People v. Bryant

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

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

JUNE 10, 2009

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 133725

RICHARD PERRY BRYANT,

Defendant-Appellant.

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(On Remand), unpublished opinion per curiam of the Court of Appeals, issued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

1
Defendant, whose name is Richard, goes by the name “Rick,” and the
victim told the police that “Rick” shot him.

3
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-

2
The jury acquitted defendant of first-degree murder.
3
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).

4
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 cross-

examine.” 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

4
The Michigan Constitution also guarantees criminal defendants the right
“to be confronted with the witnesses against him or her . . . .” Const 1963, art 1, §
20.

5
interrogations.” Id. at 68. The Court defined “[t]estimony” as “‘[a] solemn

declaration or affirmation made for the purpose of establishing or proving some

fact.’” Id. at 51, quoting American Dictionary of the English Language (1828).

The Court explained that “[a]n accuser who makes a formal statement to

government officers bears testimony in a sense that a person who makes a casual

remark to an acquaintance does not.” Id. The Court recognized that “[v]arious

formulations of this core class of ‘testimonial’ statements exist,” such as “‘pretrial

statements that declarants would reasonably expect to be used prosecutorially’”

and “‘statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for

use at a later trial.’” Id. at 51-52 (citations omitted). However, the Court

indicated that “[s]tatements taken by police officers in the course of interrogations

are . . . testimonial under even a narrow standard.” Id. at 52. The Court stated that

“even if the Sixth Amendment is not solely concerned with testimonial hearsay,

that is its primary object, and interrogations by law enforcement officers fall

squarely within that class.” Id. at 53. The Court further stated that it was “us[ing]

the term ‘interrogation’ in its colloquial, rather than any technical legal, sense.”

Id. at 53 n 4. Finally, Crawford concluded that the statement that the defendant’s

wife had given in that case in response to police questioning at the police station

constituted an inadmissible testimonial hearsay statement. Id. at 53 n 4, 68.

In Davis, the Supreme Court further expounded on the meaning of the term

“testimonial hearsay statements.” The Court held that “[s]tatements are

6
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.” Davis, 547 US at

822. On the other hand, “[t]hey are testimonial when the circumstances

objectively indicate that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.” Id. Davis further explained that “in the final

analysis [it is] the declarant’s statements, not the interrogation’s questions, that the

Confrontation Clause requires us to evaluate.” Id. at 822 n 1.5

The statements in dispute in Davis were made to a 911 emergency operator.

The victim told the operator, “[The defendant’s] here jumpin’ on me again”; “He’s

usin’ his fists.” Id. at 817. The Court held that these statements were non-

testimonial. Id. at 829. The Court asserted that Davis was distinguishable from

Crawford because in Davis: (1) the victim was “speaking about events as they

were actually happening, rather than [as in Crawford] ‘describ[ing] past events . . .

hours after the events . . . had occurred”; (2) thus, in contrast to the victim in

Crawford, the victim “was facing an ongoing emergency”; (3) “the nature of what

was asked and answered . . . was such that the elicited statements were necessary

to be able to resolve the present emergency, rather than simply to learn (as in

5
Although the focus here is on the statements made by the declarant to the
interrogators, the interrogators’ questions would nevertheless seem to provide
necessary context in understanding the “primary purpose” of these statements.

7
Crawford) what had happened in the past”; and (4) the victim’s “frantic answers

were provided over the phone, in an environment that was not tranquil, or even

. . . safe,” while, in Crawford, the victim was “responding calmly, at the station

house, to a series of questions . . . .” Id. at 827 (emphasis in the original; citation

omitted). The Court held that the “primary purpose” of the interrogation in Davis

“was to enable police assistance to meet an ongoing emergency,” and, thus, the

elicited statements were non-testimonial. Id. at 828-829.

In Hammon, a companion case decided with Davis, the police responded to

a reported domestic disturbance. When the police arrived, the victim was sitting

alone on the porch and the defendant was inside. The victim told the police that

the defendant had hit her and thrown her. The Court held that because “the

primary, if not indeed the sole, purpose of the interrogation was to investigate a

possible crime,” the victim’s statements to the police were testimonial. Id. at 830.

The Court explained that Hammon was distinguishable from Davis because in

Hammon: (1) “the interrogation was part of an investigation into possibly criminal

past conduct”; (2) “[t]here was no emergency in progress”; and (3) “[w]hen the

officer questioned [the victim], . . . he was not seeking to determine (as in Davis)

‘what is happening,’ but rather ‘what happened.’” Id. at 829-830. As the Court

further explained:

The statements in Davis were taken when [the victim] was
alone, not only unprotected by police (as [the victim in Hammon]
was protected), but apparently in immediate danger from [the
defendant]. [The victim in Davis] was seeking aid, not telling a
story about the past. [The Davis victim’s] present-tense statements

8
 showed immediacy; [the Hammon victim’s] narrative of past events
was delivered at some remove in time from the danger she
described. [Id. at 831-832.]

By contrast, the Court reasoned that Hammon was similar to Crawford because:

(1) “[b]oth declarants were actively separated from the defendant”; “[b]oth

statements deliberately recounted, in response to police questioning, how

potentially criminal past events began and progressed”; and (3) “both took place

some time after the events described were over.” Id. at 830. Accordingly, the

statements in Hammon, like those in Crawford, were testimonial. Id.

In the instant case, there is no question that the victim is unavailable, and

defendant did not have a prior opportunity to cross-examine the victim. Therefore,

if the victim’s statements to the police were testimonial in nature, they are

inadmissible. Crawford, 541 US at 68.6 Accordingly, the only issue here is

whether the victim’s statements were made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

6
The prosecutor argues that the victim’s statements to the police are
admissible because they fall within the excited utterance exception of MRE
803(2). However, this argument is clearly incompatible with the United States
Supreme Court’s decision in Crawford. As that Court indicated, “Where
testimonial statements are involved, we do not think the Framers meant to leave
the Sixth Amendment’s protections to the vagaries of the rules of evidence . . . .”
Crawford, 541 US at 61. Instead, “[w]here testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy constitutional demands is the one
the Constitution actually prescribes: confrontation.” Id. at 68-69. See, also,
McCormick, Evidence (6th ed), § 252, p 163, citing Crawford, 541 US at 59 n 8
(“While . . . [the Crawford Court] suggested that dying declarations might be
excepted for historical reasons, the Court took a different view of excited
utterances (also known as spontaneous declarations).”).

9
interrogation was to enable police assistance to meet an “ongoing emergency,” as

defined by the United States Supreme Court, or whether the primary purpose of

this interrogation was to establish or prove past events potentially relevant to a

later criminal prosecution. Davis, 547 US at 822.

On remand, the Court of Appeals held that the statements in this case were

non-testimonial, and thus affirmed defendant’s convictions.7 We, however, agree

with defendant that the statements were testimonial pursuant to Crawford and

Davis. The police found the victim lying on the ground outside a gas station. The

police asked him what had happened, who had shot him, and where the shooting

had occurred. The victim told the police that defendant shot him about 30 minutes

earlier at defendant’s house, which was about six blocks away, and that he drove

himself to the gas station. These statements related solely to events that had

occurred in the past and at a different location. None of these statements referred

to events occurring at the time the statements were made, none alleged any

ongoing threat, and none asserted the possible presence of the alleged perpetrator.

7
In its first opinion, the Court of Appeals stated, “The one question asked
by the police—‘what happened?’—does not constitute an interrogation and there
is no evidence of interrogation.” Bryant, supra at 2. In its second opinion,
however, the Court of Appeals recognized that the police had, in fact, asked the
victim multiple questions and that the victim’s statements were “made in the
course of a police interrogation.” Bryant (On Remand), supra at 3. Indeed, the
police admittedly asked defendant a “series of questions.” In its second opinion,
the Court of Appeals stated, “The questioning was used to establish . . . whether
the shooter . . . followed [the victim] to the gas station . . . .” Id. However, none
of the officers testified that they ever asked the victim whether the shooter
followed the victim to the gas station or any similar questions.

10
The circumstances, in our judgment, clearly indicate that the “primary purpose” of

the questioning was to establish the facts of an event that had already occurred;

the “primary purpose” was not to enable police assistance to meet an ongoing

emergency.8 The crime had been completed about 30 minutes earlier and six

blocks from where the police questioned the victim. The police asked the victim

what had happened in the past, not what was currently happening. That is, the

“primary purpose” of the questions asked, and the answers given, was to enable

the police to identify, locate, and apprehend the perpetrator.

Davis stated that “in the final analysis [it is] the declarant’s statements, not

the interrogation’s questions, that the Confrontation Clause requires us to

evaluate.” Id. at 822 n 1. The declarant here (i.e., the victim) made these

statements while he was surrounded by five police officers and knowing that

emergency medical service (EMS) was on the way. Obviously, his primary

purpose in making these statements to the police was not to enable the police to

meet an ongoing emergency of the type identified by the United States Supreme

Court, but was instead to tell the police who had committed the crime against him,

8
The dissent contends that the “time lapse” between the shooting and the
questioning does not necessarily mean that the emergency was not ongoing when
the questioning occurred. Post at 3. However, the dissent overlooks that part of
Davis, 547 US at 828-829, in which the Supreme Court concluded that once the
defendant had stopped assaulting the victim and left the scene of the crime, the
“ongoing emergency” was over. Applying that same reasoning to the instant case,
the “ongoing emergency,” at least in the Davis sense, was over once the victim
was able to escape from defendant and drive six blocks to the gas station.

11
where the crime had been committed, and where the police could find the

criminal. That is, the primary purpose of the victim’s statements to the police was

to “establish or prove past events potentially relevant to later criminal

prosecution.” Davis, 547 US at 822.9

Further, the officers’ actions do not suggest that the officers themselves

considered the circumstances at the gas station to constitute an “ongoing

emergency,”10 at least not as the Supreme Court defines that term. None of the

officers testified to taking any actions to secure the area, to search the station for

the possible presence of any armed individuals, or to provide cover for other

officers. None of the officers indicated that he drew his weapon at the gas station,

took up a defensive position out of concern that the shooter might be nearby, or

called for any backup assistance to ensure the safety of the officer himself or

others in the area. And none of the police officers questioned people who were in

or around the gas station (other than the victim and the gas station attendant) or

9
The fact that Davis held that the pertinent question is the statement’s
“primary purpose,” rather than its “sole purpose,” suggests that statements may be
considered testimonial even though the statements may to some extent “enable
police assistance to meet an ongoing emergency.” However, this matter need not
be amplified upon in the present case.
10
Davis explained that “police conduct [cannot] govern the Confrontation
Clause; testimonial statements are what they are.” Davis, 547 US at 832 n 6.
“Their saying that an emergency exists cannot make it be so.” Id. In the instant
case, the police conduct (although not dispositive) does not even remotely suggest
that the police believed that an ongoing emergency existed while they were
interrogating the victim at the gas station.

12
searched in any way at the station for the shooter.11 Rather, they acted in a manner

entirely consonant with officers who knew that the crime had already been

committed, that it had been committed at a different location, and that there was

no present or imminent criminal threat. Indeed, once the EMS unit arrived for the

victim, the police left the gas station and immediately proceeded to defendant’s

11
Contrary to the dissent’s contention, post at 4 n 1, the police were
specifically asked these types of questions. For example, one officer was asked,
“When your partner parked the car, what did you do?” to which he responded, “I
got out of the vehicle and I went towards [the victim].” This officer was then
asked if he went “immediately” to the victim and the officer responded, “Yes, I
did.” This officer was then asked, “You didn’t go into the [gas] station and ask
what had happened or anything like that,” to which he responded, “Negative, no.”
Then, the officer was asked, “What did [your partner] do upon parking the car?” to
which he said, “He got out of the vehicle too [and walked] towards [the victim].”
The officer was then asked, “While you’re talking to [the victim], where is [your
partner]?” to which he responded, “He was right there with me.” The officer was
also asked whether he was standing or kneeling, and he indicated that he was
standing. Another officer was asked, “Where did [the officers] go” when they got
out of their vehicles, and he indicated that they “all went to [the victim].” Yet
another officer was asked, “Where were [the other officers] when you arrived?”
and he responded, “They were by [the victim].” This officer was then asked
whether he “went straight to [the victim] or did . . . something else,” to which he
responded, “I went straight to [the victim].” Then, this officer was asked, “You
mean the entire time you were there you spent that entire time talking with [the
victim], is that what you’re saying,” and he said, “The majority of the time there I
did, yes.” Another officer was asked, “So you get there and there’s already two
[sic] officers over near [the victim] on the ground and so you go over there also,
correct,” to which he responded, “Correct.” This officer was then asked, “You
didn’t look around and say, gee, there might be a shooter around here, I better
keep an eye open,” to which he said, “I did not, no.” Finally, another officer was
asked, “And when you got there at the gas station what did you, what’s the first
thing you did?” to which he responded, “I approached the subject, the victim . . .
on the ground and asked him something like what happened.” This officer was
then asked, “Did your partner go with you?” and he responded, “Yes. Yes. He
followed right behind me.”

13
house, where they then called for backup assistance because they feared that

defendant might still be inside.12

The primary purpose of the police questioning of the victim at the gas

station was to determine who shot the victim and where the shooter could be found

so that they could arrest him. The police were at the gas station to investigate a

past crime, not to prevent an ongoing one, and the victim was not “speaking about

events as they were actually happening,” as in Davis, but was “‘describ[ing] past

events,’” as in Crawford and Hammon. Davis, 547 US at 827 (emphasis in the

original; citation omitted).13 The primary purpose of the victim’s statements was

12
Some of the officers actually left the gas station to proceed to defendant’s
house even before EMS arrived. The dissent contends that the fact that the police
called for backup assistance when they reached defendant’s house indicates that
there was an “ongoing emergency.” Post at 4 n 1. Even if there was an “ongoing
emergency” at defendant’s house (which we do not concede since defendant was
not even at his house when the police arrived), this “ongoing emergency” existed
at defendant’s house, not at the gas station at which the statements were made.
Further, referring to the police investigation at defendant’s house as an “ongoing
emergency” for purposes of evaluating an alleged Crawford violation is
inconsistent with Davis, 547 US at 828-829, as the Court concluded in that case
that once the defendant had stopped beating the victim and left the premises, the
“ongoing emergency” had ended, despite the fact that a dangerous criminal
remained on the run. Under the dissent’s approach, if there is an “ongoing
emergency” anywhere (or even what the police perceive to be such an “ongoing
emergency”), a victim’s statements to the police are to be considered non-
testimonial even if those statements are made away from the actual venue of this
“ongoing emergency.”
13
In Davis, 547 US at 828, the Court discussed King v Brasier, 1 Leach
199, 168 Eng Rep 202 (1779), in which “a young rape victim, ‘immediately on her
coming home, told all the circumstances of the injury’ to her mother.” Davis
stated that “if the relevant statement had been the girl’s screams for aid as she was
being chased by her assailant,” the statement would have been non-testimonial.

14
not “to describe current circumstances requiring police assistance,” as in Davis,

but to “establish[] the facts of a past crime, in order to identify (or provide

evidence to convict) the perpetrator,” as in Crawford and Hammon. Davis, 547

US at 826-827 (emphasis added).

When the police questioned the victim at the gas station, there simply was

no “ongoing emergency,” as that term is defined by the United States Supreme

Court. The prosecutor argues that the primary purpose of the interrogation was to

enable police assistance to meet an “ongoing emergency”-- to find and apprehend

a criminal before he injured somebody else. This argument is unpersuasive

because an “ongoing emergency” in this sense would almost always exist while

the police are investigating alleged crimes. That is, to adopt the prosecutor’s

argument would effectively render non-testimonial all statements made before the

offender was placed behind bars.14 This is clearly inconsistent with the commands

Davis, 547 US at 828. “But by the time the victim got home, her story was an
account of past events,” and, thus, the victim’s statement to her mother was
testimonial. Id.
14
The dissent contends that we must consider the “length of time between
[the] initial event and [the] police questioning.” Post at 5 n 2. Presumably, the
shorter the time between the event and the questioning, the more likely that the
statement should be considered non-testimonial. However, the United States
Supreme Court has not directed us to consider the “length of time between [the]
initial event and [the] questioning.” Instead, it has directed us to consider whether
the statements describe an event as it is “actually happening,” or whether they
describe an event that has already “happened.” Davis, 547 US at 827. If the
statements fall in the former category they are to be considered non-testimonial
and if they fall in the latter category they are to be considered testimonial, says the
Supreme Court. Id. Although the dissent may refer to this as an “artificial

15
of the Supreme Court. See, for example, State v Kirby, 280 Conn 361, 385 n 19;

908 A2d 506 (2006) (explaining that “accepting the state’s arguments on this point

would render meaningless the distinction drawn by the United States Supreme

Court, as they would render virtually any telephone report of a past violent crime

in which a suspect was still at large, no matter the timing of the call, into the report

of a ‘public safety emergency’”); State v Mechling, 219 W Va 366, 377; 633 SE2d

311 (2006) (“[T]he investigation of a past crime—while necessary to prevent

future harms and lead to necessary arrests—is likely to elicit testimonial

statements from witnesses that will be subject to the constraints of the

Confrontation Clause.”) See also Fisher, What happened—and what is

happening—to the confrontation clause, 15 J L & Policy 587, 614 (2007), which

explained:

The presence of an ongoing emergency is important only
insofar as it indicates that a declarant’s statement describing criminal
activity can fairly be described as part of the event itself, rather than
a report or a narrative of it. If the law were otherwise, statements
reporting criminal activity or accusing others of crimes would
always be nontestimonial until a suspect was in custody and unable
to cause further harm. Even more to the point, if the law were
otherwise, Hammon would have had to come out the other way and
the Court could never have indicated that the latter part of the 911
call in Davis was nontestimonial [sic]. Yet the emergencies in those
cases were limited to the criminal events themselves, and when those
events ceased occurring, statements describing how they had
transpired were testimonial.

threshold,” post at 4, it is, for better or worse, the “threshold” set by the Supreme
Court, and is thus the threshold that we must follow here.

16
 Equally unpersuasive is the Court of Appeals argument that the police were

“responding to an emergency” because “someone at the gas station was shot and

laying on the ground.” Bryant (On Remand), supra at 3. Once again, this type of

“emergency” almost always exists when the police respond to a victim who has

been seriously injured. That is, if we were to adopt the Court of Appeals analysis,

all statements made while the police are questioning a seriously injured

complainant would be rendered non-testimonial, and this is also clearly

inconsistent with the commands of the Supreme Court by confusing a medical

emergency with the emergency circumstances of an ongoing criminal episode.

See, for example, Kirby, 280 Conn at 384-385 (“[A]lthough the complainant might

have needed emergency medical assistance at the time she made the call, the bulk

of her conversation with [the police dispatcher] nevertheless consisted of her

account of a crime that had happened to her in the recent past, rather than one that

was happening to her at the time of the call,” which “renders the telephone call

recording testimonial and, therefore, inadmissible under Crawford”); State v

Lewis, 235 SW3d 136, 147 (Tenn, 2007) (“Even though the victim was in a state

of distress from his wounds, his comments did not describe an ‘ongoing

emergency,’ as defined in Crawford, and were instead descriptions of recent, but

past, criminal activity as in Hammon.”). Most importantly, see Davis, 547 US at

828-829, in which the United States Supreme Court indicated that once the

defendant stopped attacking the victim and “drove away from the premises,” “the

emergency appears to have ended.” The Court said nothing at all that would

17
remotely suggest that whether the victim was in need of medical attention was in

any way relevant to whether there was an “ongoing emergency.” Instead, the

Court said that once the criminal event was over, i.e., the defendant had stopped

assaulting the victim and left the premises, the “ongoing emergency” was over at

least for purposes of evaluating an alleged Crawford violation.15

The hearsay statements at issue in the instant case are significantly different

from the admissible hearsay statements in Davis, i.e., the statements made to the

911 operator while the defendant was still attacking the victim, because, unlike in

Davis, this victim was describing past events, rather than describing a criminal

episode as it was unfolding, and, unlike in Davis, this victim was away from

defendant and the crime scene, and was in the protection of five police officers.

On the other hand, this case is significantly similar to Hammon because in both

cases the police were seeking through their questioning to determine what had

previously occurred, rather than what was occurring at the time of the questioning,

and the victims were separated from the defendants and in the protection of the

police. That is, in both Hammon and this case, (1) “[the] declarants were actively

15
Just as Davis was not referring to any “ongoing emergency” occurring
anywhere, see note 12 of this opinion, it was also obviously not referring to every
imaginable type of “ongoing emergency.” Instead, given that Davis concluded
that the statements made while the victim was being assaulted did occur during an
“ongoing emergency,” but the statements made after the defendant stopped
assaulting the victim and left the premises did not occur during an “ongoing
emergency,” it is clear that Davis used the term “ongoing emergency” in reference
to the emergency presented by the pendency of the criminal event itself, not by its
aftermath, including the purely medical aftermath. Davis, 547 US at 828-829.

18
separated from the defendant[s]”; (2) “[the] statements deliberately recounted, in

response to police questioning, how potentially criminal past events began and

progressed”; and (3) “[they] took place some time after the events described were

over.” Id. at 830.16 Here, the officers were obviously attempting to find out “what

had happened in the past,” as evidenced by the fact that the first question asked

was “what happened.” The officers were not “seeking to determine (as in Davis)

‘what is [now] happening,’ but rather ‘what happened.’” Davis, 547 US at 829-

830. Most importantly, the victim’s actual statements pertained to what had

happened previously, rather than to what was actually happening at the time of the

interrogation. For these reasons, the victim’s statements to the police were

testimonial and, thus, inadmissible.

Even assuming that the error here is unpreserved because, although

defendant objected to the admission of the evidence, he did not do so on the basis

of the Confrontation Clause as the trial in this case took place before Crawford,17 a

16
Both the prosecutor and the dissent argue that the instant case is
distinguishable from Crawford because the Crawford interrogation was more
formal, i.e., the interrogation was tape-recorded and it took place at a police
station. However, Davis expressly stated that the protections of the Confrontation
Clause are not limited to statements made during formal interrogations. Davis,
547 US at 830. Further, we find it particularly telling that the three similarities
between the instant case and Hammon that are listed directly above are the exact
same three similarities that the United States Supreme Court relied on to conclude
that Hammon is significantly similar to Crawford. Id.
17
Before Crawford, as long as the hearsay statement was admissible under
a “firmly rooted” hearsay exception, its admission did not violate the
Confrontation Clause, Ohio v Roberts, 448 US 56, 66; 100 S Ct 2531; 65 L Ed 2d

19
reversal is required under the plain error standard. See People v Carines, 460

Mich 750, 763-764; 597 NW2d 130 (1999). Given that this case was pending

when Crawford was decided, Crawford is applicable, Teague v Lane, 489 US 288,

304; 109 S Ct 1060; 103 L Ed 2d 334 (1989), and, for the reasons discussed

earlier, Crawford was clearly violated here. That is, there was error and the error

was plain.

In addition, in our judgment, the error clearly prejudiced defendant. The

evidence against him was far from overwhelming and the victim’s statement

indicating that defendant was the one who shot him was obviously extraordinarily

damaging. In fact, the prosecutor essentially conceded that the error was

prejudicial when, at the suppression hearing before trial, he conceded that the

admission of the victim’s statements to the police is a “crucial issue to the

prosecutor’s case; . . . if this court rules that the excited utterance is not going to be

admissible, then we won’t have a trial here . . . .” In addition, during his opening

597 (1980), and the excited utterance exception is a “firmly rooted” hearsay
exception, White v Illinois, 502 US 346, 355-356 n 8; 112 S Ct 736; 116 L Ed 2d
848 (1992). Because this was the state of the law when the trial occurred in this
case, defendant’s objection on the basis that the statements were not excited
utterances, but not on the basis of a Confrontation Clause violation, was
completely reasonable. Therefore, defendant cannot be faulted for failing to raise
the Confrontation Clause issue at the trial. The prosecutor himself seems to agree:

Given the importance of resolving this point of law to the
jurisprudence of this state, the People see no reason to quibble about
the adequacy of Defendant’s presentation of the issue to the trial
court. The trial in this matter preceded Crawford by more than a
year, and trial counsel’s motion in limine was adequate to place the
admissibility of the testimony at issue.

20
statement to the jury, the prosecutor repeatedly referred to the victim’s statements

to the police and explained:

The most important piece of evidence you will hear during
this trial is [the victim] in many respects speaking to you. [The
victim] will tell you that it was the defendant who shot him.
Obviously he won’t be here to tell you that. But before he died, the
last—one of the last—probably the last thing he was able to say was
that Rick shot, Rick shot me . . . . And . . . the police, all of them,
heard [the victim] say Rick shot me . . . . The most important piece
of evidence you’ll hear during this trial, in other words, will be [the
victim] in a certain respect speaking to you from the grave and
telling you what happened in this case and telling you who’s
responsible. . . . All of the evidence here but mainly [the victim’s]
own words before he died point to [defendant] having pulled the
trigger and having killed [the victim]. [Emphasis added.]

The prosecutor also relied heavily on the victim’s statements in his closing

statement to the jury, stating:

The main reason we know enough about what happened to be
able to decide beyond a reasonable doubt whether the charges that
have been made out here, the main reason we know is because of
[the victim’s] words himself, his own words to you through those
police officers in the early morning of April 29th, 2001. [Emphasis
added.]

Further evidence that the error was prejudicial is the fact that defendant’s first trial

resulted in a hung jury. Finally, the error “seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.” Carines, 460 Mich at 763

(citation and quotation marks omitted). For these reasons, we believe that

defendant is entitled to a new trial.

We also agree with defendant that the issue whether the victim’s statements

are admissible under the hearsay exception for dying declarations is not properly

21
before this Court.18 At the preliminary examination, the prosecutor argued that the

statements were admissible as either excited utterances or as dying declarations.

The district court originally ruled that the statements were inadmissible because

there had been no showing of the requisite factual foundation. The prosecutor

then sought to establish a foundation for admission of the statements directed

solely at the question whether the statements were excited utterances. At no point

in the ensuing examination was the officer asked any questions concerning

whether the victim expressed a belief that his death was imminent or was told that

he was likely to die from his wound.19 That is, the prosecutor clearly abandoned

18
In Crawford, 541 US at 56 n 6, the Supreme Court recognized that
“[a]lthough many dying declarations may not be testimonial, there is authority for
admitting even those that clearly are.” However, the Court concluded that “[w]e
need not decide in this case whether the Sixth Amendment incorporates an
exception for testimonial dying declarations,” but “[i]f this exception must be
accepted on historical grounds, it is sui generis.” Id. In Giles v California, ___
US ___; 128 S Ct 2678, 2682; 171 L Ed 2d 488 (2008), the Supreme Court quoted
Crawford, 541 US at 54, for the proposition that “the Confrontation Clause is
‘most naturally read as a reference to the right of confrontation at common law,
admitting only those exceptions established at the time of the founding.’” It then
noted in dictum that one of the “forms of testimonial statements [that] were
admitted at common law even though they were unconfronted” were dying
declarations. Id.
19
MRE 804(b) provides, in pertinent part:

The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:

***
(2) In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that the

22
any effort to establish even a minimally sufficient foundation for the dying

declaration exception, and limited his further questions exclusively to the excited

utterance exception. The district court then ruled that the statements were

admissible excited utterances, but did not address whether they were also dying

declarations. The district court’s original ruling that there was not a sufficient

foundational basis to conclude that the statements were dying declarations was

never appealed or reversed.

Indeed, the prosecutor essentially conceded during the following exchange

at the pretrial conference that the victim’s statements to the police were not dying

declarations:

The Court: I guess we have two issues ultimately, whether it
comes in as a dying declaration or whether it comes in as an excited
utterance. Is that where we are?

The Prosecutor: The issue is not whether it comes in as one
or the other. It came in at the [preliminary] exam clearly as an
excited utterance. I think that’s the way it’s going to be at trial
because I think there’s going to be a lack of proof on whether the
deceased knew he was dying at the time. [Emphasis added.]

In addition, at the suppression hearing, the prosecutor stated:

[The victim], as we know, unlike what the officers knew that
night, but what we know now is that [the victim] ended up dying of
his injuries. He himself, [the victim], may not have known that at
the time.

During the prosecutor’s closing statement to the jury, the prosecutor again said:

declarant’s death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending death.

23
 [The victim] ended up dying several hours later. We don’t
know whether he knew that at the time he said this . . . .

Because a dying declaration must be made while the declarant believes his death

to be imminent, and the prosecutor stated that there is a “lack of proof on whether

the deceased knew he was dying at the time,” the prosecutor seems to have

conceded that the victim’s statements were not dying declarations.20

The circuit court also believed that the prosecutor had abandoned the dying

declarations issue when, in response to defendant’s request that the prosecutor

20
The dissent contends, “The statements in this case seem admissible as
dying declarations, thus potentially obviating much of the majority’s analysis.”
Post at 2. We must point out initially that the United States Supreme Court has
not yet held that dying declarations are admissible under Crawford. More
significantly, however, and contrary to the dissent’s contention, the prosecutor did
more than merely fail to “establish[] the requisite foundation for a dying
declaration,” post at 9 n 5; rather, he failed to appeal the district court’s decision
that the statement was not a dying declaration, and he explicitly conceded that
there is a “lack of proof on whether the deceased knew he was dying at the time.”
In addition, even after Crawford and Davis were decided, the prosecutor still did
not raise the dying declarations issue either with the Court of Appeals or with this
Court until after this Court granted leave to appeal. On the other hand, defendant
consistently argued that the victim’s statements were inadmissible and that they
were not dying declarations. In fact, when the district court ruled that the victim’s
statements were admissible, defendant asked the district court to clarify whether
they were admissible as dying declarations or as excited utterances. In addition,
during the trial, defendant asked the circuit court to ensure that the prosecutor
refrain from referring to the victim’s statements as the “dying victim’s
statements.” While defendant did everything he could to ensure that the victim’s
statements were not admitted as dying declarations, the prosecutor did nothing
equivalent to seek admission of the statements as dying declarations, and
essentially conceded that the statements were not dying declarations. Therefore,
to answer the dissent’s question, post at 11, this is why we do “not [now] give the
parties the same consideration” with regard to this issue.

24
refrain from referring to the victim’s statements as the dying victim’s statements

during closing arguments, the circuit court stated:

I think maybe based upon an attorney’s knowledge of the
difference between dying declaration[s] and excited utterance[s],
dying declarations have a[] [greater] aura [of] reliability than excited
utterances. This was not a dying declaration. It did not come in as a
dying declaration, and I’m going to agree with Defense counsel on
this one. That should not be characterized as, he lay there dying. . . .
That’s pure supposition.

The prosecutor did not contest the circuit court’s ruling that the victim’s statement

was not a dying declaration. In fact, during his closing argument, the prosecutor

told the jury that the victim’s statements to the police were admissible under the

excited utterance exception to the hearsay rule; the prosecutor did not refer to the

dying declaration exception. Finally, the prosecutor did not raise this issue in the

Court of Appeals or this Court until after this Court granted leave to appeal limited

to the issue whether the victim’s statements constituted testimonial hearsay under

Crawford and Davis. Accordingly, the prosecutor has either effectively conceded

that the victim’s statements did not constitute a dying declaration or, at the very

least, has abandoned this issue. See Gross v Gen Motors Corp, 448 Mich 147, 162

n 8; 528 NW2d 707 (1995) (stating that “[w]hen a cause of action is presented for

appellate review, a party is bound to the theory on which the cause was prosecuted

or defended in the court below” and “[f]ailure to properly brief an issue on appeal

constitutes abandonment of the question”).

25
 IV. CONCLUSION

Because the victim’s statements to the police were inadmissible testimonial

hearsay statements pursuant to Crawford and Davis, and the admission of the

statements constituted plain error requiring reversal, we reverse the Court of

Appeals and remand this case for a new trial.

Stephen J. Markman
Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway

26
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 133725

RICHARD PERRY BRYANT,

Defendant-Appellant.

WEAVER, J. (dissenting). I dissent from this Court’s decision to reverse the

Court of Appeals and remand for a new trial. I would affirm the judgment of the

Court of Appeals for the reasons stated in its unpublished opinion on remand,

specifically, that the declarant’s statements were made in the course of a police

interrogation under circumstances objectively indicating that the interrogation’s

primary purpose was to enable police assistance in an ongoing emergency.

Elizabeth A. Weaver

.
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 133725

RICHARD PERRY BRYANT,

Defendant-Appellant.

CORRIGAN, J. (dissenting).

I respectfully dissent. The Court of Appeals reasonably concluded that the

victim’s statements—made within a half-hour of being shot while he lay bleeding

in a parking lot—were non-testimonial for Confrontation Clause purposes because

they were elicited by police officers addressing an ongoing emergency. Further, I

question the majority’s treatment of 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), as conclusive regarding the admissibility of the

victim’s statements under these facts, where, although the victim’s statements

were likely also dying declarations, the prosecution abandoned this argument in

the lower courts. The statements likely would have qualified for admission both

as excited utterances and as dying declarations but, under then-existing law, the

prosecution needed only to advocate for admission under one theory. It chose the

former. After the trial, however, the United States Supreme Court established new
Confrontation Clause standards in Crawford and further suggested that dying

declarations might prove a rare exception to the new rule. The statements in this

case seem admissible as dying declarations, thus potentially obviating much of the

majority’s analysis. Accordingly, the majority’s opinion—which reverses a

number of close calls made by the Court of Appeals in this highly fact-specific

case—exemplifies the adage that “bad facts make bad law.” For these reasons, I

would affirm defendant’s convictions.

As recounted in the majority opinion, police officers arrived at a Detroit gas

station at 3:25 a.m. within minutes after receiving a report of a shooting. It

appears that they did not know how long ago the shooting had occurred, where it

took place, or whether the shooter was at the gas station. They found the gunshot

victim lying on the ground, bleeding, visibly in pain, and having trouble talking.

They asked him what happened. He reported that defendant shot him about 3:00

a.m. at a residence six blocks away. The majority concludes that the primary

purpose of the officers’ questions “was to establish the facts of an event that had

already occurred,” not to “enable police assistance to meet an ongoing

emergency.” Ante at 11. But the majority considers the facts in hindsight, rather

than with an objective view of the circumstances at the time the statements were

made. The United States Supreme Court’s opinion in Davis clearly establishes

that the statements must be viewed through an objective assessment of the

circumstances surrounding them: “Statements are nontestimonial when made in

the course of police interrogation under circumstances objectively indicating that

2
the primary purpose of the interrogation is to enable police assistance to meet an

ongoing emergency.” Id. at 822 (emphasis added); and see Crawford, supra at 52

(emphasis added; citations omitted) (statements have been characterized as

testimonial if they “‘were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for

use at a later trial’”).

First, the majority assumes too much when it concludes that there was no

ongoing emergency because the shooting necessarily occurred 30 minutes earlier.

Rather, it is more likely that experienced officers would not take the victim’s time

estimate so literally as to summarily conclude that they, the victim, and the public

were out of danger. The officers themselves reported that the victim was visibly

in pain and having trouble talking; I cannot imagine that they trusted him to have

looked at his watch the moment after he was shot. Further, even at trial a precise

time was never established; indeed, the victim’s brother testified that he heard

shots between 3:00 and 3:30 a.m.

In any event, even if we assume that the reported shooting occurred a full

25 minutes earlier at 3:00 a.m., this time lapse certainly does not prohibit as a

matter of law the conclusion of the Court of Appeals that an emergency was

ongoing. Rather, the officers knew that an armed assailant had been within six

blocks of their location. They could not be sure that the assailant would not harm

3
others or pursue the victim.1 One could reasonably conclude that the assailant

posed an immediate, continuing danger. Therefore, even if we assume that about

30 minutes had passed, this case does not become automatically comparable to

cases such as Crawford, where police questioned the declarant at the police station

“hours after” the relevant events occurred. See Davis, supra at 827.

Contrary to the majority’s assertions, ante at 18 n 15, Davis does not

establish an artificial threshold after which all questions are assumed to be for

purposes of retrospective investigation and all statements in response are

presumed testimonial. The semantic difference between what is “actually

happening” and what has already “happened” is not so simple when applied to the

real world, where context controls which legal labels most aptly apply. The

amount of time that has elapsed between the onset of an emergency and statements

about that emergency clearly must be considered in context.2

1
The majority concludes that the officers did not subjectively perceive an
ongoing emergency because they did not testify, for example, about “taking any
actions to secure the area, to search the station for the possible presence of any
armed individuals, or to provide cover for other officers.” See ante at 12-14. I am
wary of the majority’s speculation concerning police procedures, particularly
because these officers testified before the United States Supreme Court decided
Crawford or Davis. Therefore, the officers were not questioned to elicit their
goals in questioning the victim or whether and how they had already determined
that the shooter was not in the immediate area. In any event, the majority’s
reference to the officers’ later call for backup assistance, ante at 14, cuts against
the majority’s conclusion; the officers’ fear that defendant remained armed and
dangerous confirms that their attempts to identify him and his location by
questioning the victim were related to potential ongoing danger.
2
Further, the Court of Appeals conclusion that the emergency was ongoing
here does not require us to conclude that an emergency is ongoing any time police

4
 For similar reasons, I disagree with the majority’s presumption that the

victim’s statements were not made during an ongoing emergency as a matter of

law because the victim had escaped to the gas station. A mere distance in space

between an initial event and the ensuing statements by a victim is not dispositive.

Neither Davis nor Crawford states a bright-line rule establishing that an

emergency ends the moment the assailant and victim are physically separated to

any extent. Instead, clearly the nature of the initial assault, including the type of

weapon used, affects whether an objective victim or police officer would conclude

that the threat has ended, as I discuss further infra when I address the facts of

Hammon, the companion case of Davis.3 Indeed, as the majority acknowledges,

ante at 14 n 12, there may have been an ongoing emergency originating from

defendant’s house. There is no principled reason to conclude as a matter of law

that the officers’ questions and the victim’s statements were unrelated to, or did

seek to “apprehend a criminal before he might injure somebody else,” thereby
“effectively render[ing] non-testimonial all statements made before the offender
was placed behind bars.” Ante at 15. Rather, clearly the overall circumstances of
the statements must control the court’s determination whether the emergency was
truly ongoing. The majority inappropriately takes the Court of Appeals analysis to
its logical extreme instead of accepting the simple proposition that a length of time
between an initial event and police questioning is a factor relevant to whether the
emergency is ongoing; some lapse of time does not require the automatic
conclusion that an objective observer would perceive the emergency as having
ended.
3
I do not assert that “if there is an ‘ongoing emergency’ anywhere (or even
what the police perceived to be such an “ongoing emergency”), a victim’s
statements to the police are to be considered non-testimonial . . . .” Ante at 14 n
12. Rather, I simply conclude that any apparent distance must be viewed in
context.

5
not constitute a part of, that emergency merely on the basis of a distance of six

blocks.4

For these reasons, I cannot join the majority’s conclusion that the victim’s

statements “related solely to events that had occurred in the past . . . .” Ante at 10.

Rather, as in Davis, supra at 827, “the nature of what was asked and answered . . .

was such that the elicited statements were necessary to be able to resolve the

present emergency, rather than simply to learn . . . what had happened in the past.”

Accordingly, I also disagree with the majority’s comparison of this case to

Hammon. There, the police spoke to the domestic violence victim while she sat on

her front porch. She stated that the defendant had “hit” and “thrown” her. The

defendant was inside the house. Davis, supra at 830. The Court reasonably

determined that the victim was no longer in danger because she was protected by

the police. Id. at 831. Further, because she suffered physical abuse but did not

report that her assailant used a gun or that others were in danger inside the home,

the prospect of continuing immediate danger to the victim, the officers, or the

public was negligible. In contrast, the evidence here much more strongly suggests

that an emergency was in progress and that the officers sought to determine “‘what

4
Indeed, my disagreement with the majority centers on my conclusion that
we should not reverse this case as a matter of law simply because the victim and
the assailant were separated in some way where the Court of Appeals reached a
supportable conclusion based on all the underlying facts. Whether the victim and
the assailant are separated by a door (as in Hammon), by one block, by six blocks,
or by ten blocks, the nature and persistence of the relevant emergency depend on
the circumstances, including the type of danger or assault involved and the
continued vulnerability of the victim (or others, when relevant) to further danger.

6
is happening,’” not simply “‘what happened.’” Id. at 830. Indeed, a gunman was

on the loose. The officers did not know his location or whether he remained a

threat. Thus, I cannot agree that the officers primarily questioned the victim “to

investigate a past crime,” ante at 14, or to “establish or prove past events

potentially relevant to later criminal prosecution,” Davis, supra at 822, as in

Crawford and Hammon. Ante at 2, 15.

This case seems to fall midway on a spectrum between the facts of

Crawford and those of Davis. As the Davis Court explained, in Davis the 911

caller “was speaking about events as they were actually happening, rather than

‘describ[ing] past events.’” Davis, supra at 827 (emphasis and punctuation in

original), quoting Lilly v Virginia, 527 US 116, 137; 119 S Ct 1887; 144 L Ed 2d

117 (1999) (plurality opinion). The call was “plainly a call for help against [a]

bona fide physical threat,” and

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 simply to learn
(as in Crawford) what had happened in the past. That is true even of
the operator’s effort to establish the identity of the assailant, so that
the dispatched officers might know whether they would be
encountering a violent felon. [Davis, supra at 827.]

In Crawford, in contrast, the declarant’s statements were made during questioning

at the police station that took place “hours after the events she described had

occurred.” Davis, supra at 827. The Davis Court also described the “striking”

difference in the “level of formality between the two interviews.” Id. The

declarant in Crawford was “responding calmly, at the station house, to a series of

7
questions, with the officer-interrogator taping and making notes of her answers.”

Id. The declarant in Davis, on the other hand, provided “frantic answers . . . over

the phone, in an environment that was not tranquil, or even (as far as any

reasonable 911 operator could make out) safe.” Id.

I agree with the majority that this case is not precisely comparable to Davis

because, here, the victim was not facing an immediate physical threat from an

assailant, and the police had arrived on the scene. But this case is also by no

means directly comparable to Crawford because, here, the shooting had just

occurred, the statements were made only blocks away from the crime, the victim

was in pain from untreated wounds that would soon prove to be fatal and was

having trouble talking, and it was uncertain whether he, the police, or the public

were out of physical danger. For these reasons, I conclude that this case is more

similar to Davis than to Crawford. And, most significantly, to the extent this

case’s location on the spectrum presents a close question, the Court of Appeals did

not clearly err when it concluded that the emergency was ongoing and the victim’s

statements were non-testimonial.

Finally, the majority’s decision is clouded by the prosecution’s

abandonment of its original argument that the victim’s statements were dying

declarations. The majority reasonably concludes that the prosecution abandoned

this argument, which it raised only at the preliminary examination, by continuing

to advance only its alternative theory that the victim’s statements were excited

8
utterances.5 This was a reasonable strategy at the time this trial took place. As the

majority observes, before the United States Supreme Court issued Crawford,

hearsay statements admissible under a “firmly rooted hearsay exception”—

including “excited utterances” or “spontaneous declarations”—did not violate the

Confrontation Clause. Ante at 19 n 17, citing Ohio v Roberts, 448 US 56, 66; 100

S Ct 2531; 65 L Ed 2d 597 (1980), and White v Illinois, 502 US 346, 355-356 n 8;

112 S Ct 736; 116 L Ed 2d 848 (1992). Crawford and Giles v California, ___ US

___; 128 S Ct 2678; 171 L Ed 2d 488 (2008), have subsequently suggested that

dying declarations—but not some or all excited utterances—may remain

admissible under Crawford, although unconfronted, because the dying declaration

is an historical exception to hearsay rules that predated the Confrontation Clause.

Giles, supra at ___, 128 S Ct at 2682; Crawford, supra at 56 n 6, 58 n 8; and see

the majority’s discussion ante at 9 n 6, 22 n 18. The victim’s statements here

seem to qualify as dying declarations. He had been shot in the stomach at most 25

5
I disagree with the majority’s secondary conclusion that the prosecution
necessarily conceded that the statements were not dying declarations. See ante at
25. The prosecution did pursue only the excited utterance theory and admittedly
never established the requisite foundation for a dying declaration. But I am not
convinced that the prosecution’s statement—that there was a “lack of proof on
whether the deceased knew he was dying at the time”—constituted a concession
that the victim’s statements could never be considered dying declarations. See
ante at 24 n 20. The prosecution may have been admitting only that it could not
support an argument on this point because it had not chosen to undertake the
potentially difficult task of establishing the requisite proofs. In any event, the
prosecution’s failures in these regards exemplify my primary concern: that the
majority here creates bad law from bad facts resulting from the incomplete nature
of the record.

9
minutes before he spoke to the officers. He was lying on the ground, bleeding, in

pain, and having trouble speaking. He had not yet received medical attention. He

died a few hours later. Accordingly, his statements likely would have qualified as

“statement[s] made by a declarant while believing that the declarant’s death was

imminent, concerning the cause or circumstances of what the declarant believed to

be impending death.” MRE 804(b). Although the prosecution chose not to

establish a circumstantial foundation for the applicability of MRE 804(b), opting

instead to advance the equally useful argument that the statements were excited

utterances, the prosecution may well have successfully done so had this trial

occurred after the release of Crawford when the import of dying declarations as

exceptions to the Confrontation Clause became apparent. Then, if dying

declarations prove to be accepted as historical exceptions to the Confrontation

Clause, we would have no reason to resolve the close question here concerning

whether the victim’s statements were also made in the course of an ongoing

emergency.

Therefore, I question the majority’s decision to rest its precedential analysis

of Crawford and Davis on a fact-intensive Court of Appeals decision that does not

even consider the legal argument that is arguably most relevant to the outcome of

this case post-Crawford. Moreover, the majority acknowledges that defendant

should not be faulted for failing to raise the Confrontation Clause issue at trial

because Crawford had yet to be decided. Ante at 20 n 17. Yet it fails to give the

same consideration to the prosecution, which had equally little reason to presume

10
that its choice between two formerly equal theories for admission would become

decisive on the basis of later-decided law. Even if the prosecution entirely

abandoned its argument, why should we not give the parties the same

consideration in light of the intervening changes in the law? At a minimum, I

would not analyze the Confrontation Clause issue on the basis of the victim’s

excited utterances under these facts; in my view, if the prosecution had not

abandoned its attempt to classify the statements as dying declarations, we likely

would not have to reach the contentious question whether there was also an

ongoing emergency under Crawford and Davis.

In conclusion, the Court of Appeals did not clearly err when it decided that

the victim’s statements were admissible because they were non-testimonial under

Crawford and Davis. Further, particularly because the appeals panel made

reasonable, close calls in answering the fact-intensive questions presented, I would

not reverse its decision where the statements were also likely dying declarations

that would be excepted from the rule of Crawford. Accordingly, I would affirm.

Maura D. Corrigan
Robert P. Young, Jr.

11