Yes or No? Supreme Court of Georgia Finds Head Nods Constituted Dying Declarations

Section 24-3-6 of the Georgia Code provides that

Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide.

It is well established under this and similar hearsay exceptions that such “dying declarations” are admissible even if they come in response to questions. See, e.g., 4 Louisell & Mueller, Federal Evidence § 488, p. 1124 (“Indeed, a person in his dying moments may be inclined more toward silence than conversation, and the stimulus of a question may be essential.”). But what if a declarant’s dying declaration consists solely of a nod of the head in response to the question, “Did X shoot you?” Let’s take a look at the recent opinion of the Supreme Court of Georgia in Wiggins v. State, 2014 WL 4667524 (Ga. 2014).

In Wiggins, the evidence adduced at trial indicated that

On September 22, 2007, [Calvin] Wiggins, who was known as “Weedi,” and [Mahdi] Thomas robbed a local drug dealer at gunpoint, taking up to five pounds of marijuana and $7,000 in cash. Thomas left taking the marijuana and money with him, while Wiggins stayed behind, keeping a handgun on the drug dealer. After a few minutes, Wiggins left, taking the drug dealer’s cell phone and car.

That evening Thomas was to meet Wiggins at a gas station in Fulton County. Wiggins was not happy with his share of the proceeds from the armed robbery. At approximately 10:00 p.m., Thomas was in the driver’s seat of his vehicle, which was stopped at one of the station’s gas pumps. Wiggins and another man were in the vehicle with Thomas; Wiggins was sitting in the front passenger seat next to Thomas, and the other man had gotten into the back seat of Thomas’s car after exiting a car parked nearby. The front seat passenger shot Thomas, exited the vehicle, and again fired the handgun he was wielding at the then fleeing Thomas. The back seat passenger moved from the rear of Thomas’s car and rummaged through the front seat area, emerging with the stolen marijuana and cash. The shooter and the back seat passenger entered the car parked nearby and “peeled off” toward the highway.

Thomas sustained severe injuries from multiple gunshot wounds, and was transported to a hospital where he died following three surgical procedures in an attempt to save his life.

While at the hospital, Thomas had feeding tubes in his mouth and was visited by his brother and his wife.  His brother asked Thomas whether it was “Weedi” who shot him, and Thomas responded by nodding his head. His wife asked Thomas “Did Weedi shoot you?” and Thomas again nodded his head, “yes.”

The trial judge allowed testimony concerning these two statements, and Wiggins was convicted of felony murder. He thereafter appealed, claiming, inter alia, that there was no evidence that Thomas thought his death was imminent when he nodded his head. The Supreme Court of Georgia easily turned this argument aside, noting, inter alia,

The circumstances in this case demonstrate that Thomas was conscious of his dire condition at the time he made the non-verbal statements inculpating Wiggins as the shooter: Thomas prayed with his wife for forgiveness; Thomas’s intestines were shot like “swiss cheese”; he had a hole in his diaphragm; he had a gunshot wound that went through his liver; he had an injury to the vessel that drained his left kidney, causing it to die; he had holes in his colon and stomach….

I think, however, that there was a better argument available to the defense. In State v. Lewis, 2012 WL 1080479, No. W2010–01989–CCA–R3–CD, at *1 (Tenn.Crim.App. 2012), the Court of Criminal Appeals of Tennessee noted that “‘[b]ecause a dying declaration is essentially a substitute for the testimony of the victim, the admissible evidence is limited to that to which the victim could have testified if present….'” This is a correct statement of the law and of course makes sense. If a dying declarant said, “It must have been Dan who shot me because he hates my guts,” a court would deem this statement inadmissible because it seems as if Dan is speculating and lacks personal knowledge.

This takes us back to Wiggins. All we have in Wiggins are two responses to what would be considered leading questions at trial. The wife and brother asked yes/no questions to Thomas and supplied him with the answer of “Weedi.” All he had to do was answer with a head nod. Thomas did not supply any other information about how he knew Thomas shot him, and the identification took place later and at the hospital, not at the crime scene. Was this enough to allow for the admission of the head nods? I’m not sure.

-CM