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Wisconsin Supreme Court Upholds Admission of Victim's "Dying Declaration" in Milwaukee County Homicide Prosecution

 

MILWAUKEE – The Wisconsin Supreme Court today unanimously affirmed a published decision of the court of appeals upholding the Milwaukee County conviction of Marvin L. Beauchamp for the first-degree intentional homicide of Byron Somerville. Justice Patrick Crooks, joined by five other members of the court, wrote the majority opinion. Chief Justice Shirley Abrahamson wrote a concurring opinion reaching the same result on different legal grounds.

 

The principal issue in this case is whether the admission of Somerville's dying declarations to an emergency medical technician and a police officer identifying Beauchamp as his killer violated Beauchamp's right to confront the witnesses against him under the United States Constitution. A dying declaration is a special form of “hearsay” that is admissible at a criminal trial under the rules of evidence. According to the controlling United States Supreme Court decision, Crawford v. Washington, the Constitution bars the use of “testimonial” hearsay at a criminal trial unless the defendant had a chance to “confront” the speaker prior to trial. A testimonial statement is one made with the knowledge or intent that it will be used in a criminal prosecution. Under Crawford, all non-confronted testimonial hearsay statements are inadmissible under the Confrontation Clause except for those that would have been admitted in 1791, the year the Bill of Rights was adopted.

 

Beauchamp argued that Somerville's dying declarations were testimonial, that Beauchamp never had the opportunity to confront Somerville, and that the statements were therefore inadmissible under Crawford.

 

Writing for the court, Justice Crooks observed that “[i]f we were to accept that the Confrontation Clause, as set forth in Crawford's seemingly unbending declaration, requires that all testimonial statements be subject to confrontation to test their reliability, we would exclude dying declarations as, by definition, unconfrontable.” On the other hand, the court noted that the admission of unconfronted dying declaration hearsay had been generally allowed before, during, and after the adoption of the Bill of Rights. For this reason, the United States Supreme Court had suggested in both Crawford and a subsequent case that dying declaration hearsay might be an exception to the Confrontation Clause. Our supreme court concluded that because the exception for admitting unconfronted dying declarations “is so deeply rooted in the common law,” their continued admission does not violate the Confrontation Clause.

 

Beauchamp admitted the long-standing admissibility of unconfronted dying declarations, but argued that the historical justification—“the fear of divine judgment for lying[, which] provided religious assurance that the dying person would speak the truth”—was no longer valid in an increasingly secular society. The court did not disagree, but observed that psychological factors at the moment of death can have the same effect as religious belief and that, as recognized since the nineteenth century, the doctrine of necessity also justified the trial use of this important evidence.

 

Beauchamp further argued that dying declarations may not be reliable because the speaker may be mistaken, motivated by malice, or cognitively impaired. The court held that “[t]he 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 . . . the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case.”

 

In a separate concurrence, Chief Justice Abrahamson concluded that Somerville's statement to the EMT was not “testimonial.” She was less certain about his statement to the police officer, but concluded that the admission of that statement (which repeated the EMT's) was at worst harmless error.

 

Attorney General J.B. Van Hollen applauded the court's decision, observing: “Where available, a homicide victim's ‘dying declaration' is a crucial piece of evidence. In some prosecutions, that last statement may be the deciding factor in whether a murderer goes free or faces the consequences of his crime. I am grateful that the Wisconsin Supreme Court has preserved this important tool, which will help us bring the guilty to justice and vindicate the rights of victims and their families.”

 

Milwaukee County Assistant District Attorney Joanne Hardtke prosecuted the case in the trial court, and Assistant Attorney General Maura Whelan represented the State of Wisconsin in the Wisconsin Court of Appeals and the Wisconsin Supreme Court.