A man shot in the chest, gasping for air, and fading in and out of consciousness was presumably coherent enough to share a "rational adult" fear that he would die, a Court of Appeals panel said in a ruling released Tuesday.
"The nature of (Jamal) Pinkard’s injury itself supports the inference that Pinkard believed he was going to die," Appeals Judge William Brash wrote. "This inference is strengthened by the fact that Pinkard was gasping for air, going in and out of consciousness, and that he died while he was en route to the hospital."
"Being shot in the chest would cause any rational adult to fear imminent death," he said.
The District 1 appeals panel upheld the conviction of Anthony R. Owens on charges of first-degree reckless homicide and possession of a firearm by a felon, both as repeaters. Brash was joined in his opinion by Appeals Judges Patricia S. Curley and Joan F. Kessler.
According to the court:
Milwaukee Police Officer Derek Kitts, responding to a shooting call, found Pinkard, shot, on the ground in the 2200 block of W. Burnham St.
"Pinkard’s condition was dire," Brash wrote. "He was pale, gasping for air, and was going in and out of consciousness."
Kitts performed first aid and twice asked Pinkard who shot him. "Kitts leaned in close to Pinkard and was able to hear Pinkard say 'Anthony,'” Brash wrote. Pinkard, according to Kitts, also told him that Anthony went by the names of “Lil Ant” and “2-1.”
Kitts kept Pinkard's attention by shaking his shoulders and yelling at him “don’t die on me” and “open your eyes,” Brash said.
Pinkard died on the way to his hospital, but his statements led police to police identify Owens as a participant in the shooting.
Milwaukee County Circuit Judge Jeffrey Wagner admitted Pinkard's identification of "Anthony" into evidence as a dying declaration, a recognized exception to hearsay rules that are supposed to prohibit admission second-hand testimony. Owens was convicted and appealed, arguing that there was no evidence that Pinkard knew he was going to die.
The appeals panel disagreed, ruling that it was proper for Wagner to infer that Pinkard believed he was in danger of dying.
"Indeed, Kitts reinforced Pinkard’s suspicions when he yelled at Pinkard not to die," Brash wrote.
The panel also rejected Owens' contentions that there was not enough evidence at trial to prove his guilt and that his sentence -- a total of 39 years initial confinement and 14 years extended supervision -- was too harsh.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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