State v. White ( 1983 )

PHILLIPS, Judge.

Three of defendant’s assignments of error, the only ones requiring discussion, relate to receiving the officer’s testimony that the decedent told him he was dying and the defendant shot him. She contends that Sawyer’s statement was inadmissible hearsay, rather than a qualified dying declaration, in that Sawyer was not then in any real danger of dying and no doctor or medical attendant had told him that he was. The record certainly supports the defendant’s contention that at the time Sawyer’s statement was made the doctors who had examined and treated him believed that he would recover and was in no imminent danger of dying. Their belief was admittedly contingent, however, since they knew the bullet had entered one side of his body, lodged near the other side, and in the process had passed through “a very important area of the body,” but did not then know whether any important structures or vessels had been damaged; and because of the unknown conditions, the doctors put him under the constant observation and care of nurses trained to detect internal injury from trauma. Nevertheless, their opinion, such as it was, was that the wound was not fatal and Sawyer would recover.

Though the opinions of the doctors that decedent was in no danger of dying when the statements were made are relevant to the question before us, they are not conclusive. The mental state that is decisive in determining whether an out-of-court statement qualifies as a dying declaration, of course, is that of the declarant, not his doctor. Before permitting the officer to testify as to Sawyer’s statement, the judge conducted a thorough voir dire out of the jury’s presence and made extensive findings of fact, the most pertinent of which, for the purposes of this appeal, was that: “. . . at the time the deceased made those statements or declaration, to Sheriff Hamilton the deceased in his own mind was conscious of approaching death and believed at the time that he was dying.” Whether decedent’s hearsay statement qualifies as a dying declaration is a decision for the trial judge in the first instance; a finding that such a statement was a dying declaration and thus admissible into evidence as an exception to the rule against hearsay, if supported by evidence, will not be disturbed on appeal. State v. Stevens, 295 N.C. 21, 243 S.E. 2d 771 (1978).

That the decedent said he was dying is certainly some proof he believed he was. State v. Hamlette, 302 N.C. 490, 276 S.E. 2d 338 (1981). Had he just said it once would have sufficed, but according to the officer and the judge’s findings, he said it several times, even after the officer told him the doctors were taking care of him. Nor were his words unsupported; a bullet had been propelled diagonally through vital parts of his body, and that he was in considerable danger of dying was self-evident, the optimism of the doctors notwithstanding; and being conscious, he knew the immediate reactions of his body and mind to his injury as no one else then did or could. That he chose to make his own assessment of his injury is understandable; that his belief was neither founded upon nor corroborated by professional knowledge and experience does not render it inoperative. State v. Layton, 204 N.C. 704, 169 S.E. 650 (1933). What renders a dying declaration worthy of belief is not that the conviction of impending death was scientifically arrived at, but that it was sincerely and steadfastly held. Having found that Sawyer, indeed, believed that he was dying when the statements were made, and that he died a few days later, the trial judge properly admitted the statements into evidence. State v. Stevens, supra.

Defendant’s other assignments of error have been carefully considered, and in our opinion her trial was without prejudicial error.

No error.

Judges Wells and Johnson concur.