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State v. Marvin L. Beauchamp, 2010 WI App 42

court of appeals decision, affirmed, 2011 WI 27; for Beauchamp: Martin E. Kohler, Craig S. Powell; case activity

Dying Declaration, § 908.045(3)

¶8        …  dying declaration, codified in Wisconsin Stat. Rule 908.045(3): “A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.” Under established law, a person whose assertion is sought to be used at trial need not specifically say that death is imminent. Rather, “belief of impending death may be inferred from the fact of death and circumstances such as the nature of the wound.” Judicial Council Committee Note, 1974, Wis. Stat. Rule 908.045(3), 59 Wis. 2d R1, R317 (1973) … .

Victim’s “frantic concern that he not die as expressed to Coleman, his being upset when the ambulance passed one hospital on its way to another, and his significant pain and breathing difficulties, coupled with his spontaneous repeated assertions as to who shot him,” ¶9, supported trial court’s discretionary decision to admit assertions as dying declarations.

Confrontation – Dying Declaration

Because “dying declarations were recognized as an exception to the confrontation right at the founding of our Republic,” their admissibility into evidence doesn’t violate the confrontation clause, ¶¶10-12.

Binding Authority – Lower Federal Courts

“On federal questions, Wisconsin courts are bound only by the decisions of the United States Supreme Court. State v. Moss, 2003 WI App 239, ¶20, 267 Wis. 2d 772, 781, 672 N.W.2d 125, 130; McKnight v. General Motors Corp., 157 Wis. 2d 250, 257, 458 N.W.2d 841, 844 (Ct. App. 1990) (decisions of the Seventh Circuit are not precedent in Wisconsin state courts),” ¶17.

The court thus “decline(s) to apply the guidelines adopted by Vogel v. Percy, 691 F.2d 843, 846–848 (7th Cir. 1982),” re: admitting as substantive evidence prior inconsistent statement of witness.

Effective Assistance – Deficient Performance: Prior Inconsistent Statements

Counsel’s failure to invoke the Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) test for admissibility of prior inconsistent statements was not deficient performance:

¶18      Under Wisconsin law as it existed during Beauchamp’s trial in October of 2006, and as it exists today, the prior inconsistent statements of a witness in a criminal case were and are admissible so long as the witness was subject to cross-examination on the matter. See Rockette, 2006 WI App 103, ¶¶18–27, 294 Wis. 2d at 623–628, 718 N.W.2d at 275–277 (decided May 31, 2006); Nelis, 2007 WI 58, ¶¶41–46, 300 Wis. 2d at 431–434, 733 N.W.2d at 627–628. Beauchamp’s trial lawyer had no Strickland responsibility to either seek a change in Wisconsin law or lay a fact-predicate to try to precipitate that change. See State v. Maloney, 2005 WI 74, ¶¶28–30, 281 Wis. 2d 595, 609–611, 698 N.W.2d 583, 591; State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621, 628 (Ct. App. 1994) (“We think ineffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue.”). Beauchamp’s trial lawyer did not give him ineffective representation during his trial by not seeking to have the trial court adopt the Vogel guidelines.