Video of a dying man identifying his alleged killer by blinking at a photo is admissible evidence at trial, even though the victim cannot be cross-examined and he lived for another two years, Maryland’s top court held Friday.
A unanimous Court of Appeals held Melvin Pate’s identification of Jermaine Hailes was a “dying declaration,” meaning Hailes does not have a Sixth Amendment right to confront his accuser in Prince George’s County Circuit Court.
“Here, we reach the same conclusion that the Supreme Court has consistently endorsed for more than a century, and hold that the Confrontation Clause does not apply to dying declarations,” Judge Shirley M. Watts wrote in affirming the Court of Special Appeals.
Watts also wrote Hailes “raised red herrings” in arguing he should be able to confront Pate because dying declarations are not “inherently reliable.”
Prince George’s County State’s Attorney Angela Alsobrooks said Friday that her office plans to proceed to trial.
The Court of Appeals ruling “shows criminals that we will go as far as we need to in order to be firm in these cases,” Alsobrooks said in a statement.
Pate was shot during a Capitol Heights robbery on Nov. 22, 2010. He was rushed to Prince George’s Hospital Center and transferred two days later to the R Adams Cowley Shock Trauma Center in Baltimore, where he arrived in critical condition, with a severed spinal cord and a collapsed lung and unable to breathe or eat on his own. A halo was screwed into his head to support the spinal cord.
A doctor told Pate’s mother, who was near his bedside, that her son was unlikely to live more than 24 hours. Pate began to cry, according to his mother’s pretrial testimony and the Court of Appeals opinion.
A Prince George’s County detective showed Pate an array of photographs Nov. 26 and told him to blink hard when he saw the person who shot him. Videotape of the meeting shows Pate blinking hard at the photo of Hailes, according to the court’s opinion.
Pate died two years later, on Nov. 27, 2012.
At a pretrial hearing in November 2013, Judge Leo E. Green Jr. ruled Pate offered a dying declaration but said the video could not be used as evidence because Hailes could not cross-examine Pate.
Prosecutors appealed the ruling, and the Court of Special Appeals reversed Green last year.
Watts, writing for the Court of Appeals, agreed with both lower-court rulings that Pate’s statement was a dying declaration because there is nothing in the Maryland Rules or previous court decisions indicating the length of time between a statement and a person’s death should be taken into consideration.
“Obviously, no one can predict the future with absolute certainty; thus, a declarant can genuinely believe, but cannot know for certain, that his or her death is imminent when the declarant makes a statement,” Watts wrote. “The genuineness of the declarant’s belief in imminent death is not diminished by the circumstance that that belief is, in hindsight, inaccurate.”
Brian L. Zavin, Hailes’ lawyer, did not respond to a request for comment. Zavin is deputy chief attorney in the appellate division of the Maryland Office of the Public Defender.
WHAT THE COURT HELD
Case: Jermaine Hailes v. State of Maryland, No. 62, Sept. Term 2014. Reported. Opinion by Watts, J. Argued March 10, 2015. Filed April 17, 2015.
Issues: Is dying declaration valid if declarant does not die until two years after making the statement? Does the dying declaration exception to the rule barring testimony that cannot be subjected to cross-examination apply to a photo identification of a criminal defendant?
Holding: Yes; the length of time between statement and death has no bearing on whether it is a dying declaration, and a dying declaration is “exempted from the coverage of the Confrontation Clause.”
Counsel: Brian L. Zavin for appellee, Carrie J. Williams for appellant