Issue 3: Did the trial court violate Mitchell’s by admitting the transcript? Holding 3: No. The use of testimony from the first trial Bootsie’s is consistent with the Confrontation Clause Statement Under Belief of Impending Death Foundation The foundation testimony offered by someone who was present and heard the dying statements must establish: person’s The dying person indicated that he know, or the circumstances were such that he should have realized that he was dying and The statement related to the cause or circumstances of his death Once the foundation is established, the witness may then repeat the statement (dying declaration) (Miss. 1990) Ellis v. State Facts: Lester Lee Ellis shot and killed his 76 year old great uncle, Alex Edgerston. Officer Billy Burns testified that Edgerston named Ellis as his assailant and explained that Ellis shot him during an attempted robbery. Trial court allowed the testimony under Rule 803(2) - excited utterance and Rule 804(b)(2) - dying declaration. Ellis was convicted of murder and appeals, urging that the trial court erred by admitting dying declaration. Edgerston’s Holding: Affirmed. Although there was nothing the record which directly established consciousness of his impending Edgerston’s death, the circumstances are overwhelming that he should have regarded his would as mortal. Court noted the testimony doctor’s of the bullet wound to heart. A normal person would Edgerston’s have died in a minute or two, but Edgerston lived 5 to 6 more hours because he had a great deal of scar tissue around his heart. Notes: Rule 804(b)(2) is only admissible in a HOMICIDE prosecution, OR in a CIVIL ACTION Statement Against Interest Foundation Testimony The declarant had of the subject matter of the personal knowledge statement The declarant that the statement was knew, or should have known, contrary to his proprietary or pecuniary interest, or tended to subject him to civil or criminal liability A in the position would not have reasonable person declarant’s made the statement unless believing it to be true The declarant is unavailable at trial (Miss. 1987) - Statement against monetary interest Hooker v. State
Issue 3: Did the trial court violate Mitchell’s by admitting the transcript? Holding 3: No. The use of Bootsie’s testimony from the first trial is consistent with the Confrontation Clause Statement Under Belief of Impending Death Foundation The foundation testimony offered by someone who was present and heard the dying person’s statements must establish: The dying person indicated that he know, or the circumstances were such that he should have realized that he was dying and The statement related to the cause or circumstances of his death Once the foundation is established, the witness may then repeat the statement (dying declaration) Ellis v. State (Miss. 1990) Facts: Lester Lee Ellis shot and killed his 76 year old great uncle, Alex Edgerston. Officer Billy Burns testified that Edgerston named Ellis as his assailant and explained that Ellis shot him during an attempted robbery. Trial court allowed the testimony under Rule 803(2) - excited utterance and Rule 804(b)(2) - dying declaration. Ellis was convicted of murder and appeals, urging that the trial court erred by admitting Edgerston’s dying declaration. Holding: Affirmed. Although there was nothing the record which directly established Edgerston’s consciousness of his impending death, the circumstances are overwhelming that he should have regarded his would as mortal. Court noted the doctor’s testimony of the bullet wound to Edgerston’s heart. A normal person would have died in a minute or two, but Edgerston lived 5 to 6 more hours because he had a great deal of scar tissue around his heart. Notes: Rule 804(b)(2) is only admissible in a HOMICIDE prosecution, OR in a CIVIL ACTION Statement Against Interest Foundation Testimony The declarant had personal knowledge of the subject matter of the statement The declarant knew, or should have known, that the statement was contrary to his proprietary or pecuniary interest, or tended to subject him to civil or criminal liability A reasonable person in the declarant’s position would not have made the statement unless believing it to be true The declarant is unavailable at trial Hooker v. State (Miss. 1987) - Statement against monetary interest
Evidence-Williams-MS.docx