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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RICHARD PERRY BRYANT, Defendant-Appellant.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

JUNE 10, 2009

No. 133725

BEFORE THE ENTIRE BENCH MARKMAN, J. We granted leave to appeal to consider whether the victim's statements to the police in this case constituted inadmissible testimonial hearsay within the meaning of the United States Supreme Court's decisions in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and Davis v Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224 (2006). The Court of Appeals held that the statements were non-testimonial under the test set forth in Davis, 547 US at 822, because they were made "in the course of a police interrogation under circumstances objectively indicating that its primary purpose was to enable police assistance to meet an ongoing emergency." People v Bryant (On Remand), unpublished opinion per curiam of the Court of Appeals, issued

March 6, 2007 (Docket No. 247039), at 3. Because we conclude on the basis of Crawford and Davis that the "primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution," Davis, 547 US at 822, we respectfully disagree and hold that the statements constituted inadmissible testimonial hearsay. Moreover, we conclude that the admission of these statements constituted plain error requiring reversal. Therefore, we reverse the Court of Appeals and remand for a new trial. I. FACTS AND HISTORY The victim lived with his brother within a few houses of defendant, from whom he had been purchasing cocaine for three years. The victim's brother testified that defendant sold drugs to the victim at defendant's back door. On April 28, 2001, the victim told his brother that he planned to redeem an expensive coat that he had pawned with defendant in exchange for some cocaine. On April 29, 2001, between 3:00 and 3:30 a.m., the brother heard gunfire, and at about 3:25 a.m., five police officers responded to a radio dispatch indicating that a man had been shot. They found the victim lying on the ground next to his car at a gas station about six blocks from defendant's house. The victim had a gunshot wound in his abdomen and appeared to be in considerable pain. In response to the officers' questioning, the victim indicated that he had been shot at approximately 3:00 a.m. while standing outside defendant's back door. The victim stated that before being shot he had a short conversation through a closed door with defendant. He identified defendant as the shooter because, although he did not see 2

defendant shoot him, he knew that it was defendant who had shot him because he recognized defendant's voice. While the victim described defendant as being 40 years old, 5' 7" tall, and about 140 pounds, according to defendant's driver's license, defendant was actually 30 years old, 5' 10" tall, and 180 pounds. Although the brother testified that the victim knew defendant's last name, the victim himself told the police that he did not know defendant's last name.1 The victim told the police that, after he was shot, he drove himself to the gas station. The victim died within a few hours after he was transported to the hospital. When the police left the gas station, they immediately proceeded to defendant's house. The police found what appeared to be blood and a bullet on defendant's back porch and what the police believed to be a bullet hole in the back door. The victim's wallet and identification were also discovered outside defendant's house. However, the police did not discover any drugs, guns, bullets, or the victim's coat when they searched defendant's house at approximately 5:30 a.m. on the morning of the shooting. Defendant's girlfriend testified that defendant was not home at the time of the shooting and that she had not heard any gunfire that morning. The medical examiner testified that the bullet that killed the victim had passed through an intermediary target, such as a door. Toxicology tests showed that the victim

Defendant, whose name is Richard, goes by the name "Rick," and the victim told the police that "Rick" shot him.

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had consumed cocaine within four hours of his death. Defendant was arrested one year later in California and was extradited to Michigan. Defendant's first trial resulted in a hung jury. Following a second jury trial, and after two days of deliberations, defendant was convicted of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during the commission of a felony.2 The Court of Appeals affirmed. People v Bryant, unpublished opinion per curiam of the Court of Appeals, issued August 24, 2004 (Docket No. 247039). Defendant appealed, arguing that the trial court erred by admitting the victim's statements to the police identifying him as the shooter.3 This Court held defendant's application for leave to appeal in abeyance pending our consideration of People v Mileski, 472 Mich 927 (2005), and People v Walker, 472 Mich 928 (2005). After we subsequently vacated our orders granting leave to appeal in Mileski and Walker and remanded those cases to the Court of Appeals for reconsideration in light of the United States Supreme Court's decision in Davis, we similarly remanded this case. On remand, the Court of Appeals again

affirmed, concluding that the victim's statements constituted admissible non-

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The jury acquitted defendant of first-degree murder.

The trial court's decision predated the United States Supreme Court's decisions in Crawford and Davis. The trial court denied defendant's motion to suppress the victim's statements to the police, holding that these statements were admissible under the excited utterance exception to the hearsay rule, MRE 803(2).

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testimonial hearsay. Bryant (On Remand), supra at 3. When defendant again appealed, we granted leave. People v Bryant, 482 Mich 981 (2008). II. STANDARD OF REVIEW Whether the admission of the victim's statements to the police violated defendant's Sixth Amendment right of confrontation is a question of constitutional law that this Court reviews de novo. People v Drohan, 475 Mich 140, 146; 715 NW2d 778 (2006). III. ANALYSIS Defendant argues that the admission of the victim's statements to the police identifying defendant as the shooter violated his Sixth Amendment right of confrontation. The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him . . . ." US Const, Am VI.4 In Crawford, 541 US at 59, the United States Supreme Court held that "[t]estimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to crossexamine." Although the Court left "for another day any effort to spell out a comprehensive definition of `testimonial,'" it did say that "[w]hatever else the term covers, it applies at a minimum to prior testimony . . . and to police The Michigan Constitution also guarantees criminal defendants the right "to be confronted with the witnesses against him or her . . . ." Const 1963, art 1,

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