STATE OF MARYLAND v. JERMAINE HAILES
Court of Special Appeals, Moylan, Filed May 27, 2014,
Hearsay- The Dying Declaration as it was understood in 1791 is exempted from the coverage of the Confrontation Clause.
Also, Blinking- It can be used to communicate.
Three issues were presented in this case:
1) Whether in a crime of violence case the State could take an interlocutory appeal based on suppression of intangible evidence on constitutional grounds (it can)
2) Whether “dying declaration” statements were admissible in light of the confrontation clause (they are insofar as they meet the common law definition, though note that the Maryland Rule expands beyond the common law)
3) Under what circumstances an “unreliable” identification should be excluded (reliability is not an independent exclusionary factor, but is considered only when impermissible suggestiveness has been found)
Notes from the CoSA on Interlocutory Appeal
– CJP 12-302(c)(3) states that:
In a case involving [a crime of violence or CDS distribution/etc] cases … the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Maryland Constitution, or the Maryland Declaration of Rights.
– The “decision of a trial court” that may trigger a State appeal can be either of two types. The first is one that “excludes evidence offered by the State.” It is the broader of the two types and has obvious reference to tangible and intangible evidence alike. The second of the two types is narrower and refers, by definition, only to tangible evidence.
– The function of the verb “seized” is to identify the property that is the subject matter of a possible order for “the return of property.”
Notes from the CoSA on Dying Declaration
– MD Rule 5-804(b)(2) now covers Dying Declarations, stating:
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
…
In a prosecution for an offense based upon an unlawful homicide, attempted homicide, or assault with intent to commit a homicide or in any civil action, a statement made by a declarant, while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death.
– As noted, this differs from the common-law rule regarding Dying Declarations in that it applies to crimes other than homicide and requires “unavailability” rather than death
– A 2-year gap between giving a dying declaration and actually dying does not “disqualify or compromise the admissibility of the Dying Declaration in any way”
– Admissibility depends “entirely on the state of mind of the declarant at the moment he made the declaration.” If the Dying Declaration was inadequate when made, nothing in the ensuing two years can cure that inadequacy. If it was adequate when made, nothing in the ensuing two years will diminish that adequacy.
– In Crawford v. Washington, J. Scalia dropped a footnote explaining that the existence of a Dying Declaration exception to criminal hearsay law “cannot be disputed,” but “[w]e need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.”
– A Dying Declaration can be exculpatory as well as inculpatory
– No reliability analysis is required. Additional circumstances may be considered at trial, but they go to weight and not to threshold admissibility.
Notes from the CoSA on identification:
– If a photo array is not found to be impermissibly suggestive, there is no need to examine the reliability factors
Other notes from the case:
– Should caselaw be needed… we now hold that blinking is a legally acceptable mode of communication.