PEOPLE OF MI V RICHARD PERRY BRYANT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 24, 2004
Plaintiff-Appellee,
v
No. 247039
Wayne Circuit Court
LC No. 02-005508
RICHARD PERRY BRYANT,
Defendant-Appellant.
Before: Cavanagh, P.J., and Jansen and Saad, JJ.
PER CURIAM.
Defendant appeals as of right his convictions of second degree murder, MCL 750.317,
felony firearm, MCL 750.227b, and felon in possession, MCL 750.224f, arising from the
shooting death of Anthony Covington. We affirm.
On April 29, 2001, Covington was shot in the chest and, when he was found by police, he
said “I was shot. Rick shot me.” He also gave a physical description of Rick and said that he
had a conversation with Rick through the back door of a yellow house on the corner of Laura and
Pennsylvania, during the course of which he heard a gunshot and as he turned to leave, he was
struck by a second bullet that was fired through the door. Although he did not see Rick, he knew
Rick was the person who shot him because he recognized his voice. Covington died a few hours
later from his injuries.
Police went directly to the house described by Covington and found two bullet holes in
the rear door, a bullet, blood on the back porch, and Covington’s wallet. They also found a piece
of mail addressed to defendant in the trash but neither a gun nor defendant were present.
Defendant’s girlfriend and defendant’s three children were at the house and his girlfriend
indicated that defendant had been there that evening. She testified at trial that she never saw
defendant again after that night although they had lived together at that house for about eight
months. When the police went to that house about a week later, it appeared to be vacant.
Covington’s brother, Paul Mitchell, testified that he and his brother lived down the street from
defendant, who was only known as “Rick,” and that defendant sold drugs from his back door.
Covington was one of defendant’s customers and had been for about three years. Mitchell also
testified that he knew his brother was going to defendant’s house the night he was killed to
retrieve an expensive coat he had traded to defendant for drugs. Defendant was eventually
apprehended in California and extradited to Michigan where he was charged with first-degree
murder, possession of a firearm by a felon, and felony firearm with regard to Covington’s death.
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On appeal, defendant argues that the admission as excited utterances of Covington’s
statements to police before he died of the gunshot wounds denied him his Sixth Amendment
right to confrontation, US Const, Am VI, since he did not have the opportunity to cross examine
Covington. Because defendant raises this issue for first time on appeal, our review is for plain
error affecting his substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999).
Defendant relies on the recent case of Crawford v Washington, 541 US ____; 124 S Ct
1354; 158 L Ed 2d 177 (2004), which held that testimonial out-of-court statements are not
admissible under the Confrontation Clause unless the witness is unavailable and the defendant
had the prior opportunity to cross examine the witness. Id. at 1374. However, Covington’s
statements were not “testimonial” in nature since they were not the result of police interrogation.
See id. at 1364-1365. The police officers who responded to the shooting found Covington laying
on the ground, bleeding from the chest and stomach areas. He was moaning, in obvious physical
pain, winded, and had a difficult time speaking. They asked him what happened and Covington
responded that he had been shot by Rick at Rick’s house, through the door, and he gave the
location of Rick’s house and a physical description of Rick. Covington was taken from the scene
by ambulance and died at the hospital. The one question asked by the police – “what
happened?” – does not constitute an interrogation and there is no evidence of interrogation.
Further, the statements were not any type of “ex parte in-court testimony or its functional
equivalent.” See Crawford, supra at 1364. Accordingly, defendant has not established plain
error warranting relief.
Next, defendant argues that his motion for directed verdict should have been granted
because there was insufficient evidence to establish either that defendant perpetrated the murder
or that he did so with premeditation. We disagree. This Court reviews a trial court's decision
regarding a motion for a directed verdict de novo and considers the evidence in the light most
favorable to the prosecution to determine whether a rational trier of fact could find that the
essential elements of the crime charged were proved beyond a reasonable doubt. People v
Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999).
To establish first-degree premeditated murder, the prosecutor must prove that the
defendant killed the victim and that the killing was willful, deliberate, and premeditated. MCL
750.316(1)(a); People v Bowman, 254 Mich App 142, 151; 656 NW2d 835 (2002). First,
defendant claims that the prosecutor did not establish that he killed Covington because the only
evidence that defendant was the perpetrator was Covington’s voice identification of him prior to
his death. Defendant claims that it was not sufficient to identify him as the killer.
Voice identification is competent evidence if it is “reasonably positive and certain,” and
is based on sufficient knowledge by the witness about the voice. People v Hayes, 126 Mich App
721, 725; 337 NW2d 905 (1983), quoting People v Bozzi, 36 Mich App 15, 19; 193 NW2d 373
(1971). Such identification evidence is sufficient if it is corroborated by other testimony. People
v Palmer, 392 Mich 370, 377; 220 NW2d 393 (1974). Here, the evidence included that (1)
Covington knew defendant, (2) defendant was only known as “Rick,” (3) immediately before
being shot, Covington had a conversation with defendant through the back door of defendant’s
house, (4) for about three years Covington had purchased drugs sold by defendant at the back
door of the house defendant lived in, (5) Covington was going to defendant’s house the night he
was shot, (6) there were bullet holes in the back door at defendant’s house, as well as blood and
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Covington’s wallet, and (7) the bullet found in Covington had markings on it consistent with
being shot through a door. Considered in the light most favorable to the prosecution, we
conclude that the evidence was sufficient for a rational trier of fact to find that defendant was the
killer.
Second, defendant claims that the prosecutor did not establish that the killing was
premeditated. “Premeditation and deliberation may be established by evidence of ‘(1) the prior
relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of
the killing itself; and (4) the defendant's conduct after the homicide.’” People v Abraham, 234
Mich App 640, 656; 599 NW2d 736 (1999), quoting People v Schollaert, 194 Mich App 158,
170; 486 NW2d 312 (1992). Circumstantial evidence and reasonable inferences arising from
that evidence may establish elements of a crime. People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000). Here, the evidence included that (1) defendant was selling drugs from the
back door of his house, (2) Covington had been a customer for about three years, (3) on the night
of the killing, Covington went to defendant’s house to retrieve a coat he had traded to defendant
for drugs, (4) Covington and defendant had a conversation through defendant’s closed back door
and then defendant fired two gunshots, at least one chest high, at Covington through the door, (5)
there was no evidence that Covington was armed or that the shooting was provoked, (6)
defendant immediately fled the scene, with the gun, leaving his children and girlfriend behind,
and (7) defendant never returned to the house he had lived in for years but instead fled to
California where he resided until he was extradited to Michigan. We conclude that the evidence
was sufficient for a reasonable jury to find that defendant killed Covington with premeditation.
See People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003).
Finally, defendant argues that the trial court committed reversible error when it denied his
request, pursuant to MRE 804(b)(1), to admit the prior testimony given by his son in response to
an investigative subpoena because he was unavailable to testify at trial. We disagree. We
review a trial court’s interpretation of a rule of evidence de novo, and its decision regarding the
admission of the evidence for an abuse of discretion. People v Katt, 468 Mich 272, 278; 662
NW2d 12 (2003).
MRE 804(b)(1) is an exception to the rule that hearsay is inadmissible evidence. It
provides that “[t]estimony given as a witness at another hearing of the same or a different
proceeding, if the party against whom the testimony is now offered, . . . had an opportunity and
similar motive to develop the testimony by direct, cross, or redirect examination[,]” is admissible
if the declarant is unavailable as a witness. A witness is deemed “unavailable” if “absent from
the hearing and the proponent of a statement has been unable to procure the declarant’s
attendance . . . by process or other reasonable means, and in a criminal case, due diligence is
shown.” MRE 804(a)(5).
Here, defendant’s eleven-year-old son gave a recorded sworn statement during the
investigation of this homicide pursuant to a subpoena. Defendant sought to introduce this
statement when his son did not appear at trial. However, this statement would only be
admissible under MRE 804(b)(1) if the witness was unavailable, i.e., defendant, after diligent
good-faith efforts were made, was unable to procure his son’s attendance by process or other
reasonable means. See People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998); People v
Cummings, 171 Mich App 577, 585-586; 430 NW2d 790 (1988).
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On the first day of trial, defense counsel requested assistance from the prosecution in
locating defendant’s son but when the court was going to grant that assistance, defendant
personally assured the court that he could make a telephone call and have his son in court the
next day. The court then noted that “according to your client he doesn’t need the assistance of
the prosecutor,” to which defense counsel replied “Very well, your Honor.” Apparently, on the
afternoon of the next day, defense counsel renewed his request for assistance from the
prosecution; a subpoena was issued and its execution attempted that same evening, as well as the
next morning, without success. On the third day of trial, defendant then moved for admission of
the contested testimony which the court denied on the ground that defendant had not met his due
diligence obligation since he merely requested assistance the previous day. In light of
defendant’s tardy and incomplete efforts to secure the testimony of his son, we will not reverse
the trial court’s decision. See Bean, supra; People v Dye, 431 Mich 58, 73-78; 427 NW2d 501
(1988).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Henry William Saad
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