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Dying declaration properly admitted

State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)

The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.

Owens was charged with shooting and killing Pinkard, who was found lying on the ground with a gunshot wound to his chest. Kitts, the first officer on the scene, performed first aid and asked Pinkard who shot him, and Pinkard said the shooter was named “Anthony” and had two nicknames. These statements eventually led police to identify Owens as the shooter. Over Owens’s objections, the circuit court admitted Pinkard’s statements at trial. (¶¶2-6).

Pinkard’s statements to the officer were properly admitted under § 908.045(3), as the circuit court properly concluded Pinkard made his statements believing his death was imminent:

¶12     In light of the circumstances surrounding Pinkard’s statements to Kitts … we conclude that the circuit court did not erroneously exercise its discretion in ruling that Pinkard’s statements relating to who shot him were admissible under Wis. Stat. § 908.045(3). Kitts found Pinkard lying on the ground and suffering from a gunshot wound to his chest. Pinkard was pale, gasping for air, and going in and out of consciousness. At one point, Kitts had to yell at Pinkard “don’t die on me” and “open your eyes.” Furthermore, Pinkard died in the ambulance on the way to the hospital.

¶13     Owens argues that there is no evidence to suggest that Pinkard believed that he was actually in danger of dying. We disagree. We find nothing in the record to suggest that Pinkard did not understand that his injuries were life threatening. Being shot in the chest would cause any rational adult to fear imminent death. The nature of Pinkard’s injury itself supports the inference that Pinkard believed he was going to die. This inference is strengthened by the fact that Pinkard was gasping for air, going in and out of consciousness, and that he died while he was en route to the hospital. Although Pinkard did not specifically comment on whether he thought he was going to die, he did not have to. See [State v.] Beauchamp, [2010 WI App 42,] 324 Wis. 2d 162, ¶8[, 781 N.W.2d 254]. Under the circumstances, it was proper for the circuit court to infer that Pinkard believed he was in danger of dying. See id. Indeed, Kitts reinforced Pinkard’s suspicions when he yelled at Pinkard not to die. Accordingly, we conclude that the circuit court did not erroneously exercise its discretion when it admitted Pinkard’s statements identifying Owens as his shooter as dying declarations under Wis. Stat. § 908.045(3).

Having properly admitted the statements under the dying declaration hearsay exception, there was no confrontation clause violation: “Dying declarations are admissible even though they are not confronted. See [Beauchamp, 324 Wis. 2d 162, ¶11]; see also Giles v. California, 554 U.S. 353, 357 (2008).” (¶15).

The court of appeals also rejects an insufficient evidence claim (¶¶16-23) and a challenge to the lengthy sentences imposed (39 years of confinement, 14 years of supervision, for first degree reckless homicide and possession of a firearm by a felon) (¶¶24-30).

Here’s a mystery: Why is this decision recommended for publication? It seems to add nothing to the being applied to the three issues raised. And another mystery: On the dying declaration issue, the decision cites the court of appeals’ opinion in Beauchamp, but makes no reference to the supreme court’s decision in that case, 2011 WI 27, 333 Wis. 2d 1, 796 N.W.2d 780. True, the supreme court focused on the Confrontation Clause issue and affirmed the court of appeals’ decision, so the result is the same. Still, wouldn’t you think the court of appeals would want to cite, or at least acknowledge, the final word on the matter?

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