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holding inadmissible the victim's trauma room statements to police identifying the defendant as the person who stabbed him under the dying declaration exception, excited utterance exception, and forfeiture by wrongdoing doctrine
Summary of this case from Williams v. StateOpinion
Criminal Case No. 04-CR-229-B.
March 3, 2005
MEMORANDUM OPINION AND ORDER
A hearing was held on this matter on February 17, 2005. Defendant Mark Jordan ("Defendant") moves in limine to suppress the statements of stabbing victim David Stone.
Shortly after 2:00 p.m. on June 3, 1999, inmate David Stone was stabbed with a sharpened piece of metal in the main recreation yard of the United States Penitentiary at Florence, Colorado. In an indictment filed May 19, 2004, Defendant — also an inmate at Florence — was charged with second-degree murder, assault with intent to murder, assault with a dangerous weapon, and assault resulting in serious bodily injury as a result of this stabbing. He moves to prevent the government from using evidence of what has been characterized as Stone's "dying declarations."
At the emergency room, Stone begged the trauma doctors to save his life. He repeatedly asked if was going to die. However, approximately seven hours after Stone was stabbed, he died from his wounds. Between the time of the stabbing and the time of his death, Stone was questioned about the stabbing by a Bureau of Prisons agent.
Stone was questioned the first time as he was taken to the trauma room at USP Florence. While Stone was in the room, Agent Carr interviewed him. During the interview, when asked who stabbed him, Stone replied, "Mark Jordan stuck me." Stone was questioned the second time on his way to an awaiting ambulance. Agent Carr asked why he was stabbed. Stone replied, "It was over drug debts. Jordan owes about two-thousand dollars for drugs." Stone was questioned a third time by a person named Terry Finnegan, who appears to have been a paramedic, who asked Stone who stabbed him. Stone replied, "[i]t was Mark Jordan who stuck me."
The government wants to use these statements under the "dying declaration" hearsay exception, the "excitable utterance" hearsay exception, and the Forfeiture by Wrongdoing Doctrine hearsay exception. I address all three.
A. Dying Declaration
Fed. Rule of Evidence 804(b)(2) provides: "(b) Hearsay exceptions. The following [is] not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . (2) In a prosecution for homicide or in a civil action or proceeding, 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."
Under Rule 804(b)(2) on its face, David Stone's statements that Defendant stabbed him fall under the dying declaration exception. A dying declaration is admissible as an exception to hearsay if the declarant makes the statement while "conscious of impending death and under the belief that there is no chance of recovery." United States v. Peppers, 302 F.3d 120, 137-38 (3rd Cir. 2002). Even if Stone had not stated to the doctors that he believed he was going to die, however, a victim is not required to state explicitly that he believes death is imminent. Rather, a victim's sense of impending death may be inferred "from the nature and extent of the wounds inflicted." Id.
The government contends Stone was bleeding profusely and turning gray from blood loss, that the wound was very deep and fatty tissue protruded from it, medical personnel believed vital organs or blood vessels were compromised, there was blood on the pavement of the penitentiary grounds, and more than one witness believed Stone's death was imminent. Defendant does not contest these assertions.
But the dying declaration exception has not escaped recent United States Supreme Court scrutiny. Crawford v. Washington, 124 S. Ct. 1354 (2004), established a new rule for determining whether the admission of hearsay statements violates a criminal defendant's constitutional right to be confronted with the witnesses against him. Before Crawford, the admission of an unavailable witness' statement against a criminal defendant was not violative of the Sixth Amendment Confrontation Clause if the witness' statement bore adequate indicia of reliability. See Ohio v. Roberts, 448 U.S. 56, 66 (1980). To meet that test, the out-of-court statement had to fall within a "firmly rooted" hearsay exception or manifest particularized guarantees of trustworthiness. Crawford abrogated the Roberts criteria. The Crawford Court held that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 1374. Where non-testimonial hearsay is at issue, "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law." Id. Thus, under Crawford, Sixth Amendment Confrontation Clause analysis first turns on the question whether a particular statement is testimonial or non-testimonial.
Crawford did not define "testimonial," but provided the following examples of what it considered "testimonial": 1) grand jury testimony; 2) prior trial testimony; 3) ex parte testimony at a preliminary hearing; and 4) statements taken by police in the course of their investigation. Id. at 1374. The Court also noted that some statements admissible as exceptions to the hearsay rule are not testimonial in nature, such as business records or statements in furtherance of a conspiracy. Id. at 1369.
Some courts have since read Crawford as inapplicable to "firmly rooted" hearsay exceptions such as excited utterances and statements against penal interest. See United States v. Brown, 322 F. Supp.2d 101, 105 (D. Mass. 2004); People v. Moore, 2004 WL 1690247 at *3-4 (Colo.App. July 29, 2004); State v. Manuel, 685 N.W. 2d 525, 532 (Wisc. 2004) ("The dying declaration exception and the exception for statements made for the purpose of obtaining medical treatment are also considered firmly rooted."). However, none of these cases have precedential effect here.
The government clings to its contention that Stone's statements were not testimonial. I disagree and hold Stone's comments to the BOP agent in the course of that agent's assault-turned-murder investigation were patently testimonial. He identified the perpetrator of the attack and its motive.
The government contends that the Crawford Court left open the question whether the Sixth Amendment incorporated an exception for dying declarations; therefore, 804(b)(2) remains viable. The Crawford Court devoted only a short paragraph to the dying declaration exception. It recognized that some dying declarations could be classified as testimonial and "[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are." Crawford, 124 S. Ct. 1367 n. 6 (citations omitted). The Court withheld definitive ruling on dying declarations: "[w]e need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations." Id. It did indicate, however, that the dying declaration — if it were considered still viable — would only be allowed as an anomaly: "If this exception must be accepted on historical grounds, it is sui generis." Id.
Defendant contends, and I agree, that there is no rationale in Crawford or otherwise under which dying declarations should be treated differently than any other testimonial statement. This is so especially since the historical underpinnings of the exception fail to justify it.
The dying declaration became an exception to the rule against hearsay in the early 18th Century. The principle underlying the exception was that the mind, fearing impending death, would act under a powerful sanction against lying as if it were under solemn oath to God at the time of reckoning. See Howard L. Smith, Dying Declarations, 3 Wis. L. Rev. 193, 203 (1925). Therefore, the declarations of a dying person were considered equivalent to the evidence of a living witness under oath before God, and inherently reliable. Id. In contrast, since enactment of the Sixth Amendment, "necessity," rather than reliability of the statement became paramount. See United States v. Thevis, 84 F.R.D. 57, 63 (N.D. Ga. 1979), aff'd, 665 F.2d 616 (5th Cir. 1982) ("the dying declaration is admitted, because of compelling need for the statement rather than any inherent trustworthiness"); Mattox v. United States, 146 U.S. 140, 152 (1892) (discussing necessity of dying statement).
Whether driven by reliability or necessity or both, admission of a testimonial dying declaration after Crawford goes against the sweeping prohibitions set forth in that case.
First, justifying admission of a dying declaration because it possesses sufficient reliability to eliminate the need for cross examination is contrary to the core holding in Crawford:
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. That is not what the Sixth Amendment prescribes.Crawford at 1370-71. Even if the reliability of a testimonial statement could be assessed by a court, or by other means other than cross-examination, dying declarations are not inherently reliable, but rather, suspect.
Numerous academic authorities criticize the reliability of "dying declarations" for persuasive reasons. A dying declaration may not be reliable because perception, memory, comprehension, and clarity of expression are likely to be impaired in a dying person. See Charles Neeson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harv. L. Rev. 1357, 1374 (1985). The experience of pain could affect the trustworthiness or accuracy of the declaration. See Dying Declarations, 46 Iowa L. Rev. 356, 376 (1961). Moreover, the original "guarantee" of reliability, threat of divine punishment, may simply not apply to non-religious people.
The reliability argument fails. It is possible that Stone might have colored his dying statements to falsely incriminate Defendant, believed that Defendant killed him when Defendant actually did not (he was stabbed from the rear), or was otherwise confused about who his killer might have been. Without the benefit of cross-examination, a clear Crawford requirement grounded under the Sixth Amendment, there is no way to know.
The historical argument also fails. According to Crawford, the only arguable basis for allowing testimonial dying declarations would be based on "historical grounds." See Crawford, 124 S. Ct. 1367 n. 6 (citations omitted). However, the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights. At the time of enactment of the Sixth Amendment, "sworn statements of witnesses before coroners" were admissible despite not being subject to cross-examination. Id. at 1376. Crawford requires both necessity (unavailability) and an opportunity for cross-examination (Sixth Amendment confrontation to test reliability). Based on my reading of Crawford, in the case of a dying declaration, the presence of only one will not suffice. Inability to test Stone's statements through the constitutionally rooted crucible of cross-examination is fatal to application of the dying declaration exception to the hearsay rule in this case.
For these reasons, I conclude that the dying declaration hearsay exception does not apply to Stone's statements.
B. Excited Utterance
The government also proffers Stone's statements as excited utterances. Fed.R.Evid. 803(2) states: "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 not excluded by the hearsay rule, whether or not the declarant is available as a witness. However, based upon the preceding analysis, I conclude that this exception cannot survive Crawford's requirements here either.
C. Forfeiture By Wrongdoing
The government next proffer's Stone's statements under the Forfeiture by Wrongdoing Doctrine, which the Crawford Court continued to "accept" "on essentially equitable grounds." Id. at 1370. The Doctrine is codified in Federal R. Evid. 804(b)(6), which states: "A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" is not excluded by the hearsay doctrine as long as the declarant is unavailable as a witness (emphasis added). A defendant may not benefit from his or her wrongful prevention of future testimony by a witness, whether the statements of the future witness are offered in the trial for killing the witness or the trial for other crimes about which the witness would have testified. United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999). Essentially, when Fed.R.Evid. 804(b)(6) applies, the defendant waives his Sixth Amendment confrontation rights because of his wrongdoing.
The government suggests that a Fed.R.Evid. 104 evidentiary hearing is required to show that Defendant was responsible for Stone's unavailability as a witness. At the hearing the government did present a lengthy proffer of its Rule 804(b)(6) evidentiary basis. Defendant says a hearing is not required and contends that the government is misguided in its interpretation of the Forfeiture by Wrongdoing Doctrine in this case. I agree with Defendant.
The Doctrine was added to the Rules in 1997:
To provide that a party forfeits the right to object on hearsay grounds to the admission of a declarant's prior statement when the party's deliberate wrongdoing or acquiescence therein procured the unavailability of the declarant as a witness. This recognizes the need for prophylactic rule to deal with abhorrent behavior `which strikes at the heart of the system of justice itself.' . . .
Fed.R.Evid. 804(b)(6), note.
The note to 804(b)(6) cites to U.S. v. Balano, 618 F.2d 624, 629 (10th Cir. 1979). That court stated: "[T]he law [should not] permit an accused to subvert a criminal prosecution by causing witnesses not to testify at trial who have, at the pretrial stage, disclosed information which is inculpatory to the accused. To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause." That policy survives Crawford.
The Doctrine as codified applies to actions whose purpose is to prevent the testimony. See United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996); United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982); United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976); District of Columbia Devonshire v. United States, 691 A.2d 165 (D.C. 1997). An archetypical example of the exception at work is a defendant's murder of a witness who was scheduled to testify against the defendant in an upcoming case unrelated to the case in which the defendant is charged with the witness' murder. The defendant sets out to kill the witness to prevent her from testifying against him about something she witnessed in the past related to a crime other than her own murder. In the Emory case, the record was "replete with proof that Mr. Emery engaged or acquiesced in wrongdoing that was intended to, and did, procure [the victim's] unavailability" in an unrelated case. Emory, 186 F.3d at 927. There, the victim was a federal drug-trafficking informant who the defendant worried would provide information about his drug-related crimes. So, the defendant and some associates beat her and disposed of her body by sinking it and her car in the Missouri River. Id.
Those are not the circumstances in this case. The government's unsupported premise is that Defendant killed Stone to make sure Stone was not able to testify that Jordan was the one who stabbed him. First, the government provides no cases — and I found none in my research — holding that a murder whose by-product is the unavailability of a witness to that killing is covered by the rule. Second, and crucially, the government's proffer is devoid of evidence to support its contention. The government proffered no evidence that Jordan decided to silence potential-witness Stone during the assault as a witness to the assault. The only showing of motive or intent is the government's proffer of Stone's statement: "It was over drug debts. Jordan owes about two-thousand dollars for drugs."
I conclude that the Forfeiture by Wrongdoing doctrine does not apply to this case. See U.S. v. Lentz, 282 F. Supp.2d 399, 426-427 (E.D. Va. 2002), aff'd, 58 Fed. Appx. 961 (4th Cir. 2003). The government construes the Doctrine and Rule 804(b)(6) broadly to apply in any murder case. Such a broad construction is not consonant with the Doctrine's policy and not within the intent of the drafters of Fed.R.Evid. 804(b)(6).
ACCORDINGLY, IT IS ORDERED THAT:
DEFENDANT's motion in limine regarding Mr. Stone's statements before his death is GRANTED.