Criminal Case Update

John Rubin

Institute of Government

919-962-2498

Criminal Case Update

District Court Judges Conference

June 2004

(includes cases decided through June 1, 2004)

The following summaries are drawn primarily from Bob Farb’s criminal case summaries.

Evidence Issues

Confrontation Clause

Court Rules That “Testimonial” Statement Obtained Before Trial Is Admissible Under the Confrontation Clause Only Under Certain Circumstances

Crawford v. Washington, ___ U.S. ___, 124 S. Ct. 1354 (8 March 2004). The alleged victim was stabbed in his apartment. Police arrested the defendant and interrogated him and his wife, Sylvia Crawford (hereafter, Sylvia), who had witnessed the stabbing. Sylvia generally corroborated the defendant’s story about the stabbing, but her account was arguably different concerning whether the alleged victim had drawn a weapon before the defendant assaulted him. The defendant asserted self-defense at his trial in a Washington state court. The state could not call Sylvia as a witness based on the state’s marital privilege law, but was allowed to introduce her tape-recorded statements to the police as evidence that the stabbing was not in self-defense. The defendant objected to the introduction of Sylvia’s statements as violating his right of cross-examination under the Confrontation Clause of the Sixth Amendment. The Washington Supreme Court ruled that the statements were admissible and affirmed his assault conviction. The United States Supreme Court reversed the defendant’s conviction.

The Court noted that Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), had ruled that the Confrontation Clause does not bar the admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate indicia of reliability.” To meet that test, the statement must either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” The Court reexamined this ruling by analyzing the historical background of the Confrontation Clause. The Court noted that history supports two inferences about the meaning of the clause. First, the principal evil at which the clause was directed was the civil-law mode of criminal procedure, and particularly its use against a criminal defendant of ex parte examinations of witnesses. Thus, the Confrontation Clause applies to “witnesses” against the accused, or in other words, those who “bear testimony.” The various forms of “testimonial” statements recognized by the Court include ex parte in-court testimony or its functional equivalent—affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, confessions of others, and pretrial statements that declarants would reasonably expect to be used by the prosecution. Also included within what the Court described as “testimonial evidence” are statements taken by law enforcement officers in the course of a interrogation. The Court stated in footnote 4 that the term “interrogation” is used in its colloquial, rather than any technical legal, sense, and Sylvia’s recorded statement, knowingly given in response to structured police questioning, qualified as interrogation under any conceivable definition. Near the end of its opinion, the Court stated that it would leave for future cases a comprehensive definition of “testimonial,” but stated that whatever the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury or at a former trial, and to police interrogations.

The Court stated that the historical record supports a second proposition, that the framers of the constitution would not have allowed the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had had a prior opportunity for cross-examination. In footnote 6, the court noted one historical deviation from this principle involved testimonial dying declarations, although the court said that it need not decide in this case whether to adopt that exception. The Court noted that most of the hearsay exceptions existing in 1791 (when the Sixth Amendment was ratified) covered statements that were not “testimonial”—for example, business records or statements in furtherance of a conspiracy.

The Court reviewed its cases involving admissibility of prior “testimonial evidence” and the Confrontation Clause and stated that the cases have remained faithful to the historical understanding of the clause: testimonial statements of witnesses absent from trial have been admitted only when the declarant was unavailable, and only when the defendant had had a prior opportunity to cross-examine. The court in footnote 8 noted that one case arguably in tension with this principle is White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992), which involved statements of a child victim to an investigating police officer admitted as spontaneous declarations. The Court found it questionable whether these testimonial statements would ever have been admissible on that ground in 1791. Later in its opinion, the Court stated that although its analysis in this case “casts doubt” on the White holding (state need not show unavailability of a witness if declarant’s statement falls within a firmly-rooted hearsay exception), it need not definitively resolve whether White survives its ruling in this case because Sylvia’s statement was clearly testimonial.

The Court rejected the reliability test of Ohio v. Roberts concerning testimonial evidence under the Confrontation Clause because it was inconsistent with historical reasons for the adoption of the clause and overruled Roberts with respect to testimonial evidence. The Court stated that when nontestimonial hearsay is at issue, it is wholly consistent with the historical design of the Confrontation Clause to allow the states flexibility in their development of hearsay law—as does Roberts and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.

The Court concluded that in this case the trial judge admitted Sylvia’s testimonial statement against the defendant despite the fact that he had no opportunity to cross-examine her. That alone was sufficient to violate the Confrontation Clause. The Roberts reliability analysis may not be applied to make the statement admissible against the defendant.

Post-Crawford Cases in North Carolina

State v. Pullen, ___ N.C. App. ___, 594 S.E.2d 248 (20 April 2004). The court ruled that the admission in the defendant’s trial of a confession of an accomplice made to law enforcement officers during interrogation violated the Confrontation Clause under the ruling in Crawford v. Washington, 124 S. Ct. 1354, ___ L. Ed. 2d ___ (8 March 2004), when the accomplice did not testify at trial and defendant did not have a prior opportunity to cross-examine the accomplice.

State v. Forrest, ___ N.C. App. ___, ___ S.E.2d ___ (May 18, 2004). Law enforcement officers rescued Cynthia Moore from defendant, her kidnapper. Moore suffered lacerations and bruises, including one very deep laceration, which was bleeding profusely. Moore was shaking, crying, and very nervous after the incident, at which time she told Detective Melanie Blalock what defendant had done to her. Moore did not testify at trial. The court held that because Moore’s statements to Blalock were non-testimonial, the trial court did not err in admitting them into evidence. The court found instructive a post-Crawford New York case holding that a 911 call was non-testimonial. Concluding that Moore’s conversation with Blalock was not a testimonial “police interrogation” under Crawford, the court stated:

Just as with a 911 call, a spontaneous statement made to police immediately after a rescue can be considered “part of the criminal incident itself, rather than as part of the prosecution that follows.” Further, a spontaneous statement made immediately after a rescue from a kidnapping at knife point is typically not initiated by the police. Moore made spontaneous statements to the police immediately following a traumatic incident. She was not providing a formal statement, deposition, or affidavit, was not aware that she was bearing witness, and was not aware that her utterances might impact further legal proceedings. Crawford protects defendants from an absent witness's statements introduced after formal police interrogations in which the police are gathering additional information to further the prosecution of a defendant. Crawford does not prohibit spontaneous statements from an unavailable witness like those at bar.

In dissent, Judge Wynn argued that the 911 analogy was inapt. Wynn contended that Blalock's sole purpose was to obtain Moore’s statement for use in prosecution of defendant. When the statement was taken, the scene was secure, defendant was absent, and Moore was no longer in peril. Blalock was not the first police officer Moore encountered at the scene but was the officer designated to get Moore’s statement. Moore did not speak to Blalock to get assistance but because she knew that the police were there to gather evidence concerning the crime. Thus, he disagreed with the majority's statement that the witness “was not aware that she was bearing witness, and was not aware that her utterances might impact further legal proceedings.”

Expert Opinion

Trial Judge Erred in Allowing State’s Medical Expert to Offer Opinion That Her Diagnosis of Victim Was Probable Sexual Abuse When There Was Insufficient Physical Evidence to Support Opinion

State v. Couser, ___ N.C. App. ___, 594 S.E.2d 420 (20 April 2004). The defendant was convicted of various sex offenses with a thirteen-year-old female. The state’s medical expert testified that she performed an examination of the victim and her only abnormal finding was the presence of two abrasions on either side of the introitus. Based on her examination and the history of the victim provided to her, the expert testified that her diagnosis was probable sexual abuse. On cross-examination, the expert testified that the abrasions could be caused by something other than a sexual assault and were not, in themselves, diagnostic or specific to sexual abuse. The court ruled, relying on State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594, affirmed, 356 N.C. 428, 571 S.E.2d 584 (2002), that the trial judge erred in allowing the expert to offer an opinion that her diagnosis of victim was probable sexual abuse because there was insufficient physical evidence to support the expert’s opinion. Because the defendant had not objected to the testimony at trial, the court then determined whether the error amounted to plain error. The court examined the facts in this case and ruled that the trial judge committed plain error requiring a new trial.

Expert’s Opinion Testimony in Child Sexual Abuse Trial Was Admissible Even Though Expert Had Not Examined Child Victim

State v. McCall, ___ N.C. App. ___, 589 S.E.2d 896 (6 January 2004). The defendant was convicted of indecent liberties and attempted first-degree rape of a seven-year-old child. The court ruled, relying on Rule 703, State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979), and other cases, that the trial judge did not err in allowing the state’s expert mental health witness to testify—in response to hypothetical questions and based on information related to her by third parties—that the victim’s behavior and characteristics were consistent with those of a child who had been sexually abused, even though the expert had not examined the child.

Other Evidence Issues

In Prosecution of First-Degree Statutory Sexual Offense with Child Involving Anal Intercourse, Evidence of Defendant’s Engaging in Consensual Anal Intercourse with Wife Was Inadmissible Under Rule 404(b)

State v. Dunston, ___ N.C. App. ___, 588 S.E.2d 540 (2 December 2003). The defendant was convicted of first-degree statutory sexual offense with his foster child, which involved anal intercourse with the child. The defendant’s wife testified for the defendant, and the state was permitted on cross-examination to elicit testimony from her that the defendant’s sexual activity with the wife included consensual vaginal and anal intercourse. The court ruled that this testimony was inadmissible under Rule 404(b) because it was not relevant for any purpose other than to prove the defendant’s propensity to engage in anal intercourse. The fact that the defendant engaged in and liked consensual anal intercourse with his wife was not by itself sufficiently similar under Rule 404(b) to engaging in anal intercourse with an underage person—other than they both involved anal sex.

Search and Seizure

Grounds to Stop

Officer Did Not Have Reasonable Suspicion to Stop Defendant’s Vehicle for DWI Based on Vehicle Remaining Stationary for Eight to Ten Seconds After Red Light Turned Green Before Proceeding Through Intersection

State v. Roberson, ___ N.C. App. ___, 592 S.E.2d 733 (2 March 2004). At approximately 4:30 a.m., an officer was traveling southbound on High Point Road in Greensboro when he stopped for a red light at an intersection. The defendant’s vehicle was also stopped at the red light on the opposite side of the intersection—northbound on High Point Road. There were no other vehicles in the area. When the light turned green, the officer proceeded through the intersection. As he passed the defendant’s vehicle, he saw the defendant and could see that she was looking straight ahead. He later was unable to recall whether he saw her hands. After the officer had traveled one city block, the defendant’s vehicle still had not moved. The officer made a U-turn and began to approach the defendant’s vehicle from the rear. The officer estimated from eight to ten seconds as the time that the defendant’s vehicle had delayed before proceeding through the intersection. Shortly thereafter the officer effected a stop of the vehicle. The officer testified that many bars and restaurants were located in the immediate area and he believed that they were required to stop serving alcohol at 2:00 a.m. The court ruled, relying on cases from other jurisdictions, that the officer did not have reasonable suspicion to stop the defendant’s vehicle for DWI. The court noted that a driver waiting at a traffic light can have her attention diverted for any number of reasons. Moreover, because there was not another vehicle behind the defendant to redirect her attention to the green light by honking a horn, a time lapse of eight to ten seconds did not appear so unusual to establish reasonable suspicion for a vehicle stop. The court rejected in the consideration of reasonable suspicion in this case the state’s advocacy of general statistics concerning time, location, and special events (the furniture market’s presence in town) from which a law enforcement officer could draw inferences based on training and experience. The court also stated that it would not address the state’s argument based on a reference to a National Highway Traffic Safety Administration (NHTSA) publication on statistics concerning slow responses to traffic signals because neither the publication nor testimony about it were introduced at the suppression hearing. [Author’s note: Concerning NHTSA publications and establishing reasonable suspicion, see State v. Bonds, 139 N.C. App. 627, 533 S.E.2d 855 (2000).]