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  • WisBar News
    March 10, 2016

    Appeals Court Says Dying Declarations Properly Admitted in Murder Case

    Joe Forward

    March 10, 2016 – A police officer found Jamal Pinkard on the ground after responding to reports of a shooting, a gunshot wound to his chest. The officer asked who did it, and Pinkard responded with a first name, Anthony, and two nicknames, “Lil Ant” and “2-1.”

    Pinkard died in the ambulance. But police used the first name “Anthony” and the two nicknames to pin down two suspects, including Anthony Owens (also known as “Lil Ant”), who challenged the evidence Pinkard supplied to the officer before he died.

    But in State v. Owens, 2015AP1118-CR (March 1, 2016), a three-judge appeals court panel ruled that Pinkard’s statements were admissible as “dying declarations” and admitting them did not violate Owens’s right to confront the witnesses against him.

    The panel noted Pinkard’s statements were hearsay because they were being used to prove that Owens was involved, and Pinkard did not make the statements in court. But the panel also noted that Pinkard made those statements while believing he could die.

    If a person who made out-of-court statements is unavailable as a witness, hearsay can be admitted under certain exceptions, including the “dying declaration” exception.

    Under Wis. Stat. section 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” is admissible.

    Owens argued that there was no evidence to believe Pinkard believed the death was imminent. But the appeals court panel disagreed, based on the circumstances.

    “Being shot in the chest would cause any rational adult to fear imminent death,” wrote District I Appeals Court Judge William Brash III. “The nature of Pinkard’s injury itself supports the inference that Pinkard believed he was going to die.”

    Judge Brash noted that Pinkard was gasping for air and was in and out of consciousness while the Milwaukee police officer was talking to him.

    “Although Pinkard did not specifically comment on whether he thought he was going to die, he did not have to,” wrote Judge Brash, noting that circuit court judges have discretion to determine whether a declarant believed that death was imminent.

    Owens also argued that admitting the statements would violate his constitutional right to confront the witnesses against him. The panel quickly discharged that argument, noting that “[d]ying declarations are admissible even though they are not confronted.”

    The court also rejected Owens’s argument that the evidence was not sufficient to establish his guilt beyond a reasonable doubt. The panel was not persuaded.

    In addition to the dying declaration, which implicated Owens, Pinkard’s cousin testified that he saw Owens shoot the gun at Jamal, and the jury weighs witness credibility.

    Another witness at the shooting incident did not see who fired the gun, but said somebody yelled, “this is Ant doing this to you all.” Another witness said Owens asked him to summon Pinkard to the area so the two could resolve a dispute.

    That witness later recanted in court, and an officer impeached him, but witness credibility was the jury’s call. The evidence was enough to support the conviction for first-degree reckless homicide as a party to a crime and other charges, the panel ruled.

    “To the extent that there were conflicts between some of the witnesses’ testimony and their prior statements, there is nothing in the record to suggest that the jury was not made fully aware of those conflicts and given the opportunity to resolve them,” Judge Brash wrote.

    Finally, Owens said his sentence was unduly harsh. The sentencing judge imposed 39 years in prison followed by 14 years of extended supervision for reckless homicide with the use of a dangerous weapon and possessing a firearm as a felon, as a repeater.

    “After our review of the record, we conclude that Owens’s sentences were not so excessive and unusual as to shock public sentiment,” Judge Brash wrote.

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