PEOPLE OF MI V RICHARD PERRY BRYANT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 6, 2007
Plaintiff-Appellee,
v
No. 247039
Wayne Circuit Court
LC No. 02-005508
RICHARD PERRY BRYANT,
Defendant-Appellant.
ON REMAND
Before: Cavanagh, P.J., and Jansen and Saad, JJ.
PER CURIAM.
This case is before us on remand from our Supreme Court for reconsideration of
defendant’s Confrontation Clause claim in light of Davis v Washington, ___ US ___; 126 S Ct
2266; 165 L Ed 2d 224 (2006). We, again, affirm defendant’s convictions of second-degree
murder, MCL 750.317, felony firearm, MCL 750.227b, and felon in possession, MCL 750.224f.
The Sixth Amendment of the United States Constitution guarantees the right of a criminal
accused “to be confronted with the witnesses against him. . . .” See, also, Const 1963, art 1, §
20. In 2004, the United States Supreme Court articulated a bright-line rule against admission of
custodial statements by a nontestifying witness against a criminal defendant. Crawford v
Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). The Court held that the
Confrontation Clause recognizes confrontation, or cross-examination, as an indispensable means
of testing the truthfulness of testimonial assertions, and does not admit of substitution by other
means. Id. Accordingly, the Confrontation Clause bars “admission of testimonial statements of
a witness who did not appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.” Id. at 53-54. The Court elected not to attempt to
set forth comprehensive criteria for determining what constituted testimonial statements for this
purpose. Id. at 53 n 4.
In Davis, supra at 2273-2274, the United States Supreme Court refined its definition of
testimonial statements, holding:
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
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ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
In that case, an issue was whether a domestic violence victim’s statements made in response to a
911 operator’s interrogation were testimonial. The Davis Court stated that the question, “then, is
whether, objectively considered, the interrogation that took place in the course of the 911 call
produced testimonial statements.”
The Davis Court considered the factual circumstances presented, noting that (1) the
statements were made “about events as they were actually happening,” (2) “any reasonable
listener would recognize that [the victim] was facing an ongoing emergency and that the call
“was plainly a call for help against bona fide physical threat,” (3) “the nature of what was asked
and answered in Davis, again viewed objectively, was such that the elicited statements were
necessary to be able to resolve the present emergency, rather than to simply learn what had
happened in the past,” and (4) the statements were not formally taken in that they were made by
the victim while in a frantic state, over the phone, in an environment that was neither tranquil nor
safe. Id. at 2276-2277. The Court concluded that the circumstances of the interrogation
objectively indicated that “its primary purpose was to enable police assistance to meet an
ongoing emergency. She simply was not acting as a witness; she was not testifying. What she
said was not ‘a weaker substitute for live testimony.” Id. at 2277.
Here, defendant claims that Anthony Covington’s statements to police before he died of
gunshot wounds were testimonial in nature; therefore, defendant’s rights under the Confrontation
Clause, US Const, Am VI, were violated by their admission into evidence. Again, after review
for plain error affecting defendant’s substantial rights, we disagree.1 See People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999).
The record reveals that, at about 3:30 a.m., the police responded to a radio run involving
a man shot at a gas station. The first three police officers arrived at the gas station within a
couple minutes of receiving the call and found the victim, Covington, laying on the ground, on
the driver’s side of his vehicle, between the first set of gas pumps and the front door of the
station. Two other officers arrived shortly thereafter. The officers did not know if the shooting
occurred at the gas station and the gas station clerk, who called for assistance, did not know
where it happened. Covington was in obvious pain—as the officers concluded by his moaning,
facial expressions, difficulty breathing, and difficulty talking. The officers consistently testified
that they approached Covington and asked what happened.2 Covington replied that he had been
shot and that “Rick” shot him. He was asked where it happened, and Covington said that he was
shot at a house on the corner of Pennsylvania, which he proceeded to describe. Covington
further indicated that he had been standing at a closed door of the house on Pennsylvania having
1
Defendant raised this issue for the first time on appeal.
2
The police officer testimony conflicts as to which officer was the first to speak to Covington
but all fairly consistently testified as to the questions that were asked and the progression of the
questioning, although Covington may have volunteered some of the information unaided by
questioning.
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a conversation with somebody through the door, whose voice he recognized as Rick’s, when
shots were fired through the door and he was hit. Covington was asked to describe “Rick” and
he gave a description of “Rick.”
Defendant argues that Covington’s statements were testimonial because they resulted
from police questioning aimed at developing evidence relevant to past criminal behavior.
Defendant claims that there were no exigent circumstances, nor any immediate threat to
Covington because he was not at the scene of the actual shooting at the time the statements were
made. Defendant’s argument is flawed.
The police were, indeed, responding to an emergency—someone at the gas station was
shot and laying on the ground. They approached the person laying on the ground in obvious
distress, not knowing for sure whether he was the purported shooting victim, and asked “what
happened?” Covington replied that he was shot and that “Rick” shot him. The police asked
Covington where the shooting occurred. Covington said that he was shot at a house on the
corner of Pennsylvania and he described the house, as well as the circumstances of the shooting.
Covington was asked to describe “Rick.” The questioning was used to establish (1) if Covington
was the shooting victim, (2) if the shooting occurred at the gas station and, thus, whether there
was a continuing threat to their safety and the public’s safety, and (3) whether the shooter, as
described, followed Covington to the gas station, which was only a few blocks from the house on
Pennsylvania, and was still at the gas station. Further, the statements were about an event that
had just happened, Covington was obviously critically injured, and the statements were made
while he was lying on the ground in great physical distress. In sum, Covington’s statements
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.
We are cognizant of the fact that Covington’s statements would also assist the police in
their investigation of the shooting. But, the focus of the analysis is on the primary purpose of the
interrogation. Here, the police officers were faced with a shooting—the victim was on the
ground, in obvious distress, and it was unknown when or where the shooting occurred. The five
police officers who responded to the emergency call had virtually no information and had to
assess the potentially dangerous situation as quickly as possible in an attempt to secure the
victim’s, their own, and the general public’s safety. The questions they asked Covington were
consistent with that purpose. Although the information garnered from the questioning was used
in the ensuing investigation and later criminal prosecution, the statements made by Covington to
the police in the course of the interrogation were nontestimonial and not subject to the
Confrontation Clause. Therefore, defendant has failed to establish plain error affecting his
substantial rights. See Carines, supra. In light of our resolution of this issue, defendant’s
sufficiency of the evidence claim, again, fails.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Henry William Saad
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