Judge: Man's deathbed ID of assailants is admissible in murder trial

“He did not go gently into that good night,” a judge alluding to poet Dylan Thomas wrote this week in ruling Calvin Grimes’ deathbed identification of his assailants will be admitted as evidence in the murder trial of Jarvis Alexander and Joshua Leonard.

Shot repeatedly Aug. 19, 2010, Grimes was left 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. He was paralyzed and could not speak as he lay in the Midtown Medical Center’s intensive care unit. He suffered from respiratory failure, bed sores and pneumonia. A machine breathed for him; a tube fed him.

When he regained consciousness weeks later, he was able to “mouth” words he could not vocalize. He told his mother he had given Alexander and Leonard a ride to the Little Joe’s liquor store downtown, and when he stopped the car that day at 543 Third Ave., Leonard shot him from the front passenger seat, got out and ran, and then Alexander shot him from the back seat and fled.

Prosecutors said the shooting was an act of vengeance stemming from Grimes’ testifying against a friend of the two men in another criminal case.

When Columbus police Detective Wayne Fairburn came to the hospital Oct. 11, 2010, to ask Grimes who shot him, Grimes mouthed the name “Jarvis.” Because Grimes could make a faint clicking sound with his mouth, Fairburn wrote the alphabet out on his note pad, pointed to each letter in sequence and had Grimes click when a letter fit an assailant’s name.

In this manner Grimes spelled out the names of Alexander and Leonard. He picked their pictures from a photo lineup two days later.

When later fitted with a device that enabled him to speak, Grimes also told friends and family how he was shot.

In the months to follow, he was transferred to two other hospitals before coming home to live with his mother on Feb. 17, 2011.

In ruling that Grimes’ deathbed testimony is admissible in court, Superior Court Judge William Rumer described Grimes’ dire circumstances:

“In his mother’s house, Mr. Grimes was on both a life-support machine and on a feeding tube. After some time, his feeding tube turned black and he contracted an infection. This led to his second hospitalization at the Medical Center on or about June 17, 2011.”

He died there the following June 26. “He was 20 years old at the time of his death,” Rumer wrote. “He did not go gently into that good night.”

Because Grimes is not alive to testify, defense attorneys have challenged his identification of Alexander and Leonard, claiming that without his testimony, that evidence is hearsay, and not admissible in court.

Case law says such evidence is allowed only if it constitutes a “dying declaration” from someone who knew death was imminent, or who was “in the article of death,” as court precedents put it.

Because Grimes lived 10 months after he was shot, he could not have been “in the article of death,” defense attorneys argued.

Rumer disagreed, citing a doctor’s testimony during a hearing on the defense motion. The physician said Grimes’ condition was so grim that he could have died at any time during his prolonged hospitalization, and he knew it.

Before he died, Grimes told his mother to forgive his assailants.

“This court further considers the last words Mr. Grimes spoke to his mother as evidence of his awareness in the days immediately leading up to his death,” Rumer wrote. “The statements about forgiveness are of the kind that shows awareness of the nearness of one’s death, much like giving directions about funeral arrangements or property distributions. As a result, this court concludes that it was probable that Mr. Grimes was aware of his condition and he knew his death was imminent.”

Charged with murder, aggravated assault and aggravated battery, Alexander and Leonard now are set to go to trial Monday.

This story was originally published October 23, 2014 at 3:36 PM with the headline "Judge: Man's deathbed ID of assailants is admissible in murder trial."