Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 718 (2018), the Supreme Court held that the trial court violated the defendant’s Sixth Amendment right to confront witnesses against him. In this murder, robbery with a dangerous weapon, and possession of a firearm by a felon case, the trial judge erred by limiting the defendant’s ability to question the State’s principal witness about whether she expected to receive a favorable plea offer for drug trafficking charges pending in Guilford County in exchange for her testimony against the defendant in Forsyth County. In a voir dire hearing, the defendant showed that prosecutors in the two counties had been in touch by email and discussed a possible plea deal for the witness in Guilford based on her testimony at the defendant’s trial. By limiting the witness’s testimony about this possible deal, the trial court prohibited the jury from considering evidence that could have shown bias on the witness’s part, and thus violated the defendant’s confrontation rights. The court distinguished previous cases in which it had deemed similar errors harmless, reasoning that this involved a limit on the testimony of the State’s principal witness. Moreover there was no physical evidence linking the defendant to the crime and no other witness placing him at the scene. As a result, the court concluded that the trial judge’s error was not harmless beyond a reasonable doubt and affirmed the Court of Appeals’ decision to vacate the verdict and order a new trial.

Justice Ervin, joined by Justice Newby, dissented, writing that the trial judge allowed ample cross-examination of the witness about her pending charges in Guilford County, and that the limitations the court imposed were an appropriate exercise of its discretion to control the scope and extent of cross-examination to prevent confusion and eliminate undue repetition.

The court rejected the defendant’s argument that his confrontation clause rights were violated when the trial court released an out-of-state witness from subpoena. The State subpoenaed the witness from New York to testify at the trial. The witness testified at trial and the defendant had an opportunity to cross-examine him. After the witness stepped down from the witness stand, the State informed the trial court judge that the defense had attempted to serve a subpoena on the witness the day before. The State argued that the subpoena was invalid. The witness refused to speak with the defense outside of court and the trial court required the defense to decide whether to call the individual as a witness before 2:00 p.m. that day. When the appointed time arrived, the defense indicated it had not yet decided whether it would be calling the individual as a witness and the trial court judge released the witness from the summons. The defendant’s confrontation rights were not violated where the witness was available at trial and the defendant had the opportunity to cross-examine him. Additionally, under G.S. 15A-814, the defendant’s subpoena was invalid. 

The trial court did not violate the defendant’s confrontation rights by barring him from cross-examining two of the State's witnesses, Moore and Jarrell, about criminal charges pending against them in counties in different prosecutorial districts than the district in which defendant was tried. The court noted that the Sixth Amendment right to confrontation generally protects a defendant’s right to cross-examine a State's witness about pending charges in the same prosecutorial district as the trial to show bias in favor of the State, since the jury may understand that pending charges may be used by the State as a weapon to control the witness. However, the trial judge has wide latitude to impose reasonable limits on such cross-examination based on, for example, concern that such interrogation is only marginally relevant. Here, the defendant failed to provide any evidence of discussions between the district attorney's office in the trial county and district attorneys' offices in the other counties where the two had pending charges. Additionally, Jarrell testified on cross-examination and Moore testified on voir dire that each did not believe testifying in this case could help them in any way with proceedings in other counties. On these facts, the court concluded that testimony regarding the witnesses' pending charges in other counties was, at best, marginally relevant. Moreover, the court noted, both Jarrell and Moore were thoroughly impeached on a number of other bases separate from their pending charges in other counties.

The court rejected the defendant’s argument that his constitutional right to confront witnesses against him was violated when the trial court refused to permit defense counsel to cross examine the defendant’s accomplices about conversations they had with their attorneys regarding charge concessions the State would make to them if they testified against the defendant. The court held that the accomplices’ private conversations with their attorneys were protected by the attorney-client privilege and that the privilege was not waived when the accomplices took the stand to testify against the defendant.

State v. Chavez, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 7, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-86 (Aug 13 2021)

This Mecklenburg County case involved charges of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. The defendant and two other men (one of whom was unidentified) entered the victim’s home and attacked him with a machete and hammer. The victim’s girlfriend escaped with an infant and called police. The defendant and his named co-conspirator apprehended the girlfriend outside of the home, where the defendant instructed the other man to kill her. He refused, and the defendant fled; the other man stayed with the woman until police arrived (and became the named co-conspirator in the indictment). The defendant was convicted of all charges at trial and sentenced to a minimum term of 336 months.

An officer was asked whether she received any conflicting information about the defendant’s identity from witnesses interviewed about the case. The officer testified at trial that she did not. The defendant did not object at trial but complained that admission of evidence was hearsay, violated his confrontation rights, and constituted plain error. Rejecting this argument, the court found that the officer’s testimony did not convey a statement from any of the interviewees and was capable of different interpretations. It was not therefore a statement offered for the truth of the matter asserted and violated neither hearsay rules nor the Confrontation Clause. Even if the admission of this evidence was error, it was not prejudicial and did not rise to plain error. The conviction for conspiracy to commit attempted murder was reversed, the remaining convictions affirmed, and the matter remanded.

In this drug trafficking case, the defendant’s Confrontation Clause rights were not violated when the trial court admitted statements made by a non-testifying confidential informant. The statements were not admitted for the truth of the matter asserted but rather to explain subsequent steps taken by officers in the investigation, and the trial court gave a limiting instruction to that effect.

In this case involving a larceny from a country club, the Confrontation Clause was not violated when the trial court admitted evidence that the owners of the country club received an anonymous phone call providing information about the perpetrator. The trial court admitted the statement with a limiting instruction that it was not to be considered for its truth but only to show the course of the officers’ investigation based on the information provided by the caller. Because the statement was admitted for a purpose other than the truth of the matter asserted, it falls outside of the protections afforded by the Confrontation Clause.

In this kidnapping and rape case, the defendant’s confrontation rights were not violated when the trial court admitted, for the purposes of corroboration, statements made by deceased victims to law enforcement personnel. The statements were admitted to corroborate statements made by the victims to medical personnel. The court rejected the defendant’s argument that because the statements contained additional information not included in the victims’ statements to medical personnel, they exceeded the proper scope of corroborative evidence and were admitted for substantive purposes. The court noted in part, “the mere fact that a corroborative statement contains additional facts not included in the statement that is being corroborated does not render the corroborative statement inadmissible.” 

In this homicide case where the defendant was charged with murdering his wife, the confrontation clause was not violated when the trial court allowed forensic psychologist Ginger Calloway to testify about a report she prepared in connection with a custody proceeding regarding the couple’s children. Defendant argued that Calloway’s report and testimony violated the confrontation clause because they contained third party statements from non-testifying witnesses who were not subject to cross-examination at trial. The court rejected this argument concluding that the report and testimony were not admitted for the truth of the matter asserted but to show “defendant’s state of mind.” In fact, the trial court gave a limiting instruction to that effect, noting that the evidence was relevant “only to the extent it may have been read by . . . defendant” and “had some bearing” on how he felt about the custody dispute with his wife.

Where no hearsay statements were admitted at trial, the confrontation clause was not implicated.

No violation of the defendant’s confrontation rights occurred when an officer testified to statements made to him by others where the statements were not introduced for their truth but rather to show the course of the investigation, specifically why officers searched a location for evidence.

The defendant’s confrontation rights were not violated when an officer testified to the victim’s statements made to him at the scene through the use of a telephonic translation service. The defendant argued that his confrontation rights were violated when the interpreter’s statements were admitted through the officer’s testimony. These statements were outside of the confrontation clause because they were not admitted for the truth of the matter asserted but rather for corroboration.

State v. Ross, 216 N.C. App. 337 (Oct. 18, 2011)

Because evidence admitted for purposes of corroboration is not admitted for the truth of the matter asserted, Crawford does not apply to such evidence.

 

Because the statements at issue were not admitted for the truth of the matter asserted and therefore were not hearsay, their admission did not implicate the confrontation clause. The statements at issue included statements of an officer during an interrogation of the defendant. In his statements, the officer repeated things the police had been told by others. The officer’s statements were not offered for their truth but rather to provide context for defendant’s answers.

Statements of a non-testifying informant to a police officer were non-testimonial when offered not for the truth of the matter asserted but rather to explain the officer’s actions in the course of the investigation.

In a plurality opinion the Court affirmed the holding below that the defendant’s confrontation clause rights were not violated when the State’s DNA expert testified to an opinion based on a report done by a non-testifying analyst. The defendant Sandy Williams was charged with, among things, sexual assault of L.J. After the incident in question L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An analyst confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. An analyst extracted a DNA profile from the sample and entered it into ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. At trial, ISP forensic biologist Sandra Lambatos testified as an expert for the State. Lambatos indicated that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work and that Cellmark’s testing and analysis methods were generally accepted in the scientific community. Over a defense objection, Lambatos then testified to the opinion that the DNA profile received from Cellmark matched the defendant’s DNA profile from the blood sample in the ISP database. Cellmark’s report was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her opinion, she did not read the contents of the Cellmark report into evidence. At the conclusion of Lambatos’ testimony, the defendant moved to strike the evidence of Cellmark’s testing based upon a violation of his confrontation clause rights. The motion was denied and the defendant was convicted. On appeal to the Illinois Supreme Court the defendant again argued that Lambatos’ testimony violated his rights under Crawford and Melendez-Diaz. The Illinois court disagreed, reasoning that because the Cellmark report supplied a basis for Lambatos’ opinion, it was not admitted for the truth of the matter asserted. The U.S. Supreme Court affirmed. Justice Alito wrote the plurality opinion, which was joined by the Chief Justice and Justices Kennedy and Breyer. The plurality determined that no confrontation clause violation occurred for two reasons. First, the Cellmark report fell outside of the scope of the confrontation clause because it was not introduced for the truth of the matter asserted. In this respect, the plurality was careful to distinguish the Court’s prior decisions in Bullcoming and Melendez-Diaz, which it characterized as involving forensic reports that were introduced for that purpose. Second, the plurality concluded that no confrontation clause violation occurred because the report was non-testimonial. Justice Thomas concurred in judgment only. He agreed that the report was non-testimonial, though he reached this conclusion through different reasoning. Thomas disagreed with that portion of the plurality opinion concluding that the report was not introduced for the truth for the matter asserted. Justices Kagan, Scalia, Ginsburg and Sotomayor dissented, noting among other things, the “significant confusion” created by the fractured opinion.

In a straightforward application of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (June 25, 2009) (holding that forensic laboratory reports are testimonial and thus subject to Crawford), the Court held that substitute analyst testimony in an impaired driving case violated Crawford. The defendant was arrested on charges of driving while intoxicated (DWI). Evidence against him included a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on the defendant’s blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements. The Court reversed, holding that “surrogate testimony of that order does not meet the constitutional requirement.” 

Forensic laboratory reports are testimonial and thus subject to the rule of Crawford v. Washington, 541 U.S. 36 (2004). For a detailed analysis of this case, see the paper entitled “Melendez-Diaz & the Admissibility of Forensic Laboratory Reports & Chemical Analyst Affidavits in North Carolina Post-Crawford.

State v. Hough, 367 N.C. 79 (June 27, 2013)

With one Justice not taking part in the decision and the others equally divided, the court, per curiam, left undisturbed the decision below, State v. Hough, 202 N.C. App. 674 (Mar. 2, 2010). In the decision below, the Court of Appeals held that no Crawford violation occurred when reports done by non-testifying analyst as to composition and weight of controlled substances were admitted as the basis of a testifying expert’s opinion on those matters. [Author’s note: Because the Justices were equally divided, the decision, although undisturbed, has no precedential value.]

State v. Ortiz-Zape, 367 N.C. 1 (June 27, 2013)

Reversing the Court of Appeals’ decision in an unpublished case, the court held that no confrontation clause violation occurred when an expert in forensic science testified to her opinion that the substance at issue was cocaine and that opinion was based upon the expert’s independent analysis of testing performed by another analyst in her laboratory. At trial the State sought to introduce Tracey Ray of the CMPD crime lab as an expert in forensic chemistry. During voir dire the defendant sought to exclude admission of a lab report created by a non-testifying analyst and any testimony by any lab analyst who did not perform the tests or write the lab report. The trial court rejected the defendant’s confrontation clause objection and ruled that Ray could testify about the practices and procedures of the crime lab, her review of the testing in this case, and her independent opinion concerning the testing. However, the trial court excluded the non-testifying analyst’s report under Rule 403. The defendant was convicted and appealed. The Court of Appeals reversed, finding that the Ray’s testimony violated the confrontation clause. The NC Supreme Court disagreed. The court viewed the US Supreme Court’s decision in Williams v. Illinois as “indicat[ing] that a qualified expert may provide an independent opinion based on otherwise inadmissible out-of-court statements in certain contexts.” Noting that when an expert gives an opinion, the expert opinion itself, not its underlying factual basis, constitutes substantive evidence, the court concluded:

Therefore, when an expert gives an opinion, the expert is the witness whom the defendant has the right to confront. In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible. Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert. We emphasize that the expert must present an independent opinion obtained through his or her own analysis and not merely “surrogate testimony” parroting otherwise inadmissible statements (quotations and citations omitted).

Turning to the related issue of whether an expert who bases an opinion on otherwise inadmissible facts and data may, consistent with the Confrontation Clause, disclose those facts and data to the factfinder, the court stated:

Machine-generated raw data, typically produced in testing of illegal drugs, present a unique subgroup of . . . information. Justice Sotomayor has noted there is a difference between a lab report certifying a defendant’s blood-alcohol level and machine-generated results, such as a printout from a gas chromatograph. The former is the testimonial statement of a person, and the latter is the product of a machine. . . . Because machine-generated raw data, if truly machine-generated, are not statements by a person, they are neither hearsay nor testimonial. We note that representations[ ] relating to past events and human actions not revealed in raw, machine-produced data may not be admitted through “surrogate testimony.” Accordingly, consistent with the Confrontation Clause, if of a type reasonably relied upon by experts in the particular field, raw data generated by a machine may be admitted for the purpose of showing the basis of an expert’s opinion.

Turning to the case at hand, the court noted that here, the report of the non-testifying analyst was excluded under Rule 403; thus the only issue was with Ray’s expert opinion that the substance was cocaine. Applying the standard stated above, the court found that no confrontation violation occurred. Providing additional guidance for the State, the court offered the following in a footnote: “we suggest that prosecutors err on the side of laying a foundation that establishes compliance with Rule . . . 703, as well as the lab’s standard procedures, whether the testifying analyst observed or participated in the initial laboratory testing, what independent analysis the testifying analyst conducted to reach her opinion, and any assumptions upon which the testifying analyst’s testimony relies.” Finally, the court held that even if error occurred, it was harmless beyond a reasonable doubt given that the defendant himself had indicated that the substance was cocaine.

State v. Brewington, 367 N.C. 29 (June 27, 2013)

Reversing the Court of Appeals, the Court held that no Crawford violation occurred when the State proved that the substance at issue was cocaine through the use of a substitute analyst. The seized evidence was analyzed at the SBI by Assistant Supervisor in Charge Nancy Gregory. At trial, however, the substance was identified as cocaine, over the defendant’s objection, by SBI Special Agent Kathleen Schell. Relying on Gregory’s report, Schell testified to the opinion that the substance was cocaine; Gregory’s report itself was not introduced into evidence. Relying on Ortiz-Zape, the court concluded that Schell presented an independent opinion formed as a result of her own analysis, not mere surrogate testimony.

State v. Craven, 367 N.C. 51 (June 27, 2013)

 The court held that admission of lab reports through the testimony of a substitute analyst (Agent Schell) violated the defendant’ confrontation clause rights where the testifying analyst did not give her own independent opinion, but rather gave “surrogate testimony” that merely recited the opinion of non-testifying testing analysts that the substances at issue were cocaine. Distinguishing Ortiz-Zape, the court held that here the State’s expert did not testify to an independent opinion obtained from the expert’s own analysis but rather offered impermissible surrogate testimony repeating testimonial out-of-court statements made by non-testifying analysts. With regard to the two lab reports at issue, the testifying expert was asked whether she agreed with the non-testifying analysts’ conclusions. When she replied in the affirmative, she was asked what the non-testifying analysts’ conclusions were and the underlying reports were introduced into evidence. The court concluded: “It is clear . . . that Agent Schell did not offer—or even purport to offer—her own independent analysis or opinion [of the] . . . samples. Instead, Agent Schell merely parroted [the non-testifying analysts’] . . . conclusions from their lab reports.” Noting that the lab reports contained the analysts’ certification prepared in connection with a criminal investigation or prosecution, the court easily determined that they were testimonial. The court went on to find that this conclusion did not result in error with regard to the defendant’s conspiracy to sell or deliver cocaine conviction. As to the defendant’s conviction for sale or delivery of cocaine, the six participating Justices were equally divided on whether the error was harmless beyond a reasonable doubt. Consequently, as to that charge the Court of Appeals’ decision holding that the error was reversible remains undisturbed and stands without precedential value. However, the court found that the Court of Appeals erroneously vacated the conviction for sale or delivery and that the correct remedy was a new trial. 

State v. Hurt, 367 N.C. 80 (June 27, 2013)

In a substitute analyst case, the court per curiam and for the reasons stated in Ortiz-Zape, reversed the Court of Appeals’ decision in State v. Hurt, 208 N.C. App. 1 (2010) (applying Crawford to a non-capital Blakely sentencing hearing in a murder case and holding that Melendez-Diaz prohibited the introduction of reports by non-testifying forensic analysts pertaining to DNA analysis).

State v. Williams, 367 N.C. 64 (June 27, 2013)

Reversing the Court of Appeals, the court held that any confrontation clause violation that occurred with regard to the use of substitute analyst testimony was harmless beyond a reasonable doubt where the defendant testified that the substance at issue was cocaine. When cocaine was discovered near the defendant, he admitted to the police that a man named Chris left it there for him to sell and that he had sold some that day. The substance was sent to the crime lab for analysis. Chemist DeeAnne Johnson performed the analysis of the substance. By the time of trial however, Johnson no longer worked for the crime lab. Thus, the State presented Ann Charlesworth of the crime lab as an expert in forensic chemistry to identify the substance at issue. Over objection, she identified the substance as cocaine. The trial court also admitted, for the purpose of illustrating Charlesworth’s testimony, Johnson’s lab reports. At trial, the defendant reiterated what he had told the police. The defendant was convicted and he appealed. The Court of Appeals reversed, finding that Charlesworth’s substitute analyst testimony violated the defendant’s confrontation rights. The NC Supreme Court held that even if admission of the testimony and exhibits was error, it was harmless beyond a reasonable doubt because the defendant himself testified that the seized substance was cocaine.

State v. Brent, 367 N.C. 73 (June 27, 2013)

Reversing the Court of Appeals, the court held that by failing to make a timely objection at trial and failing to argue plain error in the Court of Appeals, the defendant failed to preserve the question of whether substitute analyst testimony in a drug case violated his confrontation rights. The court noted that at trial the defendant objected to the testimony related to the composition of the substance only outside the presence of the jury; he did not object to admission of either the expert’s opinion or the raw data at the time they were offered into evidence. He thus failed to preserve the issue for review. Furthermore, the defendant failed to preserve his challenge to admission of the raw data by failing to raise it in his brief before the Court of Appeals. Moreover, the court concluded, even if the issues had been preserved, under Ortiz-Zape, the defendant would lose on the merits.

State v. Burrow, 366 N.C. 326 (Dec. 14, 2012)

The court vacated and remanded State v. Burrow, 218 N.C. App. 373 (Feb. 7, 2012), after allowing the State’s motion to amend the record to include a copy of the State’s notice under G.S. 90-95 indicating an intent to introduce into evidence a forensic report without testimony of the preparer. In the opinion below, the court of appeals had held that the trial court committed plain error by allowing the State to admit a SBI forensic report identifying the substance at issue as oxycodone when neither the preparer of the report nor a substitute analyst testified at trial.

State v. Locklear, 363 N.C. 438 (Aug. 28, 2009)

A Crawford violation occurred when the trial court admitted opinion testimony of two non-testifying experts regarding a victim’s cause of death and identity. The testimony was admitted through the Chief Medical Examiner, an expert in forensic pathology, who appeared to have read the reports of the non-testifying experts into evidence, rather than testifying to an independent opinion based on facts or data reasonable relied upon by experts in the field. For a more detailed discussion of this case, see my blog post.

In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

 The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed: 

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects. 

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings. 

While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.

After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.

The defendant argued on appeal that the trial court erred when it denied his motion to suppress and admitted his medical records, which contained the results of a blood alcohol test performed by the hospital. A manager from the hospital’s records department testified regarding the management of hospital records, and a medical technologist testified about the hospital’s methods and procedures for conducting laboratory tests. In addition, an expert witness in blood testing testified for the State that he relied upon the medical records in forming a conclusion about the defendant’s blood alcohol level. The court determined that the records were properly admitted because (1) they were created for medical treatment purposes and kept in the ordinary course of business and thus were nontestimonial for purposes of the Confrontation Clause; (2) even if the records were testimonial, they were admissible as the basis of a testifying expert’s independent opinion; and (3) the admission of the records was not prejudicial in light of the substantial additional evidence that the defendant was driving while impaired.

In this murder and attempted murder case, the trial court did not err in allowing a substitute expert witness to testify to another expert’s conclusions on cell site location data connected to the defendant. The defendant complained that his rights to confront the witness were violated by the absence at trial of the expert that prepared the report. Rejecting this challenge, the court observed:  

Our courts have consistently held that an expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinion; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusions in this case.

Here, that standard was met—the substitute expert explained the process of cell site analysis and his review of the first expert’s report, and he gave an independent opinion about the defendant’s cell data. The defendant was able to cross-examine the substitute expert with the first expert’s report. He was also given notice ahead of trial of the State’s intention to rely on a substitute expert witness.  There was therefore no error in admitting the testimony, and the convictions were unanimously affirmed.

In this drug case, the court held—with one judge concurring in result only—that the trial court did not err by admitting evidence of the identification and weight of the controlled substances from a substitute analyst. Because Erica Lam, the forensic chemist who tested the substances was not available to testify at trial, the State presented Lam’s supervisor, Lori Knops, who independently reviewed Lam’s findings to testify instead. The defendant was convicted and he appealed, asserting a confrontation clause violation. The court found that no such violation occurred because Knops’s opinion resulted from her independent analysis of Lam’s data. As to the identity of the substances at issue, Knops analyzed the data and gave her own independent expert opinion that the substance was heroin and oxycodone. With respect to the weight of the substances, Knops’s opinion was based on her review of Lam’s “weights obtained on that balance tape.” Because weight is machine generated, it is non-testimonial.

In a murder case, the defendant’s right of confrontation was not violated when Dr. Jordan, an expert medical examiner, testified that in his opinion the cause of death was methadone toxicity. As part of his investigation, Jordan sent a specimen of the victim’s blood to the Office of the Chief Medical Examiner for analysis. During trial, Jordan testified that in his opinion the cause of death was methadone toxicity and that his opinion was based upon the blood toxicology report from the Chief Medical Examiner’s Office. When defense counsel raised questions about the test showing methadone toxicity, the trial court allowed the State to call as a witness Jarod Brown, the toxicologist at the State Medical Examiner’s Officer who analyzed the victim’s blood. Noting the evolving nature of the confrontation question presented, the court concluded that even assuming arguendo that Jordan’s testimony was erroneous, any error was cured by the subsequent testimony and cross-examination of Brown, who performed the analysis. 

In a drug case, the trial court did not err by allowing one analyst to testify to the results of an analysis done by another non-testifying analyst. The analysis at issue identified the pills as oxycodone. The defendant did not object to the analyst’s testimony at trial or to admission of the underlying report into evidence. Because the defendant and defense counsel stipulated that the pills were oxycodone, no plain error occurred.

(1) Admission of a forensic report identifying a substance as a controlled substance without testimony of the preparer violated the defendant’s confrontation clause rights. (2) The trial court erred by allowing a substitute analyst to testify that a substance was a controlled substance based on the same forensic report where the substitute analyst did not perform or witness the tests and merely summarized the conclusions of the non-testifying analyst.

(1) The defendant’s confrontation rights were not violated when the State’s expert testified about DNA testing on the victim’s rape kit done by a non-testifying trainee. The trainee worked under the testifying expert’s direct observation and supervision and the findings were his own. (2) The court rejected the defendant’s argument that his constitutional rights were violated when a second DNA expert testified that she matched a DNA extract on a specimen taken from the defendant to the profile obtained from the rape kit. Having found that the first expert properly testified about the rape kit profile, the court rejected this argument. (3) No violation of the defendant’s confrontation clause rights occurred when the second expert testified that the probability of an unrelated, randomly chosen person who could not be excluded from the DNA mixture taken from the rape kit was extremely low. The defendant argued that the population geneticists who made the probability determination were unavailable for cross-examination about the reliability of their statistical methodology. The court concluded that admission of the statistical information was not error where the second expert was available for cross-examination and gave her opinion that the DNA profile from the rape kit matched the defendant’s DNA profile and the statistical information on which she relied was of a type reasonably relied upon by experts in the field. Even assuming that unavailability of the purported population geneticists who prepared the statistical data violated the defendant’s rights, the error did not rise to the level of plain error.

Assuming arguendo that the defendant properly preserved the issue for appeal, no confrontation clause violation occurred when the State’s expert forensic pathologist, Dr. Deborah Radisch, testified about the victim’s autopsy and gave her own opinion concerning cause of death. Distinguishing State v. Locklear, 363 N.C. 438 (Aug. 28, 2009), and Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705 (June 23, 2011), and following State v. Blue, 207 N.C. App. 267 (Oct. 5, 2010), the court noted that Dr. Radisch was present for the autopsy and testified as to her own independent opinion as to cause of death.

(1) In a triple murder case, no confrontation clause violation occurred when the State’s expert medical examiner was allowed to testify in place of the pathologist who performed the autopsies. The medical examiner provided her own expert opinion and did not simply regurgitate the non-testifying examiner’s reports. The testifying expert made minimal references to the autopsy reports, which were never introduced into evidence, and her testimony primarily consisted of describing the victims’ injuries as depicted in 28 autopsy photographs. She described the type of wounds, the pain they would have inflicted, whether they would have been fatal, and testified to each victim’s cause of death. With regard to one victim who had been sexually assaulted, the expert explained, through use of photographs, that the victim had been asphyxiated, how long it would have taken for her to lose consciousness, and that the blood seen in her vagina could have been menstrual blood or the result of attempted penetration. The expert’s testimony as to the impact of the various trauma suffered by the victims was based primarily on her inspection of the photographs that were admitted into evidence and her independent experience as a pathologist. Although the expert referred to the non-testifying pathologist’s reports, she did not recite findings from them. To the extent that she did, no prejudice resulted given her extensive testimony based strictly on her own personal knowledge as a pathologist, including the effect of the victims’ various injuries and their cause of death. Finally, the court concluded, even if any error occurred, it was harmless beyond a reasonable doubt. (2) The court noted in a footnote that the autopsy photographs were properly admitted as the basis of the testifying expert’s opinion and therefore admission of them did not violate the defendant’s confrontation rights.

Holding, in a drug case, that although the trial court erred by allowing the State’s expert witness to testify as to the identity and weight of the “leafy green plant substance” where the expert’s testimony was based on analysis performed by a non-testifying forensic analyst, the error was not prejudicial in light of the overwhelming evidence of guilt. 

The trial court did not err by allowing the Chief Medical Examiner to testify regarding an autopsy of a murder victim when the Medical Examiner was one of three individuals who participated in the actual autopsy. The Medical Examiner testified to his own observations, provided information rationally based on his own perceptions, and did not testify regarding anyone else’s declarations or findings.

Even if the defendant’s confrontation clause rights were violated when the trial court allowed a substitute analyst to testify regarding DNA testing done by a non-testifying analyst, the error was harmless beyond a reasonable doubt.

Applying Locklear and Mobley, both discussed above, the court concluded that testimony of a substitute analyst identifying a substance as cocaine base violated the defendant’s confrontation clause rights. The court characterized the substitute analyst’s testimony as “merely reporting the results of [non-testifying] experts.” Rather than conduct her own independent review, the testifying analyst’s review “consisted entirely of testifying in accordance with what the underlying report indicated.” For more discussion of this case, see the blog post

No Crawford violation occurred when a substitute analyst testified to her own expert opinion, formed after reviewing data and reports prepared by non-testifying expert. For a more detailed discussion of this case, see my blog post

A Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst. For a more detailed discussion of this case, see my blog post

State v. Phachoumphone [Duplicated], ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

In this child sexual assault case, although the trial court violated the procedural requirements of G.S. 15A-1225.1 by authorizing the victim’s testimony to be offered remotely without holding a recorded evidentiary hearing on the matter or entering an appropriate order supporting its decision to allow the State’s motion, the defendant was not entitled to relief. The defendant did not challenge the trial court’s ultimate decision allowing the victim to testify remotely; he challenged only the procedure employed in authorizing her remote testimony. The court agreed that the trial court erred by failing to follow statutory procedure. However, for reasons detailed in the court’s opinion, it rejected the defendant’s challenge on the basis that he failed to demonstrate that he was prejudiced by these procedural errors.

In a case in which the defendant was charged with obtaining property by false pretenses for selling products alleged to be gluten free but which in fact contained gluten, the trial court did not err by allowing an ill witness to testify by way of a two-way, live, closed-circuit web broadcast. The witness testified regarding the results of laboratory tests he performed on samples of the defendant's products. The trial court conducted a hearing and found that the witness had a history of panic attacks, had suffered a severe panic attack on the day he was scheduled to fly from Nebraska to North Carolina for trial, was hospitalized as a result, and was unable to travel to North Carolina because of his medical condition. Applying the test of Maryland v. Craig, the court found these findings sufficient to establish that allowing the witness to testify remotely was necessary to meet an important state interest of protecting the witness’s ill health. Turning to Craig’s second requirement, the court found that reliability of the witness’s testimony was otherwise assured, noting, among other things that the witness testified under oath and was subjected to cross-examination. [Author’s note: For an extensive discussion of the use of remote testimony at trial, see my paper here.]

The trial court did not err by allowing a child victim to testify out of the defendant’s presence by way of a closed circuit television. Following State v. Jackson, 216 N.C. App. 238 (Oct. 4, 2011) (in a child sexual assault case, the defendant’s confrontation rights were not violated when the trial court permitted the child victim to testify by way of a one-way closed circuit television system; Maryland v. Craig survived Crawford and the procedure satisfied Craig’s procedural requirements), the court held that no violation of the defendant’s confrontation rights occurred. The court also held that the trial court’s findings of fact about the trauma that the child would suffer and the impairment to his ability to communicate if required to face the defendant in open court were supported by the evidence.

(1) In a child sexual assault case, the defendant’s confrontation rights were not violated when the trial court permitted the child victim to testify by way of a one-way closed circuit television system. The court held that Maryland v. Craig survived Crawford and that the procedure satisfied Craig’s procedural requirements. (2) The court also held that the child’s remote testimony complied with the statutory requirements of G.S. 15A-1225.1.

(1) Melendez-Diaz did not impact the “continuing vitality” of the notice and demand statute in G.S. 90-95(g); when the State satisfies the requirements of the statute and the defendant fails to file a timely written objection, a valid waiver of the defendant’s constitutional right to confront the analyst occurs. (2) The State’s notice under the statute in this case was deficient in that it failed to provide the defendant a copy of the report and stated only that “[a] copy of report(s) will be delivered upon request.” However, the defendant did not preserve this issue for appeal. At trial he asserted only that the statute was unconstitutional under Melendez-Diaz; he did not challenge the State’s notice under the statute. Justice Hudson dissented, joined by Justice Beasley, arguing that the majority improperly shifts the burden of proving compliance with the notice and demand statute from the State to defendant.

In this drug trafficking case, notice was properly given under the G.S. 90-95(g) notice and demand statute even though it did not contain proof of service or a file stamp. The argued-for service and filing requirements were not required by Melendez-Diaz or the statute. The notice was stamped “a true copy”; it had a handwritten notation that saying “ORIGINAL FILED,” “COPY FAXED,” and “COPY PLACED IN ATTY’S BOX.” The defendant did not argue that he did not in fact receive the notice.

The court rejected the defendant’s argument that the State’s failure to comply with the requirements of the G.S. 90-95 notice and demand statute with respect to the analyst’s report created error. In addition to failing to object to admission of the report, both the defendant and defense counsel stipulated that the pills were oxycodone. The court also rejected the defendant’s argument that his stipulation was not a knowing, voluntary and intelligent waiver of his right to confront the non-testifying analyst, noting that such a stipulation does not require the formality of a guilty plea.

A SBI forensic report identifying a substance as cocaine was properly admitted when the State gave notice under the G.S. 90-95(g) notice and demand statute and the defendant lodged no objection to admission of the report without the testimony of the preparer.

The court ordered a new trial in a drug case in which the trial court admitted laboratory reports regarding the identity, nature, and quantity of the controlled substances where the State had not complied with the notice and demand provisions in G.S. 90-95(g) and (g1). Instead of sending notice directly to the defendant, who was pro se, the State sent notice to a lawyer who was not representing the defendant at the time.

The court upheld the constitutionality of G.S. 90-95(g)’s notice and demand statute for forensic laboratory reports in drug cases. Since the defendant failed to object after the State gave notice of its intent to introduce the report without the presence of the analyst, the defendant waived his Confrontation Clause rights.

In this drug case, the trial court did not err by admitting a forensic laboratory report after the defendant stipulated to its admission. The defendant argued that the trial court erred by failing to engage in a colloquy with her to ensure that she personally waived her sixth amendment right to confront the analyst whose testimony otherwise would be necessary to admit the report. State v. Perez, __ N.C. App. __, __, 817 S.E.2d 612, 615 (2018), establishes that a waiver of Confrontation Clause rights does not require the type of colloquy required to waive the right to counsel or to enter a guilty plea. In that case, the defendant argued that the trial court erred by allowing him to stipulate to the admission of forensic laboratory reports without engaging in a colloquy to ensure that he understood the consequences of that decision. The court rejected that argument, declining the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights through a stipulation. In Perez, the court noted that if the defendant did not understand the implications of the stipulation, his recourse is a motion for appropriate relief asserting ineffective assistance of counsel. The court rejected the defendant’s attempt to distinguish Perez on grounds that it involved a written stipulation personally signed by the defendant, while this case involves defense counsel’s oral stipulation made in the defendant’s presence. The court found this a “distinction without a difference.” Here, the stipulation did not amount to an admission of guilt and thus was not the equivalent of a guilty plea. The court continued:

[W]e . . . decline to impose on the trial courts a categorical obligation “to personally address a defendant” whose counsel stipulates to admission of a forensic report and corresponding waiver of Confrontation Clause rights. That advice is part of the role of the defendant’s counsel. The trial court’s obligation to engage in a separate, on-the-record colloquy is triggered only when the stipulation “has the same practical effect as a guilty plea.”

In this drug case, the court rejected the defendant’s argument that the trial court violated his Confrontation Clause rights when it permitted him to stipulate to the admission of forensic laboratory reports without first addressing him personally and ensuring that he understood the stipulation would waive those rights. At trial the prosecutor informed the trial court that the defendant intended to stipulate to the admission of forensic laboratory reports confirming that the substance seized was cocaine. Both defense counsel and the defendant signed the stipulations and the trial court admitted the stipulated evidence. On appeal, the defendant argued that the trial court erred by permitting him to stipulate to the admission of the reports without engaging in a colloquy to ensure he understood the consequences of that decision. The court rejected this argument. It began by acknowledging that the stipulation acted as a waiver of the defendant’s Confrontation Clause rights. The court held however that “the waiver of Confrontation Clause rights does not require the sort of extensive colloquy needed to waive the right to counsel or enter a guilty plea.” The court rejected the defendant’s argument that State v. English, 171 N.C. App. 277 (2005), requires such a colloquy. Here, both the defendant and counsel signed the stipulations, and there may have been strategic reasons to do so. The court found it notable that the defendant did not argue that his lawyer failed to discuss those strategic issues with him, or that defense counsel failed to explain that stipulating to admission of the lab reports would waive his Confrontation Clause rights. Instead, he argued that the trial court should have discussed these issues with him in open court. The court declined the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights via stipulation with the State. If the defendant did not understand the implications of stipulating, his recourse is to pursue an MAR asserting ineffective assistance of counsel.

In this child abuse case the Court held that statement by the victim, L.P., to his preschool teachers were non-testimonial. In the lunchroom, one of L.P.’s teachers, Ramona Whitley, observed that L.P.’s left eye was bloodshot. She asked him “[w]hat happened,” and he initially said nothing. Eventually, however, he told the teacher that he “fell.” When they moved into the brighter lights of a classroom, Whitley noticed “[r]ed marks, like whips of some sort,” on L.P.’s face. She notified the lead teacher, Debra Jones, who asked L.P., “Who did this? What happened to you?” According to Jones, L.P. “seemed kind of bewildered” and “said something like, Dee, Dee.” Jones asked L.P. whether Dee is “big or little;” L.P. responded that “Dee is big.” Jones then brought L.P. to her supervisor, who lifted the boy’s shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the suspected abuse. The defendant, who went by the nickname Dee, was charged in connection with the incident. At trial, the State introduced L.P.’s statements to his teachers as evidence of the defendant’s guilt, but L.P. did not testify. The defendant was convicted and appealed. The Ohio Supreme Court held that L.P.’s statements were testimonial because the primary purpose of the teachers’ questioning was not to deal with an emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution. That court noted that Ohio has a “mandatory reporting” law that requires certain professionals, including preschool teachers, to report suspected child abuse to government authorities. In the Ohio court’s view, the teachers acted as agents of the State under the mandatory reporting law and obtained facts relevant to past criminal conduct. The Supreme Court granted review and reversed. It held:

In this case, we consider statements made to preschool teachers, not the police. We are therefore presented with the question we have repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And considering all the relevant circumstances here, L.P.’s statements clearly were not made with the primary purpose of creating evidence for [the defendant’s] prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.

The Court reasoned that L.P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. The Court continued, concluding that “[t]here is no indication that the primary purpose of the conversation was to gather evidence for [the defendant]’s prosecution. On the contrary, it is clear that the first objective was to protect L.P.” In the Court’s view, “L.P.’s age fortifies our conclusion that the statements in question were not testimonial.” It added: “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” The Court continued, noting that as a historical matter, there is strong evidence that statements made in similar circumstances were admissible at common law. The Court noted, “although we decline to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L.P. was speaking to his teachers remains highly relevant.” The Court rejected the defendant’s argument that Ohio’s mandatory reporting statutes made L.P.’s statements testimonial, concluding: “mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”

Michigan v. Bryant, 562 U.S. 344 (Feb. 28, 2011)

Justice Sotomayor, writing for the Court, held that a mortally wounded shooting victim’s statements to first-responding officers were non-testimonial under Crawford. In the early morning, Detroit police officers responded to a radio dispatch that a man had been shot. When they arrived at the scene, the victim was lying on the ground at a gas station. He had a gunshot wound to his abdomen, appeared to be in great pain, and had difficulty speaking. The officers asked the victim what happened, who had shot him, and where the shooting occurred. The victim said that the defendant shot him about 25 minutes earlier at the defendant’s house. The officers’ 5-10 minute conversation with the victim ended when emergency medical personnel arrived. The victim died within hours. At trial, the victim’s statements to the responding officers were admitted and the defendant was found guilty of, among other things, murder.

          The Court held that because the statements were non-testimonial, no violation of confrontation rights occurred. The Court noted that unlike its previous decisions in Davis and Hammon, the present case involved a non-domestic dispute, a victim found in a public location suffering from a fatal gunshot wound, and a situation where the perpetrator’s location was unknown. Thus, it indicated, “we confront for the first time circumstances in which the ‘ongoing emergency’ . . . extends beyond an initial victim to a potential threat to the responding police and the public at large.” Slip Op. at 12. This new scenario, the Court noted, “requires us to provide additional clarification . . . to what Davis meant by ‘the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.’” Id. It concluded that when determining whether this is the primary purpose of an interrogation, a court must objectively evaluate the circumstances in which the encounter occurs and the parties’ statements and actions. Id. It explained that the existence of an ongoing emergency “is among the most important circumstances informing the ‘primary purpose’ of an interrogation.” Id. at 14. As to the statements and actions of those involved, the Court concluded that the inquiry must focus on both the declarant and the interrogator.

          Applying this analysis to the case at hand, the Court began by examining the circumstances of the interrogation to determine if an ongoing emergency existed. Relying on the fact that the victim said nothing to indicate that the shooting was purely a private dispute or that the threat from the shooter had ended, the Court found that the emergency was broader than those at issue in Davis and Hammon, encompassing a threat to the police and the public. Id. at 27. The Court also found it significant that a gun was involved. Id. “At bottom,” it concluded, “there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded [the victim] within a few blocks and a few minutes of the location where the police found [the victim].” Id. The Court continued, determining that given the circumstances of the emergency, it could not say that a person in the victim’s situation would have had the primary purpose of establishing past facts relevant to a criminal prosecution. Id. at 29. As to the motivations of the police, the Court concluded that they solicited information from the victim to meet the ongoing emergency. Id. at 30. Finally, it found that the informality of the situation and interrogation further supported the conclusion that the victim’s statements were non-testimonial.

          Justice Thomas concurred in the judgment, agreeing that the statements were non-testimonial but resting his conclusion on the lack of formality that attended them. Justices Scalia and Ginsburg dissented. Justice Kagan took no part in the consideration or decision of the case.

On discretionary of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 696 (2017), in this murder case the court reversed, holding that the Court of Appeals erred by concluding that certain evidence was admitted in violation of the defendant’s confrontation rights. The defendant was charged with murdering his estranged wife. Approximately 9 months before the murder, an officer responded to a call at the victim’s apartment regarding a domestic dispute. The officer made initial contact with the victim at a location outside of her apartment. The victim told the officer that the defendant entered her apartment through an unlocked door and kept her there against her will for two hours. The victim said that during this period she and the defendant argued and that a physical struggle occurred. Although the officer did not recall seeing any signs that the victim had sustained physical injury, he noticed a tear and stress marks on her shirt. The officer accompanied the victim to her apartment to check the premises to make sure the defendant was not still there. The defendant was later charged and convicted of domestic criminal trespass. At the defendant’s murder trial the trial court admitted, over the defendant’s confrontation clause objection, the officer’s testimony about the statements the victim made to him in the incident 9 months before the murder. The Court of Appeals found, among other things, that the victim’s statements were testimonial. The Supreme Court disagreed, finding that the victim’s statements were nontestimonial. The victim made the statements during an ongoing emergency caused by the defendant’s entry into her apartment and decision to both detain and physically assault her. The information she provided to the officer caused him to enter the apartment to ensure that the defendant, whose location was unknown, had departed and no longer posed a threat to the victim’s safety. The victim’s statements to the officer “served more than an information-gathering purpose.” Additionally, the conversation was informal and took place in an environment that cannot be described as tranquil.

State v. McKiver, 369 N.C. 652 (June 9, 2017)

Reversing the Court of Appeals, the Supreme Court held that the statements made by an anonymous 911 caller informing the police of a possible incident involving a firearm and describing the suspect were nontestimonial. The circumstances surrounding the caller’s statements objectively indicate that the primary purpose was to enable law enforcement to meet an ongoing emergency. The primary purpose of the call was to inform the police of a possible dispute involving an unidentified man brandishing a firearm outside the caller’s home on a public street in a residential subdivision. The caller reacted by going to her home and staying away from the window and an officer retrieved his patrol rifle before entering the scene. “As is evident from the precautions taken by both the caller and the officers on the scene, they believed the unidentified suspect was still roving subdivision with a firearm, posing a continuing threat to the public and law enforcement.” To address this threat, an officer requested that the dispatcher place a reverse call to the caller to get more information about the individual at issue and, once received, quickly relayed that information to other officers to locate and apprehend the suspect. [Author’s note: For more information about the Confrontation Clause, see my judges’ benchbook chapter here.]

The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings. 

While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.

After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.

The defendant argued on appeal that the trial court erred when it denied his motion to suppress and admitted his medical records, which contained the results of a blood alcohol test performed by the hospital. A manager from the hospital’s records department testified regarding the management of hospital records, and a medical technologist testified about the hospital’s methods and procedures for conducting laboratory tests. In addition, an expert witness in blood testing testified for the State that he relied upon the medical records in forming a conclusion about the defendant’s blood alcohol level. The court determined that the records were properly admitted because (1) they were created for medical treatment purposes and kept in the ordinary course of business and thus were nontestimonial for purposes of the Confrontation Clause; (2) even if the records were testimonial, they were admissible as the basis of a testifying expert’s independent opinion; and (3) the admission of the records was not prejudicial in light of the substantial additional evidence that the defendant was driving while impaired.

The defendant fired a gun from his car toward a park where over a dozen people were playing basketball and hanging out. He was later found asleep in his car in a ditch by a Highway Patrol officer, who arrested him for driving while impaired. He was convicted by a jury of second-degree murder and assault with a deadly weapon. The defendant argued that the trial court erred by admitting three phone calls the defendant made from the jail because they contained hearsay and violated the defendant’s confrontation rights. (1) As to the hearsay argument, the court of appeals concluded that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. (2) As to the alleged violation of the Confrontation Clause, the court adopted the reasoning of a case from the Fourth Circuit, United States v. Jones, 716 F.3d 851 (4th Cir. 2013), and concluded that, despite automated warnings indicating that the calls were being recorded and monitored, the statements made by the woman the defendant was talking to on the jail phone were not intended to bear witness against him, and were therefore not testimonial. Because the statements were not testimonial, their admission did not violate the Confrontation Clause. (3) Next, the court declined to consider whether the trial court committed plain error by admitting, without objection, video interviews in which the defendant discussed prior assault and rape charges with the police. Again, in light of the overwhelming evidence of the defendant’s guilt, the defendant failed to show how the admission of the evidence resulted in a miscarriage of justice or an unfair trial. (4) At sentencing, the trial court did not err by sentencing the defendant as a Class B1 felon upon jury’s general verdict of guilty of second-degree murder when no evidence or jury instruction supported the depraved-heart malice that makes the crime a Class B2 felony. As in State v. Lail, 251 N.C. App. 463 (2017), it was readily apparent from the evidence here that the jury found the defendant guilty of a Class B1 second-degree murder. (5) Finally, the court of appeals rejected the defendant’s argument that his stipulation to a prior conviction identified as “M-PUBLIC DISTURBANCE” as a Class 1 misdemeanor was ambiguous in light of the multiple potential classifications of disorderly conduct. To the contrary, under State v. Arrington, 371 N.C. 518 (2018), when a defendant stipulates to a prior conviction of a particular offense classification, he or she also stipulates to the facts underlying that conviction. The trial court has no duty to enquire further in the absence of clear record evidence suggesting the defendant stipulated to an incorrect classification, and there was no such evidence here.

In this case involving armed robbery and other charges, the victim’s statements to a responding officer were nontestimonial. When officer Rigsby arrived at the victim’s home to investigate the robbery call, the victim was shaken up, fumbling over his words, and speaking so fast that it sounded like he was speaking another language. Once the victim calmed down he told the officer that a group of black men robbed him, that one of them put a snubnosed revolver to the back of his head, one wore a clown mask, the suspects fled in a silver car, and one of the robbers was wearing red clothing. Shortly thereafter, another officer informed Rigsby that she had found a vehicle and suspects matching the description provided by 911 communications. Rigsby immediately left the victim to assist that officer. Although the suspects had fled the victim’s home, an ongoing emergency posing danger to the public existed. The victim’s statements to Rigsby were nontestimonial because they were provided to assist police in meeting an ongoing emergency and to aid in the apprehension of armed, fleeing suspects.

State v. Clonts, ___ N.C. App. ____, 802 S.E.2d 531 (June 20, 2017) aff’d per curiam, ___ N.C. ___, 813 S.E.2d 796 (Jun 8 2018)

A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause. 

In this child sexual assault case, no confrontation clause violation occurred where the victim’s statements were made for the primary purpose of obtaining a medical diagnosis. After the victim revealed the sexual conduct to his mother, he was taken for an appointment at a Children’s Advocacy Center where a registered nurse conducted an interview, which was videotaped. During the interview, the victim recounted, among other things, details of the sexual abuse. A medical doctor then conducted a physical exam. A DVD of the victim’s interview with the nurse was admitted at trial. The court held that the victim’s statements to the nurse were nontestimonial, concluding that the primary purpose of the interview was to safeguard the mental and physical health of the child, not to create a substitute for in-court testimony. Citing Clark, the court rejected the defendant’s argument that state law requiring all North Carolinians to report suspected child abuse transformed the interview into a testimonial one. 

In this driving while license revoked case, the court held that DMV records were non-testimonial. The documents at issue included a copy of the defendant’s driving record certified by the DMV Commissioner; two orders indefinitely suspending his drivers’ license; and a document attached to the suspension orders and signed by a DMV employee and the DMV Commissioner. In this last document, the DMV employee certified that the suspension orders were mailed to the defendant on the dates as stated in the orders, and the DMV Commissioner certified that the orders were accurate copies of the records on file with DMV. The court held that the records, which were created by the DMV during the routine administration of its affairs and in compliance with its statutory obligations to maintain records of drivers’ license revocations and to provide notice to motorists whose driving privileges have been revoked, were non-testimonial.

In a sex offender residential restriction case, the court held that because GPS tracking reports were non-testimonial business records, their admission did not violate the defendant’s confrontation rights. The GPS records were generated in connection with electronic monitoring of the defendant, who was on post-release supervision for a prior conviction. The court reasoned:

[T]he GPS evidence admitted in this case was not generated purely for the purpose of establishing some fact at trial. Instead, it was generated to monitor defendant’s compliance with his post-release supervision conditions. The GPS evidence was only pertinent at trial because defendant was alleged to have violated his post-release conditions. We hold that the GPS report was non-testimonial and its admission did not violate defendant’s Confrontation Clause rights.

(1) In a larceny by merchant case, statements made by a deceased Wal-Mart assistant manager to the store’s loss prevention coordinator were non-testimonial. The loss prevention coordinator was allowed to testify that the assistant manager had informed him about the loss of property, triggering the loss prevention coordinator’s investigation of the matter. The court stated:

[The] statement was not made in direct response to police interrogation or at a formal proceeding while testifying. Rather, [the declarant] privately notified his colleague . . . about a loss of product at the Wal-Mart store. This statement was made outside the presence of police and before defendant was arrested and charged. Thus, the statement falls outside the purview of the Sixth Amendment. Furthermore, [the] statement was not aimed at defendant, and it is unreasonable to believe that his conversation with [the loss prevention coordinator] would be relevant two years later at trial since defendant was not a suspect at the time this statement was made.

(2) Any assertions by the assistant manager contained in a receipt for evidence form signed by him were non-testimonial. The receipt—a law enforcement document—established ownership of the baby formula that had been recovered by the police, as well as its quantity and type; its purpose was to release the property from the police department back to the store.

State v. Glenn, 220 N.C. App. 23 (Apr. 17, 2012)

A non-testifying victim’s statement to a law enforcement officer was testimonial. In the defendant’s trial for kidnapping and other charges, the State introduced statements from a different victim (“the declarant”) who was deceased at the time of trial. The facts surrounding the declarant’s statements were as follows: An officer responding to a 911 call concerning a possible sexual assault at a Waffle House restaurant found the declarant crying and visibly upset. The declarant reported that while she was at a bus stop, a driver asked her for directions. When she leaned in to give directions, the driver grabbed her shirt and told her to get in the vehicle. The driver, who had a knife, drove to a parking lot where he raped and then released her. The declarant then got dressed and walked to the Waffle House. The trial court determined that because the purpose of the interrogation was to resolve an ongoing emergency, the declarant’s statements were nontestimonial. Distinguishing the U.S. Supreme Court’s decision in Michigan v. Bryant, the court of appeals disagreed. The court noted that when the officer arrived “there was no ongoing assault, the declarant had no signs of trauma, no suspect was present, and the officer did not search the area for the perpetrator or secure the scene. The officer asked the declarant if she wanted medical attention (she refused) and what happened. Thus, the court concluded, the officer “assessed the situation, determined there was no immediate threat and then gathered the information.” Furthermore, the declarant told the officer that the perpetrator voluntarily released her. The court concluded that even if the officer believed there was an ongoing emergency when he first arrived, he determined that no ongoing emergency existed when he took the statement. The court also determined that there was no ongoing threat to the victim, law enforcement or the public. It noted that the defendant voluntarily released the declarant and drove away and there was no indication that he would return to harm her further. As for danger to the officer, the court found no evidence that the defendant was ever in the Waffle House parking lot or close enough to harm the officer with his weapon, which was a knife not a gun. The court also concluded that because “the evidence suggested defendant’s motive was sexual and did not rise to the level of endangering the public at large.” Regarding the overall circumstances of the encounter, the court noted that because there was only one officer, “the circumstances of the questioning were more like an interview,” in which the officer asked what happened and the declarant narrated the events. It continued, noting that since the declarant “had no obvious injuries, and initially refused medical attention, the primary purpose of her statement could not have been to obtain medical attention.” Furthermore, she “seemed to have no difficulty in recalling the events, and gave [the officer] a detailed description of the events, implying that her primary purpose was to provide information necessary for defendant’s prosecution.” In fact, the court noted, she told the officer that she wanted to prosecute the suspect. The court concluded that the statement was “clearly” testimonial:

[T]here was no impending danger, because the driver released [the declarant] and [the declarant] was waiting at a restaurant in a presumably safe environment. In addition, [the officer] questioned her with the requisite degree of formality because the questioning was part of an investigation, outside the defendant’s presence. [The officer] wanted to determine “what happened” rather than “what is happening.” Furthermore, [the declarant’s] statement deliberately recounted how potentially criminal events from the past had progressed and the interrogation occurred after the described events ended. Finally, [the declarant] gave the officer a physical description of the driver, how he was dressed, his approximate age, and the type of vehicle he was driving. For a criminal case, this information would be “potentially relevant to later criminal prosecution.” (citations omitted).

Hardy v. Cross, 565 U.S. 65 (Dec. 12, 2011)

Reversing the Seventh Circuit, the Court held that the state court was not unreasonable in determining that the prosecution established the victim’s unavailability for purposes of the confrontation clause. In the defendant’s state court trial for kidnaping and sexual assault, the victim testified. After a mistrial, a retrial was scheduled for March 29, 2000. On March 20, the prosecutor informed the trial judge that the victim could not be located. On March 28, the State moved to have the victim declared unavailable and to introduce her prior testimony at the retrial. The State represented that it had remained in constant contact with the victim and her mother and that every indication had been that the victim, though very frightened, would testify. On March 3, however, the victim’s mother and brother told the State’s investigator that they did not know where the victim was; the mother also reported that the victim was “very fearful and very concerned” about testifying. About a week later, the investigator interviewed the victim’s father, who had no idea where she was. On March 10, the victim’s mother told the State that the victim had run away the day before. Thereafter, the prosecutor’s office and police attempted to find the victim. Their efforts included: constant visits her home, at all hours; visits to her father’s home; conversations with her family members; checks at, among other places, the Medical Examiner’s office, local hospitals, the Department of Corrections, the victim’s school, the Secretary of State’s Office, the Department of Public Aid, and with the family of an old boyfriend of the victim. On a lead that the victim might be with an ex-boyfriend 40 miles away, a police detective visited the address but the victim had not been there. The State’s efforts to find the victim continued until March 28, the day of the hearing on the State’s motion. That morning, the victim’s mother informed the detective that the victim had called approximately two weeks earlier saying that she did not want to testify and would not return. The victim’s mother said that she still did not know where the victim was or how to contact her. The trial court granted the State’s motion and admitted the victim’s earlier testimony. The defendant was found guilty of sexual assault. On appeal, the state appellate court agreed that the victim was unavailable and that the trial court had properly admitted her prior testimony. The defendant then filed a petition for a writ of habeas corpus arguing that the state court had unreasonably applied clearly established Supreme Court precedents holding that the confrontation clause precludes the admission of the prior testimony of an allegedly unavailable witness unless the prosecution made a good-faith effort to obtain the declarant’s presence at trial. The federal district court denied the petition; the Seventh Circuit reversed.

            The Court began its analysis by noting that under Barber v. Page, 390 U. S. 719 (1968), “a witness is not ‘unavailable’ for purposes of the . . . confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Here, the state court holding that the prosecution conducted the requisite good-faith search for the victim was not an unreasonable application of its precedents. The Seventh Circuit found that the State’s efforts were inadequate for three main reasons. First, it faulted the State for failing to contact the victim’s current boyfriend or any of her other friends in the area. But, the Court noted, there was no evidence suggesting that these individuals had information about her whereabouts. Second, the Seventh Circuit criticized the State for not making inquiries at the cosmetology school where the victim had been enrolled. However, because the victim had not attended the school for some time, there is no reason to believe that anyone there had better information about her location than did her family. Finally, the Seventh Circuit found that the State’s efforts were insufficient because it failed to serve her with a subpoena after she expressed fear about testifying at the retrial. The Court noted: “We have never held that the prosecution must have issued a subpoena if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial.” It concluded: “when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.” (citation omitted). 

(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement that incriminated the defendant. She agreed to appear in court and testify against the defendant, but failed to do so. Her whereabouts were unknown to her family, her bondsman and the State. The State successfully moved to allow her recorded statement into evidence on grounds that she was unavailable and that the defendant forfeited his constitutional right to confrontation due to his own wrongdoing. The defendant was convicted and appealed. Considering the issue, the court noted that the evidence rule requires that a finding of unavailability be supported by evidence of process or other reasonable means. To establish unavailability under the Confrontation Clause, there must be evidence that the State made a good-faith effort to obtain the witness’s presence at trial. Here, the State delivered a subpoena for Montes to her lawyer, and Montes agreed to appear in court to testify against the defendant. These findings support a conclusion both that the State used reasonable means and made a good-faith effort to obtain the witness’s presence at trial. 

(2) The trial court properly found that the defendant forfeited his Confrontation Clause rights through wrongdoing. The relevant standard for determining forfeiture by wrongdoing is a preponderance of the evidence and the State met this burden. Here, the defendant made phone calls from jail showing an intent to intimidate Montes into not testifying, and threatened another testifying witness. Additionally, his mother and grandmother, who helped facilitate his threatening calls to Montes, showed up at Montes’ parents’ house before trial to engage in a conversation with her about her testimony. The trial court properly found that the net effect of the defendant’s conduct was to pressure and intimidate Montes into not appearing in court and not testifying.

State v. Clonts, ___ N.C. App. ____, 802 S.E.2d 531 (June 20, 2017) aff’d per curiam, ___ N.C. ___, 813 S.E.2d 796 (Jun 8 2018)

In a case in which there was a dissenting opinion, the court held that the trial court erred by admitting a non-testifying witness’s pretrial deposition testimony. (1) The trial court’s finding were insufficient to establish that the witness was unavailable for purposes of the Rule 804(b)(1) hearsay exception and the Confrontation Clause. The entirety of the trial court’s findings on this issue were: “The [trial court] finds [the witness] is in the military and is stationed outside of the State of North Carolina currently. May be in Australia or whereabouts may be unknown as far as where she’s stationed.” The trial court made no findings that would support more than mere inference that the State was unable to procure her attendance; made no findings concerning the State’s efforts to procure the witness’s presence at trial; and made no findings demonstrating the necessity of proceeding to trial without the witness’s live testimony. The trial court did not address the option of continuing trial until the witness returned from deployment. It did not make any finding that the State made a good-faith effort to obtain her presence at trial, much less any findings demonstrating what actions taken by the State could constitute good-faith efforts. It thus was error for the trial court to grant the State’s motion to admit the witness’ deposition testimony in lieu of her live testimony at trial. (2) The court went on to find that even if the trial court’s findings of fact and conclusions had been sufficient to support its ruling, the evidence presented to the trial court was insufficient to support an ultimate finding of “unavailability” for purposes of Rule 804. It noted in part that the State’s efforts to “effectuate [the witness’s] appearance” were not “reasonable or made in good faith.” (3) A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause. (4) The court found that the facts of the case did not support a finding that the witness was unavailable under the Confrontation Clause. In this respect, the court noted that no compelling interest justified denying the defendant’s request to continue the trial to allow for the witness’s live testimony. It added: “The mere convenience of the State offers no such compelling interest.” It continued: “We hold that . . . in order for the State to show that a witness is unavailable for trial due to deployment, the deployment must, at a minimum, be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.” (quotation omitted).

No violation of the defendant’s confrontation rights occurred when the trial court admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The witness was unavailable and the defendant had a prior opportunity to cross-examine her at the plea hearing. 

State v. Ross, 216 N.C. App. 337 (Oct. 18, 2011)

Defense counsel’s cross-examination of a declarant at a probable cause hearing satisfied Crawford’s requirement of a prior opportunity for cross-examination. 

Certiorari was granted in this case four days after the Court decided Melendez-Diaz. The case presented the following question: If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause by providing that the accused has a right to call the analyst as his or her own witness? The Court’s two-sentence per curiam decision vacated and remanded for “further proceedings not inconsistent with the opinion in Melendez-Diaz.”

In this federal death penalty case, the court relied on Williams v. New York, 337 U.S. 241 (1949), to hold that the confrontation clause does not apply in the sentence selection phase (where the jury exercises discretion in selecting a life sentence or the death penalty) of a federal capital trial. The court noted that under the Federal Death Penalty Act, the jury finds the facts necessary to support the imposition of the death penalty in the guilt and eligibility phases of trial and that “[i]t is only during th[o]se phases that the jury makes ‘constitutionally significant’ factual findings.” The court’s holding pertained only to the sentence selection phase.

State v. Hurt, 367 N.C. 80 (June 27, 2013)

In a substitute analyst case, the court per curiam and for the reasons stated in Ortiz-Zape (above, under substitute analysts), reversed the Court of Appeals’ decision in State v. Hurt, 208 N.C. App. 1 (2010) (applying Crawford to a non-capital Blakely sentencing hearing in a murder case and holding that Melendez-Diaz prohibited the introduction of reports by non-testifying forensic analysts pertaining to DNA analysis). Reversing on other grounds, the court did not indicate that Crawford was inapplicable to a non-capital sentencing proceeding.

The defendant was on supervised probation for a conviction of possession with intent to sell or deliver marijuana, and the state alleged that he violated his probation by testing positive for cocaine and committing a new criminal offense. At a hearing held on the violation, the defendant’s probation officer testified about the positive drug screen, and a police officer testified about the alleged new criminal activity. Officers used a confidential informant to conduct two controlled buys of a white powdery substance from the defendant, and then obtained a search warrant for his home where they discovered cash and additional drugs, resulting in new criminal charges against the defendant. The informant did not testify at the probation hearing. At the conclusion of the hearing, the trial court revoked the defendant’s probation and the defendant appealed.

The trial court’s oral pronouncement only indicated that the revocation was based on the commission of a new criminal offense, but the written findings indicated that the revocation was based on both allegations, so per case precedent the written order was deemed controlling on appeal. The appellate court agreed that pursuant to the Justice Reinvestment Act, the defendant’s probation could not be revoked for using cocaine; instead, the trial court was only authorized to modify his conditions of probation or impose a 90-day CRV, so the order of revocation based on this allegation was reversed. But the state presented sufficient evidence at the hearing that the defendant also committed a new criminal offense by possessing and selling crack cocaine, which would support revoking the defendant’s probation. 

However, rather than affirming the trial court’s order, the appellate court remanded the matter to determine whether the trial court properly exercised its discretion under G.S. 15A-1345(e), which provides that “the probationer may […] confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” (Since this was a probation revocation hearing, only the statutory confrontation right was at issue, rather than the confrontation rights under the Sixth Amendment.) The confidential informant did not testify at the hearing, and the defense objected to the admission of her hearsay statements. The trial court overruled those objections based on “the nature of these proceedings,” and the appellate court held that it was unclear whether that ruling reflected an exercise of discretion and finding of good cause. The court distinguished this case from State v. Jones, 269 N.C. App. 440 (2020), where it had previously held that a failure to find good cause was not reversible error, because in Jones the defendant did not challenge the testimony on this basis and did not request findings of good cause as to why confrontation should not be allowed, so no findings were required.

Judge Tyson concurred in part, finding that the defendant waived his statutory confrontation objection and failed to meet his burden of showing prejudice, and the trial court did not err in revoking the defendant’s probation.

The defendant was on felony probation. During a traffic stop, a law enforcement officer found a pistol in the defendant’s car, which resulted in criminal charges for possession of firearm by a felon and carrying a concealed weapon and the filing of a probation violation report for committing new criminal offenses. In the trial for the new criminal charges, the judge denied the defendant’s motion to suppress the pistol, but the case nonetheless resulted in a mistrial. At the subsequent probation violation hearing, the court found that the defendant committed the alleged criminal offenses and revoked probation. After granting the defendant’s petition for writ of certiorari, the Court of Appeals rejected his argument that he was deprived of the right to confront and cross-examine the law enforcement officer at his probation violation hearing. The right to confront and cross-examine witnesses at a probation violation hearing as provided in G.S. 15A-1345(e) is grounded in a probationer’s Fourteenth Amendment due process rights, which are more flexible than his or her confrontation rights at trial under the Sixth Amendment. As such, the court held that the law enforcement officer’s testimony at the prior motion to suppress was competent evidence of the alleged violations, and that the trial court did not err by finding the new criminal offense violations despite the earlier mistrial. The defendant did not request findings for good cause as to why confrontation should not be allowed, and therefore no such findings were required. The Court of Appeals affirmed the revocation of probation but remanded the case for correction of a clerical error.

(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement that incriminated the defendant. She agreed to appear in court and testify against the defendant, but failed to do so. Her whereabouts were unknown to her family, her bondsman and the State. The State successfully moved to allow her recorded statement into evidence on grounds that she was unavailable and that the defendant forfeited his constitutional right to confrontation due to his own wrongdoing. The defendant was convicted and appealed. Considering the issue, the court noted that the evidence rule requires that a finding of unavailability be supported by evidence of process or other reasonable means. To establish unavailability under the Confrontation Clause, there must be evidence that the State made a good-faith effort to obtain the witness’s presence at trial. Here, the State delivered a subpoena for Montes to her lawyer, and Montes agreed to appear in court to testify against the defendant. These findings support a conclusion both that the State used reasonable means and made a good-faith effort to obtain the witness’s presence at trial. 

(2) The trial court properly found that the defendant forfeited his Confrontation Clause rights through wrongdoing. The relevant standard for determining forfeiture by wrongdoing is a preponderance of the evidence and the State met this burden. Here, the defendant made phone calls from jail showing an intent to intimidate Montes into not testifying, and threatened another testifying witness. Additionally, his mother and grandmother, who helped facilitate his threatening calls to Montes, showed up at Montes’ parents’ house before trial to engage in a conversation with her about her testimony. The trial court properly found that the net effect of the defendant’s conduct was to pressure and intimidate Montes into not appearing in court and not testifying.

The trial court properly applied the forfeiture by wrongdoing exception to the Crawford rule. At the defendant’s trial for first-degree murder and kidnapping, an eyewitness named Wilson was excused from testifying further after becoming distraught on the stand. The trial court determined that Wilson’s testimony would remain on the record under the forfeiture by wrongdoing exception and denied the defendant’s motion for a mistrial. At a hearing on the issue Wilson disclosed that, as they were being transported to the courthouse for trial, the defendant threatened to kill Wilson and his family. A detention officer testified that she heard the threat. Also, in a taped interview with detectives and prosecutors, Wilson repeatedly expressed concern for his life and the lives of his family members. Finally, the defendant made several phone calls that showing an intent to intimidate Wilson. In one call to his grandmother, the defendant repeatedly referred to Wilson as “nigger” and said he would “straighten this nigger out”. During the phone calls, the defendant joked about the “slick moves” he used to prevent Wilson from testifying. In other calls, the defendant instructed acquaintances to come to court to intimidate Wilson while he was testifying. One of those acquaintances said he would be in court on the morning of 2 March 2011. On that date, Wilson, who already had been hesitant and fearful on the stand, became even more emotional and “broke down” upon seeing a young man dressed in street clothes indicative of gang attire enter the courtroom. These facts were sufficient to establish that the defendant intended to and did intimidate Wilson. The court rejected the defendant’s argument that application of the doctrine was improper because Wilson never testified that he chose to remain silent out of fear of the defendant. The court stated: “It would be nonsensical to require that a witness testify against a defendant in order to establish that the defendant has intimidated the witness into not testifying. Put simply, if a witness is afraid to testify against a defendant in regard to the crime charged, we believe that witness will surely be afraid to finger the defendant for having threatened the witness, itself a criminal offense.”

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