The trial court did not abuse its discretion in admitting the victim's statement identifying appellant as his assailant under the dying declaration exception to the hearsay rule where the victim was shot in the chest and stabbed in the neck, was struggling to breathe, and lost consciousness and died less than an hour after making the statement.
Admitting a victim's statement as a dying declaration does not violate appellant's Sixth Amendment right to confrontation within the meaning of Crawford v. Washington, 541 U.S. 36 (2004),because an exception for dying declarations existed at common law and was not repudiated by the Sixth Amendment.
Where the trial judge communicated with the jury during jury deliberations but the record is not clear and there is some doubt about whether the communications concerned something other than housekeeping matters, we remand to the trial court to make a record of communications between the judge and jury so that we may determine whether the appellant's right to be present at all stages of the trial was violated.
The opinion of the court was delivered by: Meyer, Justice.
Affirmed in part and remanded.
Heard, considered, and decided by the court en banc.
Lennell Maurice Martin appeals his conviction of premeditated first-degree murder, first-degree murder while committing a burglary, second-degree assault, and two counts of kidnapping. Martin's counsel raised two issues in this appeal: whether a statement made by the victim after he was shot was inadmissible under Crawford v. Washington, 541 U.S. 36 (2004), or under Minn. R. Evid. 804(b)(2) or 803(2), and whether the trial court's communications with the jury outside Martin's presence and without his personal waiver constituted reversible error. Martin raised eight other claims in a pro se supplemental brief. We affirm in part and remand for further proceedings.
Early in the morning of November 3, 2002, Precious Franklin got out of bed to check on the welfare of her 3-year-old son, R.E. She noticed a light on in the kitchen of her apartment. When she approached the kitchen to turn off the light, she saw two men, one armed with a gun and one with a long knife, aiming their weapons in her direction. Franklin later identified these men through photo lineups as Lennell Martin and Jeffery Young.
Franklin screamed and ran to her bedroom to wake up Curtis Anthony, her boyfriend. The men followed her, still aiming their weapons. Franklin's son, R.E., came in, calling for his mother, and joined Anthony and Franklin on the bed. When Anthony and Franklin pleaded with Martin and Young not to hurt R.E., Martin escorted Franklin and R.E. into the bathroom and shut them in.
Franklin heard Martin and Young interrogating Anthony and heard Anthony making noises as if in pain. After several minutes, Franklin heard a knock at the apartment door, then a gunshot, and the sound of people running from her apartment. Franklin then heard Anthony call her name, prompting her to leave the bathroom. Anthony was in the bedroom doorway, holding his chest. He gasped, "Call the police. Jeff and Lenair." He was bleeding profusely and appeared to be in great pain.
Franklin tried to use her cell phone to dial 911, but failed to make a connection. She ran to Kevin Tivis's apartment for help and learned that Tivis had already dialed 911. Tivis was already awake because he had heard Franklin's scream, and when he got out of bed to look around he saw a car parked in front of the building, which he later identified as a green Cadillac. It was Tivis who had knocked at Franklin's apartment door when Franklin was shut in the bathroom.
Franklin and Tivis returned to Franklin's apartment, where Tivis saw Anthony struggling to stand, and trying but failing to speak. When the police arrived, Anthony struggled with them. At one point he spit out blood and said, "I'm choking." Within a short time, Anthony lost consciousness and stopped breathing. He was pronounced dead an hour after arriving at the hospital.
Monica Green, Anthony's sister, called Franklin from the hospital and asked her what had happened. Franklin told her and mentioned that Anthony had said two names, "Jeff and Lenair." Green asked if Franklin meant "Jeff and Lennell," and Franklin responded, "Yes. That's it." Green told the police ...