Voudrie v. State

Decision Date06 May 1980
Docket Number6 Div. 776
Citation387 So.2d 248
PartiesMichael Joseph VOUDRIE v. STATE.
CourtAlabama Court of Criminal Appeals

Robert R. Bryan and Roger C. Appell of Bryan & Appell, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Evans Campbell, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted for the first degree murder of his wife. A jury convicted him of murder in the second degree and fixed sentence at ninety-nine years' imprisonment.

I

At trial the State introduced statements made by Mrs. Voudrie, the defendant's wife, to the police after she had been shot. The defendant contends that this testimony did not qualify as a dying declaration because Mrs. Voudrie exhibited "no settled hopeless expectation of impending death."

The uncontradicted evidence shows that on February 2, 1977, the defendant and his wife were divorced. Early Sunday morning, March 21, 1977, the defendant shot Mrs. Voudrie with a .25 caliber semiautomatic pistol. Mrs. Voudrie sustained at least five but not more than seven separate gunshot wounds. The actual cause of death was shock and hemorrhage due to these multiple gunshot wounds.

The approximate time of the shooting was never definitely established by direct testimony. However, almost immediately after the shooting 1, the defendant telephoned the operator and requested emergency services. While the defendant was trying to help his wife she told him, "Oh, my God, please don't let me die." The defendant responded, "Kay, I am doing everything I can for you, honey." There is no showing of the exact amount of time that elapsed from the time the defendant telephoned the operator until the police arrived. However, there is no contention that this delay was significant.

Officer Dexter Ray Alexander of the Homewood Police Department received a radio dispatch at approximately 2:15 that Sunday morning. About two minutes later he arrived at Mrs. Voudrie's home. Approximately two minutes after that Mrs. Voudrie told him, "Don't let me die, please don't let me die." Officer Alexander, who was trained as a paramedic, stated that Mrs. Voudrie was "very upset." He tried to calm her down and comfort her in order to prevent her from causing further physical damage. He told her that they were doing everything they could and that help was on the way. After she "calmed down somewhat" he asked her what had happened. Officer Alexander testified:

"She told me that her ex-husband had given her a gun to use for her protection; that he had come back and he had asked to have the gun back and that she didn't want to give it to him but she was afraid of him; that's why she stayed married to him as long as she did. She finally gave him the gun and the bullets and he started counting out the bullets and she asked him why he was counting out the bullets; and he said because I am going to shoot you and then she said he shot her."

After Mrs. Voudrie made this statement, the fire department arrived and Officer Alexander let them take over.

Officer David William Slimp of the Homewood Police Department arrived at the scene at approximately 2:17 A.M.-the same time as Officer Alexander. As he approached Mrs. Voudrie she said, "Help me, don't let me die." When asked by defense counsel on cross examination to describe Mrs. Voudrie, Officer Slimp stated: "She was hurt. She was afraid she was going to die." Slimp tried to help and console her. He testified, "I told her I wasn't going to let her die. That she would feel bad in the morning but that I was going to pull her through." In response, Mrs. Voudrie "just kept asking me not to let her die." Officer Alexander and Harold Cooley were also present and she was talking to them: "not to let her die-she didn't want to die." She repeated this "five or six times at least."

Dr. Michael Garnet Stultz first saw Mrs. Voudrie at 3:00 on Sunday morning at the University Hospital Emergency Center in Birmingham. He stated that she had been critically injured, was in a profound state of shock and required immediate surgery. In the operating room, Mrs. Voudrie suffered a cardiac arrest. Attempts were made to resuscitate her for a period of two hours. She was pronounced dead at 5:47 A.M.

The medical records from University Hospital state that Mrs. Voudrie "arrived in the Emergency Room with profound shock minutes after sustaining multiple small caliber gunshot wounds to the right neck, left flank, mid torso level about the 10th rib and posterior axillary line and also both right and left anterior thighs proximal to the knees."

A dying declaration is:

"a statement by a person who believes that his death will certainly occur soon. He must be gripped by that despair of life which is naturally produced by an impression of almost dissolution, a dissolution so near as to cause all motives of falsehood to be superseded by the strongest inducements to strict accuracy. It has been said that the declarant, when making the statement, must have been in settled, hopeless expectation of impending death." C. Gamble, McElroy's Alabama Evidence, § 248.01(1) (3rd ed. 1977).

In determining whether a statement qualifies as a dying declaration, the court must determine the state of the declarant's mind when the declarations were made.

"The purpose of the court should be to arrive at the state of the declarant's mind when the declarations were made, taking into consideration all that was said by him, and the surrounding circumstances of the case, including the nature of the inquiry which produced decedent's death, and his probable appreciation of its fatal character. The inquiry is, were such declarations uttered under the sense of impending dissolution,-under the solemnity of the conviction that death was near at hand, and that there was no hope of the declarant's recovery? Was he fully conscious of the fact that he could not rally from the effects of his injury,-so that he entertained no expectation of ultimate recovery? If this be true, then what he said under this conviction,-this despair of recovery,-touching the homicide and its attendant circumstances, which carried with it all the solemnity of a sworn declaration, is admissible, although in point of fact there was no rapid succession of death, and no apprehension of such event immediately following." Hussey v. State, 87 Ala. 121, 127-8, 6 So. 420, 422 (1888).

The fact that witnesses tell the declarant that he is not going to die, does not render the dying declaration inadmissible.

"A statement by another person, usually a physician, to the declarant that he was not going to die would not necessarily support an inference that the declarant was not conscious of imminent death, where he has himself been shown, by his own words, his conduct, the seriousness of his injuries or of his condition, or by other relevant circumstances, to have entertained no hope of recovery when he gave his dying declarations." Annot., 53 A.L.R.3d 1196, 1242 (1973).

In this state, the rule was stated in Hall v. State, 12 Ala.App. 42, 67 So. 739 (1915), relying on Hussey, supra. Compare with Shiflett v. State, 262 Ala. 337, 343, 78 So.2d 805 (1955).

"The fact that the physician attending deceased expressed to him a hope and belief that he would recover does not render the dying declaration inadmissible; provided the deceased believed himself to be in extremis, which he in fact was." Hall, 12 Ala.App. at 43, 67 So. at 739.

"(A)ccording to the clear preponderance of authority if deceased had the slightest hope of recovery when the declarations were made they are inadmissible." 40 C.J.S., Homicide § 290 (1944). See Ratliff v. State, 19 Ala.App. 505, 507, 98 So. 493 (1923) ("in the absence of all hopes of recovery"). However, "it is possible that, even where declarant expressed an opinion that he would recover, the circumstances may distinctly show that such was not his real belief." 40 C.J.S., Homicide § 295 (1944).

Wigmore states:

"(T)he belief must be, not merely of the possibility of death, nor even of its probability, but of its certainty."

"The essential idea is that the belief should be a positive and absolute one, not limited by doubts or reserves; so that no room is left for the operation of worldly motives." V Wigmore § 1440 (3rd ed. 1944).

"In ascertaining this consciousness of approaching death, recourse should naturally be had to all the attending circumstances."

"No rule can here be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances." V Wigmore § 1442, quoted with approval and followed in Evans v. State, 209 Ala. 563, 565, 96 So. 923 (1923), and Parker v. State, 165 Ala. 1, 9, 51 So. 260 (1909).

See also Williamson v. State, 57 Ala.App. 113, 116, 326 So.2d 303 (1976).

Mrs. Voudrie's plea was one that perhaps almost any person in her condition would have made. Those statements, in conjunction with the circumstances of this case, including the severity of her condition, are sufficient to show that she had a settled hopeless expectation of impending death. See Commonwealth v. Spear, 2 Mass.App. 687, 319 N.E.2d 455 (1974) ("Please, officer, don't let me die. Don't let me die.") The statements made by Mrs. Voudrie were properly admitted into evidence as dying declarations.

II

"It is well settled that the admission in evidence of the dying declarations of the person murdered is not an infraction of the constitutional or statutory right of accused to be confronted by the witnesses against him." 40 C.J.S. Homicide § 287(c) (1944).

This principle was recognized in Green v. State, 66 Ala. 40, 47-8, 41 Am.Rep. 744 (1880).

III

In a homicide prosecution, "threats or hostile demonstrations by the accused toward persons not connected with the deceased are not admissible." McGuff v. State, 49 Ala.App. 88, 91, 268 So.2d 868, 871, cert....

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