## Facts

- Melvin Pate was shot on November 22, 2010, sustaining catastrophic injuries that rendered him unable to speak and required life support.
- After transfer to a shock trauma center, physicians told Pate he had about 24 hours to live; he was restrained in a hospital bed with extensive medical equipment and appeared to understand death was imminent.
- On November 26, 2010, detectives showed Pate a photographic array containing Jermaine Hailes; Pate identified Hailes as the shooter by blinking in response to questions.
- Pate survived beyond the initial prognosis, was later released from the hospital, and died about two years after the shooting from injury-related complications.
- In Hailes’s prosecution for first-degree murder and related offenses, the State sought to admit Pate’s blink identification.
- The trial court ruled the identification fit the dying-declaration hearsay exception but suppressed it as barred by the Sixth Amendment Confrontation Clause.
- The intermediate appellate court reversed, holding the State could appeal, the statement was a dying declaration, and dying declarations are not barred by the Confrontation Clause.

## Issues

1. Whether Maryland’s interlocutory appeal statute (CJP § 12-302(c)(4)(i)) permits the State to appeal a pretrial order excluding “intangible” evidence, such as a witness identification, on constitutional grounds.
2. Whether Pate’s blink identification qualified as a dying declaration under Maryland Rule 5-804(b)(2) despite his survival for a lengthy period after the statement.
3. Whether the Sixth Amendment Confrontation Clause, as interpreted in *Crawford v. Washington*, bars admission of dying declarations.

## Decision

- The Court of Appeals of Maryland affirmed the intermediate appellate court’s judgment.
- The State was authorized to appeal the suppression order under CJP § 12-302(c)(4)(i), which reaches exclusion of intangible evidence when the exclusion rests on a constitutional ruling.
- Pate’s blink identification was admissible as a dying declaration because it concerned the cause or circumstances of his believed impending death and was made while he subjectively believed death was imminent.
- The Confrontation Clause does not bar dying declarations; the court treated dying declarations as a historical exception and therefore did not need to decide whether the identification was “testimonial.”

## Legal Principles

- CJP § 12-302(c)(4)(i) authorizes a State appeal from a trial court’s exclusion of evidence based on a determination that admission would violate federal or state constitutional provisions, including when the excluded item is intangible evidence such as an identification.
- A dying declaration requires (1) a statement about the cause or circumstances of what the declarant believed to be impending death and (2) the declarant’s subjective belief in imminent death at the time of the statement; subsequent survival does not defeat the exception.
- Dying declarations are admissible notwithstanding *Crawford* because they are a historically recognized exception to confrontation requirements, and cross-examination is not required for their admission.

## Conclusion

The court held that the State could pursue an interlocutory appeal from suppression of a pretrial identification excluded on Confrontation Clause grounds, that the victim’s blink identification was a dying declaration despite his later survival, and that dying declarations remain admissible without violating the Sixth Amendment.


Hailes v. State, 442 Md. 488, 113 A.3d 608 (2015)