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LINCOLN BERRY v. STATE OF MISSISSIPPI12/17/1992
d shotgun waddings three feet in front of the trailer's front door. Deputy Smith went to Lincoln Berry's home and arrested him for aggravated assault. Deputy Smith searched Lincoln Berry's house and car. No weapon was ever found.
Dr. John Griswold treated Kelly Berry when he first arrived at University Hospital and throughout Kelly Berry's care at the hospital. Dr. Griswold testified that Kelly Berry was intoxicated and unresponsive upon arrival with a blood alcohol level of .30. Kelly Berry's injuries consisted of a severed artery in his right arm, muscle and nerve damage in his right arm, elbow bone damage in his right arm, significant injuries in the abdominal cavity where most of the shotgun pellets had entered involving virtually every organ, and chest injuries involving mostly the skin and ribs. Dr. Griswold stated that more than 20 shotgun pellets had struck Kelly Berry. Kelly Berry remained in shock throughout his hospital stay. Kelly Berry never regained consciousness. He died on March 20, 1989, from the gunshot wounds. Lincoln Berry was charged with murder.
At trial, Lincoln Berry testified on his own behalf. Lincoln Berry claimed that he had gone to Bright's trailer on March 3, 1989, and that Kelly Berry had jumped on him. Lincoln Berry gave testimony that the two men had fought. According to Lincoln Berry, he left Bright's property and never returned. Lincoln Berry denied shooting Kelly Berry.
II.
THE LOWER COURT DID NOT ERR BY ADMITTING STATEMENTS ALLEGEDLY MADE BY KELLY BERRY PRIOR TO HIS DEATH.
Lincoln Berry contends that James Berry's testimony relating a statement allegedly made by Kelly Berry on the way to the hospital incriminating Lincoln Berry was inadmissible as hearsay and such admission constitutes reversible error. The State argues that the testimony was admissible under the present sense impression exception to the hearsay prohibition pursuant to Miss. R. Evid. 803. This Court finds that the testimony was also admissible under Rule 804(b)(2) and that 804(b)(2) is the rule
most applicable in the present case.
Rule 803 provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Further, Miss. R. Evid. 804(b) provides:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) . . .
(2) Statement Under Belief of Impending Death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
The State argues that an analysis under Rule 804(b) and whether Kelly Berry believed that his death was forthcoming is not necessary because the statement is admissible under Rule 803. The State relies on Evans v. State, 547 So.2d 38 (Miss. 1989). In Evans, Johnny Lee Evans was convicted of raping a Catholic nun, Sister M. Sister M.'s roommate, Lourdes Esculano, testified on behalf of the State that Sister M. had related to Esculano the incident of the rape by Evans when she returned home. This Court held that Esculano's testimony was admissible as an exception
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