Updated: Tuesday, 09 Dec 2008, 1:12 PM CST
Published : Tuesday, 09 Dec 2008, 10:21 AM CST
WAUSAU (AP) - A Green Bay man sentenced to life in prison for killing his estranged wife and her parents received a fair trial because a judge properly allowed one of the victims to testify through a 911 dispatcher, a state appeals court ruled Tuesday.
David DeBauche contended the testimony violated his constitutional right to confront an accuser and should have been banned.
A jury found DeBauche, 44, guilty of three counts of first-degree intentional homicide in the Aug. 7, 2005, shooting deaths of Amy DeBauche, 37, and her parents, David and Jane Jensen, at a family vacation trailer near Mountain. He was sentenced in May 2006 to three consecutive life prison sentences without parole.
DeBauche, a gun dealer, had gone to the trailer after celebrating his 41st birthday in Green Bay with his two young sons and his girlfriend. A confrontation ensued there.
Jane Jensen, 60, called 911 police dispatcher Gail Angell at 11:58 p.m. Aug. 6, 2005, to ask for help because "their daughter's husband was on the property and he had a gun," court records said.
During the call, Jensen, in a "hysterical" voice, told Angell that her daughter had been shot, and she identified her daughter's husband as David DeBauche, court records said.
She also said her husband had been shot and then said, "I've been shot. I've been shot too," the records said.
The dispatcher testified that she then heard screaming, "three or four popping noises" she believed were gunshots and "everything just went totally silent."
David DeBauche was arrested a few hours later near his car about a quarter-mile from the trailer, court records said.
During his trial, DeBauche testified he and his wife were involved in a messy divorce and she had told him that "the only thing she wanted for Christmas was for DeBauche to kill himself," court records said.
He said he went to trailer intending to cut up cushions and mattresses inside, not knowing she was there.
DeBauche said his wife threatened to call police and called for her father to bring the shotgun. He said that's when he began firing with the .22-caliber revolver he brought along for protection against wild animals.
Oconto County Circuit Judge Michael Judge allowed Angell's testimony about the 911 call - it wasn't tape-recorded because some construction work had disabled the system - ruling it wasn't hearsay and the evidence that Jensen provided wasn't testimony subject to cross-examination.
The 3rd District Court of Appeals agreed, saying Jensen faced a dire emergency and needed help as opposed to trying to implicate her son-in-law in a crime.
Her "excited utterances" to a law enforcement officer describing what was happening were "devoid of the possibility of fabrication," the three-judge panel said.
Her words may have helped catch the shooter and they served "societal goals other than adducing evidence for later use at trial," the panel added.
The dispatcher's questions and the mother's statements were directed at resolving the ongoing emergency and securing Jensen's safety, not simply describing past events, the appeals court said.
DeBauche's attorney did not immediately return a telephone message Tuesday.
The issue of evidence from a homicide victim made headlines earlier this year in an unrelated case.
Mark Jensen of Kenosha was convicted of poisoning and suffocating his wife after a judge allowed a letter the wife had written and left with a neighbor to be used as evidence in the event of her death. Julie Jensen wrote that she was suspicious of her husband's behaviors and feared "for my early demise."
Until recent years, using such a letter in court was virtually unheard of because of constitutional guarantees granting criminal defendants the right to confront their accusers.
But the Wisconsin Supreme Court created new evidence rules, guided by the U.S. Supreme Court.
Mark Jensen is appealing the conviction.