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Case tests limits of exception for dying declarations

By: Jean DiMotto//April 19, 2016//

Case tests limits of exception for dying declarations

By: Jean DiMotto//April 19, 2016//

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Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

In Judge William Brash’s first published appellate opinion, he tackles the hearsay exception for dying declarations.

Upon arrival at the scene of a shooting, a police officer found Jamal Pinkard lying on the ground with a gunshot wound to his chest. Pinkard was pale, gasping for air, and slipping in and out of consciousness.

Victim’s words

While giving Pinkard first aid, the police officer asked him who shot him. Pinkard answered, but the officer was unable to hear what Pinkard had said. He asked him again and this time leaned in close to hear Pinkard say “Anthony.”

The officer then asked if Pinkard knew Anthony’s last name. Pinkard responded that he did not. When asked if Anthony went by any other name, Pinkard responded “Lil Ant” and “2-1.”

Throughout the officer’s exchange with Pinkard, Pinkard was gasping for air and having difficulty breathing, and at times appeared to be losing consciousness. To keep Pinkard’s attention, the officer shook Pinkard’s shoulders and at one point yelled at him, “Don’t die on me” and, “Open your eyes.”

Soon after this exchange, the fire department arrived and took over first aid. Pinkard died in the ambulance en route to the hospital.

Because of Pinkard’s statements, police were able to narrow the suspects down to two people, one of whom was Anthony Owens. Owens was subsequently charged with first-degree reckless homicide as party to a crime while using a dangerous weapon as a repeater, and possession of a firearm by a felon as a repeater.

Motion to admit statements

Taking the bull by the horns, the state brought a motion to admit Pinkard’s statements as dying declarations, which are allowed as exceptions to the hearsay rule.

Milwaukee County Circuit Judge Jeffrey Wagner held a hearing at which the officer who questioned Pinkard testified to Pinkard’s statements and the circumstances under which they were given.

Owens argued that the record was devoid of any indication to anyone by Pinkard that he knew he was mortally injured. Since apprehension of death must be shown by someone who wants to make use of the dying-declaration exception, Owens asserted that the exception could not be applied to Pinkard’s statements.

In making his decision, Wagner considered Pinkard’s condition when the officer first arrived, as well as during the questioning.

He also noted the Beauchamp case holding: “Belief of an impending death may be (inferred) from the nature and extent of the wounds inflicted being obviously such that (the victim) must have felt or known that he could not survive.”

Wagner then inferred that Pinkard believed he was in danger of dying, and concluded that his statements were therefore admissible as dying declarations.

After a jury trial at which Owens was found guilty of both counts, Owens appealed.

Court of appeals opinion

In a unanimous opinion, the court of appeals recounted each of the circumstances that obtained when Pinkard made his statements identifying Owens as his shooter. The court then responded to Owens’s argument that Pinkard gave no indication he knew he was dying.

Citing Beauchamp, the court reaffirmed that Pinkard did not have to verbally comment that he believed he was dying.

Adopting the state’s response, the court declared, “Being shot in the chest would cause any rational adult to fear imminent death. The nature of Pinkard’s injury itself supports the inference that Pinkard believed he was going to die.”

This inference was strengthened by Pinkard’s condition of gasping for air, going in and out of consciousness, and dying while on the way to the hospital. In addition, the officer’s yelling at Pinkard not to die would have reinforced Pinkard’s suspicion that he was, indeed, dying.

Owens also argued on appeal that he was deprived of his right to confront Pinkard about his statements. The court noted that while Pinkard’s statements were testimonial, “dying declarations are admissible even though they are not confronted.”


The case is interesting for its treatment of the requirement that the declarant have a presentiment of dying in order for dying declarations to be admissible.

Here, there was no verbal manifestation that the victim thought he was dying. But the very nature of the injury itself — the chest wound from a gunshot — was sufficient to evince this belief.

The opinion is succinct and straightforward. It also dealt with the issues of sufficiency of the evidence and excessiveness of the sentence, but these were case specific and have no precedential merit.


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