RALEIGH — The Bill of Rights guarantees Americans a broad range of rights. This includes 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.” In a ruling Oct. 7, the N.C. Supreme Court clarified exactly when a right to confront witnesses exists in criminal cases in North Carolina. In doing so, it reinstated the conviction of a woman accused of robbing and assaulting an elderly Raleigh resident.
On Jan.8, 2002, Nellie Carlson was assaulted and robbed in her apartment. Angela Lewis, a local homeless person, was charged. Lewis 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 Carlson 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.” Last year, 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,” Justice Antonin Scalia wrote 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 define what constituted testimonial evidence; it did note, though that “whatever else the term 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.” The nation’s ultimate arbiter of constitutional rights left it to state and lower federal courts to work through the exact limits of what constitutes testimonial evidence.
The first case to reach North Carolina’s appellate courts was Lewis’s. The appeals court found that both Carlson’s statement to police and lineup identification were testimonial in nature. As a result, the appeals court overturned Lewis’s convictions and ordered a new trial.
The N.C. Supreme Court did not agree with part of the Court of Appeals’ conclusions. The state’s highest court’s analysis distinguished between two types of potential witness interactions with police. The first type involves attempts by police, typically patrol officers, to understand the situation and collect preliminary information. Statements made by witnesses in such situations, the N.C. Supreme Court held, are not testimonial in nature. What is testimonial in nature comes as a result of “structured police questioning,” often obtained by investigators or detectives after the initial police response.
In this case, the N.C. Supreme Court found that Carlson’s initial statement was not testimonial in nature and could be admitted at trial against Lewis. Carlson’s identification while in the hospital of Lewis from a group of photos, however, came as a result of “structured police questioning” and was inadmissible at trial because Lewis never had an opportunity to cross-examine Carlson about it.
“By conducting the photographic lineup, [Detective] Utley crossed the line between making preliminary observations about an alleged crime and structured police questioning,” Justice Edward Brady wrote for the court.
“The lineup served as a continued investigation, based on and occurring after the preliminary investigation conducted by Officer Cashwell. At the time of the lineup, Utley knew what allegedly happened to Carlson and had previously narrowed the scope of potential suspects. His purpose in conducting the interview was to establish probable cause to obtain a warrant specifically for Angela Deborah Lewis’ arrest. Additionally, at the time of the interview, based upon the specific circumstances, Carlson knew an investigation was underway, and a reasonable person in Carlson’s position would expect her statements could be used at a subsequent trial. Thus, the circumstances surrounding Utley’s interview of Carlson at the hospital tip the scales in favor of the interview’s being structured police questioning.”
The high court held that there was overwhelming evidence of Lewis’s guilt even without Carlson’s identification. As a result, it reinstated her convictions.
The case is State v. Angela Deborah Lewis (558PA04).
Michael Lowrey is a contributing editor of Carolina Journal.