October 18, 2017

Colorado Court of Appeals: Dying Declaration Admissible Regardless of Whether Testimonial or Non-Testimonial

The Colorado Court of Appeals issued its opinion in People v. Cockrell on Thursday, October 5, 2017.

Dying Declarations Statute—Evidence—Confrontation Clause.

The victim was shot 11 times and was found by bystanders, who asked him questions. The victim answered their questions but did not provide the shooter’s name. On the way to the hospital, the victim identified Cockrell as the shooter to an officer who rode in the ambulance. The victim died soon thereafter during surgery. No DNA, fingerprint, or other forensic evidence tied Cockrell to the victim’s murder. The primary evidence against him was the victim’s dying declaration identifying Cockrell as the shooter and a bystander’s statement that he saw a car leaving the area around the same time the victim was found that matched the description of the car Cockrell drove. The trial court denied Cockrell’s motion to suppress the dying declaration and to find C.R.S. § 13-25-119 unconstitutional. Cockrell was found guilty of first degree murder and two crime of violence sentence enhancers.

On appeal, Cockrell contended that C.R.S. § 13-25-119, the dying declaration statute, is unconstitutional on its face because it violates the Confrontation Clause. Dying declarations are an exception to the hearsay rule because of their guarantee of trustworthiness, and precluding their admission would in many cases result in a failure of justice. The court of appeals held that dying declarations are an exception to the Confrontation Clause and the dying declaration statute is constitutional.

Cockrell also contended that the victim’s statement did not satisfy the statutory requirements for admission of dying declarations. The first statutory requirement was satisfied because the parties agreed that the victim believed he was going to die; he had 11 gunshot wounds and death was imminent, and he made statements indicating he feared he was going to die. As to the other three requirements, Cockrell argued that (1) the statements were not voluntary; (2) the statements were made in response to questions calculated to lead the deceased to make the particular statement; and (3) the victim was not of sound mind when he made the statements. However, the record supports the trial court’s finding that (1) the victim’s statements were voluntarily made; (2) the questions asked of the victim were designed to gather facts with no apparent pretense; and (3) although the victim was in a great deal of pain and had trouble breathing, he was conscious and alert and answered questions appropriately, and thus was of sound mind when he identified Cockrell as his shooter.

Lastly, Cockrell contended that there was insufficient evidence to support his first degree murder conviction. Based on the evidence presented, it was rational for the jury to have found Cockrell guilty as charged.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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