State v. Lewis

• Decision Date: 19 October 2004
• Docket Number: No. COA03-785.,COA03-785.
• Citation: 166 NC App. 596,603 S.E.2d 559
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Angela Deborah LEWIS, Defendant.

603 S.E.2d 559

166 NC App. 596

STATE of North Carolina v. Angela Deborah LEWIS, Defendant.

No. COA03-785.

Court of Appeals of North Carolina.

October 19, 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State.

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

ELMORE, Judge.

Angela Deborah Lewis (defendant) appeals from convictions for assault with a deadly weapon inflicting serious injury, non-felonious breaking or entering, and robbery with a deadly weapon.

I.

The State's evidence tended to show that on 8 January 2002, Nellie Carlson (Ms. Carlson), an elderly resident of Glenwood Towers in Raleigh, was discovered in her apartment by friend and neighbor Ida Griffin (Ms. Griffin). Ms. Griffin testified that she found the door ajar and entered, discovering her friend's apartment "just tore up all around." She noticed a broken flashlight, a phone left off the hook, and items from the coffee table strewn across the floor. Ms. Carlson was discovered "sitting at the table with her head hung down." She was swollen, bloody, and badly bruised. Ms. Griffin summoned another neighbor, John Woods (Woods), for help, and they called the police. Woods would later tell police and testify at trial that he had seen defendant entering Glenwood Towers around noon the day of the incident.

After Officer Narley Cashwell (Officer Cashwell) of the Raleigh Police Department arrived, he summoned medical assistance and took the following statement from Ms. Carlson:

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.

Ms. Carlson described the assailant as "a black female in her 20s ... [d]ark skin, about five nine in height, blue jeans and a homeless look." Ms. Griffin, Woods, and DeWayne Davis, a courtesy officer at Glenwood Towers, all recognized the description of the alleged assailant, but none could remember her name.

Officer Mark Utley (Officer Utley) of the Raleigh Police Department along with the Glenwood courtesy officer interviewed Burlee Kersey (Kersey), another resident believed to be familiar with the assailant. Kersey provided the name Angela Lewis in response to a description and the statement that she "comes over here all the time." Some days later, Davis found in his records a trespassing citation he had previously written to someone named Angela Lewis.

A medical examination showed that Ms. Carlson suffered bruising over her left eye, a contusion to her right frontal lobe, and a contusion to the right lower lobe of her lung. It was later confirmed that she had also suffered fractures to three of her ribs. While she was still in the hospital on the day of her attack, Officer Utley presented Ms. Carlson a photo line-up consisting of six photographs, including one of defendant. According to Officer Utley, Ms. Carlson identified defendant as her assailant. At 6:05 pm on the day of Ms. Carlson's attack, Raleigh Police responded to a complaint by a woman reporting an assault and robbery against her near Glenwood Avenue. When police arrived, they found defendant, Angela Lewis, who gave her name as Angela Smith. She was bleeding and reported having been attacked from behind and robbed. The home address given by defendant was located at the Glenwood Towers. She provided two different Social Security numbers and gave other inconsistent information in her account of the alleged attack.

Defendant was transported to Wake Medical Center and taken in for questioning after being released from the hospital. She identified Kersey as a friend of hers whom she had previously visited, but she denied having been at Glenwood Towers that day. No usable finger prints were recovered from Ms. Carlson's apartment. Roughly three months after this event, Ms. Carlson died of pneumonia and cancer. It was stipulated at trial that Ms. Carlson's death was "unrelated to the alleged commission of these offenses."

Defendant was tried on charges of assault with a deadly weapon inflicting serious injury, felonious breaking or entering, and robbery with a deadly weapon. At trial, defendant tried to exclude from evidence Ms. Carlson's statement to Officer Cashwell and her identification of defendant in Officer Utley's photo line-up. Both extrajudicial statements were admitted under the residual hearsay exception. North Carolina Rule of Evidence 804(b)(5)(2004). A jury found defendant guilty of all charges except the charge of felonious breaking or entering, on which she was found guilty of the lesser included offense of non-felonious breaking or entering. The trial court sentenced defendant to 192 to 249 months imprisonment. Defendant appeals. For the reasons stated herein, we reverse defendant's conviction and order a new trial.

II.

Defendant contends that two pieces of testimony introduced at trial were not properly admitted under the North Carolina Rules of Evidence. First, defendant alleges that it was error for the trial court to have allowed Officer Cashwell's testimony concerning statements made by Ms. Carlson to him at her apartment. At trial, defendant objected to Officer Cashwell's testifying as to what Ms. Carlson had stated to him, but following a voir dire this objection was overruled and the court concluded that this testimony could be admitted under the residual hearsay exception. N.C.R. Evid. 804(b)(5) (2004). Second, Defendant argues that Officer Utley's testimony concerning Ms. Carlson's identification of her in a photographic line-up was also inadmissable hearsay. The record reflects that defendant properly objected to this testimony when offered at trial and thus preserved both issues for review.

On appeal, defendant argues that the trial court's findings regarding Ms. Carlson's statement to Officer Cashwell were insufficient to establish the "circumstantial guarantees of trustworthiness" necessary to admit a statement under the residual hearsay exception. N.C.R. Evid. 804(b)(5) (2004). Furthermore, defendant contends that the photo line-up would not fall under any exception to the prohibition on hearsay. N.C.R. Evid. 802 (2004). We, however, do not reach defendant's argument in reliance upon the North Carolina Rules of Evidence, because we conclude that admission of this evidence was a violation of defendant's rights under the Confrontation Clause of the United States Constitution's Sixth Amendment.

A. Confrontation Clause

"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." State v. Clark, ___ N.C.App. ___, 598 S.E.2d 213 (2004) (citing Crawford v. Washington, 541 U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).

Because of the recent United States Supreme Court decision in Crawford v. Washington, 541 U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we must first consider whether either of the statements at issue is properly classified as testimonial or non-testimonial. State v. Blackstock, ___ N.C.App. ___, 598 S.E.2d 412 (2004) ("Thus under Crawford, Sixth Amendment Confrontation Clause analysis will usually turn on the question of whether a particular statement is testimonial or nontestimonial in nature."). In Crawford, the Supreme Court abandoned the rationale of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had previously articulated which hearsay statement may be admitted at trial without violating the Sixth Amendment's Confrontation Clause. Under Crawford, courts must now draw a distinction between testimonial and nontestimonial evidence. If the evidence is nontestimonial, then "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay laws-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Crawford, 541 U.S. at ___, 124 S.Ct. at 1374,158 L.Ed.2d at 203. If, however, the evidence is testimonial in nature, then "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id.

B. Testimonial Evidence

The decision in Crawford refused to define exactly what qualifies as testimonial evidence. The Court, however, specifically stated, "Whatever else the term [testimonial evidence] 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." Crawford, 541 U.S. at ___, 124 S.Ct. at 1374, 158 L.Ed.2d at 203 (emphasis added).

In the case sub judice, we determine whether either of Ms. Carlson's statements should be classified as testimonial evidence having been given in the course of a police interrogation.

This Court interpreted Crawford and the nature of the term "police interrogations" in State v. Pullen, ___ N.C.App. ___, 594 S.E.2d 248 (2004). In Pullen, this Court ruled that a non-joined co-defendant's confession made to police in the course of their investigation was testimonial in nature. Pullen, ___ N.C.App. at ___, 594 S.E.2d at 252. Subsequently, this Court held that a witness's statements, including an affidavit,...