Louisiana Case Deals With Strange “Dying Declaration” That The Victim Later Tried to Take Back

Similar to its federal counterpart, 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.

The recent opinion of the Court of Appeal of Louisiana, Second Circuit, in State v. Dunkentell, 2025 WL 1064287 (La. App. 2nd 2025), contains one of the stranger “dying declaration” rulings that I’ve ever seen.

In Dunkentell, 

Police bodycam footage captured a victim identifying his shooter, the defendant, by name while police officers were administering first aid for multiple gunshot wounds. While hospitalized, the victim told his father he intended to address his shooting directly rather than through law enforcement, so he recanted his videotaped identification of the defendant to the police. The following week the victim died from his injuries while still hospitalized.

In discussing Dunkentell’s appeal of the sufficiency of the evidence against him, the court noted, inter alia,

Stewart’s own statement, captured on police bodycam footage immediately after he was shot, showed that he specifically identified Dunkentell as the man who shot him and the vehicle he was driving. The State did acknowledge that Stewart recanted his “dying declaration” statement later in the hospital; however, the jury found Stewart’s father’s testimony at trial to be credible when he explained that Stewart, thinking he would recover from his wounds, wanted to seek street justice against Dunkentell. The jury clearly applied great weight to Stewart’s videotaped statement to police immediately after he was shot.

Breaking this down, a “dying declaration” is only admissible if it was made by a declarant who had a fixed belief that they were about to die, with no hope of recovery. See, e.g., State v. Price, 188 So. 718 (La. 1939).

Clearly, according to Stewart’s father, Stewart did not have such a fixed belief when he was in the hospital and in fact wanted to exact revenge against Dunkentell himself. What this means is that the trial court must have found that Stewart did have such a fixed, but incorrect, belief that he was about to die in the aftermath of the shooting, but later came to believe that he would live. 

That’s not impossible to prove, but it does make for a very odd ruling in review.

-CM