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State v. Owens

Court of Appeals of Wisconsin

March 1, 2016

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
ANTHONY R. OWENS, DEFENDANT-APPELLANT

         Submitted on Briefs February 2, 2016.

         Editorial Note:

         This opinion is subject to further editing and modification. The final version will be published in bound volume of the official reports.

          APPEAL from a judgment and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Cir. Ct. No. 2013CF3971.

         On behalf of the defendant-appellant, the cause was submitted on the brief of Esther Cohen Lee of Hall, Burce and Olson, S.C. of Milwaukee.

         On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Nancy A. Noet, assistant attorney general.

         Before Curley, P.J., Kessler and Brash, JJ.

          OPINION

         BRASH, J.

          [¶1] Anthony R. Owens appeals a judgment convicting him of first-degree reckless homicide as a party to a crime with the use of a dangerous weapon as a repeater, and possession of a firearm by a felon as a repeater. He also appeals an order denying his postconviction motion. Owens makes the following arguments on appeal: (1) the circuit court erred when it admitted Jamal Pinkard's statements about who shot him as dying declarations; (2) the evidence against Owens was insufficient to support his convictions; and (3) Owens's sentences were unduly harsh. We disagree and affirm.

         Background

          [¶2] On August 19, 2013, City of Milwaukee Police Officer Derek Kitts responded to a report of a shooting in the vicinity of 2206 West Burnham Street. Upon arrival, Kitts found Pinkard lying on the ground suffering from a gunshot wound to his chest. Pinkard's condition was dire; he was pale, gasping for air, and was going in and out of consciousness. Two individuals were treating Pinkard when Kitts arrived. Kitts took over first aid from these two individuals so officers could interview them.

          [¶3] While performing first aid, Kitts attempted to gain as much information as possible from Pinkard. Kitts asked Pinkard who shot him. Pinkard attempted to answer, but Kitts was unable to hear what Pinkard was saying. Kitts again asked Pinkard who shot him. Kitts leaned in close to Pinkard and was able to hear Pinkard say " Anthony." Kitts asked Pinkard if he knew Anthony's last name. Pinkard responded that he did not know Anthony's last name, but when asked by Kitts if Anthony went by any other name, Pinkard responded " Lil Ant" and " 2-1." Based on Pinkard's statements, officers were able to narrow the suspects down to two people, one of whom was Owens.

          [¶4] Throughout Kitts'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, Kitts shook Pinkard's shoulders and at one point yelled at him " don't die on me" and " open your eyes." Shortly thereafter, the fire department arrived on the scene and took over first aid. Pinkard died in the ambulance on the way to the hospital.

          [¶5] On August 28, 2013, Owens was charged with possession of a firearm by a felon as a repeater, contrary to Wis. Stat. § § 941.29(2),[1] 939.50(3)(g), and 939.62(1)(b) (2013-2014).[2] Ultimately, the State added the charge of first-degree reckless homicide as a party to a crime with the use of a dangerous weapon as a repeater, contrary to Wis. Stat. § § 940.02(1), 939.50(3)(b), 939.05, 939.63(1)(b), and 939.62(1)(c). On March 5, 2014, the State filed an amended information listing first-degree reckless homicide ...


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