# State v. Kanem Williamson (083979) (Essex County & Statewide)

> Supreme Court of New Jersey · May 10, 2021

URL: https://www.frixlaw.com/law-library/cases/4685363

## Case

- **Court:** Supreme Court of New Jersey
- **Decided:** May 10, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4685363

## How later opinions describe it (automated extraction)

- stating that a dying victim’s words identifying who had stabbed him “were admissible as a dying declaration, N.J.R.E. 804(b)(2)”
- holding that statements accusing the defendant of starting a fire, made after the declarant awoke engulfed in flames, could not be admitted as dying declarations because they were made without personal knowledge that the defendant started fire

## Opinion text

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Kanem Williamson (A-65-19) (083979)

Argued January 19, 2021 -- Decided May 10, 2021

SOLOMON, J., writing for the Court.

In this appeal, the Court considers (1) whether the trial court abused its discretion
by admitting A.B.’s identification of defendant as a dying declaration; and (2) whether
the admission of A.B.’s identification violated defendant’s right to confrontation.

On a spring afternoon in 2014, emergency services personnel responded to a
shooting in front of a housing complex. Upon arrival, police found A.B. lying face down
in a pool of blood on the steps outside the complex. Paramedics administered CPR and
epinephrine to restart her heart, intubated A.B., and were able to revive her pulse. A.B.
arrived at the hospital about twenty minutes later.

About two hours after being shot, A.B. regained consciousness but was unable to
speak because of the breathing tube. A.B.’s attending physician, Dr. Anastasia Kunac,
told A.B. that she had been shot several times, her heart had stopped and been restarted,
and an injury to her spine left her a quadriplegic and unable to breathe on her own. Dr.
Kunac also told A.B. that she could die. Upon learning the nature and severity of her
condition, A.B. became visibly upset and started to cry.

Detective Filiberto Padilla arrived at the scene of the shooting. Following
investigative leads, he and other officers spoke with Kanem Morris, defendant’s father,
who told police that defendant had admitted to shooting A.B. and left shortly before
police arrived. Officers took statements from Morris and another witness, who also
implicated defendant in A.B.’s shooting.

Detective Padilla obtained defendant’s mugshot photograph and went to the
hospital. He had a videotaped exchange with A.B., who could communicate only by
nodding or shaking her head. Detective Padilla asked whether she knew who shot her;
whether she knew where she was at that time; whether she had known the person who
shot her for a while; whether the shooter was from the complex; whether the person in the
photograph was the person who shot her; whether she had had any arguments with that
person that day; and whether she was sure that was the person who shot her. A.B.

1
nodded in the affirmative to all of the questions except about having had an argument; in
answer to that question, she shook her head in the negative.

A.B. died eleven months after the shooting. Defendant was indicted for the
murder of A.B. and weapons offenses. Before trial, the State moved to admit into
evidence, as a dying declaration under N.J.R.E. 804(b)(2), A.B.’s videotaped statement
identifying defendant.

During an evidentiary hearing on the State’s motion, the trial court heard
testimony from one of the paramedics who responded to the scene of A.B.’s shooting, Dr.
Kunac, and Detective Padilla. The trial court found all three to be credible, stating they
appeared “calm and composed” with “knowledge of the facts to which they testified.”
The trial court also found that A.B. was “fully cognizant” of her injuries and “the
possibility of her imminent death.” The trial court concluded that A.B.’s statement did
not violate the Confrontation Clause and admitted the statement. After a trial, the jury
convicted defendant of a lesser included offense of murder and of the weapons charges.
The Appellate Division affirmed. The Court granted certification, limited to the two
questions noted above. 241 N.J. 485, 485-86 (2020).

HELD: The trial court correctly admitted A.B.’s statement identifying defendant as her
shooter as a dying declaration under N.J.R.E. 804(b)(2), and the admission of A.B.’s
statement as a dying declaration does not violate the Confrontation Clause of the Sixth
Amendment to the United States Constitution or Article I, Paragraph 10 of the New
Jersey Constitution.

1. The dying declaration exception to the rule against hearsay is based on the belief that
persons making such statements are highly unlikely to lie. New Jersey has codified the
exception in N.J.R.E. 804(b)(2), which states that, “[i]n a criminal proceeding, a
statement made by a victim unavailable as a witness is admissible if it was made
voluntarily and in good faith and while the declarant believed in the imminence of
declarant’s impending death.” “[B]elief of imminent death,” see State v. Prall, 231 N.J.
567, 585 (2018), requires “a settled hopeless expectation that death is near at hand, and
what is said must have been spoken in the hush of its impending presence,” Shepard v.
United States, 290 U.S. 96, 100 (1933). A dying declaration is no less reliable because
the victim has survived. “Despair of recovery may . . . be gathered from the
circumstances . . . .” Prall, 231 N.J. at 585. “What is decisive is the state of mind.”
Shepard, 290 U.S. at 100. Determining the declarant’s state of mind at the time the
statement is made requires consideration of all attendant circumstances. (pp. 17-20)

2. Here, A.B. had been shot five times and was unresponsive with no pulse at the scene
of the shooting. When she awoke, A.B. could not speak because of a breathing tube. She
learned she could not breathe on her own, her heart had stopped, she was a quadriplegic,
and she could die. She remained in critical condition thereafter, which Dr. Kunac
2
described as “at imminent risk of death.” And A.B. cried after learning about her
condition, demonstrating that she fully appreciated the gravity of her situation. None of
the medications administered to A.B. would have impaired her mental state, and A.B.’s
nods and head shakes were voluntary movements. Considering the totality of the
circumstances in determining A.B.’s state of mind at the time of her statement, A.B.’s
identification of defendant was made voluntarily, in good faith, and while she “believed
in the imminence of [her own] impending death” with no hope of recovery. N.J.R.E.
804(b)(2); see also Prall, 231 N.J. at 585. The trial court did not abuse its discretion in
admitting A.B.’s dying declaration identifying defendant. (pp. 20-22)

3. Article I, Paragraph 10 of the New Jersey Constitution and the Sixth Amendment to
the United States Constitution both guarantee a criminal defendant’s right to be
confronted with the witnesses against him. In Crawford v. Washington, the United States
Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” 541 U.S. 36, 68 (2004). The protections of the
Confrontation Clause thus apply to all out-of-court statements that are “testimonial.” The
Crawford Court intimated that the permissible exceptions to the right of confrontation
would be “those . . . established at the time of the founding,” id. at 54, and noted the
existence of the exception for dying declarations, id. at 56 n.6. The Crawford Court
explained that, “[i]f this exception must be accepted on historical grounds, it is sui
generis.” Id. at 56 n.6. The Court reviews post-Crawford cases in which the United
States Supreme Court has raised, but not resolved, whether dying declarations are
exceptions to the Confrontation Clause; those include Giles v. California, 554 U.S. 353
(2008), which reaffirmed founding-era common law exceptions to the right of
confrontation. The Court also reviews pre-Crawford cases acknowledging that dying
declarations were an exception to a defendant’s confrontation rights at common law, as
well as three eighteenth-century English cases that recognized the exception. (pp. 22-31)

4. The Court infers from Giles that dying declarations do not violate the Confrontation
Clause, joining the majority of other jurisdictions to consider the issue. The historical
record, the United States Supreme Court’s pre-Crawford acceptance of dying declarations
as an exception to the Confrontation Clause, footnote six of Crawford, and Giles’s tacit
acceptance of the exception suggest that the writers of the United States Constitution
recognized dying declarations as an established exception to a defendant’s right of
confrontation at the time of the founding. The Court holds that dying declarations
admissible under N.J.R.E. 804(b)(2) -- whether testimonial or not -- do not violate the
Federal or State Constitutions. A.B.’s statement is admissible. (pp. 31-34)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion.
3
SUPREME COURT OF NEW JERSEY
A-65 September Term 2019
083979

State of New Jersey,

Plaintiff-Respondent,

v.

Kanem Williamson,

Defendant-Appellant.

On certification to the Superior Court,
Appellate Division .

Argued Decided
January 19, 2021 May 10, 2021

Alison S. Perrone, First Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Alison S. Perrone, of
counsel and on the briefs, and Robert Carter Pierce,
Designated Counsel, on the briefs).

Barbara A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stevens, II, Acting Essex
County Prosecutor, attorney; Barbara A. Rosenkrans,
of counsel and on the briefs).

Matthew James Troiano argued the cause for amicus
curiae Association of Criminal Defense Lawyers of
New Jersey (Einhorn, Barbarito, Frost & Botwinick,
attorneys; Matthew James Troiano, on the brief).

1
Jennifer E. Kmieciak, Deputy Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Jennifer E. Kmieciak, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

A.B. was shot five times while outside of an apartment complex. One of

the shots entered her neck and severed her cervical spine, leaving her a

quadriplegic. A.B.’s heart stopped, and her breathing was shallow and

irregular when emergency medical technicians (EMTs) arrived. The EMTs

restarted her heart, inserted a breathing tube, and took A.B. to the hospital

where she remained comatose. A.B. awoke in the hospital about two hours

after being shot but remained in critical condition and unable to breathe on her

own. The treating emergency room doctor told A.B. that she had been shot

several times, her heart had stopped, and an injury to her spine had left her a

quadriplegic and unable to breathe on her own. She also told A.B. that she

could die. Upon being informed of the gravity of her injuries, A.B. became

visibly upset and started to cry.

Police investigating A.B.’s shooting were led to defendant’s

grandmother’s home, where defendant’s father told the police that defendant

had admitted to shooting A.B. A police detective obtained a photograph of

defendant and went to the hospital, where he videotaped his exchange with

2
A.B., who nodded her head to show that she recognized the photograph as a

picture of the person who shot her.

Police arrested and charged defendant with aggravated assault and

weapons offenses. A.B. died eleven months later. The aggravated assault

charge against defendant was then upgraded to first-degree murder.

Before defendant’s jury trial, and after a two-day evidentiary hearing,

the trial court found A.B.’s videotaped statement admissible as a

nontestimonial dying declaration under N.J.R.E. 804(b)(2). Following trial,

the jury convicted defendant of aggravated manslaughter -- a lesser-included

offense of first-degree murder -- and various weapons offenses. The Appellate

Division affirmed defendant’s conviction.

This appeal calls upon the Court to answer the following two questions:

(1) whether the trial court abused its discretion by admitting A.B.’s

identification of defendant as a dying declaration; and (2) whether the

admission of A.B.’s identification violated defendant’s Sixth Amendment right

to confrontation. We find that the trial court correctly admitted A.B.’s

statement identifying defendant as her shooter as a dying declaration under

N.J.R.E. 804(b)(2). We further conclude that the admission of A.B.’s

statement as a dying declaration does not violate the Confrontation Clause of

the Sixth Amendment to the United States Constitution or Article I, Paragraph

3
10 of the New Jersey Constitution, and we affirm the Appellate Division’s

judgment.

I.

A.

The trial and appellate records reveal that on a spring afternoon in 2014,

emergency services personnel responded to a shooting in front of a housing

complex in Newark, New Jersey. Upon arrival, police found A.B. lying face

down in a pool of blood on the steps outside the complex. A.B. had no pulse

and was unconscious, unresponsive, and breathing irregularly. Paramedics

administered CPR and epinephrine to restart her heart, intubated A.B., and

were able to revive her pulse. A.B. arrived at the hospital about twenty

minutes later with a pulse, but comatose and unresponsive. At the hospital,

doctors maintained A.B. on a breathing tube and gave her several medications

that would not have affected her lucidity or consciousness levels.

About two hours after being shot, A.B. regained consciousness but was

unable to speak because of the breathing tube. A.B.’s attending physician, Dr.

Anastasia Kunac, told A.B. that she had been shot several times, her heart had

stopped and been restarted, and an injury to her spine left her a quadriplegic

and unable to breathe on her own. Dr. Kunac also told A.B. that she could die.

4
Upon learning the nature and severity of her condition, A.B. became visibly

upset and started to cry.

Detective Filiberto Padilla of the Newark Police Department arrived at

the scene of A.B.’s shooting after her removal to the hospital, canvassed the

area, and instructed other officers to recover evidence from the scene. Officers

recovered a replica handgun, bloody clothing, a cell phone with a bullet hole,

and eleven nine-millimeter shell casings. Although detectives did not find any

witnesses to the shooting at that time, investigative leads directed them to the

home of defendant’s grandmother. While there, Detective Padilla and other

officers spoke with Kanem Morris, defendant’s father, who told police that

defendant had admitted to shooting A.B. and left shortly before police arrived.

Officers took statements from Morris and another witness, Kareem Brown,

who also implicated defendant in A.B.’s shooting.

B.

Detective Padilla obtained defendant’s mugshot photograph from a

Newark Police Department “arrest and booking data sheet.” Detective Padilla

folded the photograph to show only defendant’s face without any identifying

marks. Six hours after the shooting and four hours after A.B. regained

consciousness, Detective Padilla arrived at University Hospital to see A.B.

Detective Padilla, in the presence of two other detectives, had a videotaped

5
exchange with A.B. Because of the nature and severity of her injuries, A.B.

could communicate only by nodding or shaking her head.

The following exchange took place between A.B. and Detective Padilla:

DETECTIVE PADILLA: Listen, if I showed you a
picture of who did this, would you know who it is?

....

DETECTIVE PADILLA: Do you know who shot you?
Just nod your head. Do you know who -- where you’re
at, at this present time? Yes? The person that did this
to you, have you known him for a while? Is he from
the complex?

Detective Padilla then showed A.B. defendant’s photograph and asked:

[DETECTIVE PADILLA:] Just take a look at this
picture, okay? And tell me if you recognize this person.
You’re saying, yes? -- is the person on this picture the
person that shot you earlier today? Have any -- did you
have any arguments with him earlier today in reference
to anything? Yes, or no? No? And you -- you’re sure
that this is the person that shot you? Yes?”

A.B. nodded in the affirmative to all of the questions, except when asked

whether she had an argument with the person she identified; in answer to that

question, she shook her head in the negative. Because of A.B.’s paralysis,

Detective Padilla signed the back of defendant’s photograph after the

identification.

A.B. remained at University Hospital before being transferred to a long-

term rehabilitative facility where she remained for six months. Thereafter,
6
A.B. was transferred to another hospital, where she died eleven months after

the shooting. The state medical examiner testified at trial that A.B.’s cause of

death was “complications of multiple gunshot wounds” and that her manner of

death was homicide.

II.

A.

An Essex County grand jury indicted defendant for the first-degree

murder of A.B., N.J.S.A. 2C:11-3(a)(1), (2); second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of

a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Before trial, the State

moved to admit into evidence, as a dying declaration under N.J.R.E. 804(b)(2),

A.B.’s videotaped statement identifying defendant.

During a two-day evidentiary hearing on the State’s motion, the trial

court heard testimony from John Cronin, one of the paramedics who responded

to the scene of A.B.’s shooting, Dr. Kunac, and Detective Padilla. The trial

court found all three to be credible, stating they appeared “calm and

composed” with “knowledge of the facts to which they testified.” The trial

court also found that A.B. was “fully cognizant” of her injuries and “the

possibility of her imminent death.” In particular, the trial court noted that

A.B.’s heart stopped and had been restarted, her condition was critical, and

7
A.B. was upset with tears in her eyes upon learning of her injuries. The trial

court also found that A.B. made her statement voluntarily and in good faith.

The trial court concluded further that A.B.’s statement did not violate the

Confrontation Clause because, although the interview between A.B. and

Detective Padilla elicited information, its primary purpose was to enable police

to respond to an ongoing emergency. In making that determination, the court

noted factors such as where the shooting occurred, the severity of A.B.’s

injuries, no indication the threat had ended, and that police were unaware of

the shooter’s motive.

The trial court granted the State’s motion and admitted A.B.’s

statement.1

B.

At defendant’s trial, the State’s evidence included testimony from

Cronin, Dr. Kunac, and Detective Padilla. Dr. Kunac described A.B.’s

condition as “critical” -- “at imminent risk of death” -- during her

1
Defendant subsequently filed a motion to suppress A.B.’s identification
pursuant to United States v. Wade, 388 U.S. 218 (1967). The trial court
denied the motion, finding that the identification was not impermissibly
suggestive and that, even if the identification was impermissibly suggestive,
the statement was nonetheless reliable. That conclusion is not challenged
before this Court.

8
identification interview, and she explained that none of the medications

administered to A.B. would have impaired her mental state. Dr. Kunac also

echoed her testimony from the pretrial hearing regarding A.B.’s injuries .

Detective Padilla testified that when he interviewed A.B. at the hospital, she

was in a “grave condition” and he “thought she may not make it.” He stated,

however, that she was alert and understood him. The State also played for the

jury the video recording of A.B.’s statement and surveillance video from the

housing complex, which showed A.B.’s shooting but not the faces or features

of people in the video.

While testifying, Kanem Morris and Kareem Brown both recanted their

prior statements to police. The trial court conducted separate Gross2 hearings

for each witness and held their statements to police were admissible as prior

inconsistent statements.

When the State called Morris as a witness, he testified that when he

arrived at defendant’s grandmother’s house, defendant “didn’t look like

himself at all” and told Morris “somebody -- she pulled out.” Morris testified

that he told his son to stay in the house, that the police were coming, and

defendant should “just tell them everything.” However, by the time the police

2
State v. Gross, 121 N.J. 1 (1990).

9
arrived, defendant had fled. Despite his recantation, Morris also read portions

from his statement to the police during his testimony, stating that defendant

had told him he shot A.B. after she “pulled out.”

Brown testified that he was standing outside of the housing complex and

witnessed A.B.’s shooting. He claimed the shooter was not defendant, but a

man nicknamed “Pooh,” who had since died. Brown also testified that he gave

the statement at the police station inculpating defendant after Detective Padilla

assaulted and coerced him.

The jury convicted defendant of first-degree aggravated manslaughter,

N.J.S.A. 2C:11-4(a)(1), a lesser included offense of first-degree murder, and

both weapons charges. The trial court merged the possession of a weapon for

an unlawful purpose charge with the aggravated manslaughter charge and

sentenced defendant to a twenty-five-year prison term, subject to the eighty-

five percent parole disqualifier of the No Early Release Act, N.J.S.A. 2C:43-

7.2. Defendant also received a concurrent eight-year sentence on the unlawful

possession of a weapon charge, with four years of parole ineligibility under the

Graves Act, N.J.S.A. 2C:43-6(c).

C.

The Appellate Division affirmed, holding that the trial court did not

abuse its discretion in admitting A.B.’s statement identifying defendant. The

10
Appellate Division first found that A.B.’s statement was a dying declaration

admissible under N.J.R.E. 804(b)(2), because “a similarly situated person

would have feared death was imminent” upon learning of the severity of her

injuries. The Appellate Division also found that A.B.’s dying declaration did

not violate defendant’s confrontation rights, since the statement fit within the

“ongoing emergency” doctrine, and historic precedent excludes the dying

declaration hearsay exception from Confrontation Clause implications “even

post-Crawford.”3

We granted defendant’s petition for certification, limited to “the

application of the dying-declaration hearsay exception to the victim’s photo

identification of defendant and the purported deprivation of defendant’s Sixth

Amendment right to confrontation by admitting the victim’s dying declaration

photo identification.” 241 N.J. 485, 485-86 (2020). We also granted amicus

curiae status to the Association of Criminal Defense Lawyers of New Jersey

(ACDL) and the Attorney General of New Jersey (Attorney General).

3
Crawford v. Washington, 541 U.S. 36 (2004).

11
III.

A.

Defendant argues that the State did not establish that A.B. believed her

death was imminent, and that her identification of defendant is therefore not

admissible as a dying declaration. In support of his argument, defendant draws

a distinction between “a belief that death could occur” and “a belief that death

is imminent” and points to improvement in A.B.’s condition after she arrived

at the hospital.

Defendant also asserts that because A.B.’s statement implicates

defendant in a crime, her statement is testimonial and violates defendant’s

Sixth Amendment right to confrontation. Thus, A.B.’s statement would not be

admissible even if it did qualify as a dying declaration, according to defendant.

Looking to the United States Supreme Court’s opinions in Crawford and Giles

v. California, 554 U.S. 353 (2008), defendant contends that the dying

declaration exception to the rule against hearsay, as applied today, is not a

historical exception to the Confrontation Clause because it is substantially

different in its nature, rationale, and application. Defendant thus contends that

dying declarations are not exempt from the limitations of the Confrontation

Clause.

12
Amicus ACDL supports many of defendant’s arguments and warns that

admission of A.B.’s statement would “greatly expand” the dying declaration

hearsay exception. The ACDL emphasizes that the “critical inquiry” in

examining a dying declaration should be the “declarant’s awareness of her

condition” rather than the severity of the declarant’s condition. The ACDL

further highlights the time between A.B.’s awareness of her injuries and her

statement, and that although A.B. was told that she “could” die, she was not

told that she “would” die; her declaration was therefore not made while “under

a belief of her impending death.”

The ACDL additionally contends that finding A.B.’s statement to be

non-testimonial would “greatly expand” the non-testimonial exception to the

Confrontation Clause. The ACDL emphasizes that, considering Detective

Padilla’s intention in speaking with A.B., the actions taken by the police

before the identification, and the time between the shooting and the interview,

there was no ongoing emergency in this case.

B.

The State points to A.B.’s injuries and her awareness of the seriousness

of the situation and agrees with the Appellate Division that “A.B. had every

reason to believe death was imminent.” A.B.’s tears upon learning of her

condition, according to the State, show that she believed she could die, and the

13
time between the declaration and death is not determinative. Instead, the State

argues the deciding factor is the declarant’s state of mind at the time of the

statement.

The State further maintains, citing Kirby v. United States, 174 U.S. 47,

61 (1899), that dying declarations have existed as “an exception to the right of

confrontation” since “well before the ratification of the Sixth Amendment in

1791” and thus are admissible at trial. The State contends that today’s dying

declaration exception is the same as at the time of the ratification of the Sixth

Amendment -- both “requir[e] that the statements be made under the imminent

cloud of death and limit[] its admission to homicide trials.”

Finally, the State contends that the trial court and the Appellate Division

were correct to determine that A.B.’s identification of defendant was

nontestimonial because the police had not confirmed the identity of the at-

large shooter, and the threat to the community had not yet ended.

The Attorney General largely repeats the State’s arguments in asserting

the trial court did not abuse its discretion in admitting into evidence, under

N.J.R.E. 804(b)(2), A.B.’s videotaped identification of defendant. The

Attorney General also notes that, following the decision in Crawford, a

majority of courts across the country have accepted dying declarations as an

exception to the Confrontation Clause.

14
Emphasizing the record of the motion hearing to show that the elements

of the dying declaration exception were met here, the Attorney General states

that the trial court and Appellate Division properly considered the factors

established in State v. Hegel, 113 N.J. Super. 193, 200-01 (App. Div. 1971), in

allowing the admission of A.B.’s statement. The Attorney General also asks

this Court to follow the approach set forth in Johnson v. State, 579 P.2d 20, 25

(Alaska 1978), a case from the Alaska Supreme Court that rejected the “overly

demanding” requirement “that the declarant have abandoned all hope of

recovery” in favor of a standard that requires the declarant to “have such a

belief that he is facing death as to remove ordinary worldly motives for

misstatement.”

Finally, contending that the primary purpose of A.B.’s statement was to

protect the public rather than investigate the shooting, the Attorney General

asserts that the Confrontation Clause is not implicated.

IV.

This appeal involves an evidentiary issue -- the trial court’s admission of

A.B.’s statement under N.J.R.E. 804(b)(2) as a dying declaration -- and a

constitutional question -- whether the admission of A.B.’s statement

identifying defendant violated his Sixth Amendment right to confrontation.

Our standard of review for each is different.

15
We review the trial court’s evidentiary ruling “under the abuse of

discretion standard because, from its genesis, the decision to admit or exclude

evidence is one firmly entrusted to the trial court’s discretion.” State v. Prall,

231 N.J. 567, 580 (2018) (quoting Estate of Hanges v. Metro. Prop. & Cas.

Ins. Co., 202 N.J. 369, 383-84 (2010)). “Under that deferential standard, we

review a trial court’s evidentiary ruling only for a ‘clear error in judgment.’”

State v. Medina, 242 N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J.

469, 479 (2017)). To set aside such a ruling, “we must be convinced that ‘the

trial court’s ruling is so wide of the mark that a manifest denial of justice

resulted.’” Prall, 231 N.J. at 580 (quoting State v. J.A.C., 210 N.J. 281, 295

(2012)).

Whether the trial court’s admission of a victim’s dying declaration

violates defendant’s Sixth Amendment right to confrontation presents a legal

question subject to de novo review. See State v. Wilson, 227 N.J. 534, 544

(2017). We therefore “afford no special deference to the trial court’s

interpretation of the law or the legal consequences that flow from established

facts.” State v. Hyland, 238 N.J. 135, 143 (2019).

16
A.

1.

To address the evidentiary question presented -- whether the trial court

abused its discretion by admitting A.B.’s identification of defendant as a dying

declaration -- we begin with a brief review of the relevant evidence rules.

Hearsay is “a statement that: (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” N.J.R.E. 801(c).

Hearsay is generally inadmissible unless an exception applies. N.J.R.E. 802.

One such exception to the rule against hearsay is a declaration made “under

belief of imminent death,” more commonly known as a “dying declaration.”

N.J.R.E. 804(b)(2).

Dying declarations “from time immemorial . . . have been treated as

competent testimony, and no one would have the hardihood at this day to

question their admissibility.” Mattox v. United States, 156 U.S. 237, 243-44

(1895). Their reliability was initially based on the rationale that “the sense of

impending death is presumed to remove all temptation to falsehood, and to

enforce as strict an adherence to the truth as would the obligation of an oath .”

Id. at 244; see also Donnelly v. State, 26 N.J.L. 601, 617-18 (E. & A. 1857)

(stating that a declarant’s “account of the circumstances of his injury, given in

17
articulo mortis, when intelligibly repeated to a jury, is received by them under

the like sanction as all oral testimony is received, the sense of impending death

being equivalent to the sanction of an oath”). The exception continues to

apply today “based on the belief that persons making such statements are

highly unlikely to lie.” Idaho v. Wright, 497 U.S. 805, 820 (1990).

New Jersey has codified the dying declaration exception in N.J.R.E.

804(b)(2), which states that, “[i]n a criminal proceeding, a statement made by

a victim unavailable as a witness is admissible if it was made voluntarily and

in good faith and while the declarant believed in the imminence of declarant’s

impending death.” There are many recent opinions of our courts applying the

dying declaration exception. See, e.g., State v. Brown, 236 N.J. 497, 523-24

(2019) (holding a statement made while the declarant “would have known he

was dying” and with personal knowledge as to who killed him “admissible . . .

under the N.J.R.E. 804(b)(2) hearsay exception”); State v. Taylor, 350 N.J.

Super. 20, 37 (App. Div. 2002) (stating that a dying victim’s words identifying

who had stabbed him “were admissible as a dying declaration, N.J.R.E.

804(b)(2)”); cf. Prall, 231 N.J. at 585-86 (holding that statements accusing the

defendant of starting a fire, made after the declarant awoke engulfed in flames,

could not be admitted as dying declarations because they were made without

personal knowledge that the defendant started fire).

18
This Court has looked to United States Supreme Court precedent for

guidance in interpretating the phrase “belief of imminent death,” Prall, 231

N.J. at 585; under that precedent, “[t]here must be a settled hopeless

expectation that death is near at hand, and what is said must have been spoken

in the hush of its impending presence,” Shepard v. United States, 290 U.S. 96,

100 (1933) (quotation omitted). In applying the United States Supreme

Court’s guidance, our courts have long taken into consideration whether “the

declarant was under the sense of impending death.” Donnelly, 26 N.J.L. at

618 (emphasis added). Therefore, “[i]t is [the] impression upon the mind, and

not the fact of the quick succession of death after the declarations, that makes

the testimony admissible before a jury.” Ibid. The May 1993 Supreme Court

Rules of Evidence Committee’s amendatory comment to N.J.R.E. 804(b)(2)

acknowledged that supposition by stating that a dying declaration is “no less

reliable and trustworthy because the victim has survived.”

Further support for the focus on the declarant’s mental state is found in

our recent decision in Prall -- “[d]espair of recovery may indeed be gathered

from the circumstances if the facts support the inference,” 231 N.J. at 585

(alteration in original) (quoting Shepard, 290 U.S. at 100) -- and the United

States Supreme Court’s decision in Shepard -- belief of impending death “may

even be gathered, though the period of survival outruns the bounds of

19
expectation. What is decisive is the state of mind,” 290 U.S. at 100 (citation

omitted).

Determining the declarant’s state of mind at the time the statement is

made requires consideration of “all the attendant circumstances,” including the

words spoken to and by the declarant, the weapon used, and the declarant’s

injuries, physical condition, and demeanor. Hegel, 113 N.J. Super. at 201

(quotation omitted). Or, as the United States Supreme Court directs in

Shepard, “the state of mind must be exhibited in the evidence.” 290 U.S. at

100 (emphasis added).

2.

A.B. had been shot five times and was unresponsive with no pulse at the

scene of the shooting. Epinephrine and CPR restored A.B.’s heartbeat, but she

remained unconscious until she awoke in the emergency room. When she

awoke, A.B. could not speak because of a breathing tube. She learned she

could not breathe on her own, her heart had stopped, she was a quadriplegic,

and she could die. She remained in critical condition thereafter, which Dr.

Kunac described as “at imminent risk of death.” And A.B. cried after learning

about her condition, demonstrating that she fully appreciated the gravity of her

situation.

20
Although her interview with Detective Padilla occurred a few hours after

she first awakened, A.B.’s state was still critical, and she looked to be in

“severe condition” during the questioning. Furthermore, none of the

medications administered to A.B. would have impaired her mental state, and

A.B.’s nods and head shakes were voluntary movements. Considering the

totality of the circumstances in determining A.B.’s state of mind at the time of

her statement -- the words spoken to and acknowledged by A.B., that she cried

when told of the gravity of her injuries, that her assailant used a gun to shoot

her five times, and that she was a quadriplegic who could not breathe without a

breathing tube -- A.B.’s identification of defendant was made voluntarily, in

good faith, and while she “believed in the imminence of [her own] impending

death” with no hope of recovery. N.J.R.E. 804(b)(2); see also Prall, 231 N.J.

at 585.

We reject the objective standard promoted by defendant that emphasizes

“imminent death” rather than “imminent risk of death.” Such a standard

focuses on the certainty of death -- that the victim will die -- rather than the

victim’s state of mind at the time of the statement. It eschews decades of our

and the United States Supreme Court’s jurisprudence resolving whether, under

such circumstances, a declarant’s statement is admissible.

21
We maintain the existing standard, which considers the state of mind of

the declarant in the dying declaration analysis. Even though her death

occurred months later, A.B.’s injuries, the communications from her doctor,

her distress upon learning of her circumstance, and her condition when she

made the statement, evidence A.B.’s “settled hopeless expectation that death

[was] near at hand.” Shepard, 290 U.S. at 100 (quotation omitted). A.B.

believed death was imminent when she made her statement to Detective

Padilla. We therefore conclude that the trial court did not abuse its discretion

in admitting as substantive evidence at trial, under N.J.R.E. 804(b)(2), A.B.’s

dying declaration identifying defendant.

B.

Having concluded that the trial court did not abuse its discretion in

admitting A.B.’s identification of defendant as a dying declaration, we turn to

whether the trial court’s admission of A.B.’s statement violated defendant’s

right to confrontation under the United States and New Jersey Constitutions.

We review that question de novo.

1.

The New Jersey Constitution and the Sixth Amendment to the United

States Constitution both “provide that ‘[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against

22
him.’” Wilson, 227 N.J. at 544 (alterations in original) (quoting U.S. Const.

amend. VI; N.J. Const. art. 1, ¶ 10). “The right of confrontation is an essential

attribute of the right to a fair trial, requiring that a defendant have a ‘fair

opportunity to defend against the State’s accusations.’” State v. Branch, 182

N.J. 338, 348 (2005) (quoting State v. Garron, 177 N.J. 147, 169 (2003)).

Under the Confrontation Clause, criminal defendants are “afford[ed] a

procedural guarantee that the reliability of evidence will be tested ‘in a

particular manner’ through ‘the crucible of cross-examination.’” Wilson, 227

N.J. at 544-45 (quoting Crawford, 541 U.S. at 61). Our Court has relied on the

“standard set forth in Crawford, [whereby] a testimonial statement against a

defendant by a non-testifying witness is inadmissible under the Confrontation

Clause unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine him or her.” Id. at 545.

“Our state confrontation case law traditionally has relied on federal case

law to ensure that the [United States and New Jersey Constitutions] provide

equivalent protection.” State v. Roach, 219 N.J. 58, 74 (2014). We therefore

look to federal case law in examining the relationship between the dying

declaration exception to the rule against hearsay, and the demands of the

Confrontation Clause.

23
We begin with Crawford v. Washington, in which the United States

Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth

Amendment demands what the common law required: unavailability and a

prior opportunity for cross-examination.”4 541 U.S. at 68. The protections of

the Confrontation Clause thus apply to all out-of-court statements that are

“testimonial.” Ibid. But Crawford did not determine whether the right to

confrontation displaced all evidentiary rules. In fact, in his majority opinion,

Justice Scalia noted that the Sixth Amendment’s Confrontation Clause “is most

naturally read as a reference to the right of confrontation at common law.” Id.

at 54. Although the Court stated that the text of the Confrontation Clause

“does not suggest any open-ended exceptions from the confrontation

requirement,” the Court intimated that the exceptions permitted would be

“those . . . established at the time of the founding.” Ibid.

While the Crawford Court found “scant evidence that [hearsay]

exceptions were invoked to admit testimonial statements against the accused in

a criminal case,” id. at 56, it noted an exception -- “dying declarations,” the

4
In so holding, the Court abrogated the previous test established by Ohio v.
Roberts, which “condition[ed] the admissibility of all hearsay evidence on
whether it [fell] under a ‘firmly rooted hearsay exception’ or [bore]
‘particularized guarantees of trustworthiness.’” Crawford, 541 U.S. at 60, 68-
69 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)).

24
existence of which “as a general rule of criminal hearsay law cannot be

disputed,” id. at 56 n.6.5 Though Crawford did not go so far as to decide

“whether the Sixth Amendment incorporates an exception for testimonial

dying declarations,” the Court explained that “[i]f this exception must be

accepted on historical grounds, it is sui generis.” Ibid.

2.

Four years after Crawford, in Giles v. California, the Court again

addressed a defendant’s confrontation rights when a witness is unavailable to

testify at trial; in Giles, however, the focus was on the doctrine of forfeiture by

wrongdoing.6 554 U.S. at 355. The defendant in Giles shot his ex-girlfriend

several times and was charged with murder. Id. at 356. At trial, prosecutors

attempted to introduce statements the victim made to a police officer a few

weeks before the shooting. Ibid. In her statements, the victim described prior

5
Indeed, contrary to defendant’s assertion that the dying declaration exception
has changed since the founding, we note that the exception has remained
substantially the same in its nature, rationale, and application. See Wright,
497 U.S. at 820 (citing Mattox, 156 U.S. at 244, and The Queen v. Osman, 15
Cox Crim. Cas. 1, 3 (Eng. N. Wales Cir. 1881), to support the notion that the
dying declaration exception is “based on the belief that persons making such
statements are highly unlikely to lie”).
6
Crawford had previously accepted the rule of forfeiture by wrongdoing as an
exception to a defendant’s confrontation rights on equitable grounds. 541 U.S.
at 62.

25
physical abuse by the defendant, stating he “accused her of having an affair,

and that after the two began to argue, [the defendant] grabbed her by the shirt,

lifted her off the floor, and began to choke her.” Id. at 356-57. She also

claimed the defendant “punched her in the face and head” and held a knife up

to her, threatening to kill her if she cheated on him. Id. at 357. The trial court

admitted the statements, and a jury convicted the defendant of first-degree

murder. Ibid. The California Supreme Court affirmed the appellate court’s

holding that the statements did not violate the Confrontation Clause “because

Crawford recognized a doctrine of forfeiture by wrongdoing” and the

defendant’s “intentional criminal act made [the victim] unavailable to testify.”

Ibid.

Acknowledging that at common law, “the [forfeiture by wrongdoing]

exception applied only when the defendant engaged in conduct designed to

prevent the witness from testifying,” id. at 359, the United States Supreme

Court found that the trial court had failed to consider the defendant’s intent --

whether he murdered the victim with the purpose to prevent her from testifying

-- and reversed the defendant’s murder conviction, remanding for further

proceedings, id. at 361, 377. In his opinion in Giles, Justice Scalia recognized

that “two forms of testimonial statements were admitted at common law even

though they were unconfronted” -- “declarations made by a speaker who was

26
both on the brink of death and aware that he was dying,” and those admissible

under the doctrine of “forfeiture by wrongdoing.” Id. at 358-59. The Giles

Court thus reaffirmed founding-era common law exceptions to the right of

confrontation. Ibid.

The United States Supreme Court had another opportunity to address

dying declarations in the Confrontation Clause context in Michigan v. Bryant,

but declined to address the question set forth in Crawford regarding

testimonial dying declarations, finding the issue had been waived. See 562

U.S. 344, 351 n.1 (2011). In her dissent, however, Justice Ginsburg

acknowledged that “in the law we inherited from England, there was a well-

established exception to the confrontation requirement: The cloak protecting

the accused against admission of out-of-court testimonial statements was

removed for dying declarations.” Id. at 395. Justice Ginsburg further stated

that had the issue been properly before the Court, she would have “take[n] up

the question whether the exception for dying declarations survives . . . recent

Confrontation Clause decisions.” Id. at 395-96.

The United States Supreme Court has thus raised, but not directly

resolved, whether dying declarations are exceptions to the Confrontation

Clause, though Justice Scalia acknowledged that “there is authority for

admitting even those [dying declarations] that clearly are” testimonial.

27
Crawford, 541 U.S. at 56 n.6 (citing The King v. Woodcock, 168 Eng. Rep.

352, 353-54 (1789); The King v. Radbourne, 168 Eng. Rep. 330, 332-33

(1787); The King v. Reason, 93 Eng. Rep. 659 (1722); Thomas Peake, A

Compendium of the Law of Evidence 64 (3d ed. 1808)). We therefore look to

United States Supreme Court decisions predating Giles and Crawford, and to

the English common law predating the Sixth Amendment, for further guidance.

3.

Pre-Crawford, the United States Supreme Court acknowledged that

dying declarations were an exception to a defendant’s confrontation rights at

common law. The Court broadly recognized that dying declarations have

“from time immemorial . . . been treated as competent testimony,” even though

“[t]hey are rarely made in the presence of the accused; they are made without

any opportunity for examination or cross-examination, nor is the witness

brought face to face with the jury.” Mattox, 156 U.S. at 243. The Court

addressed the issue more directly in Robertson v. Baldwin, where it noted that

“the provision that an accused person shall be confronted with the witnesses

against him [does not] prevent the admission of dying declarations.” 165 U.S.

275, 282 (1897). In Kirby v. United States, the Court noted the exception’s

long history:

It is scarcely necessary to say that, to the rule that an
accused is entitled to be confronted with witnesses
28
against him, the admission of dying declarations is an
exception which arises from the necessity of the cause.
This exception was well established before the adoption
of the [C]onstitution, and was not intended to be
abrogated.”

[174 U.S. at 61 (emphasis added).]

United States Supreme Court precedent pre-Crawford thus acknowledges

dying declarations as an exception not only to the hearsay rule, but also to the

Confrontation Clause.

Indeed, as is acknowledged in Giles and Crawford, the admission of

dying declarations as substantive evidence at trial was well-established by the

time of the Sixth Amendment’s adoption. Crawford acknowledged such,

stating that “[t]he existence of [the dying declaration] exception as a general

rule of criminal hearsay law cannot be disputed.” Crawford, 541 U.S. at 56

n.6. Whether dying declarations are an exception to the Confrontation Clause ,

however, is an issue spoken to but not finally resolved by the United States

Supreme Court or previously considered by this Court. A brief reference to

three eighteenth-century English cases predating the Sixth Amendment to the

United States Constitution and cited by the United States Supreme Court in

Giles and Crawford is instructive. All three recognized dying declarations as

an exception to a defendant’s confrontation rights.

29
In 1789, in The King v. Woodcock, mentioned in Giles, 554 U.S. at 362,

and Crawford, 541 U.S. at 56 n.6, the witness had given her unconfronted

statement to a magistrate. 168 Eng. Rep. at 353. The court noted that a dying

witness’s statements should be admitted where she “apprehended that she was

in such a state of mortality as would inevitably oblige her soon to answer

before her Maker for the truth or falsehood of her assertions.” Id. at 353-54.

Later, in The King v. Dingler, cited in Giles, 554 U.S. at 363, the court

relied on Woodcock but denied the admission of the unconfronted deposition

of a witness who “entertained some apprehension of the danger of her

situation” but whose death, while “inevitable and approaching,” did not seem

to be imminent. 168 Eng. Rep. 383, 383-84 (1791). The Dingler court

nonetheless recognized that a dying declaration made while under the

impression of imminent death would be admitted even if unconfronted. See

Peake, supra, at 63-64 (citing Dingler for the proposition that “in cases where

the party wounded declared himself apprehensive of death, or was in such

imminent danger of it as must necessarily raise that apprehension, [his

deposition] may be read as his dying declaration” even if the defendant is not

present at the time of the examination).

Finally, in The King v. Reason, cited in Crawford, 541 U.S. at 56 n.6, a

victim on his deathbed made statements accusing the defendants of his murder.

30
93 Eng. Rep. at 659. Although the defendants were not present and had no

opportunity to confront the declarant, two of his statements were admitted into

evidence, and another was excluded on grounds other than the defendants’

confrontation rights. Id. at 659-60.

4.

Although the United States Supreme Court has not directly confronted

the issue post-Crawford, we infer from Giles that dying declarations do not

violate the Confrontation Clause. Giles examined both Woodcock and Dingler

and recognized a forfeiture by wrongdoing exception to the Confrontation

Clause where the statement either “was confronted or fell within the dying-

declarations exception.” 554 U.S. at 361-63 (emphasis added). The Giles

Court went on to find “conclusive” the “common law’s uniform exclusion of

unconfronted inculpatory testimony by murder victims (except testimony given

with awareness of impending death) in the innumerable cases in which the

defendant was on trial for killing the victim, but was not shown to have done

so for the purpose of preventing testimony.” Id. at 368 (emphasis added). In

accepting the common law’s formulation of the forfeiture by wrongdoing

exception, the Giles Court also acknowledged the dying declaration exception

to a defendant’s confrontation rights. Furthermore, in later applying Giles, the

Supreme Court stated, “[w]e have recognized that the Confrontation Clause

31
does not prohibit the introduction of out-of-court statements that would have

been admissible in a criminal case at the time of the founding.” Ohio v. Clark,

576 U.S. 237, 246 (2015). Thus, we find it likely that should the question

arise, the United States Supreme Court will find that the Confrontation Clause

is not violated by the admission of dying declarations.

Other jurisdictions have signaled their view that the United States

Supreme Court is likely to formally adopt dying declarations as an exception

to the Confrontation Clause. For example, the Kansas Supreme Court

expressed “confiden[ce] that, when given the opportunity to do so, the

Supreme Court would confirm that a dying declaration may be admitted into

evidence, even when it is testimonial in nature and is unconfronted.” State v.

Jones, 197 P.3d 815, 822 (Kan. 2008); see also Hailes v. State, 113 A.3d 608,

621 (Md. 2015) (“Here, we reach the same conclusion that the Supreme Court

has consistently endorsed for more than a century, and hold that the

Confrontation Clause does not apply to dying declarations.”). The Court of

Appeals of Mississippi, after considering Bryant along with Crawford and

Giles, reached a similar conclusion. Grindle v. State, 134 So. 3d 330, 343

(Miss. Ct. App. 2013) (“[W]e are swayed by the United States Supreme

Court’s commentary in Crawford and Giles that, were the matter properly

before the Court, the exception would be held to apply.”).

32
The historical record, the United States Supreme Court’s pre-Crawford

acceptance of dying declarations as an exception to the Confrontation Clause,

footnote six of Crawford, and Giles’s tacit acceptance of the exception suggest

that the writers of our United States Constitution recognized dying

declarations as an established exception to a defendant’s right of confrontation

at the time of the founding. We therefore choose to follow a majority of states

in interpreting footnote six of Crawford as allowing dying declarations to be

an exception to the Confrontation Clause. See, e.g., People v. Monterroso, 101

P.3d 956, 972 (Cal. 2004); Walton v. State, 603 S.E.2d 263, 265-66 (Ga.

2004); People v. Gilmore, 828 N.E.2d 293, 302 (Ill. App. Ct. 2005); Wallace

v. State, 836 N.E.2d 985, 993-96 (Ind. Ct. App. 2005); Jones, 197 P.3d at 821-

22; Commonwealth v. Nesbitt, 892 N.E.2d 299, 310-11 (Mass. 2008); People

v. Taylor, 737 N.W.2d 790, 794-95 (Mich. Ct. App. 2007); State v. Martin,

695 N.W.2d 578, 585-86 (Minn. 2005); Harkins v. State, 143 P.3d 706, 710-11

(Nev. 2006); State v. Calhoun, 657 S.E.2d 424, 426-28 (N.C. Ct. App. 2008);

State v. Lewis, 235 S.W.3d 136, 147-48 (Tenn. 2007).

Accordingly, we hold that dying declarations admissible under N.J.R.E.

804(b)(2) -- whether testimonial or not -- do not violate the Confrontation

Clause of the United States Constitution or the New Jersey Constitution. As a

result, we need not reach the question of whether A.B.’s statement was

33
testimonial. Consistent with Crawford, we conclude that A.B.’s statement is

admissible “sui generis” as a dying declaration. See Crawford, 541 U.S. at 65

n.6.

IV.

For the reasons set forth above, the judgment of the Appellate Division

is affirmed.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE
SOLOMON’S opinion.

34

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4685363. Public record. Not legal advice.