News: CJ Exclusives

Court Rules on Testimonial Evidence

Case involved a homeless woman whose accuser died before trial

In a significant reversal, the N.C Supreme Court has awarded a new trial for a Raleigh woman. The ruling came after the U.S. Supreme Court clarified an issue of constitutional law and ordered the state Supreme Court to rehear the case.

The case centers on a key guarantee of the Bill of Rights, the right to face one’s accusers — as the Sixth Amendment of the U.S. Constitution states, “In all criminal prosecutions the accused shall enjoy the right … to be confronted with the witnesses against him.”

On Jan.8, 2002, Nellie Carlson was assaulted and robbed in her apartment. Angela Lewis, a homeless person, was charged. She denied committing the crimes, but a jury convicted her of assault with a deadly weapon inflicting serious injury, non-felonious breaking or entering, and robbery with a deadly weapon. She was sentenced to at least 16 years in prison.

Critical evidence in the state’s case was the statement Carlson made to police immediately after the incident and her identification of Lewis’s picture from a group of six photos shown to her at the hospital the day after the assault. Carlson died of unrelated causes before she could testify at Lewis’s trial. Raleigh police officers were, however, allowed to testify as to what Carlson had told them.

Carlson’s identification and statement to police both qualify as “hearsay.” Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” In 2004, the U.S. Supreme Court re-examined when and how hearsay should be used at trials. Under previous precedent, the key factor in determining hearsay admissibility had been whether it was reliable.

In Crawford v. Washington, the high court rejected that logic. “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,” wrote Justice Anton Scalia for the court. “Admitting a statement deemed reliable by a judge is fundamentally at odds with the right of confrontation.”

Instead, the high court held that what was key was the nature of the evidence. If it was non-testimonial, then existing rules were acceptable in determining whether it should be allowed into trials. If, however, the evidence was testimonial in nature, then “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”

The U.S. Supreme Court did not at the time fully define what constituted testimonial evidence. The court left it to state and lower federal courts to work through the exact limits.

The first case after Crawford was decided to reach North Carolina’s appellate courts was Lewis’s. The N.C. Court of Appeals found that both Carlson’s statement to police and lineup identification were testimonial in nature. Lewis had never had an opportunity to face her accuser — cross-examine Carlson about these statements — at trial. As a result, the appeals court overturned Lewis’s convictions and ordered a new trial.

The N.C. Supreme Court reached a different conclusion. It drew a distinction between different types of potential witness interactions with police. The court held that initial attempts to gather preliminary information about a situation were not testimonial in nature. What was testimonial in nature comes as a result of “structured police questioning,” often obtained by investigators or detectives after the initial police response.

Applying this distinction to Lewis’ case, in October 2005 the N.C. Supreme Court held Carlson’s original statement to police officers was admissible while the photographic identification was not. The court held that there was still overwhelming evidence of Lewis’s guilty even without the identification and reinstated her convictions.

Lewis, however, further challenged her convictions, and requested that the U.S. Supreme Court hear her case. On June 19, 2006, the U.S. Supreme Court decided two cases, Davis v. Washington and Hammon v. Indiana, that further clarified what constituted testimonial evidence. It held that:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Days after deciding Davis and Hammon, the U.S. Supreme Court vacated the N.C. Supreme Court‘s ruling and ordered it to rehear Lewis’ case in light of these new decisions.

“Having revisited the case sub judice in light of Davis, we conclude that the United States Supreme Court’s analysis of the circumstances surrounding the victim’s statements in Hammon controls and that Carlson’s statements to Officer Cashwell in her home and her photo identification of defendant to Detective Utley while at the hospital were testimonial,” Justice Paul Newby wrote for the N.C. Supreme Court.

Newby noted that there was no immediate threat to Carlson when she was interviewed, the police were attempting to determine “what happened” rather than “what was happening”, and interrogated took place “some time after the events described took place.”

“As such, Carlson’s statements to Officer Cashwell were testimonial, and admission of those statements at trial violated defendant’s right to confrontation because she was not afforded an opportunity to cross-examine Carlson,” Newby wrote.

The N.C. Supreme Court also found that there was not enough evidence with the statement and photo identification to otherwise uphold Lewis’s convictions and ordered a new trial.

The case is State v. Lewis, (558PA04-2).

Michael Lowrey is associate editor of Carolina Journal.