Nature of the Case
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Facts
Hodge was in a Bar a few feet away from Harrigan. Hodge was wearing several gold necklaces. A man known as 'Trini' approached and asked for some marijuana. Harrigan told Trini he had none, and Trini walked away. Trini returned about 15 minutes later and asked Harrigan for some rolling paper, which Harrigan gave him. Trini then 'rolled' a 'cigarette' of tobacco and marijuana and smoked it. Trini told Harrigan: 'This is nothing personal. Don't take this personal.' Trini then grabbed Hodge by the belt saying: 'It's you I come for.' Trini then pulled out a gun and shot Hodge. As Harrigan ran from the scene, he saw Trini fire a second shot, and then heard a third shot before leaving the scene and seeing Trini run away. Karl Frederiksen and Tynisha Martin were on the beach when the shooting occurred. Frederiksen saw a man he knew as 'Tall Boy' talking and smoking near Hodge. Frederiksen heard Hodge yelling, and saw Tall Boy with at least one of Hodge's gold necklaces in his hand and a gun in his other hand. Frederiksen heard three shots and saw Hodge hold on to his gold chains before falling to the ground. He then saw Tall Boy run away through some bushes with a stocking cap pulled over his face. Hodge was paralyzed from the neck down and unable to speak due to his injuries and a subsequent tracheotomy. His sister visited and reported to the Police that Hodge said Ogami to her. A week later Hodge began bleeding through his nasogastric tube. Police showed Hodge a photographic array. Hodge would blink and/or nod in response to questions. Hodge blinked and nodded as if to select the fourth photograph. That was a picture of Dale 'Ogami' Benjamin. Ogami was on the beach when the shooting occurred. D's photograph was not in the array. Doctors operated to control Hodge's bleeding and he appeared to improve. Several other police officers had Hodge again view a photo array. This time, D's picture was included as the fifth of the six pictures in the array. The officers asked Hodge if his assailant was pictured in the array, and they relied upon his non-verbal interactions to interpret his response. P argued at trial that Hodge's blinks and nods in response to that inquiry were unresponsive. D argued that Hodge's blinks and nods amounted to an identification of the person depicted in photograph number two as the assailant. Hodge died 6 days later. Harrigan and Martin were separately shown the same array of photographs that Hodge last viewed. Both identified D's picture as being a photograph of the person who shot Hodge. On a subsequent day, Frederiksen also identified D as the shooter from the same array. The picture of D differed slightly from the other pictures in the array because (1) it was an informal picture taken by a friend, not a 'mug shot,' so that the angle was different; (2) D wore a gold chain while the others pictured did not; (3) D was the only person not wearing a shirt; and (4) D was pictured with a more pronounced smile than anyone else. D was arrested and one of the men arrested with him had a gold Gucci chain. D claimed the chain was his and asked police to give it to his wife. Berenice Hodge later testified that this chain was similar to chains worn by Hodge. D filed a motion to suppress the photographic identifications by Harrigan, Frederiksen, and Martin. The court denied the suppression motion. P filed a motion in limine to preclude D from admitting testimony regarding Hodge's reference to 'Ogami' when Hodge was shown the photographic array on May 20 and Hodge's identification of another person as the shooter in an array including Lawrence on May 25. D insisted that the identifications constituted dying declarations that were an exception to the hearsay rule. He also argued that the identifications met the standard of materiality under the residual hearsay exception. The court held that neither identification constituted a dying declaration because the evidence did not establish that Hodge believed he was dying at the time of the declarations. During cross-examination of a government witness and again during D's case-in-chief, defense counsel tried to elicit what Berenice Hodge said her brother told her at the hospital the day after the shooting. The court rejected D's claim that these statements constituted excited utterances and ruled that they were hearsay that was not admissible as an 'excited utterance' under Rule 803(2). D was convicted and appealed.
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