State v. Beauchamp

• Decision Date: 03 May 2011
• Docket Number: No. 2009AP806–CR.,2009AP806–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Marvin L. BEAUCHAMP, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

333 Wis.2d 1

796 N.W.2d 780

2011 WI 27

STATE of Wisconsin, Plaintiff–Respondent,

v.Marvin L. BEAUCHAMP, Defendant–Appellant–Petitioner.

No. 2009AP806–CR.

Supreme Court of Wisconsin.

Argued Jan. 4, 2011.Decided May 3, 2011.

For the defendant-appellant-petitioner there were briefs and oral argument by Craig S. Powell, Kohler & Hart, LLP, Milwaukee.For the plaintiff-respondent the cause was argued by Maura F.J. Whelan, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.N. PATRICK CROOKS, J.

¶ 1 This is a review of a published court of appeals decision ¹ in a case arising from a shooting on a Milwaukee street on a summer morning. The murdered man, Bryon Somerville, made statements to an ambulance driver and a police officer just before he died that gave a brief description of his assailant—a man named Marvin, whose last name Somerville did not know, who was dark-skinned with “a bald head and big forehead.” Somerville distinguished him from another man named Marvin by saying he meant “big head Marvin.” Other witnesses gave statements about seeing Marvin Beauchamp at the scene and seeing him shoot Somerville point blank, statements they later said had been coerced and were untrue. The case proceeded to trial in the Circuit Court for Milwaukee County, the Hon. Jeffrey A. Wagner presiding. When two witnesses testified that their previous statements implicating Beauchamp had been lies coerced by the police, the court permitted the State to impeach their testimony by cross-examining them with their prior inconsistent statements. The jury convicted Beauchamp of first-degree intentional homicide while using a dangerous weapon. Beauchamp appealed, arguing that he is entitled to a new trial because the admission of the Somerville statements and the prior statements of the two recanting witnesses violated his constitutional rights to confrontation and due process. The circuit court admitted the statements under the dying declaration and prior inconsistent statement hearsay exceptions found in Wis. Stat. §§ 908.045(3) and 908.01(4)(a) 1, respectively. The court of appeals affirmed the circuit court's rulings on both issues.

¶ 2 Beauchamp argues that the circuit court erred in admitting into evidence the statements made by Somerville prior to his death because there was no opportunity for Beauchamp to cross-examine Somerville about his statements, and Beauchamp was therefore deprived of his constitutional right to confront the witnesses against him.² He argues that the hearsay rules' so-called “dying declaration” exception, applicable to statements made by a declarant who believes he is facing imminent death, is not compatible with the holding of Crawford v. Washington,³ a case in which the United States Supreme Court reaffirmed the confrontation of witnesses as “the only indicium of reliability sufficient to satisfy constitutional demands” ⁴ for testimonial statements. Beauchamp argues that while the Crawford Court declined to rule on whether or how its bright line rule applied to dying declarations, its holding compels this court to exclude all unconfronted testimonial hearsay statements, including dying declarations.

¶ 3 Beauchamp further argues that even if a hearsay exception for dying declarations was recognized and implicitly incorporated by the framers of the United States Constitution in the Confrontation Clause,⁵ it is now time to abrogate the common law on this point. He claims that the rationales given for the exception, such as wide acceptance of particular religious beliefs and the evidentiary necessity of such statements, are now antiquated and irrelevant. Beauchamp argues that he is entitled to a new trial because Somerville's statements implicating Beauchamp were testimonial statements that were admitted into evidence in violation of his right under Crawford to test their reliability by cross-examination, because there is no longer a basis for presuming the reliability of such statements, and because in fact there are reasons to doubt it.

¶ 4 Beauchamp also claims that the admission of the two witnesses' prior inconsistent statements violated his right to due process.⁶ This court has stated that due process requirements are satisfied in such a situation so long as the declarant is “present and subject to cross-examination.” ⁷ Specifically, he argues that in order to protect a defendant's due process right to have unreliable prior inconsistent statements excluded, this court should discard that standard and instead adopt a multi-factor test set forth by the Seventh Circuit Court of Appeals in Vogel v. Percy.⁸ He contends that if the court were to apply the Vogel test, under which the availability of the declarant for cross-examination is just one consideration among several, the statements in question would be deemed too unreliable to be admitted, and he contends that their erroneous admission was a violation of his right to due process and thus entitles him to a new trial.

¶ 5 We hold that the admission of the dying declaration statement violates neither Beauchamp's Sixth Amendment right to confront witnesses nor his corresponding right under the Wisconsin Constitution.⁹ As the court of appeals noted, “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 founding.’ ” ¹⁰ Beauchamp concedes that the dying declaration exception was an established hearsay exception at common law. The Crawford Court acknowledged the dying declaration hearsay exception and indicated that the exception might be an exception that survives a Confrontation Clause challenge.¹¹ Without a direct answer from Crawford on this point, we are given the task of resolving this question by applying the principles set forth in Crawford and a related case, Giles v. California,¹² which bases its holding on an analysis of what specific hearsay exceptions were permitted at common law at the time of the ratification of the Sixth Amendment and were therefore incorporated into its confrontation right. Those principles compel the conclusion that allowing this hearsay exception comports with the protections of the Confrontation Clause. While the United States Supreme Court has yet to give its explicit blessing to the dying declaration exception, it has given us no reason to abandon a principle that is so deeply rooted in the common law. Nor does Beauchamp. The fairest way to resolve the tension between the State's interest in presenting a dying declaration and a defendant's concerns about its potential unreliability is not to prohibit such evidence, but to continue to freely permit, as the law does, the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. ¹³ In other words, if there is evidence the declarant had a motive to accuse falsely, introduce it. If there is evidence that the declarant was cognitively impaired and incapable of perceiving events accurately, introduce it. Such facts may, in particular cases, justifiably undermine the reliability of a dying declaration. The reliability of evidence is an issue for the trier of fact, and the assertion that some dying declarations may be unreliable can not justify the per se exclusion of such potentially valuable evidence.

¶ 6 We are likewise unpersuaded by Beauchamp's argument that the failure to exclude the prior inconsistent statements of recanting witnesses here violated due process rights and, as he argued before the court of appeals, constituted either plain error by the circuit court or prejudicial error by counsel necessitating remand for a Machner hearing, when the grounds for the claim is that a test different from Wisconsin's should have been applied and that, if applied, the test would have barred the statements from evidence. The statements in question were admitted without objection and consistent with controlling Wisconsin law. Beauchamp was not prejudiced by his counsel's failure to urge the court to apply the law of another jurisdiction, nor can the circuit court be said to have committed plain error when it applied what was then the controlling law in Wisconsin. There was no violation of Beauchamp's right to due process here.

¶ 7 We therefore affirm the court of appeals.

BACKGROUND

¶ 8 According to statements by witnesses and testimony at the trial, the conflict that ultimately led to the shooting was a couple's fight over rumored infidelity, though the shooting itself was by a person whose interest in the argument seems impossible to discern from the evidence in the record. On the morning of June 16, 2007, Somerville was angrily going from one residence to another trying to find his girlfriend, Dalynn Brookshire, and a flurry of phone calls were being made to and from Somerville, Brookshire, and her friends and relatives. One of those calls came to Marvin Beauchamp as he was driving home with his girlfriend from an appointment, and his girlfriend testified that after he took that call, they quickly headed toward the Sherman Avenue address where Somerville had said he was going next. They parked a block away, and Beauchamp and his girlfriend took different routes to the house. Dominique Brown, Beauchamp's girlfriend, who had just arrived with him moments before, found Shainya Brookshire, the sister of Somerville's girlfriend, near the house. According to a signed statement given to police but later recanted, Beauchamp's girlfriend told the second woman that “Marvin” was “hiding in the bushes on the side of the house, and he has a gun.”

¶ 9 Witnesses testified to seeing Somerville walk out of the house and hearing Somerville briefly exchange words with someone outside the house. Just before the gunshots, witnesses told police, they heard Somerville say, “Oh, you got a gun. Oh, you're going to shoot me. Shoot me then.” In a statement to police that she later said was untrue,...