Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)
Vacated December 28, 1992
Before Rogers, Chief Judge, Farrell, Associate Judge, and Pryor, Senior Judge. Opinion for the court by Senior Judge Pryor. Concurring opinion by Associate Judge Farrell.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge: Appellant Stephon Jenkins ("Jenkins") was convicted of first-degree murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1989 & 1992 Supp.). On appeal, Jenkins contends: (1) that the decedent's statements to a police officer were improperly admitted at trial under the dying declaration exception to the hearsay rule of evidence, and (2) that the trial court denied him a meaningful opportunity to explore the bias of government witness Gary Murphy on cross-examination. For the following reasons, we affirm.
On the night of May 25, 1990, Metropolitan Police Department Detective Louis Perez was driving a police cruiser in the vicinity of Ninth and L Streets, Northwest. While stopped at a traffic light, he observed a man staggering about and bleeding profusely. After calling for an ambulance, Detective Perez approached the man, who had collapsed on the sidewalk. When asked what happened to him, the bleeding man replied, "Stephon stabbed me." In response to further questioning, he told the detective he was in great pain and that Stephon had taken his beeper and wallet. Finally, before lapsing into convulsions and losing consciousness, he identified himself as Anthony Lowery and gave his address. He later died without ever regaining consciousness. At trial, the government effectively rebutted appellant's alibi defense.
Appellant maintains that the trial court erred by improperly admitting hearsay testimony that Mr. Lowery identified appellant as the man who stabbed him. The trial court denied Jenkins' in limine motion, and admitted the decedent's statement to Detective Perez as a dying declaration.
"To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death." Shepard v. United States, 290 U.S. 96, 99, 54 S.Ct. 22, 78 L.Ed. 196 (1933), which may be perceived "from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive; as well as his conduct at the time. . . ." Mattox v. United States, 146 U.S. 140, 151, 36 L.Ed. 917, 13 S.Ct. 50 (1892). Accord Lyons v. United States, 606 A.2d 1354 (D.C. 1992); McFadden v. United States, 395 A.2d 14, 16 (D.C. 1978). Appellant argues, citing Shepard, supra, 290 U.S. at 100, that Mr. Lowery lacked a "settled hopeless expectation" that his death was imminent when he spoke the fatal words implicating Stephon Jenkins, failing to speak "in the hush of [death's] impending presence."
At the threshold, it must be noted that we accord a trial Judge's decision great deference on the "preliminary fact question of consciousness of impending death" where "reasonably supported by the evidence," Butler v. United States, No. 89-1149, slip op. at 23 (D.C. July 21, 1992) (quoting E. CLEARY, MCCORMICK ON EVIDENCE § 282 at 830, § 53 at 135 n.4 (3d ed. 1984)). Here, this deference is warranted. The circumstances weighed by the trial court included evidence showing that Mr. Lowery had been stabbed ten times with a double-edged knife, penetrating both lungs, spleen, stomach, arms and back. In addition, he was bleeding profusely and staggering before he ultimately collapsed on the pavement. When coupled with Detective Perez's testimony that the decedent repeatedly emphasized that he was in pain, the trial court's Conclusion that Mr. Lowery spoke with a sense of impending death is reasonably supported by the evidence. Considering that "there is no unyielding ritual of words to be spoken by the dying," Shepard, supra, 290 U.S. at 100, and that a "despair of recovery may indeed be gathered from the circumstances if the facts support the inference," id., those statements identifying the appellant were not erroneously admitted.
Curtailment of Bias Testimony
At trial, the government presented the testimony of an eyewitness, Gary Murphy. On the evening of May 25, 1990, Mr. Murphy was working at Mack's Amoco station in the 800 block of M Street. According to testimony, Mr. Lowery, an acquaintance of Mr. Murphy, came to the station to buy chips and soda and to ask for change for the telephone. Murphy and Lowery talked for a few minutes, until Mr. Lowery went to use a nearby telephone. As Mr. Lowery was using the telephone, a car drove up. Appellant Jenkins, seated in the rear passenger seat, got out of the car and approached Lowery. Murphy overheard Jenkins ask Lowery for money that Lowery apparently owed Jenkins. Murphy then observed Jenkins put his left arm around Lowery's neck while the two walked a short distance ...