Court of Appeals of Mississippi Finds Victim’s Question “Why Did You Shoot Me?” Admissible as a Dying Declaration

Similar to its federal counterpart, Mississippi Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

So, would a victim’s question “Why did you shoot me?” be admissible under this dying declaration exception if the defendant claims self-defense? This was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Dille v. State, 2021 WL 3732274 (Miss.App. 2021).

In Dille,

On February 18, 2014, [Rosemary] Johnson and [her boyfriend Lincoln] Dille went to a gas station where [her ex-boyfriend Kanisky] Lacey had insisted she meet him to exchange custody of their two-year-old child. There the fatal shooting occurred. A security camera from the gas station captured the incident, but the video had no audio. The tape shows Johnson and Dille parking her vehicle near the street, away from the store and the gas pumps. Johnson was driving, and Dille was in the passenger seat. Lacey drove up in his car and parked across the front of Johnson’s car, about three to four feet away. Lacey got out of the driver’s side of his car, facing Johnson’s car, and opened the back door on the same side where the child was sitting in a car seat. Simultaneously, Dille exited Johnson’s car, holding a gun by his side, and started to walk toward the store. The video shows that Lacey looked at Dille and started to speak to him. Dille looked back at Lacey who was approximately ten to fifteen feet away. The two exchanged words while Dille paced, still at a distance. Lacey gestured, pointing to Johnson’s car. Dille rushed about four steps toward Lacey, pointing his gun at Lacey. But then Dille lowered the gun and backed off. Seeing this, Lacey leaned into the back of his car with his body facing forward and gestured toward Dille with his outside hand, as if he was pointing at Dille. As Lacey leaned in, Dille rushed forward and shot Lacey eight times. Dille was about three to four feet from Lacey when Dille killed him. At this point, Johnson got out of her vehicle and ran to Lacey. She heard Lacey say to Dille, “Why did you shoot me?” Johnson, obviously hysterical, ran back behind her car and then toward another car in the parking lot. Dille continued to pace until the police arrived, moments later, at which time Dille lowered himself, face first, to the ground. The time between Lacey’s arrival and the shooting was less than a minute. The police arrived about forty-five seconds after the shooting and placed Dille under arrest. Dille told the officer that he had a peace bond and that he shot Lacey in self-defense.

At Dille’s first-degree murder trial, he again raised his claim of self-defense, and the State introduced Lacey’s question “Why did you shoot me?” as a dying declaration. In finding that this question was properly admitted, the Court of Appeals of Mississippi held that

there was sufficient evidence presented in the record to establish it as an admissible dying declaration. Lacey undisputedly uttered the statement, “Why did you shoot me,” after he had been shot eight times. Within seconds, [Officer Lincoln] Lampley was on the scene and found Lacey bleeding so profusely from his wounds that he was “gurgling blood” and unable to speak further. Lampley tried to stop the bleeding, but Lacey’s “injuries were too great and he was losing too much blood too fast.” Lampley “almost immediately” realized he was not going to be able to help Lacey and went to tend to the child in the car seat. Thus, the proof showed that Lacey was “in extremis” and died shortly after making the statement. Moreover, from the severity of his wounds after being shot eight times, we can infer that Lacey was aware of his impending death….Finally, Lacey’s statement clearly relates to the shooting and the circumstances immediately attending it. It was not an opinion nor an expression of malice or ill will, which would have been prohibited….In summary, the evidence presented was sufficient to admit Lacey’s statement as a dying declaration and we find no abuse of discretion.

Moreover, the court found Lacey’s question to be relevant because

Dille claimed self-defense from the moment he shot Lacey to his closing argument at trial. By claiming self-defense, Dille asserted that Lacey was the aggressor in the encounter, and thus, Dille put Lacey’s state of mind at issue….The video contained no audio, so the jury could not hear what Lacey and Dille said to each other. But after the shooting, when Johnson exited her car and ran up to Lacey, she heard his last words. In this case Lacey’s dying declaration was admissible because Dille put the intent of the victim at issue when Dille claimed self-defense. Lacey’s words, which gave the jury some information as to Lacey’s intent, were relevant.

-CM