{ "id": 8996879, "name": "STATE OF NORTH CAROLINA v. ORLANDO RAPHAEL CLARK", "name_abbreviation": "State v. Clark", "decision_date": "2004-07-06", "docket_number": "No. COA03-652", "first_page": "279", "last_page": "294", "citations": [ { "type": "official", "cite": "165 N.C. App. 279" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "year": 2004, "opinion_index": -1, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "293 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573447, 8573503, 8573428, 8573530, 8573471 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0761-02", "/nc/305/0761-04", "/nc/305/0761-01", "/nc/305/0761-05", "/nc/305/0761-03" ] }, { "cite": "291 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "875" }, { "page": "875" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525163 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "546" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0544-01" ] }, { "cite": "389 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "832" }, { "page": "832" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522639 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "71" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0068-01" ] }, { "cite": "364 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "321 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568444 ], "year": 1988, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0392-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "525 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969); State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571576, 571621, 571590 ], "year": 1998, "pin_cites": [ { "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969); State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0374-01", "/nc/349/0374-03", "/nc/349/0374-02" ] }, { "cite": "503 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "126", "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969); State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988)" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467567 ], "year": 1998, "pin_cites": [ { "page": "367", "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969); State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0356-01" ] }, { "cite": "483 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1443" } ], "opinion_index": 0 }, { "cite": "345 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54143 ], "year": 1997, "pin_cites": [ { "parenthetical": "citing N.C. Gen. Stat. \u00a7 15A-1443" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0749-01" ] }, { "cite": "473 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "354" }, { "page": "354" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913311 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "370" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0361-01" ] }, { "cite": "475 U.S. 673", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207521 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "684", "parenthetical": "\"The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.\"" }, { "page": "686", "parenthetical": "\"The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.\"" } ], "opinion_index": 0, "case_paths": [ "/us/475/0673-01" ] }, { "cite": "380 U.S. 415", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525326 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "418" }, { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/us/380/0415-01" ] }, { "cite": "471 U.S. 409", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203741 ], "weight": 9, "year": 1985, "pin_cites": [ { "page": "414" }, { "page": "414" }, { "page": "431" }, { "page": "414" }, { "page": "431" }, { "page": "414-15" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/us/471/0409-01" ] }, { "cite": "584 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2003, "pin_cites": [ { "page": "769" }, { "page": "770" }, { "page": "770" }, { "page": "771" }, { "page": "770" }, { "page": "770" }, { "page": "771" } ], "opinion_index": 0 }, { "cite": "357 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491552 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "439" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0433-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "740" }, { "page": "740" } ], "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "8" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "594 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1199762 ], "year": 2004, "pin_cites": [ { "parenthetical": "Although the Crawford Court declined to define the term \"testimonial,\" \"it appears that the term ['testimonial'] encompasses the type of field investigation of witnesses at issue here.\"" } ], "opinion_index": 0, "case_paths": [ "/ga/277/0676-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "405" }, { "page": "927" } ], "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "390 U.S. 719", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177892 ], "weight": 5, "year": 1968, "pin_cites": [ { "page": "721" }, { "page": "258" }, { "page": "722" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/us/390/0719-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 26, "year": 2004, "pin_cites": [ { "page": "38" }, { "page": "184" }, { "page": "203" }, { "page": "51" }, { "page": "192", "parenthetical": "quoting 1 N. Webster, An American Dictionary of the English Language (1828)" }, { "page": "52" }, { "page": "193" }, { "page": "53" }, { "page": "52" }, { "page": "193", "parenthetical": "\"Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive.\"" }, { "page": "51" }, { "page": "192" }, { "page": "68" }, { "page": "203" }, { "page": "68" }, { "page": "203" }, { "page": "68" }, { "page": "203" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "142 U. Pa. L. Rev. 1997", "category": "journals:journal", "reporter": "U. Pa. L. Rev.", "year": 1994, "pin_cites": [ { "page": "2004", "parenthetical": "discussing the difficulties arising from the lack of consistency among courts as to the proper scope of judicial holdings" } ], "opinion_index": 1 }, { "cite": "48 N.C. (1 Jones Eq.) 315", "category": "reporters:state", "reporter": "N.C.", "year": 1856, "pin_cites": [ { "page": "319-20" } ], "opinion_index": 1 }, { "cite": "19 S.E. 863", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "pin_cites": [ { "page": "869" } ], "opinion_index": 1 }, { "cite": "114 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651445 ], "year": 1894, "pin_cites": [ { "page": "749-50" } ], "opinion_index": 1, "case_paths": [ "/nc/114/0728-01" ] } ], "analysis": { "cardinality": 1293, "char_count": 37228, "ocr_confidence": 0.733, "pagerank": { "raw": 3.034246602010887e-07, "percentile": 0.8548247407474335 }, "sha256": "563b29ebf1919d748b7ebfd65087262e04e3a6125f61949d3e4de6decca36428", "simhash": "1:884b132fc6ff9970", "word_count": 5835 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge WYNN concurs in the result only by separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. ORLANDO RAPHAEL CLARK" ], "opinions": [ { "text": "TYSON, Judge.\nDefendant appeals from judgments entered after a jury found him to be guilty of robbery with a dangerous weapon and second-degree kidnapping. Following a second proceeding, the jury adjudicated defendant as having the status of being an habitual felon and a violent habitual felon. We affirm defendant\u2019s conviction and the trial court\u2019s judgments and hold that any error at trial was harmless beyond a reasonable doubt.\nI. Background\nOn 23 May 2001, Sarah DeBone (\u201cDeBone\u201d) flew from her home in Michigan to Raleigh, North Carolina, and traveled by bus from \"Raleigh to Fayetteville. DeBone had not visited Fayetteville previously and was traveling to meet her fianc\u00e9e, who was serving on active duty in the military and stationed near Fayetteville. Upon arrival at the Fayetteville bus station in mid-afternoon, DeBone walked outside the terminal to hail a taxi and was approached by defendant, who struck up a conversation with her.\nDeBone told defendant she was visiting from Michigan and was waiting for a taxi to take her to the Fairfield Inn. Defendant falsely informed DeBone the Fairfield Inn was located within walking distance and offered to show her the way. DeBone consented, and defendant led her away from the bus station on foot. Several blocks away, defendant and DeBone encountered a woman, with whom defendant had a brief conversation.\nAs DeBone and defendant continued walking, she became apprehensive. DeBone told defendant she appreciated his help, but was returning to the bus station to get a taxi. Defendant promised the hotel was nearby, and DeBone relented. After they walked a short distance, defendant moved behind DeBone, grabbed her around the neck, and forced her to the ground. Defendant told DeBone not to move or talk because he had a gun. Defendant went through DeBone\u2019s belongings, stole her money, debit card, and compact disc player, and ran.\nAfter lying on the ground until she was satisfied that defendant had fled, DeBone ran to the closest restaurant and called the police. Fayetteville Police Officer A.L. Black (\u201cOfficer Black\u201d) responded and drove DeBone through the area where she had walked. DeBone saw the woman whom defendant had spoken with earlier that day. Officer Black recognized the woman as Michelle Moore (\u201cMoore\u201d), a transient he had known for several years. Moore recognized DeBone as the woman she had seen walking with a male earlier that afternoon. Moore also stated she had known the man with DeBone for a couple of years, but informed Officer Black that she only knew him by his \u201cstreet name\u201d \u201cC.\u201d\nFayetteville Police officers conducted an independent investigation to determine the identity of \u201cC.\u201d Through this investigation, defendant was identified as a suspect. Moore later identified defendant as \u201cC\u201d in a photographic lineup. DeBone also identified defendant in a photographic lineup, and again at trial, as the man who led her away from the bus station and assaulted and robbed her.\nMoore did not testify at trial. The trial court allowed the State to introduce her sworn testimony given in a prior trial against defendant, her identification of defendant, and her notarized statement to Officer Black. Defendant did not present any evidence. The jury convicted defendant of all charges, as well as having attained the status of an habitual felon and being a violent habitual felon. The trial court sentenced defendant as a violent habitual felon to life imprisonment without possibility of parole. Defendant appeals.\nII. Issues\nDefendant contends the trial court erred in: (1) allowing into evidence Moore\u2019s prior testimony, affidavit, and statements to Officer Black identifying defendant as DeBone\u2019s robber; and (2) refusing to instruct the jury regarding Moore\u2019s prior criminal history.\nAll of defendant\u2019s assignments of error directly challenge the admission of evidence from, and jury instructions regarding, a witness who was not physically present to testify at trial. After the briefs were filed, the United States Supreme Court addressed the issue of \u201cwhether [the admission of recorded statements to police] complied with the Sixth Amendment\u2019s guarantee that, \u2018[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.\u2019 \u201d Crawford v. Washington, 541 U.S. 36, 38, 158 L. Ed. 2d 177, 184 (2004). As defendant\u2019s assignments of error directly relate to his Sixth Amendment right of confrontation, the United States Supreme Court\u2019s analysis in Crawford is controlling.\nIII. Confrontation Clause\nDefendant argues the trial court violated his Sixth Amendment right to confrontation by admitting Moore\u2019s: (1) testimony from a prior trial; (2) affidavit taken by Officer Black; and (3) statements identifying defendant during police questioning, without making proper findings of unavailability.\nThe Sixth Amendment right of confrontation applies to the States through the Fourteenth Amendment of the United States Constitution. Barber v. Page, 390 U.S. 719, 721, 20 L. Ed. 2d 255, 258 (1968). Our United States Supreme Court has held, \u201c \u2018[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country\u2019s constitutional goal.\u2019 \u201d Id. (quoting Pointer v. Texas, 380 U.S. 400, 405, 13 L. Ed. 2d 923, 927 (1965)). \u201c[T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.\u201d Barber, 390 U.S. at 722, 20 L. Ed. 2d at 258.\nThe United States Supreme Court recently revisited the Sixth Amendment Confrontation Clause in Crawford. After thoroughly discussing historical interpretations of the Confrontation Clause, the Supreme Court set forth the proper analysis to be applied and held, \u201c[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.\u201d Id. at 68, 158 L. Ed. 2d at 203.\nOur review of whether defendant\u2019s 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. Id.\nA. Testimonial Evidence\nThe Sixth Amendment to the United States Constitution guarantees that \u201cin all criminal prosecutions the accused shall enjoy the right... to be confronted with the witnesses against him.\u201d U.S. Const, amend. VI. Defendant contends the admission at trial of Moore\u2019s prior testimony, her affidavit taken during police questioning, and statements made to Officer Black identifying defendant violated his right of confrontation.\nDefendant did not assign error to the trial court\u2019s admission of Moore\u2019s identification of defendant during a photographic lineup, nor does he assign error to the procedures used to obtain this evidence. Although defendant objected at trial, his failure to assign error precludes our review pursuant to N.C.R. App. R 10 (2004). Defendant argues the admission of Moore\u2019s statements through other witnesses\u2019 testimony at trial violated his Sixth Amendment right to confrontation.\nIn Crawford, Justice Scalia wrote, \u201c \u2018[testimony,\u2019. . . is typically \u2018[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.\u2019 \u201d 541 U.S. at 51, 158 L. Ed. 2d at 192 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). Although the Court in Crawford expressly declined to issue a comprehensive definition of \u201ctestimonial evidence,\u201d it clearly held that prior testimony in a former trial and statements made during \u201cpolice interrogations\u201d constitute testimonial evidence. Id. at 52, 158 L. Ed. 2d at 193. Under Crawford, Moore\u2019s testimony in an earlier trial is \u201ctestimonial evidence.\u201d Id.\nThe Supreme Court declined to define \u201cpolice interrogation,\u201d and stated in footnote four, \u201c[j]ust as various definitions of \u2018testimonial\u2019 exist, one can imagine various definitions of \u2018interrogation,\u2019 and we need not select among them in this case.\u201d Id. at 53, 158 L. Ed. 2d at 194 n. 4. Further, a witness\u2019s \u201crecorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition.\u201d Id. Moore\u2019s affidavit, which contains recorded statements implicating \u201cG,\u201d who was later identified as defendant, and made under oath during police questioning, constitutes \u201ctestimonial evidence.\u201d\nMoore\u2019s statements to Officer Black made during his initial investigation are also testimonial evidence. The fact that this statement was not made \u201cunder oath\u201d is not dispositive. See id. at 52, 158 L. Ed. 2d at 193 (\u201cPolice interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive.\u201d). Here, as in Crawford, \u201c[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.\u201d Id. at 51, 158 L. Ed. 2d at 192; see also Moody v. State, 594 S.E.2d 350, 354 n. 6 (Ga. 2004) (Although the Crawford Court declined to define the term \u201ctestimonial,\u201d \u201cit appears that the term [\u2018testimonial\u2019] encompasses the type of field investigation of witnesses at issue here.\u201d). Moore\u2019s prior testimony, affidavit, and statements to police are testimonial in nature and require further analysis under Crawford to determine their admissibility.\nB. Unavailability\nUnder Crawford, the State is required to present evidence of and the trial court must find Moore is unavailable at trial for her statements to be admitted. See Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. Rule 804 of the North Carolina Rules of Evidence creates a hearsay exception and allows admission of prior testimony into evidence if the declarant is unavailable. N.C. Gen. Stat. \u00a7 8C-1, Rule 804(b)(1) (2003). Rule 804 lists several definitions for \u201cunavailability as a witness,\u201d including situations where the declarant \u201c[i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 804(a)(5) (2003).\nIn State v. Triplett, our Supreme Court held, \u201c[t]he trial judge\u2019s determination of unavailability in such cases must be supported by a finding that the declarant is [unavailable], which finding in turn must be supported by evidence of [unavailability].\u201d 316 N.C. 1, 8, 340 S.E.2d 736, 740 (1986). \u201cThe degree of detail required in the finding of unavailability will depend on the circumstances of the particular case.\u201d Id.\nIn State v. Nobles, our Supreme Court ruled that the prosecution\u2019s statements about its attempts to find the witness were insufficient to conclude that a good-faith effort was made and held the trial court erred in admitting the evidence. 357 N.C. 433, 584 S.E.2d 765 (2003). The Court stated that, as an appellate court, it had to determine whether the prosecution met its burden of establishing that the witness was constitutionally unavailable to testify. Id. at 437, 584 S.E.2d at 769. The Court also said, \u201c[tjurning to the facts . . ., the transcript provides little insight as to whether the state undertook any effort whatsoever to produce [the witness].\u201d Id. at 438, 584 S.E.2d at 770. The State asserted the witness was not located within the state and had been unwilling to come back four years ago for previous proceedings. Id.\nSecond, the state did not present a witness to testify, offer other evidence, or otherwise demonstrate good-faith efforts to locate and present [the witness]. Accordingly, the state did not adequately demonstrate, on this record, that [the witness] was constitutionally unavailable to testify in person before the jury.\nId. at 439, 584 S.E.2d at 770. Our North Carolina Supreme Court concluded, \u201c[t]he state\u2019s failure to undertake good-faith efforts to locate and produce [the witness] constitutes reversible error,\u201d however, the Court limited its holding to \u201cthe facts and circumstances of the present case.\u201d Id. at 441, 584 S.E.2d at 771.\nDuring a hearing on motions in limine, the State moved to have Moore declared to be unavailable as a witness. The prosecuting attorney informed the trial court that he had personally visited the areas Moore frequented and that the State had attempted to contact Moore through her friends. He also asserted Officer Black made several attempts to locate Moore. The State informed the trial court and defendant that it planned to offer into evidence Moore\u2019s prior testimony, affidavit, and statements identifying defendant.\nDefense counsel objected to the State\u2019s motion to declare Moore unavailable and requested the trial court to exclude her testimony and statements. Defendant does not assign error to the admission of Moore\u2019s identification of defendant in a photographic lineup. Defense counsel also submitted proposed jury instructions on Moore\u2019s prior convictions if the trial court declared her unavailable and admitted her prior testimony. Without hearing evidence or conducting voir dire, the trial court granted the State\u2019s motion to declare Moore unavailable and denied defendant\u2019s motion for proposed jury instructions.\nThe trial court must receive substantial supporting evidence before making a finding of unavailability. See id. at 439, 584 S.E.2d at 770; see also Tripplett, 316 N.C. at 8, 340 S.E.2d at 740. Although the State informed the court of its efforts to locate Moore, it did not \u201cpresent a witness to testify\u201d or \u201coffer other evidence\u201d at the motion hearing. See Nobles, 357 N.C. at 439, 584 S.E.2d at 770.\nWe note that during defendant\u2019s objection to the State\u2019s motion to declare Moore unavailable, defense counsel conceded, \u201cI can\u2019t find her.\u201d Defense counsel\u2019s statement during his objection to the State\u2019s motion that he could not locate Moore does not relieve the State of its burden to produce evidence showing it has been \u201cunable to procure [Moore\u2019s] attendance ... by process or other reasonable means.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 804(a)(5); see also Nobles, 357 N.C. at 440, 584 S.E.2d at 771.\nA review of the transcript reveals that prior to the admission of Moore\u2019s prior testimony at trial, the State offered additional evidence regarding Moore\u2019s unavailability, including Officer Black\u2019s testimony that he had \u201crepeatedly\u201d tried to locate Moore. The prosecutor\u2019s statements regarding its efforts to locate Moore corroborate Officer Black\u2019s testimony and sufficiently demonstrate the State\u2019s good-faith efforts to procure Moore in order for the trial court to declare her unavailable. We hold the trial court did not err in declaring Moore to be unavailable to testify during defendant\u2019s trial at bar.\nC. Cross-Examination\nTo determine whether the trial court properly admitted Moore\u2019s prior testimony, prior statements to police, and her affidavit, our analysis turns to whether defendant had an opportunity to cross-examine Moore regarding the evidence presented against him. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. In Crawford, the Supreme Court ruled it was error for the trial court to admit the unavailable witness\u2019s tape recorded statement taken during police investigation and describing defendant\u2019s commission of the crime because the defendant had no opportunity to cross-examine during the witness\u2019s prior statement to the police. Id. We next consider whether defendant was afforded an opportunity to cross-examine Moore during her prior testimony or regarding her affidavit and statements to Officer Black.\n1. Prior Testimony\nThe trial court admitted Moore\u2019s prior testimony, given under oath in an earlier trial, regarding the incident at bar. At the earlier trial, defendant was present, represented by counsel, had an opportunity to cross-examine Moore, and, through his counsel, did cross-examine her. Moore\u2019s entire testimony from the earlier trial was admitted and read into evidence in the jury\u2019s presence. The jury also heard defense counsel\u2019s prior cross-examination regarding Moore\u2019s convictions for \u201cnumerous drug offenses\u201d and \u201cprostitution,\u201d addictions to drug and alcohol that required her to be institutionalized, and any potential bias or special treatment she received from the State for testifying against defendant.\nWe hold that Moore\u2019s prior testimony, which was given at an earlier trial where defendant was present and cross-examined the witness, satisfies the cross:examination requirement under Crawford. See id.\nMoore\u2019s prior testimony was properly admitted under Rule 804. Since the State satisfied the requirements set forth in Crawford, we hold defendant\u2019s Sixth Amendment right of confrontation was not violated by the admission of Moore\u2019s prior trial testimony at bar. See Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203.\n2. Statements to Police\nDefendant argues the trial court erroneously admitted Moore\u2019s affidavit and her statements identifying defendant to Officer Black during his investigation.\nImmediately following the incident, DeBone and Officer Black returned to the area where she and her assailant had walked. While riding with Officer Black, DeBone identified the woman whom she and her assailant had met earlier on the street. Officer Black recognized the woman as Moore and engaged in a brief conversation with her. During this initial investigation, Moore made statements to Officer Black identifying the man walking with DeBone earlier as \u201cC,\u201d but stated she did not know his legal name.\nLater that day, Moore signed an affidavit, under oath, which was witnessed by and given in the presence of Officer Black and signed before a notary. Her affidavit indicated that she had known \u201cC\u201d for a couple of years and identified him as the man walking with DeBone on 23 May 2001.\nAs in Crawford, defendant here did not have the opportunity to cross-examine Moore during her statements to Officer Black or the taking of her affidavit. The State argues Moore\u2019s affidavit and statements to Officer Black were not admitted to prove the truth of the matter asserted but as corroborating evidence of Moore\u2019s prior testimony. In Crawford, the Supreme Court noted, \u201c[t]he [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.\u201d 541 U.S. at 59, 158 L. Ed. 2d at 197-98 n. 9 (citing Tennessee v. Street, 471 U.S. 409, 414, 85 L. Ed. 2d 425, 105 S. Ct. 2078 (1985)). In Tennessee v. Street, the Supreme Court ruled that the admission of an accomplice\u2019s out of court confession was not error because the accomplice\u2019s statement was admitted for the nonhearsay purpose of rebutting defendant\u2019s testimony. 471 U.S. at 414, 85 L. Ed. 2d at 431. The Court reasoned, \u201c[t]he Clause\u2019s fundamental role in protecting the right of cross-examination, see Douglas v. Alabama, 380 U.S. 415, 418, [13 L. Ed. 2d 934, 937] (1965), was satisfied by Sheriff Papantoniou\u2019s presence on the stand. If [the defendant\u2019s] counsel doubted that [the accomplice\u2019s] confession was accurately recounted, he was free to cross-examine the Sheriff.\u201d Tennessee, 471 U.S. at 414, 85 L. Ed. 2d at 431. In Tennessee v. Street, however, the jury \u201cwas pointedly instructed by the trial court \u2018not to consider the truthfulness of [the accomplice\u2019s] statement in any way whatsoever.\u2019 \u201d 471 U.S. at 414-15, 85 L. Ed. 2d at 431.\nHere, the trial court failed to give the jury a limiting instruction. Because the jury could have considered this evidence for the truth of the matter asserted, we cannot presume it was offered and received as corroborating evidence. The admission of this evidence must be analyzed under Crawford as if it was offered and received to prove the truth of the matter asserted.\nAlthough Moore\u2019s affidavit and statements may have corroborated her prior testimony, without a limiting instruction to the jury not to consider the evidence for the truth of the matter asserted, i. e., whether defendant was DeBone\u2019s assailant, the admission of this evidence without affording defendant an opportunity to cross-examine Moore is error.\nD. Harmless Error\nBecause defendant\u2019s constitutional right was violated through the admission of Moore\u2019s prior statements to Officer Black and her affidavit, the State has the burden of proving the error was harmless beyond a reasonable doubt to sustain defendant\u2019s conviction. N.C. Gen. Stat. \u00a7 15A-1443(b) (2003); see also Delaware v. Van Arsdall, 475 U.S. 673, 684, 89 L. Ed. 2d 674, 686 (1986) (\u201cThe correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.\u201d); State v. Sisk, 123 N.C. App. 361, 370, 473 S.E.2d 348, 354 (1996), aff\u2019d in part and disc. rev. improvidently allowed in part, 345 N.C. 749, 483 S.E.2d 440 (1997) (citing N.C. Gen. Stat. \u00a7 15A-1443).\n\u201cIn order for this Court to find that the error affecting defendant\u2019s constitutional rights was harmless beyond a reasonable doubt, we must determine that the error had no bearing on the jury deliberations.\u201d Sisk, 123 N.C. App. at 370, 473 S.E.2d at 354. \u201cOverwhelming evidence of a defendant\u2019s guilt [without regard to the erroneously admitted evidence] may render a constitutional error harmless beyond a reasonable doubt.\u201d State v. Roope, 130 N.C. App. 356, 367, 503 S.E.2d 118, 126, disc. rev. denied, 349 N.C. 374, 525 S.E.2d 189 (1998) (citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969); State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988)).\nDeBone, the victim, testified at trial regarding the events that occurred on 23 May 2001. A man approached her after she arrived at the Fayetteville bus station between 3:30 p.m. to 4:30 p.m. on a clear, spring day. He offered to walk with her to her hotel, which he falsely informed her was within walking distance. DeBone walked and talked with defendant for approximately twenty-five to thirty-five minutes in clear daylight. As DeBone reported the incident to police immediately after she was assaulted and robbed, she recalled several identifying characteristics of her assailant, including his sex, race, weight, and \u201ccrooked teeth.\u201d Prior to defendant assaulting and robbing her, they stopped and talked to a woman on the street. Following the robbery, DeBone and Officer Black retraced the path she had taken with her robber. While riding with Officer Black, DeBone quickly identified the woman whom she and her assailant had met earlier on the street. DeBone asked Officer Black to stop his vehicle, and he engaged in a brief conversation with the woman. That afternoon, Officer Black showed several photographs to DeBone. Defendant\u2019s photograph was not included in the lineup. DeBone did not identify her assailant and robber from the photographs she was shown.\nAfter DeBone returned to Michigan, the Fayetteville Police Department conducted an independent investigation to determine the robber\u2019s identification. After determining that defendant was a suspect, the Fayetteville Police Department contacted Ottawa County Sheriff\u2019s Detective Timothy Raha (\u201cDetective Raha\u201d) in Michigan to request his assistance in a photograph identification procedure. Detective Raha testified at defendant\u2019s trial that he met with DeBone at her place of work two weeks after the incident, around 4:25 p.m. on 7 June 2001. He showed DeBone a photographic lineup of six men and read to her the accompanying \u201cPhoto Identification Procedure\u201d document.\nDeBone testified she was instructed to take her time and not to rush. She stared at the photographs for less than ten minutes before identifying defendant as her robber. DeBone also testified she felt a \u201csick feeling in my stomach when I kept going back to [defendant\u2019s] picture,\u201d and that she \u201cremembered his face at the Greyhound bus station.\u201d In identifying the robber in the photo array, DeBone signed below defendant\u2019s photograph. DeBone also identified defendant as her assailant and robber at trial.\nIn addition to the victim\u2019s identification of defendant, Moore also identified defendant in a photographic lineup as the man she saw walking with DeBone on 23 May 2001. While Moore\u2019s statements to Officer Black and her affidavit are inadmissible, her identification of defendant in a photographic lineup was not assigned as error and serves as additional evidence implicating defendant as the robber.\n\u2022 Defendant did not object to or move to strike any of the identification procedures for either DeBone or Moore. Excluding Moore\u2019s prior statements to Officer Black and her affidavit, the State presented overwhelming evidence of defendant\u2019s guilt.\nThis evidence taken together with the testimony and identification made twice by the victim, who had walked and talked with defendant for around thirty minutes on a clear afternoon, renders the admission of Moore\u2019s statements and affidavit in violation of defendant\u2019s Sixth Amendment right to confront the witnesses against him harmless. We hold the admission into evidence of Moore\u2019s affidavit and her prior statements to Officer Black implicating defendant were harmless beyond a reasonable doubt.\nIV. Jury Instruction\nDefendant contends the trial court erred in denying his request to read to the jury, during jury instructions, a list that specifically set forth all of Moore\u2019s prior and pending criminal charges. We disagree.\n\u201cIt is well established that a request for a specific instruction which is correct in law and supported by the evidence must be granted at least in substance.\u201d State v. Williams, 98 N.C. App. 68, 71, 389 S.E.2d 830, 832 (1990). \u201c[T]he trial judge is not required to give the requested instruction verbatim.\u201d Id. \u201cWhere specific instructions requested are not supported by the evidence, the trial judge does not err in failing to give such instructions verbatim or in substance.\u201d State v. Hall, 57 N.C. App. 544, 546, 291 S.E.2d 873, 875, disc. rev. denied, 305 N.C. 761, 293 S.E.2d 593 (1982).\nPrior to selecting the jury, defense counsel submitted to the court a copy of Moore\u2019s Cumberland County criminal record check, a document that showed she had been arrested twenty times, and certified copies from the Cumberland County Clerk of Court showing Moore\u2019s pending charges. He presented these documents as \u201csupporting data\u201d for his request to \u201cexclude [Moore\u2019s] testimony\u201d and moved that these documents be \u201cmade part of the record.\u201d Defense counsel never moved to have the trial court read or publish these documents to the jury during trial. Following the close of the State\u2019s case-in-chief, defense counsel moved to dismiss the charges and informed the trial court, \u201cWe\u2019ve chosen not to present evidence in this case.\u201d Defendant did not seek to introduce Moore\u2019s prior record into evidence for impeachment or other purposes.\nSome general evidence of Moore\u2019s prior convictions and bad acts was admitted into evidence and presented to the jury through the admission of Moore\u2019s prior testimony and cross-examination. We previously held that the admission of this prior testimony was not error. Moore\u2019s prior testimony referenced generally her \u201cnumerous drug offenses\u201d and her abuse of and addictions to drug and alcohol. In this testimony, Moore admitted these drug offenses and addictions, specifically stating that she had been convicted of \u201cpossession of narcotics, drug paraphernalia, prostitution, you name it.\u201d\nDuring the charge conference, defense counsel requested the trial court \u201cinstruct\u201d the jury by reading each of Moore\u2019s fourteen prior convictions and charges in Cumberland County, along with the corresponding conviction date. Although the details of Moore\u2019s prior charges were made part of the record during pretrial motions, defendant did not move to admit these documents into evidence. The trial court was not required to submit verbatim this requested instruction to the jury in the absence of their admission into evidence. Hall, 57 N.C. App. at 546, 291 S.E.2d at 875.\nEven if Moore\u2019s prior testimony supported defendant\u2019s requested instruction, the trial court granted his request in substance. See Williams, 98 N.C. App. at 71, 389 S.E.2d at 832. The trial court instructed the jury:\n[W]hen evidence has been received tending to show that a witness has been convicted of criminal charges, you may consider this evidence for one purpose only. ... in deciding whether you believe or disbelieve his or her testimony at this trial. . . .\nAlthough the trial court denied defendant\u2019s specific request, it instructed the jury on its ability to consider a witness\u2019s prior convictions in determining her credibility as a witness. The trial court\u2019s instruction, in substance, addressed defendant\u2019s concern over Moore\u2019s criminal history, credibility, and the jury\u2019s ability to determine what weight to give her testimony. Portions of Moore\u2019s criminal past and her history of drug and alcohol abuse were presented to the jury through the admission of her prior testimony and cross-examination. The trial court did not err in denying defendant\u2019s request for jury instructions. This assignment of error is overruled.\nV. Conclusion\nDefendant\u2019s Sixth Amendment right of confrontation was not violated when the trial court admitted Moore\u2019s prior testimony into evidence, as this prior testimony was subject to cross-examination and satisfied the United States Supreme Court\u2019s ruling in Crawford. The trial court erred in admitting Moore\u2019s testimonial affidavit and statements given during police questioning as corroborating evidence without giving the jury a limiting instruction. This evidence violated defendant\u2019s right to confrontation. We hold the evidence and record shows this error was harmless beyond a reasonable doubt. The trial court did not err in failing to give defendant\u2019s requested jury instruction where the evidence did not support such instruction and the trial court did instruct the jury that it could use Moore\u2019s prior criminal record and bad acts in determining her credibility. Defendant\u2019s convictions and the trial court\u2019s judgments and sentence are affirmed.\nHarmless error. Judgments and sentence affirmed.\nJudge HUNTER concurs.\nJudge WYNN concurs in the result only by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge\nconcurring in the result.\nI agree with the majority that, even if the trial court erroneously admitted the testimonial statements in violation of Crawford, such error was harmless in light of the overwhelming evidence of Defendant\u2019s guilt. I do not agree with the majority\u2019s discussion of Crawford, however, and I therefore concur in the result only.\nIn this case, the majority opinion analyzes multiple issues in light of Crawford, but ultimately concludes that all such errors were harmless. Inasmuch as the United States Supreme Court deliberately left its holding in Crawford with unsettled issues, and the errors in this case were harmless, I believe the majority\u2019s lengthy Crawford analysis is unnecessary to resolution of the case. Indeed, it is fundamental that our appellate courts should refine opinions to address only the issues necessary for resolution of each case. The Court thereby avoids the multiple evils of advisory opinions, questionable dicta, and other unnecessary expressions of views that may tie the Court\u2019s hands in future cases or cause confusion among the state bar. See, e.g., Smith v. Norfolk & S. R.R Co., 114 N.C. 728, 749-50, 19 S.E. 863, 869 (1894) (warning that, \u201cit may be safely remarked that no science is more dependent upon the accuracy of its terms and definitions than that of the law; Looseness of language and dicta in judicial opinions, either silently acquiesced in or perpetuated by inadvertent repetition, often insidiously exert their influence until they result in confusing the application of the law, or themselves become crystallized into a kind of authority which the courts, without reference to true principle, are constrained to follow.\u201d); Currie v. Worthy, 48 N.C. (1 Jones Eq.) 315, 319-20 (1856) (\u201cdicta do not fix the law; and I will take occasion to say, that the habit in which Judges, particularly on this side of the Atlantic, indulge, of writing dissertations instead of confining themselves to the point presented by the case, which is done either to display their learning or to save others from the trouble of thinking, so far from tending to fix the law, tends to unsettle it, and create confusion.\u201d); Thomas Fowler, Are Unnecessary \u201cHoldings\u201d Dicta?, North Carolina State Bar Journal, Summer 2003 (noting that, \u201cIn light of the widespread use of electronic legal research, it may be more important than ever for appellate judges to clearly state in their opinions what their holding is, and to avoid discussions of matters that are not necessary to that holding); Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2004 (1994) (discussing the difficulties arising from the lack of consistency among courts as to the proper scope of judicial holdings).\nSince, for the sake of argument, we could assume there was error and dispose of this matter under a harmless error analysis, I believe it imprudent to, for instance, set forth a Crawford \u201cthree-fold\u201d test with attending \u201cprongs.\u201d Crawford is a momentous case handed down by the United States Supreme Court only four months ago. This Court, like federal and state courts across the country, will be addressing the impact of Crawford on countless individual cases to come. The significance of Crawford should be allowed time to develop and mature on a case-by-case basis with the benefit of briefs and arguments by litigants. It is premature to attempt to fashion a definitive Crawford \u201ctest\u201d to be applied in all cases. For these reasons, I respectfully concur in the result only.", "type": "concurrence", "author": "WYNN, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.", "Joseph E. Zeszotarski, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ORLANDO RAPHAEL CLARK\nNo. COA03-652\n(Filed 6 July 2004)\n1. Constitutional Law\u2014 right to confrontation \u2014 nontestify-ing witness \u2014 Crawford\u2014testimonial evidence\nA nontestifying witness\u2019s statement to an officer during the initial investigation and her later affidavit during questioning constituted testimonial evidence under Crawford v. Washington, 541 U.S. 36 (2004). The affidavit contained statements which implicated defendant and which were made under oath during police questioning. The fact that the initial statement was not under oath is not dispositive.\n2. Constitutional Law\u2014 right to confrontation \u2014 nontestify-ing witness \u2014 unavailable\nThe trial court did not err by declaring a witness unavailable where the prosecutor informed the court that he had personally visited the scene, that the State had attempted to contact the witness through her friends, and that an officer had made several attempts to locate her. The State subsequently offered additional evidence regarding the witness\u2019s unavailability, including the officer\u2019s testimony.\n3. Constitutional Law\u2014 right to confrontation \u2014 nontestify-ing witness \u2014 prior testimony\nDefendant\u2019s Sixth Amendment right to confrontation was not violated by the admission of a nontestifying witness\u2019s prior testimony where defendant was present at the earlier trial, was represented by counsel, and had the opportunity to cross-examine the witness. The jury in the second trial heard the entire transcript, including the cross-examination about defendant\u2019s convictions, addictions, and any special treatment she received for her testimony.\n4. Constitutional Law\u2014 right to confrontation \u2014 nontestify-ing witness \u2014 statements to officer \u2014 admission harmless error\nThere was harmless error in the admission of a nontestifying witness\u2019s statements to an officer and subsequent affidavit which identified defendant. Defendant did not have the opportunity to cross-examine the witness and the trial court failed to give an instruction limiting the evidence to corroboration, but the error was harmless in light of the other evidence.\n5. Criminal Law\u2014 instructions on witness\u2019s criminal charges \u2014 granted in substance\nThe trial court did not err by refusing to read to the jury a list of a nontestifying witness\u2019s prior and pending criminal charges. Defendant submitted the list before jury selection as support for a request to exclude the witness\u2019s testimony from a prior trial, but did not introduce the evidence at trial. General evidence of the witness\u2019s prior convictions was admitted through the prior testimony, and the court granted the request in substance by instructing the jury on consideration of prior convictions in determining credibility.\nJudge Wynn concurring in the result.\nAppeal by defendant from judgments entered 18 December 2002 by Judge James Floyd Ammons, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 16 March 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.\nJoseph E. Zeszotarski, Jr., for defendant-appellant." }, "file_name": "0279-01", "first_page_order": 311, "last_page_order": 326 }