Malik Dority v. State of Arkansas

Cite as 2025 Ark. App. 607
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-24-756

MALIK DORITY Opinion Delivered December 10, 2025
APPELLANT
APPEAL FROM THE MISSISSIPPI
V. COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT
STATE OF ARKANSAS [NO. 47BCR-23-43]
APPELLEE
HONORABLE SCOTT A. ELLINGTON,
JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Malik Dority appeals after he was convicted by a Mississippi County Circuit

Court jury of first-degree murder. He was sentenced to serve 144 months’ incarceration.

On appeal, appellant contends that (1) the circuit court erred in denying his motion for

directed verdict because the circumstantial evidence presented was insufficient to prove he

was an accomplice; and (2) the circuit court erred by allowing the admission of out-of-court

statements made by the victim as dying declarations under Arkansas Rule of Evidence 804

and in violation of appellant’s right to confrontation guaranteed under the Sixth

Amendment. We affirm.

I. Relevant Facts

In brief summary, on January 17, 2023, appellant was driving his car with his cousin

D’Andre Whitfield and codefendant Terry Hall in the back seat. Mr. Whitfield was held at
gunpoint. Appellant drove the car to an alley near an abandoned house, and the three men

got out of the car. Mr. Whitfield ran and was shot once in the back. The bullet went through

his esophagus and trachea. Appellant and Mr. Hall got back into the vehicle and sped away.

Mr. Whitfield made some statements to law enforcement implicating appellant and Mr. Hall

in his shooting before he died from his injuries. Appellant was later arrested and charged

by felony information with first-degree murder in violation of Arkansas Code Annotated

section 5-10-102 (Repl. 2024). The State further stated that appellant’s sentence should be

enhanced because he employed a firearm during the commission of a felony in violation of

Arkansas Code Annotated section 16-90-120 (Supp. 2023).

Before trial, appellant filed a motion in limine on February 28, 2024, to exclude the

introduction of recorded statements that the victim, Mr. Whitfield, made to law

enforcement before his death. He argued that the admission of any testimonial out-of-court

statements made by Mr. Whitfield made to law enforcement that implicated him as the cause

of Mr. Whitfield’s injuries violated his constitutional right to confront witnesses as

guaranteed by the Confrontation Clause contained in the Sixth Amendment to the United

States Constitution and by the Supreme Court of the United States in the case of Crawford

v. Washington, 541 U.S. 36 (2004). He further argued that the State could not introduce the

statements through any applicable hearsay exception found in Rules 803 or 804 of the

Arkansas Rules of Evidence. A hearing on the motion was held on April 22, 2024.

At the hearing, Assistant Chief Vanessa Stewart of the Blytheville Police Department

testified that, when she arrived at the scene of the shooting, Mr. Whitfield was lying in the

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street and having difficulty breathing. A photograph of Mr. Whitfield after he had been shot

was introduced at the hearing as well as a video of Stewart’s interaction with Mr. Whitfield

while he was lying in the street. When Assistant Chief Stewart asked Mr. Whitfield if he

knew who shot him, he initially said it was someone associated with the Wall Street gang

and “started spitting up blood.” She also believed she heard him say the name “Evans.” She

explained that Mr. Whitfield had significant blood loss.

When the ambulance arrived, Mr. Whitfield was taken to a helicopter pad at the

nearby Great River Medical Center. The initial intent was to airlift him to a hospital in

Memphis. Assistant Chief Stewart followed the ambulance to the hospital. Once there, she

spoke with Mr. Whitfield in the ambulance while the paramedics were trying to treat him.

Mr. Whitfield seemed more coherent to her than he was in the street. Assistant Chief

Stewart testified that, when she asked Mr. Whitfield if he could write the name of the person

who shot him on a piece of paper, he gave her a “thumbs up.” He then pulled his oxygen

mask down and told her that appellant was the person who shot him. Because Mr. Whitfield

had medical equipment attached to his fingers and “had blood on him,” she decided to

record his statement rather than have him write it. The audio recording was played at the

hearing.

In the audio recording, Mr. Whitfield told Assistant Chief Stewart that he had been

in the car with appellant and Percy Lee that day. It was later determined that the name

“Percy Lee” was an alias used by Terry Hall. Mr. Whitfield initially said that Mr. Hall was

driving but later corrected his statement and said that Mr. Hall had him at gunpoint in the

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back seat of the car while appellant was driving. Mr. Whitfield further stated that when he

got out of the car to run, appellant shot him. While Assistant Chief Stewart was speaking

with appellant, Mr. Whitfield began to choke, and paramedics attempted to treat him. One

paramedic noted that Mr. Whitfield had blood in his ear, but she was unsure where it was

coming from. The paramedics ultimately concluded that Mr. Whitfield could not be

transported by helicopter and decided to take him into the emergency room of the hospital.

The paramedics attempted to resuscitate Mr. Whitfield while Assistant Chief Stewart ran

into the emergency room, warning them to prepare to treat Mr. Whitfield. Mr. Whitfield

died shortly afterward.

The State argued that Mr. Whitfield’s statements were admissible under Arkansas

Rule of Evidence 804 and Crawford, supra, as dying declarations. It emphasized Mr.

Whitfield’s condition when the statements were made and argued that there was “no

question there was a sense of imminent death.” Appellant’s counsel disagreed and argued

that the statements were inadmissible. After hearing arguments of counsel, the circuit court

denied appellant’s motion to exclude Mr. Whitfield’s statements to Assistant Chief Stewart.

The circuit court first found that on the basis of the photograph and video showing Mr.

Whitfield’s condition after he had been shot, Mr. Whitfield’s statement to Assistant Chief

Stewart was made “believing that his death was imminent[.]” The court also ruled that a

“dying declaration is a traditional exception to the Sixth Amendment right to confrontation”

and that the holding in Crawford, supra, did not bar the admission of a dying declaration.

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Appellant’s trial was held on April 23–26, 2024. Sergeant Cade Liles with the

Blytheville Police Department testified that he responded to a call about the shooting on

January 17, 2023. He said that he found Mr. Whitfield lying on the street suffering from an

apparent gunshot wound. Sergeant Liles attempted to provide medical aid until EMS arrived

and provided scene security. He later went to Great River Medical Center to collect Mr.

Whitfield’s clothing and shoes for evidence.

Three witnesses, Maurice Gross, Rupert Mitchell, and Jeffrey Merriweather, testified

that they had been playing dominos outside on the porch at a house near the scene of the

shooting. Each of them heard the gunshots. Mr. Gross testified that he walked over to Mr.

Whitfield after he heard the gunshots, and Mr. Whitfield said “don’t let them shoot me no

more.” Mr. Whitfield was “coughing up blood” and “a tooth came out.” Mr. Gross later

told law enforcement that he saw appellant standing near the scene in a white jacket after

law enforcement had finished at the scene. Mr. Merriweather called 911.

Assistant Chief Stewart’s testimony was consistent with her testimony offered at the

pretrial hearing held on April 22, 2024, which we do not repeat. The audio recording of

Mr. Whitfield’s dying declarations made in the ambulance was played for the jury over

appellant’s renewed objection.

Jimmy Dority, Mr. Whitfield’s father and appellant’s uncle, testified that he received

a phone call that his son had been shot. He said that after Mr. Whitfield’s death, appellant

asked to come to his home. He agreed because he did not think appellant had anything to

do with his son’s death at the time. Appellant denied ever being at the scene. A month

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later, appellant had another conversation with Mr. Dority. At that time, appellant admitted

that he was with Mr. Whitfield when he was shot. Appellant told him that Percy Lee (also

known as Mr. Hall) jumped in his car, took appellant’s key fob, and attempted to rob both

of them at gunpoint. He said that Mr. Lee had shot Mr. Whitfield. Mr. Dority was aware

that Mr. Whitfield owed appellant money.

Larivva Whitfield, Mr. Whitfield’s mother and appellant’s aunt, testified that she was

aware that there had been trouble between appellant and Mr. Whitfield. She explained that

appellant told her that Mr. Whitfield had stolen some money from him but “it was

squashed.” Appellant also told Ms. Whitfield that her son had left town and gone to

Michigan after the money was stolen. Mr. Whitfield came back to Blytheville three weeks

later and went to see Ms. Whitfield at the Dollar Tree where she worked. When he left, she

saw appellant. By the time she came out of the store, appellant was walking down the

sidewalk from Taco Bell and told her, “I’m finna whoop you son’s ass.” Ms. Whitfield stated

that she had seen a Facebook live video taken by appellant of the incident, and the video was

played for the jury.

Jamardre Foreman testified that he had met appellant in 2012 and then again in

2019. Mr. Foreman testified regarding scams that appellant had him run. He explained that

he would obtain lines of credit, purchase equipment using the credit, and then sell the

equipment on Facebook Marketplace. He would not pay back the lines of credit because

appellant knew a “guy that worked there get rid of it at the computer.” Mr. Foreman would

give appellant the money from the sales, and appellant would pay him a small sum in return.

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Mr. Foreman was arrested for those scams in Texas and Tennessee. He said that after his

convictions, he worked for a lawncare service and tried to change. According to Mr.

Foreman, appellant contacted him a week before the shooting and offered him $5,000 to

shoot Mr. Whitfield because Mr. Whitfield had stolen $22,000 from appellant after one of

the scam sales. Mr. Foreman testified that he declined the offer.

Detective Chelsey Grimes testified that she took pictures of the scene on the day of

the shooting. Those pictures were admitted and published for the jury. During her

investigation, she determined that Percy Lee was, in fact, Terry Hall. She also watched a

video of the shooting that was taken at a distance from an outside security camera. That

video was admitted and played for the jury. The vehicle driven by appellant was secured six

days after the shooting. Detective Grimes testified that there was a pair of shoes in the trunk

that matched a footprint at the scene of the shooting and that there was mail belonging to

appellant in the glove box. She also was able to obtain a series of Facebook Messenger

exchanges between Mr. Hall and appellant. Those messages were admitted into evidence

over appellant’s objection. At one point in the exchange, Mr. Hall told appellant, “I fwu

gang the long way. Sometimes examples need to be set Family or not feel me.” Appellant

responded, “That’s the same . . . I was thinking that’s why ima demonstrate.”

Dr. Stephen Erickson, the medical examiner from the Arkansas State Crime

Laboratory, testified that he performed Mr. Whitfield’s autopsy. He took various

photographs that were admitted into evidence. Dr. Erickson’s report was admitted into

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evidence. He determined that Mr. Whitfield’s cause of death was a single gunshot to the

back, and the manner of death was homicide.

After the State presented its case-in-chief, defense counsel moved for directed verdict.

He argued that the State had failed to prove accomplice liability. He explained that the dying

declarations were inconsistent. The State disagreed and argued that any credibility issues are

for the jury to decide. The circuit court denied appellant’s motion.

Relevant to this appeal, appellant testified in his own defense. Appellant admitted

that he committed the equipment scams that led to his pleading guilty to theft in Texas,

Tennessee, and Arkansas. However, appellant denied that he murdered Mr. Whitfield.

Appellant testified that Mr. Whitfield had stolen $22,000 in proceeds from the equipment

scams that was owed to him. Although appellant admitted that he had threatened to beat

Mr. Whitfield outside Dollar General, he said that he would “never kill” Mr. Whitfield.

Instead, he claimed that before the shooting, Mr. Whitfield had repaid him some of the

money, and appellant just took the remainder “as a loss” because he missed being around

Mr. Whitfield. Appellant further claimed that at the time of the shooting, he was on “good

terms” with Mr. Whitfield and denied offering Mr. Foreman $5,000 to shoot Mr. Whitfield.

Appellant testified that before Mr. Whitfield was shot, he was sitting in the driver’s

seat of his car with Mr. Whitfield in the front passenger seat. Mr. Hall approached the car

on foot and asked for a ride. When appellant agreed, Mr. Hall got in the back seat. While

driving, Mr. Hall stole appellant’s key fob, pointed a gun at appellant, and instructed him to

drive where he told him. Mr. Hall stole $400 from appellant and later told Mr. Whitfield

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to get in the back seat with him. Mr. Hall asked Mr. Whitfield where “that money [he] just

uploaded at Facebook” was, and Mr. Whitfield told him that it was at his uncle’s home.

When they were close to his uncle’s home, Mr. Hall instructed him to pull into the alley

nearby, and the three of them got out of the car. Mr. Hall had told them to walk to the

home, but Mr. Whitfield started to run. Appellant testified that Mr. Hall then shot Mr.

Whitfield. Appellant drove away with Mr. Hall in the front seat of the car, and appellant

said at trial that Mr. Hall had threatened to kill appellant’s aunt if appellant told anyone

about the shooting.

A text-message exchange between appellant and Mr. Hall that occurred after the

shooting was admitted into evidence. In those text messages, appellant told Mr. Hall that

he was not going to “save” him and that he wanted his money back because “all [he] did was

help [Mr. Hall] and try to keep [Mr. Hall] out of trouble.” When Mr. Hall asked what he

was going to say, appellant texted the following:

I ain’t gone say shit to the police my lawyer ain’t gone let but I can’t save you you took
my shit after all I did for u and my lil cousin dead. You ain’t have to do that shit u
should of just took my shit and left. You need to send my bread ima be needing my
shit to bond out.

Mr. Hall responded that he needed to make sure appellant did not “snitch” on him. When

appellant was asked at trial why he would expect someone who had robbed him to give his

money back, appellant testified that he wanted “to see” if Mr. Hall would give it back because

he knew that Mr. Hall had killed his cousin.

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On cross-examination, appellant admitted that he did not try to run away when he

heard the gunshots but instead went to the driver’s side of the car to wait for Mr. Hall.

Appellant also admitted that he would make $20,000 to $40,000 a month from the scam

sales he organized. Although appellant further admitted that he chased Mr. Whitfield

around Dollar Tree after Mr. Whitfield stole money from him, he claimed that he had

decided to “let bygones be bygones” because the family needed “to be back together.”

Appellant explained that he had lied to his uncle and aunt about not being at the scene

because he wanted to protect his aunt and family.

At the close of all the evidence, appellant renewed his motion for directed verdict,

which the circuit court denied. The jury found appellant guilty of first-degree murder but

did not find him guilty of employing a firearm during the commission of a felony. Appellant

was sentenced to serve 144 months’ incarceration. This appeal followed.

II. Sufficiency of the Evidence

We treat a motion for a directed verdict as a challenge to the sufficiency of the

evidence. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491. In reviewing a sufficiency

challenge, we assess the evidence in the light most favorable to the State and consider only

the evidence that supports the verdict. Id. We will affirm a judgment of conviction if

substantial evidence exists to support it. Id. Substantial evidence is evidence that is of

sufficient force and character that it will, with reasonable certainty, compel a conclusion one

way or the other without resorting to speculation or conjecture. Id. Circumstantial evidence

may provide a basis to support a conviction, but it must be consistent with the defendant’s

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guilt and inconsistent with any other reasonable conclusion. Collins v. State, 2021 Ark. 35,

617 S.W.3d 701. Whether the evidence excludes every other hypothesis is left to the jury to

decide. Id. Further, the credibility of witnesses is an issue for the jury, not the court; the

trier of fact is free to believe all or part of any witness’s testimony and may resolve questions

of conflicting testimony and inconsistent evidence. Armstrong, supra.

This court has noted that a criminal defendant’s intent or state of mind is seldom

apparent. Benton v. State, 2020 Ark. App. 223, 599 S.W.3d 353. One’s intent or purpose,

being a state of mind, can seldom be positively known to others, so it ordinarily cannot be

shown by direct evidence but may be inferred from the facts and circumstances. Id. Because

intent cannot be proved by direct evidence, the fact-finder is allowed to draw on common

knowledge and experience to infer it from the circumstances. Id. Because of the difficulty

in ascertaining a defendant’s intent or state of mind, a presumption exists that a person

intends the natural and probable consequences of his or her acts. Id.

Pursuant to Arkansas Code Annotated section 5-10-102(a)(2), a person commits first-

degree murder if with a purpose of causing the death of another person, the person causes

the death of another person. Ark. Code Ann. § 5-10-102(a)(2). A person acts purposely with

respect to his or her conduct or a result of his or her conduct when it is the person’s

conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann.

§ 5-2-202(1) (Repl. 2024).

Under the theory of accomplice liability, “[a] person may commit an offense either by

his or her own conduct or that of another person.” Ark. Code Ann. § 5-2-401 (Repl. 2024).

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“A person is criminally liable for the conduct of another person if . . . [t]he person is an

accomplice of another person in the commission of an offense[.]” Ark. Code Ann. § 5-2-

402(2) (Repl. 2024). A person is an accomplice of another person if, with the purpose of

promoting or facilitating the commission of the offense, he or she solicits, advises,

encourages, coerces, aids, agrees to aid, or attempts to aid in planning or committing the

offense. Ark. Code Ann. § 5-2-403(a)(1)–(2) (Repl. 2024).

When a theory of accomplice liability is implicated, we affirm the circuit court’s order

in a sufficiency-of-the-evidence challenge if substantial evidence shows that the defendant

acted as an accomplice in the commission of the alleged offense. Price v. State, 2019 Ark.

323, 588 S.W.3d 1. There is no distinction between principals on the one hand and

accomplices on the other, insofar as criminal liability is concerned. Id. When two people

assist one another in the commission of a crime, each is an accomplice and criminally liable

for the conduct of all. Id. One cannot disclaim accomplice liability simply because he or she

did not personally take part in every act that went to make up the crime as a whole. Id. Key

factors in establishing accomplice liability include the defendant’s proximity to the crime,

opportunity to engage in it, and association with an involved party in a way that suggests

joint participation. Turner v. State, 2024 Ark. 171, 699 S.W.3d 369. The defendant’s actions

and statements before or after the crime can also serve as corroborative evidence. Id.

On appeal, appellant does not dispute that he was present when Mr. Whitfield was

shot. He also does not dispute that he did not inform law enforcement that an offense had

been committed. Instead, he claims that there is a lack of substantial evidence that “he had

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orchestrated the killing or was involved in its planning or execution in any capacity” to

support his conviction of first-degree murder. He argues that the evidence offered at trial

was merely circumstantial and that it “is entirely reasonable and plausible that Terry Hall

acted alone and robbed Appellant and [Mr.] Whitfield at gunpoint.” He further argues that

Mr. Foreman’s testimony was not credible, and Mr. Whitfield’s dying declaration was not

conclusive because appellant was not the “triggerman.” We disagree.

Because an accomplice need not personally take part in every act that went to make

up the crime as a whole, it is immaterial whether appellant was the person who actually

pulled the trigger in shooting Mr. Whitfield. Here, the jury heard testimony that appellant

had been angry with Mr. Whitfield for stealing $22,000 from him and that he told Mr. Hall

in a Facebook message that he would “demonstrate.” In fact, appellant chased and

threatened Mr. Whitfield at Dollar General in December 2022. Mr. Foreman testified that

appellant had offered him $5,000 to shoot Mr. Whitfield just a week before Mr. Whitfield

was murdered. The jury saw the video of Mr. Whitfield running away from appellant and

Mr. Hall when he was shot and that Mr. Hall and appellant afterwards fled the scene

together. The jury also heard a recording of Mr. Whitfield telling Assistant Chief Stewart

that Mr. Hall held him in the back seat at gunpoint while appellant drove and that appellant

had shot him when he ran. After the shooting, appellant told Mr. Whitfield’s parents that

he had not been at the scene when Mr. Whitfield was shot. Moreover, there was a text-

message conversation between Mr. Hall and appellant that was admitted into evidence.

Although appellant claimed that he was also a victim of robbery and did not act as an

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accomplice, the jury was free to believe all or part of appellant’s explanation or to believe the

State’s version of the facts. Turner, supra.; see Smith v. State, 2022 Ark. 95. Thus, we hold

that the evidence above, viewed in the light most favorable to the State, constitutes

substantial evidence of appellant’s participation as an accomplice in the first-degree murder

of Mr. Whitfield. Accordingly, we affirm on this point.

III. Dying Declarations

Appellant argues that the circuit court erred by allowing the admission of out-of-court

statements made by the victim as dying declarations under Arkansas Rule of Evidence 804

and in violation of appellant’s right to confrontation guaranteed under the Sixth

Amendment. Hearsay statements are admissible against a defendant in a criminal trial when

two conditions are met. First, the statement must fall under a hearsay exception; second,

the statement cannot violate the defendant’s Sixth Amendment right to confront witnesses

against him. McNeil-Lewis v. State, 2023 Ark. 54, 661 S.W.3d 195. We address each issue

separately.

A. Rule 804

Appellant specifically argues that the circuit court erred in admitting the out-of-court

statements as dying declarations because “there was no evidence presented that

demonstrated that [Mr.] Whitfield believed that his death was imminent and inevitable.”

We disagree.

In Arkansas, hearsay is defined as a statement other than one made by the declarant

while testifying at trial or hearing offered in evidence to prove the truth of the matter

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asserted. Ark. R. Evid. 801(c). Hearsay is inadmissible except as provided by law or by the

rules of evidence. Ark. R. Evid. 802. Rule 804 of the Arkansas Rules of Evidence provides

hearsay exceptions that apply when the declarant of a statement is unavailable. One of these

exceptions to the hearsay rule is a statement made under belief of impending death,

commonly referred to as a “dying declaration.” Grant v. State, 357 Ark. 91, 161 S.W.3d 785

(2004). A dying declaration is defined as a statement made by a declarant while believing

that his death was imminent concerning the cause or circumstances of what he believed to

be his impending death. Ark R. Evid. 804(b)(2); Grant, supra. Dying declarations are deemed

inherently trustworthy. Plessy v. State, 2012 Ark. App. 74, 388 S.W.3d 509. The principal

consideration upon which such statements are admitted is that one who realizes that death

is inevitable in consequence of the injury inflicted speaks with solemnity and will not resort

to fabrication in order to unjustly punish another. Id. The circuit court makes the

preliminary determination of whether the evidence is admissible and on review, we will

reverse that determination only if there is an abuse of discretion. Simpkins v. State, 48 Ark.

App. 14, 889 S.W.2d 37 (1994). Our appellate courts have held that a sense of imminent

death need not be shown by the declarant’s express words alone but can be supplied by

inferences fairly drawn from his condition. Grant, supra; Plessy, supra.

Here, Mr. Whitfield had been shot in the back, and the bullet went through his

esophagus and trachea. Chief Assistant Stewart testified that Mr. Whitfield was struggling

to breathe and spitting up blood. A video of Mr. Whitfield immediately after he was shot

and lying in the street was introduced at the motion hearing. Although Chief Assistant

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Stewart thought Mr. Whitfield was a little more coherent in the ambulance, paramedics were

treating him while he was making statements. There were times that he gasped and choked,

and even one paramedic can be heard saying that there was blood coming from Mr.

Whitfield’s ear, but she was unsure why. Considering the obvious severity of Mr. Whitfield’s

injuries and his difficulty to breathe, we cannot conclude that the circuit court abused its

discretion in determining his statements were dying declarations and admissible at trial.

Accordingly, we affirm the circuit court’s ruling.

B. Confrontation Clause

Having held that Mr. Whitfield’s statements were dying declarations for the reasons

stated above, we discuss whether the admission of Mr. Whitfield’s dying declarations violated

appellant’s Sixth Amendment right to confront witnesses against him. Appellant specifically

argues that the circuit court erred in “finding that there was no right to confrontation and

dying declarations are a carte blanche exception based solely on its historical precedent.” We

affirm.

The Confrontation Clause in the Sixth Amendment to the United States

Constitution states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI. Article 2, section 10

of the Arkansas Constitution reiterates that same right of confrontation. The Arkansas

Supreme Court has consistently interpreted both clauses to provide identical rights. Smith

v. State, 340 Ark. 116, 8 S.W.3d 534 (2000). We review constitutional questions about the

Confrontation Clause de novo. McNeil-Lewis, 2023 Ark. 54, 661 S.W.3d 195.

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The Supreme Court held in Crawford, supra, that testimonial statements1 are

inadmissible under the Confrontation Clause when the declarant is unavailable and the

defendant did not have an opportunity to cross-examine the declarant. 541 U.S. at 68. The

Court noted that the only exceptions to the right of confrontation are those that were

established at the time of the nation’s founding. Id. at 54. Although the Supreme Court

has not explicitly announced that dying declarations are an exception to the right to

confrontation, it has suggested in dicta that there may be such an exception. In Crawford,

the Court noted, “Although many dying declarations may not be testimonial, there is

authority for admitting even those that clearly are.” 541 U.S. at 56 n.6. The Court declined

to decide whether there was an exception for testimonial dying declarations but observed

that “[i]f this exception must be accepted on historical grounds, it is sui generis.” Id.

Four years after Crawford, the Supreme Court again addressed a defendant’s

confrontation rights when a witness is unavailable to testify at trial; however, the focus was

on the doctrine of forfeiture by wrongdoing, which is not at issue here. See Giles v. California,

554 U.S. 353 (2008). The Supreme Court reiterated that “the Confrontation Clause

requires that a defendant have the opportunity to confront the witnesses who give testimony

against him, except in cases where an exception to the confrontation right was recognized at the time

of the founding.” Id. at 357 (emphasis added). In its discussion, the Supreme Court further

stated that it had “previously acknowledged that two forms of testimonial statements were

1
It is undisputed in this case that Mr. Whitfield’s statements were testimonial for
purposes of our analysis.

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admitted at common law even though they were unconfronted. The first of these were

declarations made by a speaker who was both on the brink of death and aware that he was

dying.” Id. at 358 (citations omitted). Because the statements at issue in Giles were not made

while the victim was dying, the Supreme Court concluded that the statements did “not fall

within [that] historic exception.” Id. at 359.

Although our supreme court has not specifically opined on whether testimonial dying

declarations are an exception to the rule in Crawford, other states have done so and

determined that they are. See State v. Buchan, 993 N.W.2d 614 (Minn. 2023); State v.

Williamson, 249 A.3d 478 (2021); Com. v. Nesbitt, 892 N.E.2d 299 (2008); State v. Lewis, 235

S.W.3d 136 (Tenn. 2007); People v. Monterroso, 101 P.3d 956, 972 (2004). Appellant

acknowledges this fact; however, he nevertheless urges this court not to follow suit. In light

of the Supreme Court’s guidance in Crawford and Giles and the persuasive authority from

other jurisdictions as cited above, we agree with the circuit court that testimonial dying

declarations are an exception to the rule in Crawford and pose no conflict with the

Confrontation Clause. Accordingly, we affirm.

Affirmed.

KLAPPENBACH, C.J., and BARRETT, J., agree.

Law Offices of John Wesley Hall, by: Samantha J. Carpenter, for appellant.

Tim Griffin, Att’y Gen., by: Jacob Jones, Ass’t Att’y Gen., for appellee.

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