Hewitt v. State

¶1with whom RABI-NOWITZ, Chief Justice, joins concurring.

¶2While I agree that this case should be reversed and remanded for new trial, I do *12not agree with the reasoning expressed by the majority. In my view, the fatal defect in the proceedings in the trial court was the exclusion of the testimony of Rev. Jos-ey, which was inconsistent with the dying declaration.1 The dying declaration is a testimonial statement which can be impeached by prior or subsequent inconsistent statements.2 Since the primary testimony against appellant was the dying declaration, it was error to permit it to go to the jury without the impeaching testimony of Rev. Josey, which would have affected the weight to be accorded such a statement by the jurors.

¶3While I do not disagree with the majority statement of law concerning dying declarations, I feel there are sufficient facts for the trial court to determine that Hicks was “laboring under a sense of impending death” 3 and thus could give a valid dying declaration. Rarely is medical testimony absolute on the issue of pending death. Further, there is a natural constraint present in such situations which causes hesitancy in stating to the victim that there is no chance of recovery for fear of destroying whatever fragile hope of survival the will to live might provide.

¶4Dr. Hein explained to Hicks his physical condition and his chances for survival. Dr. Hein indicated that he was satisfied in his own mind that Hicks understood his own condition. He further testified that Hicks was told that death was the most likely possibility of the shooting even after surgery, but that he never told anyone except terminal cancer patients that there was no hope at all for recovery. I find the statements though somewhat equivocal are sufficient for the trial court to conclude that Hicks was laboring under a sense of impending death.4