Opinion
ID: 9707012190.
December 30, 2003.
OPINION AND ORDER
Now this 30th day of December 2003, it is the finding of this Court as follows:
1) The defendant in this First Degree Murder case has moved to exclude the statement of a witness Dwayne Warren to the effect that the decedent said to him ". . . that Nigger Box . . .", at the time of his death.
2) The defendant's street name is "Box."
3) The decedent was in extremus at the time of the purported statement.
4) In addition to this phrase, the decedent said nothing intelligible about the shooting muttering only "damn" and "shit" and purportedly trying to tell Warren where he had hidden some money.
5) The State argues that this phrase or expression constitutes a dying declaration and thus is a firmly rooted exception to the hearsay rule of exclusion. In the alternative it is argued that it is an excited utterance or a present sense impression.
6) The entire statement "that Nigger Box" however does not meet the requirement of the proffered dying declaration exception. In particular, it does not relate, other than by speculation, to the cause of the decedent's death. The phrase was not said in response to any question and can not be related to the circumstances of declarant's death except by pure speculation.
7) The State in its argument suggests inferences that the jury could possibly reach with respect to what was meant by the decedent by this utterance in order to make it relevant.
8) The relevance of the utterance is not apparent to the Court unless it would include speculation as to what was not said, e.g., "that Nigger Box shot me . . .", or "that Nigger Box was here . . .", it would be equally irrelevant if it was "that Nigger Box gave me the money . . .", or "that Nigger Box owed me money . .".
9) The expression can not be said to "relate" to a startling event or condition without similar speculation.
10) Likewise, the utterance does not meet the definition of the present sense impression. It neither "describes" nor "explains" an event or condition unless the jury is allowed to speculate as to what was in declarant's mind.
11) Indeed, the utterance does not in its words contain an assertion unless speculation is employed to somehow connect it to an event or condition.
12) The expression itself contains a derogative term that can inflame racial passions.
13) That the expression was made, absent impermissible speculation is not relevant.
14) The potential to inflame the jury, the potential to invite speculation on the part of the jury, and the potential to create confusion in the mind of the jury all to the prejudice of this defendant would clearly outweigh any limited probative value the expression possesses.
DEL. R. EVID. 804(b)(2) reads in pertinant part: "A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death."
DEL. R. EVID. 803(2) includes "A statement relating to a startling event or condition . . ."
DEL. R. EVID. 803(1) states "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."
WHEREFORE, the statement "that Nigger Box" will be excluded from the trial of this case.