Court of Criminal Appeals of Tennessee Finds Belief in Imminent Death Can be Inferred for Dying Declaration Exception

Like its federal counterpart, Tennessee Rule of Evidence 804(b)(2) 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 the declarant’s death was imminent and concerning the cause or circumstances of what the declarant believed to be impending death.

And, as the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Thompson, 2017 WL 943372 (Ct. Crim. App. Tenn. 2017), makes clear, the declarant’s belief of imminent death can be “inferred from the circumstances.”

In Thompson, 

The defendant was convicted of the first degree premeditated murder of the victim, which occurred at the apartment complex where the victim lived with his girlfriend. Shot eleven times at close range, the victim uttered the defendant’s name after Memphis police officers arrived at the scene and asked for a “name.” A few hours later, the victim died at a hospital.

After he was convicted, the defendant appealed, claiming that the State failed to lay a proper factual predicate for the admission of the victim’s statement under Tennessee Rule of Evidence 804(b)(2). The court noted that this “dying declaration” exception contains five requirements:

(1) the declarant must be dead at the time of the trial; (2) the statement is admissible only in the prosecution of a criminal homicide; (3) the declarant must be the victim of the homicide; (4) the statement must concern the cause or the circumstances of the death; and (5) the declarant must have made the statement under the belief that death was imminent.

The defendant claimed that the State failed to satisfy this fifth requirement, citing State v. Lunsford, where the court had previously held that a victim’s statement was not admissible as a dying declaration because “a relative of the victim testified that a physician treating the victim at the hospital had said in the presence of the victim, who was conscious, that he had a ’50/50 chance’ of surviving.”

In Thompson, the court turned aside this argument, concluding that a belief in imminent death

may be inferred from the circumstances, including the condition of the victim. In this matter, Officer Holden testified that, when he arrived at the scene, the victim was on his hands and knees, “bleeding very heavy” from multiple gunshot wounds and drifting in and out of consciousness. To Officer Holden’s question, “What happened? Who’s responsible for this[?]” the victim responded, “Anthony Thompson.” Dr. Ross testified that the victim had been struck by eleven bullets, two of which were shots to the head. A shot to his left temple fractured the base of his skull, and a shot to the right side of his head perforated the main blood vessel coming out of the victim’s heart. Even though the victim lingered for approximately five hours after being shot, we cannot conclude that the trial court erred in determining that the required mental state of the victim could be inferred from these circumstances. The record supports the trial court’s determination that the victim’s words to Officer Holden were a dying declaration.

-CM