Dying Man’s ID of Killer Is Admissable, Court Rules

(CN) - Michigan prosecutors were allowed to use a dying man's last words in which he identified his attacker in a murder trial, the U.S. Supreme Court ruled, 6-2, on Monday. In a sharp dissenting opinion, Justice Antonin Scalia said the decision leaves the constitutional Confrontation Clause "in a shambles" and demeans the court.

Justice Sonia Sotomayor authored the court's majority opinion, which reverses the finding of the Michigan Supreme Court that the identification amounted to inadmissible testimony.

Detroit police spoke with the victim, Anthony Covington, as he lay on the ground of a gas station parking lot, dying of a gunshot wound to his abdomen in April 2001. Covington told police that he was shot after having a conversation with "Rick" through the back door of Rick's house. He drove to the gas station after he was shot through the door while leaving the property, Covington had said.

After five to 10 minutes of speaking with the police, emergency medical technicians arrived to bring Covington to the hospital where Covington died within hours.

Meanwhile police went to the home of Richard Perry Bryant, finding blood and a bullet on the back porch, a bullet hole in the back door, and Covington's wallet and identification outside the house.

Bryant arrested in California a year after the shooting and convicted by a jury of second-degree murder. At trial, police officers testified about what Covington had told them. But the state Supreme Court later reversed Bryant's conviction and ordered a new trial.

Michigan appealed to the U.S. Supreme Court, arguing that Covington's statements were admissible as "excited utterances."

Dissenting justices on the state's high court had concluded as much.

"The majority's opinion provoked two dissents, both of which would have held Covington's statements admissible because they were made in circumstances indicating that their 'primary purpose' was to assist police in addressing an ongoing emergency," Sotomayor wrote.

Under the Confrontation Clause of the Sixth Amendment, accused persons can confront witnesses who testify against them. But there are exceptions and extenuating circumstances that make such statements admissible, Sotomayor wrote.

In an ongoing emergency, police take statements with a view toward "ending a threatening situation," not toward prosecution. Under those circumstances, the witness is less likely to fabricate statements, and "the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination," the majority opinion states.

"This logic is not unlike that justifying the excited utterance exception in hearsay law," Sotomayor wrote.

She added that the Michigan Supreme Court "repeatedly and incorrectly" employed "an unduly narrow understanding of 'ongoing emergency.'"

The two Supreme Court precedents that the state Supreme Court used to justify its findings were both cases of domestic violence in which the attackers used their fists. Sotomayor wrote that the distinction is notable to the Covington murder, which was committed with a gun. With the specter of that weapon looming, Detroit police were correct in perceiving the shooting as an "ongoing emergency."

"During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant," Sotomayor wrote. "A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive."

The majority criticized the assertion lobbed in the dissent that the court should give controlling weight to police intent. All relevant factors must me considered, Sotomayor wrote.

"The dissent criticizes the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity," Sotomayor wrote. "Simpler is not always better, and courts making a 'primary purpose' assessment should not be unjustifiably restrained from consulting all relevant information, including the statements and actions of interrogators."

Justice Clarence Thomas wrote a two-page concurring opinion, finding "Covington's questioning by police lacked sufficient formality and solemnity for his statements to be considered 'testimonial.'"

Scalia's dissent, joined by Justice Ruth Bader Ginsburg, paints a different picture.

"Today's tale - a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose - is so transparently false that professing to believe it demeans this institution," Scalia wrote. "But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however - or perhaps as an intended second goal - today's opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the court makes itself the obfuscator of last resort."

Justice Elena Kagan did not participate in the consideration or decision of the case.

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