One Court of Justice

On March 3, 2009, the Michigan Supreme Court will hear oral argument in People v. Richard Perry Bryant, No. 133725, on whether the Confrontation Clause to the U.S. Constitution bars the State from introducing statements made by a witness dying of gunshot wounds, who died prior to trial.  The central issue in the case is whether the witness’s dying statements are “testimonial” or “non-testimonial” under the United States Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006).  The Court’s order granting leave can be found here.  The briefs of the parties can be found here.

This case arises from Bryant’s convictions for second-degree murder, felony firearm, and being a felon in possession of a firearm.  At trial, the State relied upon statements identifying Bryant as the shooter while the victim lay dying in a parking lot.  The Court of Appeals initially affirmed the convictions and rejected Bryant’s argument that admitting hearsay statements from the victim as he lay dying from a gunshot wound violated his right to cross-examination protected by the Confrontation Clause. 

In October 2006, the Michigan Supreme Court remanded the Bryant back to the Court of Appeals to determine whether, in light of the U.S. Supreme Court’s decision that year in Davis v. Washington, the dying statement was testimonial.  The U.S. Supreme Court in 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, holding that the witness 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 had responded to an emergency call for help by the gas station attendant.  The police asked the man with the gunshot wound what happened, and he responded that “Rick” shot him and described where it took place, which was a house a few blocks from the gas station.  Bryant argued that the primary purpose of this exchange was to investigate past events and secure a criminal conviction, thus making the statements “testimonial.”  But the Court of Appeals held that the inquiries by the police were primarily part of their 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 upon the police’s response to an emergency call, and 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, because their primary purpose at the moment they were made was for emergency response, they were “non-testimonial” and could be admitted as evidence against Bryant.

Although the Michigan Supreme Court invited amicus submissions from the Criminal Defense Attorneys of Michigan, the Prosecuting Attorneys Association of Michigan, and the Criminal Law Section of the State Bar of Michigan, none of the groups filed an amicus brief.