Satterwhite v. Commonwealth Of Va.

• Decision Date: 27 July 2010
• Docket Number: Record No. 0849-09-1.
• Citation: Satterwhite v. Commonwealth, 56 Va.App. 557, 695 S.E.2d 555 (Va. App. 2010)
• Parties: Darin Monta SATTERWHITEv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

56 Va.App. 557

695 S.E.2d 555

Darin Monta SATTERWHITEv.COMMONWEALTH of Virginia.

Record No. 0849-09-1.

Court of Appeals of Virginia Chesapeake.

July 27, 2010.

From the Circuit Court of the City of Norfolk, Everett A. Martin, Jr., Judge.¹

Michael C. Rosenblum(Duncan R. St. Clair, III; St. Clair & Rosenblum, Norfolk, on brief), for appellant.

Jennifer C. Williamson, Assistant Attorney General(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, KELSEY and POWELL, JJ.

KELSEY, Judge.

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 legs.Police detectives also arrived on the scene.They, too, asked Joyner what happened.He told them Satterwhite had shot him.The paramedics rushed Joyner to the hospital where he was admitted for emergency surgery.The gunshots had damaged his spine and led to renal failure, liver failure, sepsis, pneumonia, rhabdomyolysis, gastrointestinal bleeding, and coagulopathy.Joyner died in the hospital six weeks later.

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).²Though the common law generally prohibited hearsay evidence, it uniformly excepted from this general rule the dying declarations of a homicide victim.“Not surprisingly, nearly as soon as we find a hearsay rule, we also find an exception for dying declarations.”2 Kenneth S. Broun McCormick on Evidence§ 309, at 363 (6th ed. 2006).The common law admitted dying declarations when the victim found herself in a “state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions,”Giles v. California,--- U.S. ----, ----, 128 S.Ct. 2678, 2685, 171 L.Ed.2d 488(2008)(quotingKing v. Woodcock,168 Eng. Rep. 352, 353-54, 1 Leach 500, 503(1789)), because the “sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath,”Mattox v. United States,156 U.S. 237, 244, 15 S.Ct. 337, 340, 39 L.Ed. 409(1895).³

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,43 Va. (2 Gratt.) 594, 608(1845).⁴It is a sufficient reason, as the English cases explain, to admit dying declarations because the “usual witness in occasions of other felonies, namely, the party injured himself, is gotten rid of.”Pippin v. Commonwealth,117 Va. 919, 925, 86 S.E. 152, 154(1915);1 E. East Pleas of the Crown§ 124, at 353(1806).

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,235 Va. 287, 291, 367 S.E.2d 483, 485(1988)(citation omitted).But the victim need not verbalize his sense of impending death.“[S]uch words are (fortunately) not essential.”Charles E. Friend The Law of Evidence in Virginia§ 18-13, at 758 (6th ed. 2003)(citingHall v. Commonwealth,89 Va. 171, 177, 15 S.E. 517, 519(1893)(“It is not necessary, however, that they should be stated, at the time, to be so made.”)).⁵

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,43 Va. (2 Gratt.) at 608;see, e.g., Clark v. Commonwealth,3 Va.App. 474, 482, 351 S.E.2d 42, 46(1986)(holding victim's state of mind can be inferred from the fact that he had been shot in the chest and was breathing with difficulty)aff'd on other grounds,235 Va. 287, 367 S.E.2d 483(1988);see generallyFriendsupra§ 18-13, at 758(noting victim's state of mind can be inferred from the severity of the wounds and the “obvious extremity” of his condition).A trial court may also take into account “that during the whole time from the infliction of the wound until his death, [the victim] never expressed the opinion or belief that he would survive.”Pippin,117 Va. at 929, 86 S.E. at 155(citation omitted).

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 the death of the declarant is an immaterial matter.”Hall,89 Va. at 177, 15 S.E. at 519.It does not matter “that death did not ensue until a considerable time after the declarations were made” if, when made, the victim had reason to believe he faced imminent death.Swisher v. Commonwealth,67 Va. (26 Gratt.) 963(1875).Put another way, “the actual period of survival after making the declaration is immaterial.The necessary element is a subjective one-the declarant's expectation; and the subsequent duration of life, whatever it may turn out to be, has no relation to his state of mind when speaking.”Batten v. Commonwealth,190 Va. 235, 241-42, 56 S.E.2d 231, 234(1949)(emphasis in original)(quoting5 John Henry Wigmore, Evidence§ 1441, at 235 (3d ed. 1940)).

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.SeeHall v. Commonwealth,12 Va.App. 198, 204, 403 S.E.2d 362, 366(1991).On appeal, we review under an “abuse of discretion” standard the trial court's decision to admit or exclude evidence.Avent v. Commonwealth,279 Va. 175, 197, 688 S.E.2d 244, 256(2010).Applying this standard, “we do not substitute our judgment for that of the trial court.Rather, we consider only whether the record fairly supports the trial court's action.”Grattan v. Commonwealth,278 Va. 602, 620, 685 S.E.2d 634, 644(2009)(citation omitted).This deferential standard applies to a trial court's decision to admit statements under the dying declarations exception to the hearsay rule:

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,67 Va. (26 Gratt.) at 974(citation omitted).“The circumstances of each case will show whether the requisite consciousness existed,” Professor Wigmore concurs, “and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.”Wigmore, supra § 1442, at 238.

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...