State v. Clark

• Decision Date: 06 July 2004
• Docket Number: No. COA03-652.,COA03-652.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Orlando Raphael CLARK.

598 S.E.2d 213

165 NC App. 279

STATE of North Carolina v. Orlando Raphael CLARK.

No. COA03-652.

Court of Appeals of North Carolina.

July 6, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.

Joseph E. Zeszotarski, Jr., Raleigh, for defendant-appellant.

TYSON, Judge.

Defendant appeals from judgments entered after a jury found him to be guilty of robbery with a dangerous weapon and second-degree kidnapping. Following a second proceeding, the jury adjudicated defendant as having the status of being an habitual felon and a violent habitual felon. We affirm defendant's conviction and the trial court's judgments and hold that any error at trial was harmless beyond a reasonable doubt.

I. Background

On 23 May 2001, Sarah DeBone ("DeBone") flew from her home in Michigan to Raleigh, North Carolina, and traveled by bus from Raleigh to Fayetteville. DeBone had not visited Fayetteville previously and was traveling to meet her fiancee, who was serving on active duty in the military and stationed near Fayetteville. Upon arrival at the Fayetteville bus station in mid-afternoon, DeBone walked outside the terminal to hail a taxi and was approached by defendant, who struck up a conversation with her.

DeBone told defendant she was visiting from Michigan and was waiting for a taxi to take her to the Fairfield Inn. Defendant falsely informed DeBone the Fairfield Inn was located within walking distance and offered to show her the way. DeBone consented, and defendant led her away from the bus station on foot. Several blocks away, defendant and DeBone encountered a woman, with whom defendant had a brief conversation.

As DeBone and defendant continued walking, she became apprehensive. DeBone told defendant she appreciated his help, but was returning to the bus station to get a taxi. Defendant promised the hotel was nearby, and DeBone relented. After they walked a short distance, defendant moved behind DeBone, grabbed her around the neck, and forced her to the ground. Defendant told DeBone not to move or talk because he had a gun. Defendant went through DeBone's belongings, stole her money, debit card, and compact disc player, and ran.

After lying on the ground until she was satisfied that defendant had fled, DeBone ran to the closest restaurant and called the police. Fayetteville Police Officer A.L. Black ("Officer Black") responded and drove DeBone through the area where she had walked. DeBone saw the woman whom defendant had spoken with earlier that day. Officer Black recognized the woman as Michelle Moore ("Moore"), a transient he had known for several years. Moore recognized DeBone as the woman she had seen walking with a male earlier that afternoon. Moore also stated she had known the man with DeBone for a couple of years, but informed Officer Black that she only knew him by his "street name" "C."

Fayetteville Police officers conducted an independent investigation to determine the identity of "C." Through this investigation, defendant was identified as a suspect. Moore later identified defendant as "C" in a photographic lineup. Debone also identified defendant in a photographic lineup, and again at trial, as the man who led her away from the bus station and assaulted and robbed her.

Moore did not testify at trial. The trial court allowed the State to introduce her sworn testimony given in a prior trial against defendant, her identification of defendant, and her notarized statement to Officer Black. Defendant did not present any evidence. The jury convicted defendant of all charges, as well as having attained the status of an habitual felon and being a violent habitual felon. The trial court sentenced defendant as a violent habitual felon to life imprisonment without possibility of parole. Defendant appeals.

II. Issues

Defendant contends the trial court erred in: (1) allowing into evidence Moore's prior testimony, affidavit, and statements to Officer Black identifying defendant as DeBone's robber; and (2) refusing to instruct the jury regarding Moore's prior criminal history.

All of defendant's assignments of error directly challenge the admission of evidence from, and jury instructions regarding, a witness who was not physically present to testify at trial. After the briefs were filed, the United States Supreme Court addressed the issue of "whether [the admission of recorded statements to police] complied with the Sixth Amendment's guarantee that, `in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.'" Crawford v. Washington, ___ U.S. ___, ___, 124 S.Ct. 1354, 1357, 158 L.Ed.2d 177, 184 (March 8, 2004). As defendant's assignments of error directly relate to his Sixth Amendment right of confrontation, the United States Supreme Court's analysis in Crawford is controlling.

III. Confrontation Clause

Defendant argues the trial court violated his Sixth Amendment right to confrontation by admitting Moore's: (1) testimony from a prior trial; (2) affidavit taken by Officer Black; and (3) statements identifying defendant during police questioning, without making proper findings of unavailability.

The Sixth Amendment right of confrontation applies to the States through the Fourteenth Amendment of the United States Constitution. Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1319, 20 L.Ed.2d 255, 258 (1968). Our United States Supreme Court has held, "`[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.'" Id. (quoting Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 927 (1965)). "[T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant." Barber, 390 U.S. at 722,88 S.Ct. at 1320,20 L.Ed.2d at 258.

The United States Supreme Court recently revisited the Sixth Amendment Confrontation Clause in Crawford. After thoroughly discussing historical interpretations of the Confrontation Clause, the Supreme Court set forth the proper analysis to be applied and held, "[w]here testimonial evidence is at issue,... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at ___, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.

Our review of whether defendant's Sixth Amendment right of confrontation was violated is three-fold: (1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant. Id.

A. Testimonial Evidence

The Sixth Amendment to the United States Constitution guarantees that "in all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. Defendant contends the admission at trial of Moore's prior testimony, her affidavit taken during police questioning, and statements made to Officer Black identifying defendant violated his right of confrontation.

Defendant did not assign error to the trial court's admission of Moore's identification of defendant during a photographic lineup, nor does he assign error to the procedures used to obtain this evidence. Although defendant objected at trial, his failure to assign error precludes our review pursuant to N.C.R.App. P. 10 (2004). Defendant argues the admission of Moore's statements through other witnesses' testimony at trial violated his Sixth Amendment right to confrontation.

In Crawford, Justice Scalia wrote, "`[t]estimony,'... is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" ___ U.S. at ___, 124 S.Ct. at 1364, 158 L.Ed.2d at 192 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). Although the Court in Crawford expressly declined to issue a comprehensive definition of "testimonial evidence," it clearly held that prior testimony in a former trial and statements made during "police interrogations" constitute testimonial evidence. Id. at ___, ___ U.S. at ___, 124 S.Ct. at ___, 158 L.Ed.2d at 193. Under Crawford, Moore's testimony in an earlier trial is "testimonial evidence." Id.

The Supreme Court declined to define "police interrogation," and stated in footnote four, "[j]ust as various definitions of `testimonial' exist, one can imagine various definitions of `interrogation,' and we need not select among them in this case." Id. at ___, ___ U.S. at ___ n. 4, 124 S.Ct. at 1365 n. 4, 158 L.Ed.2d at 194 n. 4. Further, a witness's "recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition." Id. Moore's affidavit, which contains recorded statements implicating "C," who was later identified as defendant, and made under oath during police questioning, constitutes "testimonial evidence."

Moore's statements to Officer Black made during his initial investigation are also testimonial evidence. The fact that this statement was not made "under oath" is not dispositive. See id. at ___, 124 S.Ct. at ___, 158 L.Ed.2d at 193 ("Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive."). Here, as in Crawford,"[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at ___, 124 S.Ct. at 1364, 158 L.Ed.2d at 192; see also Moody v. State, 277 Ga. 676, 594...