Harkins v. State

Supreme Court of Nevada · 2006 · Evidence

122 Nev. 974 (2006)

Updated August 22, 2026

EvidenceConfrontation ClauseHearsay911 statementsDying declarationsSelf-defense instructionsCrawfordDavis

Facts

After Harkins shot Deriso, Deriso ran to neighbor Wayne Whitton's house, and Whitton called 911. During the call, the dispatcher asked whether Deriso knew who shot him, Whitton relayed the question, and Deriso responded, "Jerry shot me and he was paid to do it," before dying shortly thereafter. Before trial, Harkins moved to exclude Whitton's testimony about that statement, arguing it was testimonial under Crawford, but the district court admitted it. At trial, Harkins also asserted self-defense, and the court gave an apparent-danger instruction stating the jury "may" find him not guilty if it found he reasonably believed he was in imminent danger.

Issue

Whether the victim's statement during the 911 call was barred by the Sixth Amendment because it was testimonial and the victim was unavailable for cross-examination. Also, whether the district court's apparent-danger self-defense instruction was erroneous and, if so, whether the error required reversal.

Rule

A dying declaration, defined under NRS 51.335 as a statement made by an unavailable declarant while believing death was imminent, remains an exception to the Sixth Amendment confrontation right because it was recognized at common law. A hearsay statement is nontestimonial when, under the totality of the circumstances, it would not lead an objective witness reasonably to believe it would be available for use at a later trial; relevant factors include to whom the statement was made, whether it was spontaneous or in response to questioning, whether the inquiry sought emergency assistance or evidence for later trial, and whether the statement was made during an ongoing emergency or later in a more formal setting.

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tucson, Nolan Pierce staggered into a laundromat holding his chest after being stabbed. He told the clerk, gasping, "Call 911, I’m not going to make it," and when a dispatcher asked who did it, Nolan answered, "Evan did," before losing consciousness; he died two hours later and never testified.

At Evan’s murder trial, Nolan’s statement identifying Evan is offered through the clerk. Evan argues the statement is barred by the Sixth Amendment because he never had a chance to cross-examine Nolan. How should the court rule?

Explanation. The statement is admissible. The majority held that dying declarations are a historical, sui generis exception to the Sixth Amendment confrontation right. The declarant must be unavailable and must have made the statement while believing death was imminent, and that belief may be inferred from circumstances such as severe wounds, distress, difficulty speaking, and death shortly thereafter. Those facts support admissibility here.