Court of Appeal of Louisiana Finds Dying Declarations Exception Applied in Case in Which the Victim Didn’t Die

La.C.E. art. 804(B)(2) provides  an exception to the rule against hearsay for

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.

Should this exception apply when (1) a victim is shot; (2) the victim goes into a coma; (3) the victim comes out of his coma and tells his wife who shot him; and (4) the victim subsequently suffers a massive brain hemorrhage and is no longer able to communicate? This was the question addressed by the Court of Appeal of Louisiana in its recent opinion in State v. Carter, 2018 WL 4923574 (La.App. 2018).

In Carter, the facts were as stated above. The victim was shot several times in his torso during a robbery; another man was shot and killed. The defendant was arrested and charged with, inter alia, armed robbery, attempted murder, and murder. After he was shot, the victim told

his wife “it’s never going to be all right. I can’t feel my legs.” He underwent numerous surgeries and lapsed into a coma. When he regained consciousness…he told his wife the shooters were three teenagers who were fifteen to sixteen years old, two were armed, they were average size and one wore a mask. Later that evening, [the victim developed a fever, became septic, suffered a massive brain hemorrhage and was no longer able to communicate.

The victim, however, did not die. So, let’s unpack a few things:

(1) a victim/declarant does not need to die for the dying declarations exception to apply. He simply needs to be “unavailable.” A declarant is “unavailable” if, inter alia, he “[i]s unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause.” Therefore, the victim’s brain hemorrhage rendered him “unavailable.”

(2) Louisiana’s dying declarations exception does not appear to have the same trial limitation as its federal counterpart. Federal Rule of Evidence 804(b)(2) only applies in “a prosecution for homicide or in a civil case.” Now, at first this seems irrelevant because the defendant in Carter was charged with murder. But he was not charged with murdering the person who made the dying declaration. Does the dying declarations exception apply in such a case? Fred Moss posed this question on a prior blog post, and I’m not sure of the answer. That post dealt with the question of whether the dying declarations exception applies in an attempted murder case and also did not answer that question. So, I’m not sure whether the exception would apply if Carter were in federal court. But because Louisiana’s dying declarations exception doesn’t contain a trial limitation, this doesn’t matter.

(3) Was the victim’s statement made while believing his death was imminent? According to the court, the answer is “yes.” The court noted that

Although this case does not present a scenario wherein the victim was bleeding to death on the scene when he described his attackers, it cannot be disputed that his injuries were life-threatening. “[T]he more serious the injury and impairment of the declarant’s physical condition, the more probable is his belief that the end is near.”

-CM