In second degree murder trial, excluding evidence of victim’s hospital response of shaking his head when questioned if the defendant had caused his injuries; because the proponent of the evidence failed to establish the victim believed his death was imminent the evidence was inadmissible hearsay in United States v. Two Shields, 497 F.3d 789 (8th Cir. Aug. 14, 2007) (No. 06-3573)
As indicated by the Advisory Committee Notes to FRE 804(b)(2), the hearsay exception was considered to be a “familiar” one rooted in the common law. ACN 804(b)(2). The circumstances that give rise to the rule do not frequently arise. As a result there are not many examples of use of this hearsay exception by federal courts. Under the rule in civil actions and in homicide prosecutions a statement by a “declarant while believing that the declarant’s death was imminent” was admissible to the extent it communicated “the cause or circumstances of what the declarant believed to be impending death.” FRE 804(b)(2). How can one evaluate when a declarant believes that his or her death is imminent? Several years ago the Eighth Circuit examined a case that raised the question of a declarant’s belief in the imminence of death.
In the case, the defendant Two Shields had been drinking heavily and, joined his uncle Buffalo Boy at his uncle’s house where the two, apparently continued to drink. Later that evening the uncle went to his sister’s residence bleeding from the mouth. He was unable to answer her questions about how the bleeding started. He was taken to the hospital where the bleeding continued and the diagnosis was that he had a broken jaw and a blood alcohol level of 0.389. After a tracheotomy, the uncle died in intensive care even though “no doctor had diagnosed [his, injuries] as life-threatening, and everyone expected him to survive.” An autopsy determined the cause of death was complications arising from the blunt-force injuries to his face. At the time police had been called to respond to the uncle’s injuries the officers found defendant Two Shields unconscious on the floor of the uncle’s house.
Two Shields 497 F.3d at 793.
The defendant was charged with second-degree murder and assault resulting in serious bodily injury based on the death of his uncle Buffalo Boy. Before trial the government moved in limine to exclude a statement from the uncle’s sister-in-law in which she stated she had asked the uncle in the hospital if he knew who caused his injuries. He nodded in response. According to the circuit:
“She asked if it was Two Shields, and Buffalo Boy shook his head no. Her daughter was also present and she felt that Buffalo Boy did not really respond to the question but “kind of” shook his head. The sister-in-law asked if Buffalo Boy was protecting Two Shields his nephew, but he did not respond. Later, Buffalo Boy’s niece visited the hospital and asked Buffalo Boy who had hurt him. He did not answer, nor did he respond when she listed several individuals’ names and asked if each was involved.”
Two Shields, 497 F.3d at 792.
The trial court excluded the uncle’s statements as hearsay and found that none of the hearsay exceptions applied. The dying declaration exception under FRE 804(b)(2) was not applicable “because there was no evidence that Buffalo Boy believed his death was imminent when he shook his head in response to the question of whether Two Shields was his attacker.” Two Shields, 497 F.3d at 792. The trial ended with the jury convicting the defendant. He appealed, challenging the exclusion of Buffalo Boy’s hospital indication that it was not the defendant who had hurt him.
The Eighth Circuit affirmed the exclusion of the uncle’s hospital response. The statement did not qualify as a dying declaration since no one had shown that death was imminent in the uncle’s mind when he was shaking his head. The circuit noted:
“In arguing that Buffalo Boy must have believed his death was imminent, Two Shields points to the severity of Buffalo Boy’s wounds. A declarant’s serious injuries can support an inference that he believed death was imminent, see United States v. Pepper’s, 302 F.3d 120, 137, (3d Cir. 2002), but the nature and extent of the injuries must be so severe that “obviously … [the declarant] must have felt or known that,he could not survive.” Mattox v. United States, 146 U.S. 140, 151, 13, S.Ct. 50, 36 L.Ed. 917 (1892). Buffalo Boy’s medical condition does not support an inference that he believed his death was imminent. His injuries, though severe, were limited to his face and were not life-threatening in nature; no doctor had diagnosed them as life-threatening, and everyone expected him to survive. Buffalo Boy, never otherwise indicated that he believed he would die. Under these circumstances, the dying declaration exception does not apply. See United States v. Lawrence, 349 F.3d 109, 117 (3d Cir. 2003), (identification of attacker not a dying declaration because there was no evidence declarant believed death was imminent where everyone expected him to survive and no one had told him he was going to die); see also United States v. Tompkins, 487 F.2d 146, 149 (8th Cir.1973) (dying declaration exception not applicable where there was “no express testimony indicating that the decedent had lost all hope of recovery or that he knew death was near and certain”). The district court did not abuse its discretion in refusing to admit the hearsay statement as a dying declaration. ”
Two Shields, 497 F.3d at 793.
The circuit’s discussion of why FRE 804(b)(2) did not apply focused on the lack of evidence that the declarant believed his death was imminent. A second approach was not used by the circuit in relation to FRE 804(b)(2), but rather was used to consider the application of other hearsay exceptions. However, the circuit’s observations in this connection possibly raise grounds that undermine admission of the statement as a dying declaration. For instance, elsewhere in the opinion the circuit considered difficulties observers had in understanding what the declarant was communicating. It noted that the medical personnel caring for the uncle and the family members who visited all noted that Buffalo Boy was unable to communicate effectively. The head movement that the defendant claimed was an statement that the defendant was not the cause of the declarant’s injuries did not unmistakably suggest that was what the declarant meant to communicate. The circuit noted that the head shake was ambiguous in its meaning. The circuit agreed with the observations of the trial court that there were a host of reasons suggesting the head shake lacked circumstantial guarantees of trustworthiness as an expression that the defendant did not cause the declarant’s injuries.
Two Shields, 497,F.3d at 794-94.
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