Dead men can tell tales

By Phillip Bantz
BridgeTower Media Newswires

COLUMBIA — Case law as dusty as it is macabre and dating back beyond the gunslinging days of the Wild West came back to life in a recent South Carolina Court of Appeals decision.

At issue: the last words of a dying victim, known legally as his “dying declaration,” a rarely invoked exception to the hearsay rule.

“Dying declarations aren’t something we get to talk about very much,” said Susan Hackett, a Columbia-based appellate defender who appears to have driven the final coffin nail into the state’s murder case against Marvin Brown.

She convinced a three-judge panel for the Court of Appeals to affirm a trial judge’s decision to suppress a crucial statement that the victim, Davon Goodwin, gave to a police detective while hooked up to tubes and medical equipment at a hospital’s intensive care unit.

Goodwin, a 19-year-old who had been shot three days prior to speaking with the detective and had undergone two surgeries, identified Brown as the person who shot him during an encounter in downtown Charleston. He died five days later.

Medical records list pulmonary embolism as the suspected cause of Goodwin’s death, which was described as “sudden, unexpected” and “unexplained.” A forensic autopsy report later concluded that he died of complications from a gunshot wound to his abdomen.

To move forward with the state’s case against Brown, prosecutors tried to prove that Goodwin’s statement to the detective was admissible under the dying declaration exception, which is rooted in South Carolina common law from the 1800s.

“You really have to believe that death is knocking at the door,” said Kenneth Gaines, a criminal law professor at the University of South Carolina School of Law. “It’s the belief you have at the time you made the statement.”


Impending death as truth serum

In one of the earliest dying declaration cases, State v. Belcher, the South Carolina Supreme Court held in 1880 that a victim’s final words should be admissible because they are spoken “when a party is at the point of death, and is conscious of it — when every hope of this world is gone, and every motive to falsehood is silenced by the most powerful considerations to speak the truth.”

Belcher involved the admissibility of a woman’s dying declaration to her doctor that her husband had gravely injured her. She died nearly three months later, but the court found that the timing of her death wasn’t as important as her belief that she was on the verge of death when she spoke to her doctor.

In State v. Johnson, the state’s high court held in 1887 that a shooting victim’s deathbed words were admissible after noting that he spoke “with the film of death then probably spreading over his eyes ... and with the numbness of death then probably creeping up his extremities.”

With the adoption of the South Carolina Rules of Evidence in 1995, the common law exception to hearsay for dying declarations was codified. The rule says, in part, that what would otherwise be hearsay may be admissible in a homicide case if the evidence shows that the declarant believed “death was imminent.”

Since then, the state’s appellate courts have published just one case (not including the matter at hand) interpreting the exception.

The Supreme Court ruled 16 years ago in State v. McHoney that a woman whose throat was slashed had made a dying declaration identifying her attacker — she nodded to spell his name as a nurse recited the alphabet — despite the fact that she clung to life for two weeks, albeit in an unconscious state, before succumbing to her injuries.

The court held that the “focus is on the declarant’s state of mind when the statement is made, not on the eventual outcome of the injuries.”


Interpreting a victim’s final words

When Charleston County Circuit Judge Stephanie McDonald suppressed Goodwin’s statement identifying Brown as his killer, she ruled that the statement was inadmissible because medical records indicated that Goodwin was improving and “not in imminent danger of death.”

McDonald concluded that the medical records, coupled with remarks that Goodwin made to relatives in the hospital, failed to prove that he believed his death was imminent when he picked Brown’s photo out of a lineup.

Senior Assistant Deputy Attorney General Donald Zelenka argued on appeal that McDonald had misread the dying declaration rule and misinterpreted McHoney, suggesting that she wrongly focused on the fact that Goodwin lived for five days after he talked with the detective, rather than considering his mindset when he made the statement.

Zelenka, who declined to discuss the case through a spokesman for the Attorney General’s Office, also contended that McDonald failed to address Goodwin’s grandfather’s statement that Goodwin told him they’d no longer be able to go on car rides together. The grandfather testified that Goodwin “just pretty much point blank said he wasn’t going to make it — he didn’t think he was going to make it.”

But Hackett, Brown’s appellate defender, stressed that it was unclear if Goodwin had talked with his grandfather before or after he spoke with the detective. She also said Goodwin might have thought that his injuries would prevent him from riding in a car, not that he was dying.

“We don’t know what Mr. Goodwin meant,” she said.

Gaines, the law professor, echoed Hackett after reviewing the Court of Appeals opinion affirming McDonald’s order. He said Goodwin “really wasn’t definitive about expressing a belief that he was going to die.”

“At best you could say that he was ambiguous about that,” he added.


Medical records paint clearer picture

While the meaning of Goodwin’s final words might have been unclear, Court of Appeals Judge Aphrodite Konduros found that the medical records showed that his condition was steadily improving, until his abrupt death.

“On the same day Goodwin identified Brown, he was moved out of the intensive care unit and began to ambulate,” she wrote in the opinion. She also noted that Goodwin had been reluctant to name Brown, “which suggests a fear of reprisal, something inconsistent with a belief of impending death.”

Konduros rejected the state’s assertion that Brown’s case was similar to McHoney, writing that the victim in the latter case made it clear that she had no hope of surviving. When a nurse told her she was going to be OK, the woman shook her head in disagreement. She lost consciousness a short time later.

“Here, evidence supports the circuit court’s finding Goodwin’s statement was not made while he believed his death was imminent,” Konduros concluded.

While the prosecution has suffered a major setback, the state walked away from the Court of Appeals with a minor win. Konduros held that McDonald erred when she found that Goodwin planned to seek revenge against his attacker, because no evidence was offered at the suppression hearing to support the finding.

Still, Konduros found that the error was harmless.