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LINCOLN BERRY v. STATE OF MISSISSIPPI12/17/1992
to the hearsay rule under 803(1) and (2) of the Miss. Rules of Evidence. The statement was a present sense impression or an excited utterance because Sister M. complained
at the very first opportunity and to the first person she saw after the assault. This Court, citing Harris v. State, 394 So. 2d 96, 98 (Miss. 1981), found that the statement qualified as an exception because it was spontaneous.
Kelly Berry's statements qualify as present sense impression or an excited utterance because the statement was made at Kelly Berry's first known opportunity to the first person he saw after the shooting. Kelly Berry made the statement at his first and only known time of consciousness to the first and only person he saw, James Berry. There is nothing in the record to suggest that the statement was not spontaneous.
If the statement made by Kelly Berry to James Berry was not admissible under Rule 803 (which it is) as the State asserts, the testimony is admissible under Rule 804(b)(2). While the testimony can be interpreted as admissible under Rule 803, Rule 803 is not the most accurate avenue for admission of the testimony. Rule 803 is intended for use as tool to admit hearsay statements regardless of whether the declarant is available as a witness. Rule 803(1) and (2) anticipates statements made contemporaneous with the occurrence of an event rendering it unlikely that the declarant made a deliberate or conscious misrepresentation. Rule 803, while applicable when construed by its terms, was not designed for an event exactly like the one at bar. Rule 804(b)(2), on the other hand, anticipates a situation identical to the situation presently at bar and is the better choice for application in this cause. Rule 804(b)(2) allows for the dying words of a decedent victim in a homicide case to be used at trial.
The test for admission under Rule 804(b)(2) is a determination of whether the decedent declarant believed that death was imminent. Ellis v. State, 558 So.2d 826 (Miss. 1990). In Ellis, the victim, before dying, identified his assailant to a police officer. This Court affirmed the admissibility of the police officer's testimony under Rule 804(b)(2). Justice Robertson, for the Court, explained:
Arguably of Shakespearian origin, the dying declaration exception found its traditional justification in the once near universal view that no man would meet his maker with a lie on his lips. We live in more secular times, still the dying declaration is regarded" a firmly rooted hearsay exception. "
Today admissibility of dying declarations is justified on grounds of trustworthiness and necessity, although the latter principle remains the subject of some controversy, for need may hardly justify the use of otherwise unreliable evidence. The trustworthiness ground appears sounder. There remains a broad social consensus that dying declarations are generally reliable." Since the statement concerns the immediate happening, the danger of fabrication, conscious and unconscious, is lessened. "Weinstein's Evidence, 804(b)(2) , p. 804-115 (Weinstein and Berger, Ed. 1988). Admitting dying declarations fits with the general philosophy or modern rules of evidence that courts should receive the sorts and forms of information reasonably prudent people commonly rely upon in making the important decisions of their lives.
Id. at 829. (case citations omitted) (footnotes omitted).
Justice Robertson discussed the test of admissibility, a determination of whether the declarant believed that death was imminent. This Court reiterated its previous holding that belief in imminent death may be" shown circumstantially by the apparent fatal quality "or the woun
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