Blink, Take 2: Ohio Court of Appeals Deems Blinking Evidence Admissible as a Dying Declaration

Back in July, I posted an entry about State v. Hailes, 2014 WL 2191405 (Md.App. 2014), in which the Court of Special Appeals of Maryland found that a victim’s eye blinking constituted a dying declaration. Did the Court of Appeals of Ohio reach the same conclusion in State v. Woods, 2014 WL 4437733 (Ohip App. 1 Dist. 2014)?

In Woods, David Chandler, James Spears, and William Smith ran out of crack cocaine, leading them to made plans to find more. The men made their way to an area of downtown Cincinnati where Chandler had previously purchased drugs on several occasions. According to Spears, a fourth man approached the car, asked “Hey Chandler, where’s my money?” and then opened fire on the car.

One of the shots severed the cervical area of Chandler’s spinal cord. As the gunman continued firing into the rear of the car, Spears drove away, eventually taking Chandler to Good Samaritan Hospital…. 

In light of the severity of his injuries, Chandler was transported to the University of Cincinnati Medical Center. Paralyzed from the neck down and unable to breathe on his own, Chandler was placed on life-support apparatus.

After a prolonged period of unconsciousness, Chandler awoke and showed signs of alertness. Because he was unable to talk, medical personnel devised a system of communication in which Chandler would blink his eyes a certain number of times in response to questioning.  

Several witnesses who had seen Chandler in the hospital testified that his responses were usually coherent and demonstrated that he was aware of his surroundings and circumstances….One day in early November, Father Seher visited Chandler to discuss his medical prognosis. According to Father [Philip] Seher, Chandler did not believe that he would survive his injuries. At Chandler’s request, Father Seher administered the Sacrament of Last Rites. Father Seher testified that Chandler’s responses on that day were consistently appropriate, and he had no doubt that Chandler was aware of the gravity of his medical condition.

Near the time that he expressed the belief that he would not survive his injuries, Chandler had responded in the affirmative when [Chander’s brother] had asked him if he could identify the person who had shot him. [The brother] then contacted the police. Based on the information that Chandler had provided, the police asked him to blink on the letter of the alphabet that corresponded with the shooter’s nickname. Chandler blinked affirmatively on the letter “O,” which was one of Woods’s street names. After Chandler had blinked affirmatively on “O,” the police showed him a photograph of Woods, and Chandler identified Woods as the man who had shot him.

Testimony regarding this blinking was admitted at trial, and Woods was ultimately convicted of murder and related crimes. Woods subsequently appealed, claiming that the blinking was inadmissible under Ohio Rule of Evidence 804(B)(2), which provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death.

The Court of Appeals of Ohio, First District, disagreed, concluding that

In this case, Chandler’s statement was properly admitted as a dying declaration. According to Father Seher, Chandler was convinced that he was not going to survive his injuries, as Chandler requested the sacrament of Last Rites. And while Chandler’s family had made contingent plans for rehabilitation in case Chandler would survive, the state presented ample evidence that Chandler himself had no hope of recovery. 

-CM