PEOPLE OF MI V SHERMAN ANTHONY AUSTIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2005
Plaintiff-Appellee,
v
No. 256612
Wayne Circuit Court
LC No. 04-000765-01
SHERMAN ANTHONY AUSTIN,
Defendant-Appellant.
Before: Davis, P.J., and Fitzgerald and Cooper, JJ.
COOPER, J. (dissenting).
I must respectfully dissent from the majority opinion of my colleagues. Defense counsel
should have challenged the admission of Earl Bowen’s testimonial statements identifying
defendant as the shooter. The only other evidence connecting defendant to this shooting was the
testimony of a fellow inmate regarding confessions defendant allegedly made while awaiting
trial. It is questionable that the jury would have found defendant guilty beyond a reasonable
doubt, absent Mr. Bowen’s identification. Accordingly, I would vacate defendant’s convictions
and remand for a new trial.1
Although a dying declaration identifying one’s killer is testimonial in nature,2 courts have
historically admitted such statements as an exception to the hearsay rule.3 In a criminal trial for
1
I agree with the majority, however, that the trial court properly excluded the testimony of Mr.
DeShazo and that defendant is not entitled to a new trial on the basis of prosecutorial
misconduct.
2
See Friedman, Adjusting to Crawford: High court decision restores confrontation clause
protection, 19 Crim Just 4, 9 (2004):
[A] declaration by a dying person identifying his or her killer should be
considered testimonial even though the only person who hears it is a private
individual; the purpose of the communication is presumably not merely to edify
the listener, but rather to pass on to the authorities the victim’s identification of
the killer, and the understanding of both parties to the communication is that the
listener will play his or her role.
-1-
homicide, a victim’s statements made “while believing that the declarant’s death was imminent,
concerning the cause or circumstances of what the declarant believed to be impending death” are
admissible to prove the truth of the matter asserted under the Michigan Rules of Evidence.4 It is
well established, however, that the victim must be conscious of his impending death when the
statement is made in order to be characterized as a dying declaration.5
There is no evidence that Mr. Bowen was aware that he was dying when his cousin called
911. In fact, he requested something to eat while waiting for the ambulance to arrive. Yet
defense counsel expressly waived any objection to the admission of the 911 audiotape. As Mr.
Bowen’s statement would not be admissible under any other exception to the hearsay rule,
defendant was clearly prejudiced by counsel’s error.6
Mr. Bowen’s statement at the hospital implicating defendant was made at the instigation
of law enforcement and was clearly testimonial in nature.7 It is not clear from the record,
however, that Mr. Bowen was aware that he was dying while he was being treated in the
hospital. Detroit police officer Khary Mason testified that he believed that Mr. Bowen’s injuries
were fatal. He testified that he told Mr. Bowen that “he looked pretty bad.” However, Mr.
Bowen was able to answer Officer Mason’s questions and nothing in the record suggests that he
was informed of the actual extent of his injuries. Had defense counsel objected to the admission
of this statement, the prosecution would have been required to support the admission of the
proffered testimony.
(…continued)
3
Crawford v Washington, 541 US 36, 56 n 6; 124 S Ct 1354; 158 L Ed 2d 177 (2004)
(“Although many dying declarations may not be testimonial in nature there is authority for
admitting even those that clearly are.”).
4
MRE 804(b)(2).
5
See People v Johnson, 334 Mich 169, 173; 54 NW2d 206 (1952); People v Parney, 98 Mich
App 571, 583; 296 NW2d 568 (1979).
6
I would specifically note that Mr. Bowen’s statement could not be characterized as an excited
utterance under to MRE 803(2). Mr. Bowen only identified his shooter upon the encouragement
of the 911 operator, not upon a spontaneous impulse while under the stress of his recent
shooting. See People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998), quoting 5 Weinstein,
Evidence (2d ed), § 803.04[1], p 803-19 (a person “still under the ‘sway of excitement
precipitated by an external startling event will not have the reflective capacity essential for
fabrication so that any utterance will be spontaneous and trustworthy’”). Furthermore, the
continued admissibility of testimonial statements otherwise falling into the hearsay exception for
excited utterances is not clear under Michigan or federal law in light of the United States
Supreme Court’s recent grant of certiorari to consider this issue. Davis v Washington, ___ US
___; 126 S Ct 547; ___ L Ed 2d ___ (2005) (specifically addressing whether statements to a 911
operator are testimonial in nature); Hammon v Indiana, ___ US ___; 126 S Ct 552; ___ L Ed 2d
___ (2005). See also People v Walker, ___ Mich ___; ___ NW2d ___ (2005) (leave to appeal
held in abeyance pending the United States Supreme Court’s resolution of these appeals).
7
Crawford, supra at 52-53.
-2-
Mr. Bowen’s statements were testimonial in nature and were not clearly admissible under
any hearsay exception. Mr. Bowen was obviously unavailable for trial and defendant had no
prior opportunity for cross-examination.8 Therefore, defense counsel could have established that
the admission of these statements violated defendant’s Sixth Amendment right to confront the
witnesses against him. As the remaining evidence against defendant is extremely weak, this
error was not harmless.9 Accordingly, I would find that defendant’s convictions must be
vacated.
/s/ Jessica R. Cooper
8
Id. at 55-56.
9
See People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 528 (1994).
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