Attorneys challenge dying man's ID of alleged gunmen

Three years ago Calvin Grimes lay in intensive care, paralyzed from the neck down, with a gunshot wound to his windpipe.

He could not speak. All he could do was click with his mouth.

In the hospital with machines breathing for him, he could not tell Columbus police who fired the shots Aug. 19, 2010, that left him slumped in a car at 543 Third Ave., with two .40-caliber bullets lodged in his trachea and his spinal canal, and with exit wounds from .22-caliber bullets in his left wrist, upper left thigh and right buttock.

Because Grimes could not vocalize the names of his assailants, Detective Wayne Fairburn improvised as he questioned Grimes in the hospital Oct. 11, 2011.

Fairburn reported Grimes first mouthed the name "Jarvis" when asked who shot him. The detective then wrote the alphabet out on his note pad, and asked Grimes to make the clicking noise as Fairburn pointed to each letter, signaling the sequence to spell names.

Using this method, Fairburn got Grimes to spell "Jarvis Alexander" and "Josh Leonard." Two days later the officer returned with photographs of those suspects, which Grimes identified as the men who shot him.

Later Grimes was fitted with a device that enabled him to speak, and relatives reported he told them the same names.

Today Fairburn and the family can testify to that in court. Grimes cannot. He died June 26, 2011.

Police then got warrants charging the suspects with murder. They arrested Leonard on July 16, 2011. Alexander already was in jail, one of five suspects arrested in November 2010 for another homicide -- the Nov. 9, 2010, slaying of Kelley Leggett, 52, at 475 Old Buena Vista Road. Alexander was charged with Grimes' shooting on July 11, 2011.

Now defense attorneys are trying to get Superior Court Judge William Rumer to rule that Grimes' identifying his assailants is inadmissible in court.

Citing a defendant's constitutional right to question his accuser, they argue Grimes' telling others who shot him now amounts to hearsay, as Grimes himself cannot testify to it.

Prosecutors counter Grimes for years had known Alexander, whom he called "Doo-Doo," and his identifying the two as he lay in intensive care was a "dying declaration" under the law, admissible in court as trustworthy and necessary.

They say the 20-year-old Grimes felt he was near death, and he had to identify his attackers before he died.

"The purpose of these statements is to help a dying man put his affairs in order and to settle himself for his impending death," wrote Assistant District Attorney Pete Temesgen.

That Grimes felt he was about to die was evidenced further by his telling his mother to forgive the men who shot him, because he had forgiven them, prosecutors said.

In a hearing Thursday, Temesgen said Grimes eventually was able to leave the hospital to live with his mother, but an infection in his torso sent him back. That's when Grimes told his mother, "Mama, I'm right with God. You've got to forgive Joshua and Jarvis because I have."

Grimes was unable to walk and still used a ventilator, the prosecutor said. He knew he was about to die, telling his mother, "I'm not coming back home," Temesgen said.

Temesgen cited the U.S. Supreme Court decision Shepard v. State, in which the justices wrote that "no unyielding ritual of words" must be spoken to show someone believed death was imminent but that "despair of recovery may be gathered from the circumstances if the facts support the inference."

Leonard's lawyer is public defender Nancy Miller. Alexander's is Robert Wadkins Jr.

They argue prosecutors can't prove Grimes believed he was dying when he identified his assailants, so what he told or indicated to others is inadmissible.

They say other court precedents hold that statements made by witnesses who aren't available to testify at trial are not "dying declarations" but "testimonial," or hearsay, inadmissible in court if the witness can't testify.

Miller wrote that Grimes had a motive to accuse Leonard. He wanted to get back at Leonard for a past crime Leonard allegedly committed against Grimes.

Wadkins, Alexander's attorney, used the same Shepard v. State precedent prosecutors used, citing this excerpt:

"Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. There must be a settled hopeless expectation that death is near at hand, and what is said must have been spoken in its impending presence."

Wadkins added this line from that decision: "The patient must have spoken with the consciousness of a swift and certain doom."

Wadkins also cited a Georgia Court of Appeals case in which the panel outlined the dangers of admitting such evidence.

It in part reads, "A dying declaration should be received with great caution because, first, the declarant is not under oath, second, because he is not subject to cross-examination, third, because of the likelihood of its being misquoted, and fourth, because it is of a species of proof spoken of as an anomaly, and contrary to all the general rules of evidence, yet it has, where it is received, the greatest weight with juries."

Authorities revealed some details of Grimes' shooting during Thursday's court session. Temesgen said the two suspects had asked Grimes to drive them to Little Joe's liquor store, then they shot him in revenge for his offering testimony against someone they knew.

When Grimes stopped his car, Leonard shot first, then got out and ran, Temesgen said. Grimes turned to his old friend Alexander for help, and Alexander told him, "I got to do it," and also shot him.

Rumer did not rule on the matter Thursday, asking attorneys on each side to submit a proposed court order to him on Monday.

This story was originally published October 16, 2014 at 7:20 PM with the headline "Attorneys challenge dying man's ID of alleged gunmen."