State v. Lewis

Decision Date07 October 2005
Docket NumberNo. 558PA04.,558PA04.
Citation619 S.E.2d 830
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Angela Deborah LEWIS.

Roy Cooper, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State-appellant.

Paul M. Green, Durham, for defendant-appellee.

BRADY, Justice.

The dispositive issue before this Court is whether a victim's responses to an investigating police officer's questions following an assault and robbery in the victim's home and the victim's subsequent identification of her attacker from a police photograph lineup constitute testimonial statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). A unanimous panel of the Court of Appeals concluded the statements were testimonial and, therefore, inadmissible at trial unless the victim was unavailable and defendant had a prior opportunity to cross-examine the victim. State v. Lewis, 166 N.C.App. 596, 603 S.E.2d 559 (2004). For the reasons stated below, we reverse and remand the decision of the Court of Appeals.


On 7 January 2002, Angela Deborah Lewis (defendant) was indicted for assault with a deadly weapon inflicting serious injury on Nellie Joyner Carlson (Carlson) and felony breaking and entering into Carlson's residence at 1312 Glenwood Towers, a public housing development for senior citizens located in Raleigh, North Carolina. On 7 October 2002, a subsequent grand jury indicted defendant for robbery of currency valued at approximately $3.00 from Carlson perpetrated through use of a dangerous weapon at the time of the assault. These three charges were consolidated for trial on 22 and 27 January 2003 in Wake County Superior Court.

Carlson, the only witness to the crimes, died prior to defendant's trial.1 Because of Carlson's unavailability to testify at trial, the State called Officer Narley Cashwell and Detective Mark Utley of the Raleigh Police Department to testify regarding statements Carlson made during their investigation of the crimes. Defendant objected to the officers' testimony, but the trial court overruled defendant's objection as to each officer following voir dire. The trial court admitted Carlson's statements to Cashwell and Utley pursuant to N.C.G.S. § 8C-1, Rule 804(b)(5), which sets forth a hearsay exception for certain statements when the declarant is unavailable to testify at trial.

Officer Cashwell, a Line Corporal assigned to patrol downtown Raleigh, testified he responded to a call at Carlson's apartment at approximately 5:43 p.m. on 22 November 2001. Officer Cashwell was the initial officer on the scene. Upon his arrival, Officer Cashwell observed Carlson "sitting in a chair. . . . kind of hunched over." Two of Carlson's neighbors, Ida Griffin and John Woods, were in the apartment and approached Officer Cashwell before he could speak with Carlson. Officer Cashwell recorded a statement from Griffin, who stated Carlson's telephone had been off the hook since at least 5:00 that afternoon. After unsuccessfully trying to call Carlson, Griffin went upstairs to Carlson's apartment where she found Carlson sitting in a chair. Griffin described the room as "tore up."

After speaking with Griffin, Officer Cashwell noted Carlson sitting in a chair, her face and arms badly bruised and swollen. He spoke with Carlson to determine whether she needed assistance and to find out what happened. Carlson complained of pain in her head, but seemed coherent and cognizant of her surroundings. She told Officer Cashwell the following:

I was in the hall opening my door. My door was locked. I—I was at the door and she slipped up behind me. She asked me for some money. I said what do I look like, the money tree. She said—she said, you don't like me because I'm black. I told her I don't like whatever color she was. I opened the door and she pushed me inside. She grabbed my hair and pulled my hair. She hit me with her fist. She also hit me with a flashlight, phone and my walking stick. She hit me in the ribs with my walking stick. She took a small brown metal tin that I had some change in. I also had some change on the table that she took. I know her. She comes up here all the time begging for money. She visits a man at the end of the hall. I don't know her name but he might.

Officer Cashwell further testified Carlson got up from her chair and showed him the walking stick and flashlight, as well as the drawers the assailant opened apparently looking for money. She briefly described her assailant. Griffin testified at trial, mostly to corroborate Cashwell's statements regarding the sequence of events and the appearance of the apartment. Griffin also testified Carlson was visibly upset by the attack and in fact described Carlson as "in shock."

Detective Utley testified he had been one of the detectives on duty the night of the incident and was called to the scene later that evening. Officer Cashwell briefed him on the situation upon his arrival. Officer Cashwell also informed Detective Utley that one of Carlson's neighbors, Burlee Kersey, apparently knew the assailant. Detective Utley then met with Kersey, who gave defendant's name as the person Carlson had described. Detective Utley then testified he retrieved defendant's picture at the station house and printed it and the pictures of five other females with similar physical characteristics.

Detective Utley testified he interviewed Carlson later that evening at Wake Medical Center, where she was being treated for injuries sustained during the assault. Detective Utley brought the six-person photographic lineup to the interview, which he showed to Carlson one photograph at a time. Detective Utley instructed Carlson "[T]he person that assaulted you or robbed you . . . may or may not be in this photographic lineup. This is something you would have to tell me." Carlson selected defendant's photograph, identifying defendant as the person who assaulted and robbed her. Detective Utley testified during voir dire he obtained the warrant for defendant's arrest based upon Carlson's identification of defendant in this photographic lineup.

On 27 January 2003, the jury found defendant guilty of assault with a deadly weapon inflicting serious injury, robbery with a dangerous weapon, and misdemeanor breaking or entering, which is a lesser included offense of felonious breaking or entering. On 28 January 2003, Judge Spencer found defendant's prior record level to be IV and also found the existence of one aggravating factor, that the victim was "very old." Judge Spencer sentenced defendant to consecutive terms of 144 months minimum to 182 months maximum imprisonment for robbery with a dangerous weapon and 48 months minimum to 67 months maximum for the remaining offenses. Defendant appealed, citing six assignments of error, two of which related to the allegedly erroneous admission into evidence of the statements Carlson made to Officer Cashwell and Detective Utley during their investigation.

On 19 October 2004, a unanimous panel of the Court of Appeals reversed defendant's conviction and awarded her a new trial. Although defendant argued on appeal that both statements the victim made to Raleigh police officers were inadmissible hearsay and did not satisfy the requirements of N.C.G.S. § 8C-1, Rule 804(b)(5), the Court of Appeals did not reach that issue; rather, pursuant to Crawford, 541 U.S. 36, 124 S.Ct. 1354, the Court of Appeals concluded admission of Carlson's statements to law enforcement violated defendant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Lewis, 166 N.C.App. at 600, 603 S.E.2d at 561.2

This Court must now determine whether the Court of Appeals erred by holding admission of (1) Carlson's statements to Officer Cashwell and (2) Carlson's identification of defendant from a photographic lineup administered by Detective Utley violated defendant's Sixth Amendment right to confront witnesses against her. We hold Carlson's statements to Officer Cashwell were non-testimonial statements and the Confrontation Clause does not prohibit their admission at trial. We further hold Carlson's identification of defendant to Detective Utley was testimonial and should not have been admitted at trial unless defendant had an opportunity to cross-examine Carlson; however, we hold such error was harmless.


The modern day prohibition against admission of hearsay developed at common law and was codified in the North Carolina Rules of Evidence upon their ratification on 7 July 1983. Act of July 7, 1983, ch. 701, 1983 N.C. Sess. Laws 666 (effective 1 July 1984 and applying to "actions and proceedings commenced after that date" and "to further procedure in actions and proceedings then pending," except as specified herein). The hearsay rule is an evidentiary rule directed at preserving the accuracy and truthfulness of trial testimony. See Queen v. Hepburn, 11 U.S. 290, 295, 7 Cranch 290, 296, 3 L.Ed. 348 (1813) (Chief Justice Marshall observing the "intrinsic weakness" of hearsay evidence is "its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover"); State v. Lassiter, 191 N.C. 210, 212, 131 S.E. 577, 579 (1926) (emphasizing the "inherent vice of hearsay testimony" is "that it derives its value not from the credibility of the witness himself, but depends upon the veracity and credibility of some other person from whom the witness got his information"). Because cross-examination of a declarant is the surest method of securing truthfulness, witnesses are generally not permitted to testify to statements made by others outside the courtroom unless the statements are offered for a purpose other than proving the truth of their content. N.C.G.S. § 8C-1, Rules 801, 802 (2003); White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Cross-examination is "`the greatest legal engine...

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