Hailes v. State

WATTS, J. We decide: (I) whether the State may appeal from a trial court’s exclusion of intangible evidence based on a determination that the evidence’s admission would be a constitutional violation; if so, (II) whether, here, a declarant made a dying declaration two years before dying; and, if so, (III) whether the Confrontation Clause of the Sixth Amendment to the United States Constitution is applicable to dying declarations. We hold that: (I) the State may appeal from a trial court’s exclusion of intangible evidence based on a determination that ⁴⁹³ the evidence’s admission would be a constitutional violation; (II) here, a declarant made a dying declaration two years before dying; and (III) the Confrontation Clause is not applicable to dying declarations. BACKGROUND In the Circuit Court for Prince George’s County (“the circuit court”), the State, Respondent, charged Jermaine Hailes (“Hailes”), Petitioner, with first-degree murder and other crimes. Hailes moved to suppress a pretrial identification on the grounds that the identification was, among other things: (1) hearsay; and (2) testimonial and inadmissible under the Confrontation Clause.

The circuit court conducted a hearing on the motion to suppress and issued an opinion in which the circuit court found the following facts, which we summarize. On November 22, 2010, Melvin Pate (“Pate”) was shot once in the right side of his face. The bullet entered Pate’s neck and severed C5, the neck’s fifth cervical bone. Pate lost the ability to speak and became quadriplegic (i.e., Pate lost the use of all of his extremities).

Pate was taken to Prince George’s Hospital Center. On November 24, 2010, Pate was transferred to the Shock Trauma Center at the University of Maryland Medical Center (“Shock Trauma”). Immediately after Pate arrived at Shock Trauma, doctors told Pate that he had twenty-four hours to live, and Pate’s eyes welled up with tears. On November 26, 2010, two detectives of the Prince George’s County Police Department showed Pate a photographic array that included a photograph of Hailes.

By blinking (“blink hard” if he recognized the person who shot him) in response to the detectives’ questions, Pate identified Hailes as the shooter. 1 At that time, Pate was restrained to a hospital bed; was on medical life-support equipment, including ⁴⁹⁴ a ventilator; had several tubes in his body; and, by all indications, believed that his death was imminent. Pate did not die soon afterward, however. In 2011, Pate was released from Shock Trauma. In November 2012, Pate died as a consequence of complications caused by the gunshot wound.

The circuit court granted the motion to suppress, determining that Pate’s identification of Hailes fell under the “dying declaration” exception to the rule against hearsay, but was testimonial and inadmissible under the Confrontation Clause. The State appealed, and the Court of Special Appeals reversed and remanded for trial, holding that: (I) the State could appeal from the circuit court’s grant of the motion to suppress Pate’s identification of Hailes; (II) Pate made a dying declaration; and (III) the Confrontation Clause does not apply to dying declarations. See State v. Hailes, 217 Md.App. 212, 271, 225, 236, 251-52 , 92 A.3d 544, 578, 552, 558, 567 (2014). Hailes filed a petition for a writ of certiorari, which this Court granted.

See Hailes v. State, 440 Md. 114 , 99 A.3d 778 (2014). DISCUSSION I. Md.Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl.Vol., 2014 Supp.) (“CJP”) § 12-302(c)(4)(i) 2 provides in pertinent part: [T]he 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.

(Emphasis added). Hailes contends that the State’s appeal from the circuit court’s grant of the motion to suppress is not authorized by CJP § 12-302(c)(4)(i). Specifically, Hailes argues that, because CJP § 12 — 302(c)(4)(i) uses the word “seized,” CJP § 12- ⁴⁹⁵ 302(c)(4)(i) authorizes the State to appeal only from a trial court’s exclusion of tangible evidence; thus, here, CJP § 12-302(c)(4)® does not authorize the State to appeal from the circuit court’s exclusion of Pate’s identification of Hailes because it is not tangible evidence capable of being seized. Alternatively, Hailes asserts that, because CJP § 12-302(c)(4)® uses the past-tense phrase “to have been seized in violation of the Constitution of the United States, the Maryland Constitution, or the Maryland Declaration of Rights,” CJP § 12-302(c)(4)(i) authorizes the State to appeal only from a trial court’s exclusion of evidence based on an existing alleged constitutional 3 violation — as opposed to an exclusion of evidence based on a determination that the evidence’s admission itself would be a constitutional violation; thus, here, CJP § 12-302(c)(4)(i) does not authorize the State to appeal from the circuit court’s exclusion of Pate’s identification of Hailes because the detectives did not violate any constitutional provision in obtaining the identification.

The State responds that it can appeal from the circuit court’s grant of the motion to suppress because the General Assembly did not intend for the State to be able to appeal from a trial court’s exclusion of evidence only where the evidence is tangible and/or where the exclusion is based on an existing alleged constitutional violation. “In interpreting a statute, a court first considers the statute’s language, which the court applies where the statute’s language is unambiguous and clearly consistent with the statute’s apparent purpose.” McCree v. State, 441 Md. 4, 9 , 105 A.3d 456, 459 (2014) (brackets, citation, and internal quotation marks omitted). Where the statute’s language is ambiguous or not clearly consistent with the statute’s apparent purpose, the court “search[es] for [the General Assembly’s] intent in other indicia, including the history of the [statute] or other relevant sources intrinsic and extrinsic to the legislative pro ⁴⁹⁶ cess[,]” in light of: (1) “the structure of the statute”; (2) “how [the statute] relates to other laws”; (3) the statute’s “general purpose”; and (4) “the relative rationality and legal effect of various competing constructions.” Gardner v. State, 420 Md. 1, 9 , 20 A.3d 801, 806 (2011) (citation omitted). In Derry v. State, 358 Md. 325, 345 , 748 A.2d 478, 488 (2000), this Court held that the State cannot appeal from a trial court’s exclusion of evidence based only on an alleged violation of a statute — as opposed to an alleged violation of a constitution. This Court stated that, as used in what is now CJP § 12-302(e)(4)(i), the phrase “alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights” modifies both “evidence offered by the State” and “property.” See id. at 338-39, 748 A.2d at 485 .

Here, first, we conclude that CJP § 12-302(e)(4)(i)’s language is ambiguous in that the word “seized” renders unclear whether CJP § 12-302(c)(4)(i) authorizes the State to appeal only from a trial court’s grant of a motion to suppress tangible evidence, as opposed to pretrial identifications and other intangible evidence. CJP § 12-302(c)(4)(i)’s legislative history, however, conclusively establishes that the General Assembly did not intend for CJP § 12-302(c)(4)(i) to authorize the State to appeal only from a trial court’s grant of a motion to suppress tangible evidence. In 1982, the General Assembly passed Senate Bill 39, which added to CJP § 12-302 a provision whose relevant language is identical to the relevant language of what is now CJP § 12-302(c)(4)(i). See 1982 Md. Laws 3107 (Ch. 493, S.B. 39).

Senate Bill 39’s file includes a document entitled “S.B. 39 — Criminal Cases — State’s Right to Appeal,” which states in pertinent part: “[Senate B]ill [39] is aimed at those cases in which the Judge excludes a defendant’s confession, physical evidence (such as drugs), or any evidence which is at the heart of the State’s case.” (Emphasis added). 4 Senate Bill 39 is identical to Senate Bill 196 ⁴⁹⁷ (Md.1981), whose file contains the following note on the hearing before the Senate Judicial Proceedings Committee: “The type of evidence which is involved includes physical evidence obtained by search and seizure, confessions or admissions, and identifications of the defendant.” (Emphasis added). Thus, CJP § 12-302(c)(4)(i)’s legislative history makes clear that the General Assembly intended for CJP § 12-302(c)(4)(i) to apply to both tangible evidence and intangible evidence alike. Next, we conclude that CJP § 12-802(e)(4)(i)’s language is ambiguous in that the past-tense phrase “to have been seized in violation of’ a constitution renders unclear whether CJP § 12-302(c)(4)(i) authorizes the State to appeal only from a trial court’s exclusion of evidence based on an existing alleged constitutional violation — as opposed to an exclusion of evidence based on a determination that the evidence’s admission itself would be a constitutional violation. CJP § 12-302(c)(4)(i)’s legislative history, however, conclusively establishes that the General Assembly did not intend for CJP § 12-302(c)(4)(i) to authorize the State to appeal only from a trial court’s exclusion of evidence based on an existing alleged constitutional violation.

As discussed above, CJP § 12-802(c)(4)(i)’s legislative history indicates that the General Assembly intended for CJP § 12-302(c)(4)(i) to broadly apply to various kinds of evidence, from tangible evidence (such as drugs) to intangible evidence (such as pretrial identifications). It follows that the General Assembly intended for CJP § 12-302(c)(4)(i) to broadly apply to exclusions based on various constitutional grounds, from existing alleged constitutional violations — as with seizures that were allegedly unreasonable under the Fourth Amendment — to determinations that that the evidence’s admission itself would be a constitutional violation — as with pretrial identifications that, if admitted, would allegedly violate the Confrontation Clause. For CJP § 12-302(c)(4)(i)’s purposes, it is a distinction without a difference ⁴⁹⁸ whether the constitutional violation is the obtaining of the evidence before trial or the admission of the evidence at trial; it would be absurd for CJP § 12-302(c)(4)(i) to apply to one situation, but not to the other. Thus, we are unpersuaded by Hailes’s reliance on Rush v. State, 403 Md. 68, 98 , 939 A.2d 689, 706 (2008) (“[W]e have narrowly construed any grant of appellate authority.”).

Although, generally, a court narrowly construes a statute that allows a party to appeal, the Court cannot construe such a statute so narrowly as to produce absurd results. See Gardner, 420 Md. at 9 , 20 A.3d at 806 (A “statute must be given a reasonable interpretation, not one that is absurd, illogical[,] or incompatible with common sense.” (Citation omitted)). For the above reasons, under CJP § 12-302(c)(4)(i), the State may appeal from a trial court’s exclusion of intangible evidence based on a determination that the evidence’s admission would be a constitutional violation. Thus, here, the State may appeal from the circuit court’s grant of the motion to suppress Pate’s identification of Hailes based on a determination that admission of the same would violate the Confrontation Clause.

II

Hailes contends that the circuit court was incorrect in determining that Pate’s identification of him was a dying declaration. Specifically, Hailes argues that the circuit court clearly erred in finding that Pate believed that his death was imminent when he identified Hailes, as Pate did so four days after being shot, two days after being told that he had twenty-four hours to live, and two years before dying. Hailes asserts that, by the time that Pate identified him, Pate’s condition had stabilized. The State responds that the circuit court was correct in determining that Pate’s identification of Hailes was a dying declaration because the circuit court did not clearly err in finding that Pate believed that his death was imminent when he identified Hailes, given the severity of Pate’s injuries ⁴⁹⁹ and his apparent appreciation of a doctor’s prognosis that he had only a short time to live.

In reviewing a trial court’s ruling on a motion to suppress, an appellate court reviews for clear error the trial court’s findings of fact, and reviews without deference the trial court’s application of the law to its findings of fact. See Raynor v. State, 440 Md. 71, 81 , 99 A.3d 753, 758 (2014). The appellate court views the trial court’s findings of fact, “the evidence!,] and [the] inferences that may be drawn therefrom in the light most favorable to the party who prevails on the” issue that the defendant raises in the motion to suppress. Id. at 81 , 99 A.3d at 758 (citation and internal quotation marks omitted). 5 In reviewing a trial court’s ruling on whether evidence falls under an exception to the rule against hearsay, an appellate court reviews for clear error the trial court’s findings of fact, and reviews without deference the trial court’s application of the law to its findings of fact.

See Gordon v. State, 431 Md. 527, 538 , 66 A.3d 647, 653 (2013). 6 ⁵⁰⁰ Maryland Rule 5-802, also known as the rule against hearsay, states: “Except as otherwise provided by [the Maryland R]ules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” “In a prosecution for an offense based upon an unlawful homicide,” Maryland Rule 5-804(b)(2) excepts from the rule against hearsay an unavailable declarant’s dying declaration, which is “a statement made by [the] 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.” For example, in Connor v. State, 225 Md. 543, 554, 551 , 171 A.2d 699, 705, 703 (1961), this Court held that a statement was a dying declaration where the declarant “entreat[ed] that someone take care of [her] baby [and] called for a priest before making the” statement. Similarly, in Meno v. State, 117 Md. 435, 437 , 83 A. 759, 760 (1912), this Court held that a statement was a dying declaration where a doctor told the declarant of her “impending death,” and the declarant nodded in response to the question “Do you realize that you are going to die?” Likewise, in Worthington v. State, 92 Md. 222, 242, 241 , 48 A. 355, 358 (1901), this Court held that a statement was a dying declaration where the declarant “constantly declared she expected to die” and “beg[ed her physician] to save her[,] as she was dying.” Under extremely similar circumstances, in Hawkins v. State, 98 Md. 355, 358-59 , 57 A. 27, 28 (1904), this Court held that a statement was a dying declaration where the declarant “constantly said [that] she ‘knew [that] she was dying,’ and the [declarant’s] mother testified that ‘she could see death in [the declarant’s] eyes.’ ” This Court concluded that these two facts outweighed the circumstance that, earlier, the declarant stated, “[i]f you don’t send for the doctor, I will die[,]” which “implie[d] a hope of recovery, however faint”; a statement is not a dying declaration ⁵⁰¹ where the declarant has “[a]ny expressed or clearly visible hope of recovery!.]” Id. at 358 , 57 A. at 28 . By contrast, in Hays v. State, 40 Md. 633, 652, 646 (1874), this Court agreed with the State’s contention that a statement was not a dying declaration where “there [wa]s no evidence that [the declarant] expected to die[.]” Here, viewing the circuit court’s findings of fact, the evidence, and the inferences that may be drawn therefrom in the light most favorable to the State, we conclude that the circuit court was correct in determining that Pate’s identification of Hailes was a dying declaration, and that the circuit court did not clearly err in finding that Pate believed that his death was imminent when he identified Hailes. It is undisputed that, as the circuit court found, Pate was shot in the right side of his face; that the bullet entered Pate’s neck and severed the fifth cervical bone; and that Pate lost the ability to speak and became quadriplegic.

Two days after the shooting, Pate was transferred to Shock Trauma. Pate’s mother testified that, on that day, a doctor told her and Pate “that he wouldn’t make it” and that “[i]t would be very rare if [Pate] made it past [twenty-four] hours because [the doctor] never had a case that survived from this.” According to Pate’s mother, immediately after the doctor announced this prognosis, “[t]ears came out of [Pate’s] eyes.” Pate’s mother’s testimony supports the circuit court’s finding that, immediately after Pate arrived at Shock Trauma, doctors told Pate that he had twenty-four hours to live, and Pate’s eyes welled up with tears. Pate’s contemporaneous crying tends to prove that he both heard and believed the doctor’s prognosis that his death was imminent. Pate’s crying also undermines Hailes’s allegation that Pate did not communicate that he believed that his death was imminent.

In any event, such direct evidence is unnecessary; circumstantial evidence can establish a declarant’s belief in imminent death. See Connor, 225 Md. at 551, 171 A.2d at 703-04 (“It is not necessary to prove expressions implying apprehension of death, if it is clear that the [declar ⁵⁰² ant] does not expect to survive the injury. This expectation may be indicated by the circumstances of [the declarant’s] condition[.]” (Citation and internal quotation mark omitted)). It is not conjecture to draw reasonable inferences from circumstantial evidence; thus, we are unpersuaded by Hailes’s reliance on Shepard v. United States, 290 U.S. 96, 100 , 54 S.Ct. 22 , 78 L.Ed. 196 (1933) (“[T]he state of mind must be exhibited in the evidence, and not left to conjecture.”).

It is accurate that Pate identified Hailes two days after the doctor’s prognosis that Pate’s death was imminent; however, the record establishes that Pate was faring just as badly as he had been two days before. As the circuit court found, when Pate identified Hailes, Pate still could not speak or move any of his extremities; could communicate only by blinking; was restrained to a hospital bed; was on medical life-support equipment, including a ventilator; and had several tubes in his body. A nurse from Shock Trauma testified that, when Pate identified Hailes, Pate was on a feeding tube for nutrition and medication, could not breathe on his own because of a collapsed lung, and had a “halo” 7 “screwed in.” 8 We are unconvinced by Hailes’s reliance on the circumstance that Pate died two years after he identified Hailes. Hailes relies on Mattox v. United States (“Mattox I”), 146 U.S. 140, 151 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892), in which the Supreme Court of the United States stated: “The length of time elapsing between the making of the [statement] and the death is ... to be considered[.]” (Citations omitted).

For ⁵⁰³ three reasons, the Supreme Court’s statement in Mattox I, 146 U.S. at 151 , 13 S.Ct. 50 does not compel us to conclude that the length of time between a statement and the declarant’s death is a determinative factor. First, the Supreme Court’s statement appears to be dicta, as, in Mattox I, id. at 152, 13 S.Ct. 50 a declarant died “a few hours” after making a statement. Thus, the Supreme Court’s observation was not intended to convey that a lengthy period of time between a statement and a declarant’s death may prevent the statement from being a dying declaration. Second, the Supreme Court’s statement is clarified by what the Supreme Court acknowledged immediately afterward: “[I]t is the impression of almost immediate dissolution, and not the rapid succession of death, ... that renders the” statement a dying declaration.

Mattox I, id. at 151, 13 S.Ct. 50 (citations and internal quotation marks omitted). Third, the Supreme Court’s statement is clarified even further by what the Supreme Court noted later in the same paragraph: “The point is to ascertain the state of the mind at the time the [statement was] made.” Id. at 152 , 13 S.Ct. 50 . Significantly, nothing in Maryland Rule 5 — 804(b)(2) or this Court’s precedent indicates that the length of time between a statement and the declarant’s death is to be considered in determining whether the statement is a dying declaration. Certainly, Maryland Rule 5-804(b)(2)’s plain language lacks such a requirement; Maryland Rule 5 — 804(b)(2) requires only that a declarant “believfed] that the declarant’s death was imminent[.]” 9 Although this Court has held that statements were dying declarations in cases in which declarants died less than a week after making the statements, see Connor, 225 Md. at 548, 171 A.2d at 702 (less than one day); Meno , 117 Md. at ⁵⁰⁴ 437, 83 A. at 760 (six days); Hawkins, 98 Md. at 356 , 57 A. at 27 (one day); Worthington, 92 Md. at 241 , 48 A. at 358 (two days), this Court never implied, much less stated, that the length of time between a statement and the declarant’s death is to be considered in determining whether the statement is a dying declaration.

To the contrary, in Worthington , this Court indicated that the length of time between a statement and the declarant’s death is not to be considered in determining whether the statement is a dying declaration. See id. at 242 , 48 A. at 358 (“A firm belief that death is impending ... is sufficient to render the statement [a dying declaration], though the [declarant] ... may chance to linger on for some days, or even two or three weeks.” (Citation and internal quotation marks omitted)). This Court’s statement in Worthington, id. at 242, 48 A. at 358 , accords with the circumstance that this Court has consistently focused on — whether the declarant’s belief in imminent death was genuine, not whether it was, in hindsight, accurate. See id. at 242, 241 , 48 A. at 358 (This Court held that a statement was a dying declaration where the declarant “constantly declared that she expected to die” and “beg[ed her physician] to save her[,] as she was dying.”); Connor, 225 Md. at 554, 551 , 171 A.2d at 705, 703 (This Court held that a statement was a dying declaration where the declarant “entreated] that someone take care of [her] baby [and] called for a priest before making the” statement.); Meno, 117 Md. at 437 , 83 A. at 760 (This Court held that a statement was a dying declaration where a doctor told the declarant of her “impending death,” and the declarant nodded in response to the question “Do you realize that you are going to die?”); Hawkins, 98 Md. at 358-59 , 57 A. at 28 (This Court held that a statement was a dying declaration where the declarant “constantly said [that] she ‘knew [that] she was dying,’ and the [declarant’s] mother testified that ‘she could see death in [the declarant’s] eyes.’ ”); Hays, 40 Md. at 652, 646 (This Court agreed with the State’s contention that a statement was not a dying declaration where “there [wa]s no evidence that [the declarant] expected to die[.]”).

In other words, this Court has ⁵⁰⁵ consistently focused on whether the declarant had “[a]ny expressed or clearly visible hope of recovery[,]” Hawkins, 98 Md. at 358 , 57 A. at 28 , not whether the declarant did, in fact, recover. This Court’s focus on the declarant’s mental state is bolstered — and, indeed, compelled — by the reason why dying declarations are excepted from the rule against hearsay. As the Supreme Court recognized in Mattox I , a dying declaration is considered reliable because a declarant who believes that his or her death is imminent ostensibly lacks any motive to lie. See 146 U.S. at 152 , 13 S.Ct. 50 (“[T]he certain expectation of almost immediate death will remove all temptation to falsehood and enforce as strict adherence to the truth as the obligation of an oath could impose.”); accord Connor, 225 Md. at 554 , 171 A.2d at 705 (Imminent death “creates an obligation as solemn as that of a positive oath to tell the truth[.]”).

Whether a declarant believed that his or her death was imminent when the declarant made a statement depends on what happened before, not after, the declarant made the statement. Obviously, no one can predict the future with absolute certainty; thus, a declarant can genuinely believe, but cannot know for certain, that his or her death is imminent when the declarant makes a