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Cincinnati • Paralyzed and hooked up to a ventilator, David Chandler was two weeks from death when police arrived at his hospital room to question him about the person who shot him. They wanted to know if he could identify a suspect, and they had a photo to show him.
Chandler was unable to communicate except with his eyes as he lay in bed attached to myriad tubes and with a brace around his neck. His eyes opened barely more than a slit at times; he was instructed to blink three times for yes and twice for no. One detective quizzed him, and another videotaped his responses.
Chandler didn't respond with blinks to every question in the 17-minute video, and there were solo blinks. But triple blinks came in response to repeated questions asking if he knew the shooter and whether the person in the photo was the culprit.
An upcoming murder trial hinges on the videotape of those blinks, a rare effort by a prosecution to show a defendant has been identified by gesture: the nod of a head, squeeze of a hand, blink of an eye.
Legal experts say such cases — while not unheard of — are unusual, and dying identifications relying on gestures rather than words are often not used in trials because of concern over reliability or differing interpretations. But some have been used in murder cases around the country that have ended in convictions.
Challenges facing jurors in such cases include determining whether victims are fully aware of what is being asked and are in control of their movements.
"People blink naturally anyway, so the question could be whether the blinking is really identifying someone or is automatic or the result of something going on medically," said Michael Benza, a visiting professor of law at Case Western Reserve University in Cleveland.
Chandler, 35, was shot in the head and neck as he sat in a car early Oct. 28, 2010, in Cincinnati. He remained paralyzed from his injuries when police interviewed him Nov. 2. He eventually went into a coma, dying 10 days later.
The man authorities say he identified, 34-year-old Ricardo Woods, is charged with murder, felonious assault and weapons counts and faces up to life in prison if convicted. A hearing in the case is set for Monday, which had been the original trial date. The judge could set a new trial date at the hearing.
Prosecutors would not comment on motive, although authorities have suggested the Cincinnati men knew each through drug deals. Woods has previous convictions in Hamilton County for aggravated robbery, felonious assault and trafficking in cocaine.
The defense suggests that Chandler's condition and drugs used to treat him could have affected his ability to understand and respond. Woods' attorney, who tried unsuccessfully to block the video evidence, insists the blinks are inconsistent and unreliable.
"There are times when detectives asked questions and he didn't blink at all, and other times there are too many blinks," said attorney Kory Jackson.
Prosecutors insist Chandler clearly identified Woods as the gunman.
"While the case is unusual, we believe — and the judge agreed — that the victim's interview and identification of the defendant as his assailant is reliable," prosecutor's spokeswoman Julie Wilson said.
Judge Beth Myers of Hamilton County Common Pleas Court ruled that jurors could see the videotape, saying she found the blinks reliable. She said they were made by pronounced, exaggerated eye movements and not by involuntary blinking.
During the hospital interview, Chandler also was asked whether he knew the shooter's name. The detective drew a pen across an alphabet list, asking Chandler to blink three times to indicate the first letter of the name or nickname.
The detective stated that Chandler blinked three times when the pen stopped on "O," although the alphabet was turned away from the camera. Authorities allege Woods was at times known as "O," but Jackson says there is no record of that.
Jackson also contends that police erred and "were too suggestive" when they asked Chandler to identify one photo without other choices.
Jonathan Rapping, a law professor at Atlanta's John Marshall Law School, believes the use of only one photo rather than the typical array of photos may prove problematic. Using one photo violates a defendant's constitutional right to a fair trial if it is unnecessarily suggestive and increases the likelihood of misidentification, he said.
"Clearly showing one photo is suggestive that 'this is the person,'" Rapping said.
But he said that when a victim and a suspect know each other, it can be argued there is less chance for a mistaken identification.
Prosecutors said they could use one photo because they contend Chandler knew the suspect and the identification came quickly after the crime.
"The bottom line is that the judge allowed it into evidence," Wilson said.
Victims' dying declarations based on nonverbal identifications have been used in other murder cases.
In Oklahoma City, a man was convicted in 1985 of first-degree murder and arson in the burning death of his wife, who could not speak due to her injuries and survived only two days. But she was able to nod to identify her husband as the person who poured gasoline on her and set her on fire.
In Boynton Beach, Fla., two men were convicted of first-degree murder and attempted robbery in the 2007 shooting of a man who was left paralyzed and unable to speak before he died. But he was able to identify both defendants by blinking his eyes when shown photo lineups.
Assistant State Attorney Andrew Slater in Florida's Palm Beach County said he was careful to show the court that the family also had communicated with the victim through blinks and detail the steps police took to establish them as legitimate responses.
"I think I was able to show he knew what he was doing, and that is what gave the identification procedure reliability," Slater said, adding that videotape of such blinks "should be even better" for establishing reliability.
Blinks that look decisive and defined would help prosecutors, while the defense would benefit if they appear random or involuntary, said Harvard Law School professor Ronald S. Sullivan.
Sullivan said dying declarations in general can be powerful testimony, "because the imagery is that of someone speaking from the grave."