Dominic Joyner was shot four times at close range. As he faded in and out of consciousness, he identified the shooter as Darin Satterwhite. Joyner later died from gunshot wounds. A jury found Satterwhite guilty of murdering Joyner. At trial and on appeal, Satterwhite argues the victim’s statements were inadmissible both under state evidentiary and federal constitutional law because the victim was not present at trial and thus was unavailable for cross-examination. Affirming the trial court, we hold Joyner’s statements constituted dying declarations admissible under the common law and categorically outside the reach of the Confrontation Clause of the Sixth Amendment.
I.
On October 19, 2005, Tanisha Naar left work on a lunch break and returned to her apartment. She found her boyfriend, Joyner, lying on her bathroom floor. He was covered in blood. Naar called out to Joyner, but he did not answer. She went over to Joyner and knelt down beside him as he gasped for breath. Joyner faded in and out of consciousness. He appeared limp and unable to feel anything. Because Joyner was bleeding so profusely, Naar could not identify the entry wounds. When she asked him where he had been shot, Joyner replied, “everywhere.”
Naar called 911. Joyner had been bleeding for about half an hour by this time. The 911 operator asked Naar what happened. While still on the phone, Naar asked Joyner “who did it?” Breathing heavily, Joyner replied, “Darin Satterwhite did it.” He said it loudly enough for the 911 operator to overhear the statement. Joyner added that Satterwhite had shot him inside Naar’s apartment at around 12:45 p.m.
Paramedics arrived within minutes and found Joyner conscious but in critical condition. He had three gunshot wounds to the chest and one to the head. Joyner had no feeling in his
At Satterwhite’s jury trial, his counsel expressly denied that Joyner falsely identified Satterwhite as the shooter. “There’s no motive for him to say that falsely,” counsel argued, “they were friends.” Instead, counsel asserted, Joyner was simply mistaken. The jury disagreed and convicted Satterwhite of second-degree murder.
II.
By admitting into evidence Joyner’s statements identifying him as the shooter, Satterwhite argues, the trial court violated his right to cross-examination both under common law hearsay principles and under the Confrontation Clause of the Sixth Amendment. We disagree with both assertions.
A. Dying Declarations under the Common Law
Unless displaced by statute or constitutional principles, the common law “shall continue in full force” and “be the rule of decision” in Virginia courts. Code § 1-200 (recodifying former Code § 1-10).
2
Though the common law generally prohibited hearsay evidence, it uniformly excepted from this
Virginia precedent fully conforms to common law principles governing dying declarations. “Without referring in detail to the numerous adjudications that have taken place in England, and in this country, upon the question, we consider it settled, that declarations in
articulo mortis
by one who is conscious of his condition, are admissible evidence” in homicide cases.
Hill v. Commonwealth,
To qualify as a dying declaration, the victim’s statement must be made “under a sense of impending death” without any “expectation or hope of recovery” from his mortal wounds.
Clark v. Commonwealth,
Consequently, “the fact of such consciousness may be established otherwise than by the statements of the decedent: as by the character and nature of the wound, his appearance and conduct, & c.”
Hill,
Moreover, if the circumstances show a reasonable basis for the victim’s sense of impending death at the time of his statements, “the length of time between the declarations and
In the trial court, the party offering the dying declaration must establish the evidentiary basis for admitting it if another party objects on hearsay grounds.
See Hall v. Commonwealth,
Much weight ought always to be given to the opinion of the court below in determining this question. The duty by law is devolved on him to determine, not only from the proofs, but from all the circumstances of the case, whether the declarations are admissible. That court has all the witnesses in its presence, hears them speak, can judge of their credibility, is cognizant of all the circumstances of the case, and to its judgment the law refers the determination of the question whether the declarations were admissible.If that judgment is clearly erroneous, it may be reviewed like any other judgment. But ... [t]he judgment must be clearly erroneous before it will be interfered with by the appellate court.
Swisher,
Governed by these principles, we find no abuse of discretion in the trial court’s decision to admit Joyner’s statements under the dying declaration exception to the hearsay rule. Found in a pool of blood, Joyner had taken three gunshots to the chest and one to the head. He went in and out of consciousness, was partially paralyzed, and had difficulty breathing. Though he did not verbalize a sense of death coming over him, he did not need to. “The fact that the wounds were severe is, in itself, circumstantial evidence that the declarant must have realized that there was no hope, and the obvious extremity of his condition is also evidence that he must have known what lay ahead.” Friend,
supra
§ 18-13, at 758 (footnote omitted). Given the severity of his injuries, we find it unremarkable that nothing in the record suggests Joyner “expressed the opinion or belief that he would survive,”
Pippin,
Satterwhite makes much of the fact that Joyner did not die immediately. Emergency medical care kept him alive for several weeks following the shooting. Like the trial court, we find this observation misses the point. To be sure, “there seems to be no case in which the time of survival was deemed to exclude the declaration; and various periods have been passed upon as not too long.” 5
Wigmore, supra
§ 1441, at 235;
see Batten,
B. The Confrontation Clause & Dying Declarations
Citing
Crawford v. Washington,
Virginia settled this issue 150 years ago in
Hill v. Commonwealth,
Is such evidence contrary to the bill of rights? If this question is to be answered affirmatively, then for nearly 70 years past, the Courts of this Commonwealth have been in the constant practice of violating the bill of rights in a most important particular. We admit that the practice of theCourts, however long, and uniform, is not of itself a valid answer to the objection; and that this Court is bound to decide it now; not upon practice, but upon principle.
The question then arises, what was the doctrine of the common law as it regarded this rule of evidence? Without attempting to ascertain the antiquity of the earliest decisions of the British Courts affirming the rule, it is sufficient to state, that long anterior to the year 1776, the period of the declaration of the bill of rights, the rule of evidence was well established. And it is remarkable, that in all the commentaries it underwent in England, it was never supposed that the rule was a violation of the rights of the subject as secured by Magna Charta [sic]. The rule is one of necessity____ We are therefore of opinion, that the admission of dying declarations as evidence, is not repugnant to the bill of rights.
Hill,
43 (2 Gratt.) Va. at 607-08.
See Robertson v. State,
Interpreting the Federal Bill of Rights (which the Framers based in large part on the Virginia Declaration of Rights adopted over a decade earlier),
7
the United States Supreme Court came to a similar conclusion in
Mattox v. United States,
The question remains whether
Crawford
shifted the legal paradigm so profoundly as to render this longstanding precedent unreliable. We think not. For all its novelty,
Crawford's
holding left intact many aspects of the conventional understanding of the Confrontation Clause.
See, e.g., Blackman v. Commonwealth,
In a later application of
Crawford,
the Court stated it had “previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted.”
Giles,
III.
The trial court did not err in admitting into evidence Joyner’s statements identifying Satterwhite as the shooter. We thus affirm Satterwhite’s conviction.
Affirmed.
Notes
.
See generally Isbell v. Commercial Inv. Assocs.,
. “The custom of using dying declarations probably comes down as a tradition long before the evidence system arises in the 1500s____” 5 John Henry Wigmore, Evidence § 1430, at 218 n. 1 (3d ed. 1940); see 4 St. George Tucker, Blackstone’s Commentaries 368 n.* (1803) (“In criminal cases, the declarations of a person, who relates in extremis or under an apprehension of dying, the cause of his death, or any other material circumstance may be admitted in evidence; for the mind in that awful state is presumed to be under as great a religious obligation to disclose the truth, as is created by the administration of an oath.”).
.
See Waller v. Commonwealth,
. Nor is it dispositive that others, including medical personnel, discount the likelihood of death.
Hall v. Commonwealth,
. Given our holding we need not address whether Joyner’s statements fit with the excited utterance exception to the hearsay rule.
See Clark,
. "The Virginia Declaration of Rights was the first true Bill of Rights in the modem American sense, since it is the first protection for the rights of the individual contained in a Constitution adopted by the people acting through an elected convention____[I]ts importance as the source of the federal Bill of Rights may not be overemphasized____ Every specific guarantee in the Virginia proposal, save one, later found a place in the federal Bill of Rights which was introduced in the first Congress by Madison as proposed by Virginia herself. Among those was the right 'to be confronted with the accusers and witnesses,’ a lineal descendant of the phrase in the Virginia Declaration.”
United States v. Payne,
. The Giles dicta did not attempt to define the precise boundaries of the dying declaration exception, and we see no reason to believe Giles in any way affects the traditional view of the exception applied by Virginia courts.
.
Accord People v. Monterroso,