State v. Smith, 271PA84

• Decision Date: 04 December 1984
• Docket Number: No. 271PA84,271PA84
• Citation: 323 S.E.2d 316,312 N.C. 361
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Eileen M. SMITH.

Page 316

323 S.E.2d 316

312 N.C. 361

STATE of North Carolina v. Eileen M. SMITH.

No. 271PA84.

Supreme Court of North Carolina.

Dec. 4, 1984.

Rufus L. Edmisten, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., David Roy Blackwell, Asst. Atty. Gen., and W. Dale Talbert, Asst. Atty. Gen., Raleigh, for the State.

Haywood, Carson & Merryman by Lyle J. Yurko, J. Marshall Haywood, Eben T. Rawls, and Joseph L. Ledford, Charlotte, for defendant-appellant.

MITCHELL, Justice.

The defendant was charged under N.C.G.S. § 20-138.1 with the offense of impaired driving. Prior to trial the defendant filed and served a motion to suppress an affidavit prepared pursuant to N.C.G.S. § 20-139.1(e), contending that its admission into evidence would violate her right to confrontation. Following a hearing in District Court, Judge W. Terry Sherrill denied the motion. Upon the defendant's petition to Superior Court for a writ of certiorari, Judge Grist affirmed. Judge Grist's Order recites inter alia the following facts pertinent to this appeal:

2. On December 6, 1983, defendant Eileen M. Smith appeared in District Court on a North Carolina Uniform Citation charging her with the offense of driving while impaired on November 2, 1983.

3. Prior to trial, the defendant made a motion through her attorneys, J. Marshall Haywood, Eben T. Rawls, and Lyle J. Yurko of the Mecklenburg County Bar, that the Honorable W. Terry Sherrill, District Court Judge Presiding, prohibit the State of North Carolina from introducing at her trial the affidavit of the chemical analyst to prove her alcohol concentration as provided in N.C.G.S. 20-139.1(e1). It was stipulated for purposes of the motion that the State would offer the affidavit at the criminal trial and that the affidavit met all the requirements for admissibility mandated by N.C.G.S. 20-139.1(e1).

4. On February 15, 1984, having considered the evidence offered, the argument of counsel and the memoranda submitted by both parties, Judge Sherrill ruled that the affidavit provisions of N.C.G.S. 20-139.1(e1) do not violate the defendant's right to confront the witness against her and her right to a fair trial as secured by the Sixth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of North Carolina.

5. On March 15, 1984, upon petition by the defendant for certiorari review of the District Court's ruling pursuant to Rule 19 of the General Rules of Practice for the Superior and District Courts, the Honorable William T. Grist, Resident Superior Court Judge granted said petition and scheduled arguments for April 5, 1984.

6. Article IV, section 13 of the Constitution of the State of North Carolina provides that the General Assembly has the authority to determine the rules of practice and procedure in the District Court Division as long as such rules of procedure do not violate the Constitution.

Based on these and other findings, Judge Grist concluded that:

1. It is presumed that N.C.G.S. 20-139.1(e1) is constitutional and that who attacks it must overcome this presumption.

2. The use of a chemical analyst's affidavit, in lieu of the analyst's live appearance, by the State in a criminal trial in the District Court Division of the General Court of Justice as proof of the facts noted in the chemical analyst's affidavit, does not deny to the criminal defendant any right or privilege granted by the Constitution of the United States or the Constitution of the State of North Carolina.

3. N.C.G.S. 20-139.1(e1) is constitutional under the provisions of the Sixth Amendment to the United States Constitution and sections 19 and 23 of Article I of the Constitution of the State of North Carolina.

The Court of Appeals allowed the defendant's petition for certiorari to review the Order of the Superior Court. We allowed the State's petition for discretionary review prior to a determination by the Court of Appeals.

The defendant challenges the constitutionality of a statutory provision which the State contends is necessary for the effective administration of the Safe Roads Act, N.C.G.S. §§ 20-138.1 to 140. The section in question, N.C.G.S. § 20-139.1(e1), provides:

(el) Use of Chemical Analyst's Affidavit in District Court.--An affidavit by a chemical analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any hearing or trial in the District Court Division of the General Court of Justice with respect to the following matters:

(1) The alcohol concentration or concentrations of a person given a chemical analysis and who is involved in the hearing or trial.

(2) The time of the collection of the blood or breath sample or samples for the chemical analysis.

(3) The type of chemical analysis administered and the procedures followed.

(4) The type and status of any permit issued by the Department of Human Resources that he held on the date he performed the chemical analysis in question.

(5) If the chemical analysis is performed on a breath-testing instrument for which regulations adopted pursuant to subsection (b) require, preventive maintenance, the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown on the maintenance records for that instrument.

The Department of Human Resources must develop a form for use by chemical analysts in making this affidavit. If any person who submitted to a chemical analysis desires that a chemical analyst personally testify in the hearing or trial in the District Court Division, he may subpoena the chemical analyst and examine him as if he were an adverse witness.

It is the defendant's contention that evidence of her alleged impairment, as demonstrated by the results of a chemical analysis performed on a breath-testing instrument, must be introduced in District Court through the in-court testimony of the analyst in order to assure her right to confront and cross-examine witnesses against her. The defendant specifically rejects any notion that her constitutional right in this regard is adequately protected by her statutory right to subpoena the analyst. Nor is the defendant willing to concede that her constitutional right to confrontation is adequately preserved in that the presence of the analyst is assured should she choose to exercise her right to a trial de novo in Superior Court pursuant to N.C.G.S. § 7A-290.

For the reasons set forth herein, we hold that our legislature, through N.C.G.S. § 20-139.1(e1), has enacted a constitutionally permissible procedure attuned to scientific and technological advancements which have insured reliability in chemical testing for blood alcohol concentration. We further hold that this statutory procedure does not violate the accused's right to confrontation.

The defendant's constitutional challenge to N.C.G.S. § 20-139.1(e1) evolves from the fact that the evidence presented in the form of an affidavit is hearsay. "Whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay." 1 Brandis on North Carolina Evidence § 138 (1982). The primary purpose for the hearsay rule is to insure an opportunity for cross-examination. If the declarant were testifying, the adverse party could by cross-examination inquire into the narrator's capacity and opportunity to observe the facts which he related, the reliability of his memory, his ability to express his thoughts intelligibly and accurately, and his disposition to tell the truth generally or with respect to the particular case. When his hearsay statements are offered the opportunity to test these qualities of perception, memory, narration and veracity is greatly lessened and often completely destroyed.

Id. § 139.

N.C.G.S. § 20-139.1(e1) has effectively created a statutory exception to the hearsay rule. This Court has recognized the authority of the legislature, our law-making body, to make such exceptions. See In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977). See also 1 Brandis on North Carolina Evidence § 165 ("Affidavits relating to particular matters have in some instances been made admissible by statute."). Our recently enacted Rules of Evidence, provide that "[h]earsay is not admissible except as provided by statute or by these rules." (Emphasis added.) N.C.G.S. § 8C-1, Rule 802. The legislature therein codified its own inherent right to enact, under appropriate circumstances, statutory exceptions to the hearsay rule.

By recognizing the authority of the legislature in this instance to enact N.C.G.S. § 20-139.1(e1) as an exception to our traditional hearsay rule, we do not intend to intimate that the challenged provision came as a result of arbitrary action unrelated to the general policies or purposes underlying the rules against hearsay. Indeed, we believe that N.C.G.S. § 20-139.1(e1) reflects a rationale which complies fully with historically recognized legitimate reasons for exceptions to the general rule against hearsay evidence. Furthermore, we are cognizant of the fact that a statutory exception to the hearsay rule may nevertheless violate constitutional guarantees of the right of confrontation. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

For purposes of our analysis, however, we do not intend to discuss the defendant's constitutional issue in academic isolation. To do so would be to ignore the practical, common-sense rules which, over the years, our courts have applied in dealing with the competing interests of the accused who asserts a right to confront and cross-examine witnesses and the State which asserts a need to introduce relevant hearsay evidence. Indeed, a literal reading of the Sixth Amendment's Confrontation Clause would require the exclusion of any statement made by a declarant not present at...