Opinion
I.D. No.: 0405000068.
June 2, 2005.
ORDER
This 2nd day of June, 2005, the State's motion in limine and supporting memorandum and the response of the defendant having been duly considered, it appears:
1. The defendant is charged with capital murder arising from a robbery which occurred at Tull's Aquarium, 3313 Old Capital Trail, Cranston Heights, Wilmington, Delaware.
2. The victim, Kenneth Lee Tull, was shot twice in the abdomen and taken to Christiana Hospital where he immediately underwent surgery. The State characterizes his statement ("first statement") as follows:
In his first statement, Mr. Tull described the suspects as black males in their twenties with thin builds. He stated one was 5'8" and the other was 6". He added that he did not get a good look at the suspects and that one was carrying a black semiautomatic style handgun and the other was wearing a hood.
State's Motion in Limine, Docket No. 34, p. 2.
3. The State further alleges that Mr. Tull survived his surgery and was recovering. Seven days after the shooting, he was again interviewed by the police. He gave a more detailed statement which was summarized in a document ("second statement").
4. Three days after the second statement, Mr. Tull suffered a pulmonary embolism and died.
5. The State seeks to preclude the use of both statements at trial. The defense argues that both are admissible. The burden of establishing an exception to the hearsay preclusion lies on the party seeking the admission of the evidence.
United States v. Peppers, 302 F.3d 120, 139 (3d Cir. 2002).
6. Acknowledging that the statements are hearsay, the defense argues that exceptions are applicable. As to the first statement, defendant argues that it is admissible as a present sense impression 803(1), an excited utterance 803(2), or a dying declaration 804(b)(2). Alternatively, it is admissible under the residual provision of 807. Defendant argues that the second statement is admissible under 807 as well.
D.R.E. 803(24) has been transferred to D.R.E. 807.
7. A present sense impression is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." This exception to the hearsay rule is not applicable. The statement was not sufficiently contemporaneous.
5 WEINSTEIN'S FEDERAL EVIDENCE, § 803.03[4] (2d ed., 2005).
8. An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The statement lacks the spontaneity required to invoke this exception.
WEINSTEIN, supra, § 803.04[4].
9. The rule regarding dying declarations applies when the witness is unavailable, and requires that the "[s]tatement [be 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." Parsing the elements of this rule, there first must be a showing that Mr. Tull made the statement while believing that his death was imminent. Mr. Tull's belief in the imminence of death may be shown through circumstantial evidence such as the nature of his wounds. I find that it is reasonable that Mr. Tull, being aware of two gunshot wounds and the need for emergency surgery, believed in the imminence of his death. The next requirement is that the declarant have personal knowledge of the information provided. That requirement is met by the circumstances of the crime developed through the physical evidence and the statement of the other person in the store at the time of the crime. The third requirement is that the statement be related to "the cause or circumstances of what the declarant believed to be impending death." His statement was a description of the perpetrators who caused his injuries. As to the first statement, the requisites of a statement made under belief of impending death having been met.
Peppers, 302 F.3d at 138.
WEINSTEIN, supra, § 804.05[5][b] (internal quotation marks omitted).
10. The argument in favor of admission of the second statement depends entirely on the 807 exception. That Rule provides:
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule, if the court determines that: (A) The statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence.
11. The analysis of this rule begins with the question of whether the second statement has circumstantial guarantees of trustworthiness which are equivalent to the exceptions in Rule 803 or 804. This rule was developed to "provide for treating new and presently unanticipated situations which demonstrate trustworthiness within the spirit of the specifically stated exceptions." It provides for growth and development of the law of evidence in the hearsay area. The rule is to be used in exceptional and extraordinary circumstances.
WEINSTEIN, supra, § 807 App.01[5].
Id.
United States v. Trujillo, 136 F.3d 1388, 1395 (10th Cir. 1998).
12. I do not find the circumstances of the second statement to rise to the level of trustworthiness required to invoke Rule 807. The victim was recovering from surgery. The State contends that he was heavily sedated and had difficulty understanding the questions put to him. The second statement is excluded as hearsay.
WHEREFORE, I conclude that the first statement is admissible as a statement under belief of impending death. The second statement is inadmissible as hearsay with no applicable exception.
IT IS SO ORDERED.