Deshay Hackner v. State of Indiana
Court of Appeals of Indiana | Opinion 19A-CR-1577 | January 12, 2021 (2021)
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Rule of Law:
A victim's nonverbal conduct can be admitted as a dying declaration under Indiana Evidence Rule 804(b)(2) if the declarant believes death is imminent and has abandoned all hope of recovery, and any ambiguity of such a nonverbal act goes to the weight of the evidence for the jury, not its admissibility.
Facts:
- In October 2017, Deshay Hackner and his wife, Toni Wilson, lived with Wilson’s best friend, Diamond Oldham, and William Rice, Oldham’s boyfriend, would occasionally stay there, and neither Hackner nor Wilson had jobs or money.
- During October 2017, Oldham saw Rice and Hackner with a black revolver, a silver revolver, and a .22 caliber long pistol, and Hackner also possessed these firearms at a friend's apartment and at the West Maryland Street house.
- Around October 26 or 27, Hackner and Oldham traveled to Owensboro, Kentucky, where Hackner's friend, Dewone Broomfield, flashed a 'big stack' of money at a gas station.
- On October 30, Hackner and Rice knew Broomfield was recovering at home from eye surgery with his girlfriend, Mary Woodruff.
- On October 30, after a physical altercation with Wilson, Hackner left the house with Rice, carrying the .22 caliber long pistol and handing Rice the black revolver.
- Later on October 30, Hackner and Rice went to Broomfield and Woodruff’s house, where Broomfield was shot three times with a .22 caliber long pistol, and Woodruff was shot twice with a .38 black revolver; Hackner and Rice then fled with money and drugs.
- Broomfield called 911 and verbally identified his shooters as 'Deshay. D. and William Rice,' and when Officer Brewer arrived, Broomfield responded to the question 'Was it Deshay?' with a head nod interpreted as 'yes,' though this was not captured on body camera; both Broomfield and Woodruff died from their injuries.
- After fleeing, Hackner instructed Wilson and Oldham to pack bags for a hotel, and once there, told them not to put anything in the trash and to wipe bottles, then pulled out the .22 caliber pistol and black revolver and asked Rice to wipe them down, which Rice did for the .22 caliber pistol.
Procedural Posture:
- The State charged Deshay Hackner with two counts of murder, two counts of robbery (Level 5 felonies), a firearm enhancement, and alleged he was an habitual offender.
- A jury trial was held in the Tippecanoe Superior Court (trial court) from April 23 to May 3, 2019.
- At trial, Hackner objected to the admission of evidence that Broomfield nodded his head in response to Officer Brewer’s question, but the trial court overruled the objection.
- The jury found Hackner guilty as charged.
- The trial court sentenced Hackner to an aggregate sentence of 157 years in the Indiana Department of Correction.
- Hackner, as the appellant, appealed his conviction to the Court of Appeals of Indiana, arguing the trial court abused its discretion by admitting certain evidence.
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Issue:
Does a dying victim's nonverbal head nod, interpreted by an officer as an affirmative response to an identifying question, qualify as an admissible dying declaration under Indiana Evidence Rule 804(b)(2) when the victim is suffering from mortal wounds, even if the nonverbal act was not captured on body camera?
Opinions:
Majority - Robb, Judge
Yes, the trial court did not abuse its discretion by admitting evidence of Broomfield’s nonverbal head nod because its ambiguity goes to the weight of the evidence for the jury, not its admissibility as a dying declaration. The court affirmed that hearsay statements, including nonverbal assertions, are admissible as dying declarations under Indiana Evidence Rule 804(b)(2) when the declarant believes death is imminent and has abandoned all hope of recovery, made about the cause or circumstances of their impending death. Hackner did not dispute that Broomfield believed death was imminent, but rather challenged the ambiguity of the nod. Citing Sandefur v. State, the court reiterated that uncertainty about a declarant's meaning in nonverbal assertive conduct bears on credibility, which is a matter for the finder of fact, rather than a question of admissibility. The jury listened to Broomfield's verbal identifications on the 911 call, watched the body camera footage, and heard Officer Brewer's testimony and interpretation, thus allowing them to weigh the evidence appropriately and assess witness credibility.
Analysis:
This case clarifies the application of the dying declaration exception to hearsay, particularly concerning nonverbal assertions. It reinforces the principle that the interpretation and weight of ambiguous nonverbal dying declarations are functions of the jury, not a basis for excluding the evidence outright. The ruling underscores judicial deference to the jury's role in assessing witness credibility and evidentiary weight, even when the evidence involves a subjective interpretation of a victim's gestures. This decision could impact future cases by broadening the types of nonverbal conduct considered admissible under the dying declaration exception, shifting the focus from admissibility concerns to the trier of fact's role in evaluating the reliability of such testimony.
