Dying Words: Supreme Judicial Court of Massachusetts Declines To Adopt “No Hope” Test For Dying Declarations

Federal 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.

Massachusetts does not have codified rules of evidence, but it does have an Evidence Guide, and Section 804(b)(2) of that guide contains a similar exception:

In a prosecution for homicide, a statement made by a declarant-victim under the belief of imminent death and who died shortly after making the statement, concerning the cause or circumstances of what the declarant believed to be the declarant’s own impending death or that of a co-victim.

As the language makes clear, Massachusetts seemingly deviates from federal law in two regards: (1) its dying declarations exception does not apply in civil cases; (2) its dying declarations exception does apply to statements regarding the cause of the imminent death of the declarant’s co-victim. The recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Gonzalez, 469 Mass. 410 (Mass. 2014), doesn’t deal with either of these deviations, but it does deal with the question of when a declarant believes his death to be imminent.

In Gonzalez, Mario Gonzalez allegedly stabbed his girlfriend eight times shortly after they returned to his apartment from a local bar. The evidence adduced at trial tended to indicate that

paramedics Sean Murphy and Michael Sullivan accompanied the victim in the ambulance to the hospital. They noted that the victim was pale, had no blood pressure, and had a life-threatening wound. As Murphy prepared to insert an intravenous (IV) tube, the victim pulled away and looked scared. Murphy explained to the victim that she was very sick, whereupon the victim allowed him to start the IV. Following instructions, the victim squeezed Murphy’s hand to indicate that she understood what he was saying. Thereafter, Murphy asked the victim if her husband did this to her. The victim answered, “Yes.” Sullivan also asked the victim, “Your husband did this?” and the victim answered, “Yes, my husband.”

The evidence also tended to indicate that while Gonzalez and his girlfriend were not married, they frequently referred to each other as “husband” and “wife.”

After he was convicted, Gonzalez appealed, claiming, inter alia, that the trial court erred in deeming the victim’s statements admissible as dying declarations. The court disagreed, concluding that

The evidence was more than sufficient to support the judge’s finding that the victim’s statements met this evidentiary standard. When the victim made the statements, she had been stabbed eight times, and four of her wounds were independently life threatening. The wounds penetrated the victim’s lung and spleen, causing profuse bleeding and affecting her breathing. The victim was pale and distraught, and seemingly in pain. At the apartment, the victim pleaded, “I don’t want to die,” and, “Please don’t let me die,” which she repeated multiple times. In the ambulance, the paramedics noted that the victim had no palpable blood pressure. In persuading her to allow the insertion of an IV, a paramedic informed her that she was “very sick.” She made the declarations regarding who “did this to [her]” in the ambulance, and died less than five hours later.

Gonzalez acknowledged more lenient recent Massachusetts precedent on dying declarations but nonetheless urged the court “to adhere to the stricter requirements of older cases, where we held that a dying declaration was not admissible ‘unless all hope of recovery has gone from the mind of the declarant, and [s]he speaks under a sense of impending death.'” The court, however, “decline[d] to adopt the defendant’s proposed test. The current standard appropriately ensures that admission of the dying declaration is necessary (because it requires that the declarant has died) and that the statement is trustworthy (because it requires that the declarant fear that death is imminent).”

-CM