State v. Beauchamp

Citation2010 WI App 42,781 N.W.2d 254
Decision Date02 February 2010
Docket NumberNo. 2009AP806-CR.,2009AP806-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Marvin L. BEAUCHAMP, Defendant-Appellant.
CourtWisconsin Court of Appeals

COPYRIGHT MATERIAL OMITTED

On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig S. Powell of Kohler & Hart, LLP, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and J.B. Van Hollen, attorney general.

Before CURLEY, P.J., FINE and KESSLER, JJ.

¶ 1 FINE, J

Marvin L. Beauchamp appeals the judgment entered after a jury found him guilty of first-degree intentional homicide while armed. See WIS. STAT. §§ 940.01(1)(a) & 939.63. He also appeals the trial court's order denying his motion for postconviction relief. He claims that the trial court erroneously admitted as dying declarations the victim's assertions that Beauchamp shot him, and that his due-process rights were violated because the trial court received as substantive evidence prior inconsistent statements by two of the State's witnesses. We affirm and discuss these contentions in turn.

I. Dying Declarations.

¶ 2 Beauchamp was convicted of shooting Bryon T. Somerville to death. According to the testimony of the assistant medical examiner who performed the autopsy, Somerville "had five gunshot wounds." Two persons testified that after he was shot, Somerville told them that Beauchamp did it—Marvin Coleman, an emergency medical technician with the Milwaukee Fire Department, and Wayne Young, a Milwaukee police officer. The trial court held that Somerville's assertions that Beauchamp shot him were admissible under WIS. STAT. RULE 908.045(3) as Somerville's dying declarations, and were not barred by Beauchamp's right to confront witnesses testifying against him.

A. The Testimony.

¶ 3 Coleman, who had known Somerville before he was sent to the shooting scene as part of his duties with the fire department, told the trial court that he went over to where Somerville was lying on the street and asked him who had shot him. Somerville replied "Big Head Marvin." No one on this appeal disputes that this was a reference to Beauchamp. Somerville also beseeched Coleman "three or four times," "Marv, please don't let me die." Coleman responded by telling Somerville "we're going to do the best we can. We are not going to let you die." Based on his sixteen-year career and having responded to between thirty and forty shootings, Coleman said he believed that Somerville's condition was "grave" when he saw him on the ground.

¶ 4 Coleman drove Somerville in an ambulance to Froedtert hospital, where he died. On the way to the hospital, two other paramedics worked on Somerville trying to save his life. Coleman told the trial court that Somerville was upset when they passed St. Joseph's hospital on the way to Froedtert: "He wanted to—he was just saying why are we not going to St. Joe's." Young was also in the back of the ambulance with Somerville while the paramedics worked on him.

¶ 5 Young testified that Somerville was in pain during the ambulance ride and said that "he couldn't breathe." He also testified that Somerville kept repeating "that a guy named Marvin shot him," and that these assertions were not in response to any questions. Young explained that although he wanted to ask Somerville questions in the ambulance on the ride to the hospital, "the ambulance person was trying to work on him while he was saying all this" and that Young "didn't get a chance to talk to Somerville until we got to the hospital itself."

¶ 6 Once they got to the hospital, Young asked Somerville "a couple of questions" and Somerville, still "complaining of pain," again indicated that the person, whom everyone on this appeal agrees is Beauchamp, shot him. Coleman also related what happened at the hospital. He testified that while they were in Somerville's hospital room, one of the doctors who were trying to save Somerville's life got the results of an analysis of Somerville's blood and said, so that, according to Coleman, Somerville could probably hear, "this is not good, this is not good," telling Coleman that "Somerville's blood is poisoned." Coleman testified that the doctor then said to Young, "if you have any questions to ask him, you need to ask him now because he's not going to make it." At some point, although the Record is not clear when, Young asked Somerville at the hospital who had shot him and Somerville again said that it was "a guy named Marvin." The medical personnel intubated Somerville to help him breathe, and Somerville then "lost consciousness." Although he was revived, he did not survive surgery. At no point, either in the ambulance or at the hospital, did Somerville ever say that he believed that he was going to die as a result of his wounds, and no one told him that, other than, perhaps, his ability to hear what the doctor said when he saw the results of Somerville's blood analysis.

¶ 7 As we have seen, the trial court ruled that Somerville's assertions about who shot him were admissible as dying declarations and were not barred by Beauchamp's right to confrontation. Our standard of review is mixed. Whether an assertion qualifies as a dying declaration, that is, whether it is admissible under the evidentiary rule, is within the trial court's discretion; whether dying declarations pass constitutional muster is a matter of law that we assess de novo. See State v. Jensen, 2007 WI 26, ¶ 12, 299 Wis.2d 267, 277, 727 N.W.2d 518, 523; State v. Manuel, 2005 WI 75, ¶ 3, 281 Wis.2d 554, 562, 697 N.W.2d 811, 815 (whether an assertion is within an exception to the rule against hearsay is a matter within the trial court's discretion) ("recent perception"). "An appellate court will sustain an evidentiary ruling if it finds that the circuit court examined the relevant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach." State v. Sullivan, 216 Wis.2d 768, 780-781, 576 N.W.2d 30, 36 (1998).

B. The Rule.

¶ 8 Ordinarily, of course, out-of-court assertions may not be used for their truth at a trial by virtue of the rule against hearsay. WIS. STAT. RULES 908.01 & 908.02. One exception to the rule against the admission of hearsay is the 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); see also Oehler v. State, 202 Wis. 530, 534, 232 N.W. 866, 868 (1930), cited by the note, and Richards v. State, 82 Wis. 172, 179, 51 N.W. 652, 653 (1892) (knowledge of impending death permissibly inferred when declarant in extremis and was aware of that) (apparently no specific statement acknowledging impending death). The law elsewhere is the same. Belief of impending death "may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted being obviously such that he must have felt or known that he could not survive." Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (emphasis added); United States v. Mobley, 421 F.2d 345, 347-348 (5th Cir.1970) (declarant need not say that he or she is aware of impending death when circumstances permit that inference) (following Mattox); United States v. Peppers, 302 F.3d 120, 137-138 (3rd Cir.2002) (following Mattox).

¶ 9 As noted, the determination of whether evidence should be admitted under a particular rule is vested in the trial court's discretion. In light of the circumstances surrounding Somerville's injuries, his 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, the trial court did not erroneously exercise its discretion in ruling that Somerville's fingerings of Beauchamp as his shooter were dying declarations under WIS. STAT. RULE 908.045(3) irrespective of whether Somerville implicated Beauchamp before or after he may have heard the physician's assessment of the blood analysis. Indeed, Beauchamp's trial lawyer conceded that it was "clear that he Somerville could have believed he was going to die." We now turn to whether receipt of those dying declarations violated Beauchamp's right to confrontation.

C. Confrontation.

¶ 10 "The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them." Jensen, 2007 WI 26, ¶ 13, 299 Wis.2d at 277, 727 N.W.2d at 523 (internal quotes and quoted sources omitted). "We generally apply United States Supreme Court precedents when interpreting these clauses." Id., 2007 WI 26, ¶ 13, 299 Wis.2d at 278, 727 N.W.2d at 523-524. The confrontation right applies to statements that are "testimonial," Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and we assume, as do the parties, that Somerville's dying declarations are "testimonial" within the ambit of a defendant's right of confrontation.

¶ 11 Not every testimonial out-of-court assertion, however, is barred by the right to confrontation. Thus, the Sixth Amendment's guarantee of the confrontation right does not apply "where an exception to the confrontation right was recognized at the time of the...

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