COURT OF APPEALS
DATED AND FILED
February 2, 2010
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Marvin L. Beauchamp,
from a judgment and an order of the circuit court for Milwaukee County: jeffrey a.
wagner, Judge. Affirmed.
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
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
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
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
¶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,
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 (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)
¶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.
¶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 (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 founding.” Giles v. California,
554 U.S. ___, ___, 128 S. Ct. 2678, 2682 (2008). Accordingly, if dying declarations were
recognized as an exception to the confrontation right at the founding of our
Republic, Beauchamp’s constitutional right to confrontation was not trampled by
the admission of Somerville’s
dying declarations implicating him as the shooter. See ibid. Dying declarations were so recognized:
We have previously
acknowledged that two forms of testimonial statements were admitted at common
law even though they were unconfronted. See [Crawford v. Washington,
36] at 56, n. 6, 62 [(2004)]. The
first of these were declarations made by a speaker who was both on the brink of
death and aware that he was dying. See, e.g., King v. Woodcock, 1
Leach 500, 501–504, 168 Eng.
Rep. 352, 353-354 (1789); State v. Moody,
3 N.C. 31 (Super. L. & Eq. 1798); United States v. Veitch, 28 F. Cas.
367, 367–368 (No. 16,614) (CC DC 1803); King
v. Commonwealth, 4 Va.
78, 80–81 (Gen. Ct.
Giles, 554 U.S. at ___ , 128 S.
Ct. at 2682–2683. Crawford,
of course, was the watershed decision rejecting the balancing approach of Ohio
v. Roberts, 448 U.S. 56, 66 (1980), in favor of a flat-out application
of the Sixth Amendment’s guarantee of the confrontation right for testimonial
at 68–69 (“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes: confrontation.”).
¶12 Although the Giles analysis we have quoted could
be viewed as dictum, it was a
deliberate recognition of the Sixth Amendment’s reach, given Giles’s
further analysis of the pre-founding cases it cited, see id., 554 U.S. at
___, 128 S. Ct. at 2684–2686, and because Crawford had previously left the
matter open, Crawford, 541 U.S. at 56 n.6.
Thus, we view Giles’s pronouncement as to whether
the confrontation clause governs dying declarations as binding. See State v. Holt, 128 Wis. 2d
110, 123, 382 N.W.2d 679, 686 (Ct. App. 1985) (“When an appellate court
intentionally takes up, discusses and decides a question germane to a
controversy, such a decision is not a dictum but is a judicial act of
the court which it will thereafter recognize as a binding decision.”). Indeed, we are unaware of any post-Crawford
court rejecting what Giles recognized as the
dying-declaration exception to the confrontation clause. See,
e.g., State v. Lewis, 235 S.W.3d 136, 148 (Tenn. 2007) (“Since Crawford, we found no jurisdiction that has
excluded a testimonial dying declaration.”). Receipt into evidence of Somerville’s
dying declarations did not violate Beauchamp’s right to confrontation.
II. Prior inconsistent statements.
¶13 Beauchamp claims that he was denied due process by the receipt,
as substantive evidence, of statements given to the police by two persons who
were present at Somerville’s murder that were inconsistent with their trial
testimony, even though they were cross-examined by Beauchamp at the trial. Under Wis.
Stat. Rule 908.01(4)(a)1, a statement
by a witness that is inconsistent with that witness’s trial testimony is not
hearsay so long as the witness “is subject to cross-examination concerning the
statement.” All of the statements were given to the
police either on the day Somerville was shot
or on the next day. Both witnesses
acknowledged not only that they told the police what was received into evidence
as their prior inconsistent statements but also affirmed that they had signed
written reifications of those statements.
The witnesses’ trial testimony tended to exculpate Beauchamp, while some
of what they told the police tended to inculpate him as the person who shot Somerville. The
jury, of course, was able to assess the witnesses’ trial testimony and what
they had previously told the police, and presumptively did so in reaching its
¶14 Apparently recognizing both that prior inconsistent statements
of witnesses who are subject to cross-examination are admissible as non-hearsay
under Wis. Stat.
Rule 908.01(4)(a)1 and that receipt of such statements does not violate
a criminal defendant’s right to confrontation, see State v. Nelis, 2007
WI 58, ¶¶41–46, 300 Wis. 2d 415, 431–434, 733 N.W.2d 619, 627–628 (post- Crawford);
v. Rockette, 2006 WI App 103, ¶¶18–27, 294 Wis. 2d 611, 623–628,
718 N.W.2d 269, 275–277 (post-Crawford), Beauchamp argues that his
due-process rights were violated under the guidelines adopted by Vogel
v. Percy, 691 F.2d 843, 846–848 (7th Cir. 1982). The Vogel guidelines require the
consideration of the following circumstances in assessing whether the receipt of
a witness’s prior inconsistent statements as substantive evidence violates the
due-process rights of a defendant in a criminal case:
(1) the declarant was available for
cross-examination; (2) the statement was made shortly
after the events related and was transcribed promptly; (3) the declarant
knowingly and voluntarily waived the right to remain silent; (4) the
declarant admitted making the statement; and (5) there was some
corroboration of the statement’s reliability.
691 F.2d at 846–847. Beauchamp’s trial
lawyer, however, never objected to the receipt of the witnesses’ prior
inconsistent statements on Vogel grounds, and, accordingly,
Beauchamp’s contention that his due-process rights were violated are assessed
by us in the context of whether Beauchamp was denied effective assistance of
trial counsel. See Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (unobjected-to error must be analyzed
under ineffective-assistance-of-counsel standards, even when error is of
constitutional dimension); State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656,
678, 683 N.W.2d 31, 41–42 (in the absence of an objection we address issues
under the ineffective-assistance-of-counsel rubric); State v. Ellington, 2005
WI App 243, ¶14, 288 Wis. 2d 264, 278, 707 N.W.2d 907,
¶15 To establish ineffective assistance of counsel, a
defendant must show: (1) deficient
performance; and (2) prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). To prove deficient
performance, a defendant must point to specific acts or omissions by the lawyer
that are “outside the wide range of professionally competent assistance.” Id., 466 U.S. at 690. Further, “[t]he Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the benefit of
hindsight.” Yarborough v. Gentry, 540
U.S. 1, 8 (2003) (per curiam); see also id., 540 U.S. at 11 (lawyer
need not be a “Clarence Darrow” to survive an ineffectiveness
¶16 To prove prejudice, a defendant must demonstrate that the
lawyer’s errors were so serious that the defendant was deprived of a fair trial
and a reliable outcome. Strickland, 466
U.S. at 687.
Thus, in order to succeed on the prejudice aspect of the Strickland analysis, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.,
466 U.S. at 694. We need not address both deficient performance and prejudice if the defendant
does not make a sufficient showing on either one. Id.,
466 U.S. at 697. Beauchamp has not shown that
his trial lawyer gave him deficient representation by not asserting the federal
decision as a potential bar to the receipt into evidence of the
witnesses’ prior inconsistent statements.
¶17 On federal questions, Wisconsin courts are bound only by the decisions of the United States Supreme Court. State v. Moss, 2003 WI App 239,
¶20, 267 Wis. 2d 772, 781, 672 N.W.2d 125, 130; McKnight v. General Motors Corp., 157
Wis. 2d 250, 257, 458 N.W.2d 841,
844 (Ct. App. 1990) (decisions of the Seventh Circuit are not precedent in
Wisconsin state courts). We have found no published Wisconsin
appellate decision that even cites Vogel, no less adopts its five
guideline factors. Thus, the trial court
was not bound by the Vogel guidelines, and, of course,
neither are we.
¶18 Under Wisconsin law as it existed during Beauchamp’s trial in
October of 2006, and as it exists today, the prior inconsistent statements of a
witness in a criminal case were and are admissible so long as the witness was subject
to cross-examination on the matter. See Rockette,
2006 WI App 103, ¶¶18–27, 294 Wis. 2d at 623–628, 718 N.W.2d at 275–277
(decided May 31, 2006); Nelis, 2007 WI 58,
¶¶41–46, 300 Wis. 2d at 431–434, 733 N.W.2d at 627–628. Beauchamp’s trial lawyer had no Strickland responsibility
to either seek a change in Wisconsin law or
lay a fact-predicate to try to precipitate that change. See State v. Maloney,
2005 WI 74, ¶¶28–30, 281 Wis. 2d 595, 609–611, 698 N.W.2d 583, 591; State
v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621, 628 (Ct. App.
1994) (“We think ineffective assistance of counsel cases should be limited to
situations where the law or duty is clear such that reasonable counsel should
know enough to raise the issue.”).
Beauchamp’s trial lawyer did not give him ineffective representation
during his trial by not seeking to have the trial court adopt the Vogel
¶19 Beauchamp also contends that the trial court’s failure to
consider and apply the Vogel guidelines was “plain
error.” Invocation of the “plain error”
doctrine to permit the review of unobjected-to matters is, however, reserved
for those rare situations where the error is “‘obvious and substantial.’” State v. Jorgensen, 2008 WI 60,
¶21, 310 Wis. 2d 138, 154, 754 N.W.2d 77, 85
(quoted source omitted). Given that no
published Wisconsin appellate decision has even cited the Vogel guidelines and
that, as seen in footnote 3, an Illinois appellate court did not adopt those
guidelines when to do so would modify Illinois law whose protections for the
defendant essentially mirrored those given to Beauchamp here, Beauchamp’s
contention that the trial court committed “plain error” is without merit.
¶20 We affirm.
By the Court.—Judgment and order affirmed.