that when he spoke to the victim, he asked him if he knew who shot him and the victim made several attempts but that he was "having difficulty breathing and he kept saying "John John," "John John," and finally said "John Johnson."
Hrg. Tr. at 72.
Hrg. Tr. at 73.
Hrg. Tr. at 75.
Hrg. Tr. at 74.
Orkis and VanHoy testified that they both spoke to the victim in the ambulance and informed him of his grave condition. Both paramedics testified that the victim was administered an oxygen mask and that an I.V. was placed in the victim. Those were the only measures used on the victim. Painkillers or drugs were not otherwise administered to the victim. Theodore Smallwood clearly knew his life was in danger. The victim's condition progressively worsened. The victim's ability to talk and breathe was severely impaired by the time he was in the ambulance en route to Christiana Hospital; VanHoy testified the victim was "gasping for breath." In the ambulance Officer Witte asked the victim his name (apparently upon entering the ambulance) and the victim gave Officer Witte his true name, Theodore Smallwood.
Officer Witte testified that the paramedics "told [Decedent] that he was in a serious condition because he kept asking them to save his life and everything and they advised him of his physical condition. I don't know the exact words they used." Hrg. Tr. at 45.
Hrg. Tr. at 83.
Hrg. Tr. at 40-41.
Orkis and VanHoy both testified that minutes before arriving at Christiana Hospital, the victim lost consciousness in the ambulance. Prior to losing consciousness, Orkis testified that the victim was saying "John John," "John John" in response to VanHoy's question "Who is John?" The victim's last response to the paramedic's questions was "John Johnson." After that, the victim did not speak further to anyone as he never regained consciousness. Theodore Smallwood was pronounced dead at Christiana Hospital at approximately 2:00 a.m., a short time after he arrived there. Defendant was arrested a few minutes after 6:50 a.m. on August 29, 1999.
Hrg. Tr. at 52.
Hrg. Tr. at 52.
State v. Johnson, Del. Super., ID No. 9908026980, Silverman, J. (Oct. 31, 2000)(ORDER) at 3.
DISCUSSION
I. The Victim's Statements are Admissible as Dying Declarations Pursuant to D.R.E. 804(b)(2) .A. The Applicable Law .
A statement made by a declarant while believing that his death is imminent, concerning the cause or circumstances of what he believed to be his impending death, is a "statement made under belief of impending death." Delaware Rule 804(b)(2)provides:
The following [is] not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . (2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
A witness is "unavailable," according to the rule, if the witness "[i]s unable to be present or to testify at the hearing because of death." A party who attempts to offer a "statement made under belief of impending death" into evidence must establish that the statement was made under a sense of impending death. Whether or not the declarant made the statements "under a sense of impending death may be shown by what the injured person said or from the nature and extent of the wounds inflicted when the wounds are obvious such that he must have felt or known that he would not survive. A sense of impending death may be established by "what the injured person said; or from the nature and extent of the wounds inflicted being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the communications, if any, made to him by his medical advisers, or assented to or understandingly acquiesced in by him." A mere belief that death was possible, or even probable, is not sufficient; the declarant must be virtually certain that death is imminent.
Mattox v. United States, 146 U.S. 140, 151 (1892); State v. Van Winkle, Del. Oyer Term., 86 A. 310, 311 (1913).
McLaughlin, Weinstein and Berger, Weinstein's Federal Evidence § 804.05[3] (2d ed. 2000).
Mattox at 151.
29A Am Jur 2d, Evidence § 830.
Whether or not a declarant believed that the declarant's death was imminent may be shown by a declarant's own statements. The nature of a declarant's wounds may establish the imminence of death as well as any opinions of the declarant's physicians or by statements made in the declarant's presence. A victim's full comprehension of imminent death may be inferred under the totality of the circumstances. In any event, "[t]he weight or credibility to be attributed to a dying declaration is within the province of the jury."
United States v. Kearny, 420 F.2d 170, 174-175 (DC. Cir. 1969)
Weinstein's, supra, § 804.05[4][b] (citing Mattox v. United States at 151; United States v. Mobley, 421 F.2d 345, 347 (5th Cir. 1970)).
Barnes v. State, 352 A.2d 409, 410 (1976) (holding that statements made by a victim, who had been shot in the abdomen during a robbery, were properly admitted as dying declarations under the totality of the circumstances. The totality of circumstances included the extent of injury (massive), the weapon (a gun), and the physical condition of the declarant (grave)). See also Charles E. Torcia 2 Wharton "s Criminal Evidence § 339 (14th ed. 1986) stating "[i]n evaluating a dying declaration, the jury is required to consider it in connection with all the other evidence."
Wharton's, supra at § 339.
B. D.R.E. 804(b)(2) as Applied to the Facts of this Case .
Officer Tuminaro testified that he approached the victim who had "multiple gunshot wounds in his chest" and that he repeatedly asked the victim what had happened and who had shot him. Officer Tuminaro testified that the victim responded to Officer Tuminaro's questions with "I'll tell you everything. I know everything. Just save my life. Just save my life."Similarly, when the paramedics had arrived, the victim consistently identified the person who shot him as "John" or "Johnny." Officer Tuminaro testified that the victim repeatedly stated "just save my life" and that the victim grabbed Officer Tuminaro's hand again asking him to "save his life."
Id.
This Court finds the victim's responses to Officer Tuminaro, Officer Witte, and to paramedics Orkis and VanHoy that are set forth more fully in the "Facts and Procedural History" section of this opinion were statements made in the victim's belief of his impending death. Therefore, these statements are admissible as exceptions to the general rule of hearsay. The statements made to Officer Tuminaro, Officer Witte, Mr. Orkis and Mr. VanHoy all demonstrate that the victim believed that he was in jeopardy of dying. Thus, this Court finds that the threshold requirement under D.R.E. 804(b)(2) that the victim's statements be made "under a sense of impending death" has been satisfied.
Declarations made under the belief of impending death are recognized as reliable even though they are hearsay because there is an underlying assumption that the declarant, upon knowing his death is impending, will speak the truth. As a leading authority has noted:
Weinstein's, supra, § 804.05[1], stating that "[t]he admissibility of a dying declaration, which is older than the hearsay rule itself . . . was originally held to rest on the religious belief that the dying declarant, knowing that he is about to die would be unwilling to go to his maker with a lie on this lips. Though fear of supernatural punishment has diminished in our times, the feeling that "men are not apt to lie in the shadow of death" remains a psychological, if secular, basis for the exception."
. . . The trial judge's decision should turn on the particular circumstances presented; the nature and the date of the earlier occurrence, its relationship to the present death, and the existence of other evidence. The true test of admissibility is whether admission of the statement will help the jury in its task, that is, whether it is sufficiently reliable and relevant to withstand exclusion because its probative value is substantially outweighed by the danger of prejudice to the party against whom it is offered.
Weinstein's, supra at § 804.05[b].
This Court finds that the victim's statements identifying the person who shot him sufficiently meet the requirements of D.R.E. 804(b)(2).
The Court notes, however, that when the victim initially gave Officer Tuminaro the fictitious name of Michael Smith, a fair question of whether the victim was speaking "truthfully" (with respect to his subsequent statements of identification of Defendant) is raised. However, the victim's later statements about his true name and about the person who shot him adequately meet the requirements of the hearsay exception for statements made under the belief of impending death.
It was only to Officer Tuminaro that the victim gave the fictitious name of "Michael Smith" and apparently he only made this incorrect statement once. When questioned by Officer Witte and the paramedics in the ambulance, the victim did not give a false name of Michael Smith. Officer Witte was in the back of the ambulance when the paramedics came into the ambulance and instructed him to move into the passenger seat of the ambulance. At this point, before the ambulance left the scene of the shooting, the victim identified himself as "Theodore Smallwood" to Officer Witte. In addition to identifying himself to Officer Witte, the victim responded to the paramedics questions concerning the person who shot him. Mr. Orkis testified that "multiple times when we asked [the victim who shot him] he stated, "John, John." The record demonstrates that Defendant believed that death was imminent during the entirety of the period that he was still alive and conscious after he was shot, and particularly so in the ambulance. The sense of imminence of death heightened in the short period of time approximately thirty minutes between the time he made his first statement to Officer Tuminaro and before he lost consciousness in the ambulance after finally giving the full name "John Johnson" as the assailant.
Hrg. Tr. at 33.
Hrg. Tr. at 51.
Furthermore, in support of admitting the victim's statements to the police officers and the paramedics, the victim's answers to the officers addressing who shot him remained consistent up to the point the victim lost consciousness.
A capias had been issued for the victim. Officer Tuminaro testified that it is not uncommon for people who are attempting to evade a capias to give a false name. The record does not indicate if Theodore Smallwood knew that a capias had been issued for his arrest, or for what charges; the record is also unclear as to why he might have given a false name. The victim did relatively quickly thereafter give Officer Witte his real name, and he gave Orkis and VanHoy his real name in the ambulance.
Hrg. Tr. at 15.
Hrg. Tr. at 11.
Therefore, although the victim did initially identify himself as Michael Smith, this Court finds that the victim's subsequent responses, which elicited the victim's true identity and the name of and other evidence about the person who shot him, eliminate any legitimate concern as to whether or not the victim's statements were reliable. As a prior Delaware case has held, "[i]f [a dying declaration] which has been admitted is not actually and wholly rebutted by the evidence produced by the defendant, it may be weakened and impaired thereby, and such fact is to be duly considered by the jury in estimating its value and effect." II. The Victim's Statements are Admissible as Excited Utterances Pursuant to D.R.E. 803(2) .
State v. Van Winkle, Del. Oyer Term., 86 A. 310, 311 (1913).
A. The Applicable Law .
Statements made by victims relating to the circumstances surrounding their impending death do not always fall squarely into the hearsay exception of statements made impending death (although this Court finds that the victim's statements in this case do so qualify). There is always a "danger that the statement was made in response to the prompting and the questioning of interested bystanders such as police officers, insurance agents or investigators, leading to a statement more convenient than truthful." However, "a judge should not exclude a dying declaration merely because he or she thinks that it is unreliable. [I]n many cases the statement will be admissible as an excited utterance."
Weinstein's, supra, § 804.05[1].
Weinstein's, supra, § 804.05[3].
"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is an excited utterance, which is not excluded by the hearsay rule. To be admissible under this exception to the hearsay rule, the excited utterance must satisfy the following three requirements:
(1) the excitement of the declarant must have been precipitated by an event; (2) the statement being offered as evidence must have been made during the time period while the excitement of the event was continuing; and (3) the statement must be related to the startling event.
Culp v. State, Del. Supr., 766 A.2d 486, 489-490 (2001) (citing Gannon v. State, Del. Supr., 704 A.2d 272, 274 (1998) for the proposition that three foundation requirements must be met before a statement can be admitted as an excited utterance.)
"Inherent in this exception is the notion that the declaration is reliable because the declarant, under the duress of excitement, is not in a position to fabricate and will exclaim the truth as he perceives it.
Collins v. State, Del. Supr., 420 A.2d 170, 177 (1980). See also Culp v. State, 766 A.2d 486, 490 (200 1) (stating that "circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.")
B. D.R.E 803(2) as Applied to the Facts of this Case .
Here, the victim's "excitement" was precipitated by the event of the victim being shot multiple times in the chest. Defendant concedes that "it cannot be argued that being shot six times is not a startling event." Therefore, the first requirement enumerated in Gannon, that the "excitement of the declarant must have been precipitated by an event" is satisfied.Addressing the second requirement under Gannon (that the "statement being offered . . . must have been made . . . while the excitement of the event was continuing"), this Court notes that the victim identified the person who shot him to the police officers and the paramedics minutes after having been shot, while still lying immobile and heavily bleeding on the ground. Similarly, the statements made by the victim in the ambulance on route to Christiana Hospital appear to have been spoken soon enough after the shooting to continue to qualify as excited utterances. With respect to statements made under a belief of impending death:
[t]he amount of time that has elapsed is not the dispositive factor; rather, the inquiry is whether the declarant is still "under the stress of excitement caused by the event or condition. Physical pain on the part of the declarant may be considered as the sort of "stress or excitement" contemplated by D.R.E. 803(2). The existence of pain prolongs the time during which an utterance will be deemed an excited one.
State v. Henry, Del. Super., Cr.A. No. 9405000365, 1995 WL 264709, at *2, Barron, J. (Mar. 24, 1995) (Letter Op.) (holding that six of twelve statements made within four hours of an alleged assault were admissible under the excited utterance exception to the hearsay rule.)
Therefore, while acknowledging the general rule that the more time that passes, the less likely it is a declarant is under the stress of excitement, this Court notes that "[w]here the declarant is continuously under the influence of the event, [a] statement made later in time from the event may be just as reliable as one made closer to the time of the event." Thus, the second requirement, that the statements were made during the time period while the excitement of the event was continuing, is satisfied as well.
See 2 McCormick On Evidence § 272 (5th ed. 1999).
The third requirement of Gannon is also satisfied here. The victim's statements "related to the startling event" for they identified or helped to identify the shooter. The victim's statements concerning the car Defendant drove, the white Acura, also relate to the startling event as they are a means to identify the person who was responsible for the victim's death. The victim told the police officers that the person who shot him drove a white Acura was the same "John who robbed the bank." The victim thus gave officers Tuminaro and Witte more information to locate the correct person who shot the victim. The statements relate to the startling event as they attempt to identify the person who caused the victim's death. Therefore, these statements are admissible under the excited utterance exception to the hearsay rule. Since the requirements for this hearsay exception appear to have been more than sufficiently met, this Court finds that all of the victim's statements are alternatively admissible in evidence as excited utterances.