One Court of Justice

On June 10, 2009, the Supreme Court issued its opinion in People v. Bryant, No. 133725, in a 4-3 decision by Justice Markman, joined by Chief Justice Kelly and Justices Cavanagh and Hathaway. The Court considered whether the Confrontation Clause to the U.S. Constitution bars the State from introducing hearsay statements made by a witness dying of gunshot wounds, who died prior to trial. The Court concluded that under recent U.S. Supreme Court case law, the statements at issue were “testimonial,” i.e., made pursuant to an interrogation primarily motivated for later criminal prosecution and not for securing emergency assistance. Accordingly, the Court held that it was plain error to admit the statements through hearsay, and remanded the case for a new trial, reversing the Court of Appeals. The opinion can be found here.

On October 31, 2006, the Michigan Supreme Court remanded Bryant back to the Court of Appeals for consideration in light of the U.S. Supreme Court’s decision relating to the Confrontation Clause in Davis v. Washington, 547 U.S. 813 (2006). Davis held that statements made in a 9-1-1 call by a woman reporting a domestic violence emergency and requesting immediate police assistance were “non-testimonial,” and thus could be introduced through hearsay without offending the Confrontation Clause. Davis defined “testimonial” statements as those made for the primary purpose of investigation in securing a criminal conviction, and not for the primary purpose of securing police assistance in an emergency.

On March 6, 2007, the Court of Appeals reaffirmed Bryant’s convictions for second-degree murder, felony firearm, and being a felon in possession of a firearm. It held that the declarant’s statements were not “testimonial” in nature, and thus could be introduced without offending the Confrontation Clause. The Court of Appeals determined that the witness statements were not “testimonial” because he spoke to the police as he lay injured in the parking lot of a gas station from a gunshot wound. The police asked the victim what happened, and he responded that “Rick” shot him and described the defendant’s house a few blocks away. The victim had purchased cocaine from the defendant several times in the past.

The Court of Appeals held that the police questioning was primarily part of an emergency response to ascertain whether the witness with the gunshot wound was the “victim,” and where the shooter might be and if he continued to pose harm to them and the public. The statements were made after an emergency call, while the man was still on the ground, in acute distress and awaiting medical attention. Even though the information could also aid in the investigation, the police’s primary purpose in asking the questions at the time was for emergency response.

The Supreme Court reversed, holding in the majority opinion that statements that indicate what happened in the past, as opposing to events currently happening as with the 9-1-1 call in Davis, tend to be “testimonial” and are typically made primarily to aid in investigation. The Court held that to be the case here, where it found the statements related only to past events, did not indicate the presence of an on-going threat or the possible presence of the perpetrator. When the shooting had occurred 30 minutes earlier, in a house six blocks away, the Court concluded that the primary purpose of the questions asked and answers given was to identify, locate and apprehend the perpetrator. While the focus of the inquiry is on the declarant’s statements, and not the interrogator’s questions, facts concerning the interrogation can be considered to determine the primary purpose of the declarant. The police questioned the declarant while EMS was already on its way to treat his injuries, and took no steps to secure the area out of concern that the perpetrator could be nearby. The police, as the Court said, “acted in a manner entirely consonant with officers who knew that the crime had already been committed, that it had been committed at a different location, and that there was no present or imminent criminal threat.”

In a footnote, the Court rejected the prosecutor’s suggestion that the statements might have been admissible under the excited utterance exception in the Rules of Evidence, noting that the Constitution requires the defendant’s ability to confront witnesses against him in the case of “testimonial” statements and trumps an evidence rule.

Justice Weaver wrote a brief dissent, indicating that she agreed with the Court of Appeals’ reasoning.

Justice Corrigan wrote a separate dissent, in which Justice Young joined. Her dissent concluded that most of the majority’s analysis was unnecessary because the statements would have been admissible as dying declarations. Justice Corrigan argued that the U.S. Supreme Court suggested that dying declarations could be a rare exception to what was a new rule under the Confrontation Clause, and historically predated that Clause. Although the prosecution abandoned the argument because of the state of the law at the time of trial, Justice Corrigan found that the issue should have been considered in fairness to the State. She also concluded that an objective victim or police officer, at the time of the events at issue, would very well have considered the statements to be for the primary purpose securing assistance, and that the Court of Appeals should not be overturned on such a close fact question. She found that the estimated elapsed time since the shooting was insignificant and agreed that ascertaining the identity and whereabouts of the shooter was for the purpose of ensuring safety, and not primarily for investigation.