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      "STATE OF NORTH CAROLINA v. ANTIONE DENARD ALLEN"
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      {
        "text": "McGEE, Judge.\nAntione Denard Allen (defendant) was convicted of first-degree murder of Feliciano Noyola (Noyola). At trial, the State\u2019s evidence tended to show that on 27 January 1998, Marshall Gillespie (Gillespie) visited Stephon Hairston (Hairston) at Hairston\u2019s home. Gillespie asked Hairston to help him rob \u201csome Mexicans\u201d living at 1231-B Gholson Street, Winston-Salem, North Carolina. Hairston agreed, retrieved his gun, and got into a vehicle with Gillespie. Steven Gaines (Gaines) and defendant were already in the vehicle. Defendant was armed with an assault rifle. The four men planned the robbery as they drove to the home of defendant\u2019s aunt, where they switched vehicles, getting into defendant\u2019s aunt\u2019s vehicle to drive to pick up Kenyon Grooms (Grooms).\nGrooms got into the driver\u2019s seat, and defendant directed him to an apartment complex on Gholson Street. At the apartment complex, Hairston, Gaines, Gillespie and defendant got out of the vehicle and approached apartment 1231-B (the apartment). Gaines went toward the rear of the apartment. Hairston walked away, abandoning the robbery. Grooms stayed in the car. Defendant, carrying the assault rifle, and Gillespie, armed with a nine millimeter gun, entered the apartment. Defendant shot Noyola and Gillespie shot a six-year-old girl. Hearing gunshots, Grooms started the car and drove away.\nOfficer T.G. Brown (Officer Brown) of the Winston-Salem Police Department responded to a telephone call reporting gunfire. Officer Brown found two Hispanic women, Maria Santos (Santos) and Justina Dominguez (Dominguez), in the apartment. The two women were crying and were unable to speak English. Officer Brown found Noyola still breathing, but Noyola died before emergency medical personnel arrived. Officer Brown found the body of the six-year-old girl on the floor near the entrance to a bedroom.\nOfficer Rafael Barros (Officer Barros) of the Winston-Salem Police Department arrived approximately ten minutes after Officer Brown. Officer Barros spoke fluent Spanish. He found Santos and Dominguez in one of the bedrooms. Santos, who was the mother of the six-year old girl, reported that three black men had entered the apartment through the front door, demanded money, shot Noyola, shot the six-year old girl, and left the scene. Dominguez, who was Noyola\u2019s wife, said that she had been in a bedroom with her baby when one of the intruders kicked the door open and ripped a gold chain from her neck. She heard gunshots but she never left the bedroom.\nOfficer Barros showed a photographic lineup to Santos and Dominguez on 28 January 1998. Officer Barros testified that Santos identified Gillespie as the man who shot Santos\u2019s daughter; but Officer Barros admitted that Santos was not positive in her identification. Dominguez did not identify Gillespie, and neither woman identified defendant. Santos and Dominguez later returned to Mexico and refused to return for defendant\u2019s trial.\nPrior to trial, the trial court ruled that the statements made by Santos and Dominguez at the scene and during the photographic lineup would be admissible under the excited utterance exception and the residual exception to the hearsay rule respectively.\nAt trial, in addition to Officer Barros testifying as to the statements made by Santos and Domiguez, Hairston and Grooms testified as witnesses for the State. Both men admitted their participation in the robbery. Each testified that defendant, armed with an assault rifle, entered the apartment with Gillespie.\nDr. Patrick Lantz (Dr. Lantz) also testified for the State. Dr. Lantz conducted autopsies on both Noyola and the six-year-old girl. He testified that the entrance and exit wounds, and the multiple fragments found in Noyola\u2019s abdomen were characteristic of being from a high-powered rifle. The six-year-old girl\u2019s wounds were consistent with a bullet from a nine millimeter gun or other medium caliber gun, not an assault rifle.\nDefendant testified that he had gone with the others to the apartment to sell an assault rifle to Noyola as payment for drugs. Defendant further testified that when he entered the apartment, Noyola pulled out a gun, and fired a shot toward defendant\u2019s head. Defendant \u201ctensed up\u201d and accidentally pulled the trigger of the rifle. Noyola dropped his gun and fell. Defendant testified that shots were fired in the apartment and that he and Gillespie fled.\nThe jury found defendant guilty of first-degree murder, and defendant was sentenced to life in prison without parole. Defendant appealed to this Court and argued in part that the trial court erred in admitting hearsay statements made by Dominguez and Santos as conveyed through the testimony of Officer Barros. Our Court concluded that because the statements by Santos and Dominguez \u201cwere made only twenty minutes after the shootings and the statements related to the startling events at issue, the testimony was properly admitted pursuant to N.C.G.S. \u00a7 8C-1, Rule 803(2)\u201d as an excited utterance. State v. Allen, 162 N.C. App. 587, 593, 592 S.E.2d 31, 37 (2004). We further concluded that the trial court had properly \u201cdetermined that the admission of Santos\u2019[s] identification would serve the interest of justice\u201d and that the trial court had properly admitted the photographic identification under N.C. Gen. Stat. \u00a7 8C-1, Rule 804(b)(5). Id. at 593-96, 592 S.E.2d at 37-39.\nThe United States Supreme Court subsequently filed its decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). Defendant filed notice of appeal and a petition for discretionary review in our Supreme Court on 23 March 2004. The Supreme Court dismissed defendant\u2019s notice of appeal and allowed his petition for discretionary review for the limited purpose of remanding the matter to this Court for reconsideration in light of Crawford. State v. Allen, 358 N.C. 546, 599 S.E.2d 557 (2004).\nThe United States Supreme Court in Crawford revised its previous standard for admissibility of hearsay evidence under the Confrontation Clause of the Sixth Amendment of the United States Constitution. Crawford, 541 U.S. at 60-69, 158 L. Ed. 2d at 198-203. \u201cWhere 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. In the present case, defendant argues that, in light of Crawford, his Sixth Amendment right of confrontation was violated. He argues that his right of confrontation was violated by admitting into evidence through Officer Barros\u2019s testimony: (1) the statements made by Santos and Dominguez to Officer Barros in the apartment, and (2) Santos\u2019s identification of Gillespie on 28 January 1998.\nOur Court has held that evaluating whether a defendant\u2019s right to confrontation has been violated is a three-step process. State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217, disc. review denied, 358 N.C. 734, 601 S.E.2d 866 (2004). We must determine: \u201c(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.\u201d Clark, 165 N.C. App. at 283, 598 S.E.2d at 217. It is undisputed, however, that both Santos and Dominguez were unavailable and that defendant did not have an opportunity to cross-examine either declarant. Therefore, the issue before us is whether the statements made by Santos and Dominguez, as conveyed through Officer Barros, were testimonial.\nAlthough the United States Supreme Court chose to \u201cleave for another day any effort to spell out a comprehensive definition of \u2018testimonial!,]\u2019 \u201d it provided examples of statements that would be testimonial. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. Testimonial statements referred to included ex parte statements made in court, affidavits, depositions, confessions, and \u201cpretrial statements that declarants would reasonably expect to be used pros-ecutorially.\u201d The Court specifically identified \u201c[statements taken by police officers in the course of interrogations\u201d as being testimonial. Id. at 52, 158 L. Ed. 2d at 193. While the Supreme Court held that a tape-recorded statement made to police by Crawford\u2019s wife, \u201cknowingly given in response to structured police questioning, [qualified] under any conceivable definition [of interrogation,]\u201d the Court refrained from defining \u201cinterrogation\u201d with any greater particularity. Id. at 53 n.4, 158 L. Ed. 2d at 194 n.4. The Court did specify, however, that it was using \u201cinterrogation\u201d in its colloquial, not its technical legal sense. Id.\nIn the cas\u00e9 before us, the State argues that \u201c \u2018interrogation\u2019 does not encompass preliminary investigatory questions asked by the police at the scene of the crime shortly after its occurrence.\u201d Indeed, the Supreme Court narrowed the application of Crawford by using the word \u201cinterrogation\u201d rather than \u201cquestioning,\u201d suggesting that police questioning is not the same as police interrogation. See Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004) (concluding that the Supreme Court\u2019s \u201cchoice of words clearly indicates, that police \u2018interrogation\u2019 is not the same as, and is much narrower than, police \u2018questioning\u2019 \u201d). However, our Courts have previously determined that a witness\u2019s statements to a police officer \u201cmade during [the officer\u2019s] initial investigation\u201d may be testimonial. Clark, 165 N.C. App. at 284, 598 S.E.2d at 217; State v. Lewis, 166 N.C. App. 596, 601, 603 S.E.2d 559, 562, disc. review granted, 359 N.C. 195, 608 S.E.2d 60 (2004); see also State v. Morgan, 359 N.C. 131, 155-56, 604 S.E.2d 886, 901 (2004). By contrast, in State v. Forrest, our Court held that statements to a police officer made during the initial investigation were not testimonial when the witness \u201cwas not providing a formal statement, deposition, or affidavit, was not aware that she was bearing witness, and was not aware that her utterances might impact further legal proceedings.\u201d State v. Forrest, 164 N.C. App. 272, 280, 596 S.E.2d 22, 27 (2004), aff\u2019d, 359 N.C. 424, 611 S.E.2d 833 (2005). Thus, whether \u201cinterrogation\u201d encompasses a statement made in response to police questioning at the scene of a crime is a factual question that must be determined on a case-by-case basis. See State v. Sutton, 169 N.C. App. 90, 97, 609 S.E.2d 270, 275 (2005) (determining whether the police questioning of a victim at the crime scene constituted an \u201cinterrogation\u201d).\nThe- State argues that the present case can be analogized to Forrest because Santos and Dominguez made their statements while under the stress of the shootings and without being aware that their \u201cutterances might impact further legal proceedings.\u201d In Forrest, the declarant made statements to the police immediately upon being rescued by them, after she was kidnapped and assaulted. Forrest, 164 N.C. App. at 280, 596 S.E.2d at 27. While the declarant was making her statement, she was \u201cnervous, shaking, and crying\u201d and \u201c[h]er demeanor never changed during the conversation with [the police officer].\u201d Id. We compared the declarant\u2019s statement in Forrest to a 911 call, stating that \u201ca spontaneous statement made to police immediately after a rescue can be considered \u2018part of the criminal incident itself, rather than as part of the prosecution that follows.\u2019 \u201d Id. (quoting People v. Moscat, 777 N.Y.S.2d 875 (NY 2004)). We further stated that \u201cCrawford protects defendants from an absent witness\u2019s statements introduced after formal police interrogations in which the police are gathering additional information to further the prosecution of a defendant. Crawford does not prohibit spontaneous statements from an unavailable witness like those at bar.\u201d Forrest, 164 N.C. App. at 280, 596 S.E.2d at 27.\nHowever, as defendant points out, the statements in Forrest were spontaneously made to the police when the police responded to a 911 call and were initiated by the victim/declarant, unlike the statements in this case. See Forrest, 164 N.C. App. at 280, 596 S.E.2d at 27. In light of our Court\u2019s recent Sutton opinion, we agree with defendant\u2019s argument. See Sutton, 169 N.C. App. at 98, 609 S.E.2d at 275. In Sutton, we found a statement made at the crime scene by the victim of the crime to be testimonial when the victim\u2019s statement was \u201cneither spontaneous nor unsolicited.\u201d Id. As in the present case, the challenged statement in Sutton was originally admitted into evidence at trial under the excited utterance exception to hearsay because it was found that the victim \u201cwas still operating under the shock of the horrible events of the night.\u201d Id. The police questioning in Sutton was found to constitute an- \u201cinterrogation\u201d not only because the police approached and questioned the victim, but also because the challenged statement was the second statement the victim gave to the police that night, and thus \u201can objective witness would reasonably believe . . . that the statement would be available for use at trial.\u201d Id.\nThough the facts of the present case indicate that Santos and Dominguez were still operating under the stress of the shootings, neither Santos nor Dominguez spontaneously initiated their statements to Officer Barros. Rather, the statements were elicited by the police twenty minutes after the shootings occurred. Unlike in Sutton where the challenged statement was the witness\u2019s second statement to the police, Officer Barros\u2019s \u201carrival at the scene offered [Santos and Dominguez] their first opportunity to convey the events of the shootings.\u201d Allen, 162 N.C. App. at 593, 592 S.E.2d at 37. However, the twenty minutes between the shootings and Officer Barros\u2019s arrival provided enough time for Santos and Dominguez to reflect on the shootings before they conversed with Officer Barros. Having more time to reflect makes it more probable that an objective witness, when subsequently questioned by the police, \u201cwould reasonably believe ... that the statement would be available for use at trial.\u201d See Sutton, 169 N.C. App. at 98, 609 S.E.2d at 275.\nFurthermore, unlike the situation in Forrest, the witnesses in the present case were not \u201crescued\u201d by Officer Barros. In Forrest, the police arrived while the defendant was in a house with the victim; they observed the defendant hold a knife to the victim\u2019s throat and were initially concerned with securing the peace and protecting the victim, rather than collecting evidence to solve a crime. Forrest, 164 N.C. App. at 273-74, 596 S.E.2d at 23-24. As mentioned above, the victim\u2019s statements in Forrest were made to the police immediately upon being rescued, and the statements were thereby considered \u201cpart of the criminal incident itself[.]\u201d Id. at 280, 596 S.E.2d at 27. In the present case, the challenged statements were not given during the \u201ccriminal incident itself,\u201d but rather after the apartment had been secured and the threat of danger to Santos and Dominguez was no longer immediate. Officer Barros arrived twenty minutes after the shootings, and ten minutes after the first police officer arrived on the scene. Officer Barros\u2019s primary focus would have been to investigate the crime and he would have had \u201can eye toward trial\u201d when he questioned Santos and Dominguez. See Sutton, 169 N.C. App. at 98, 609 S.E.2d at 275.\nUnder these facts, Officer Barros\u2019s questioning of Santos and Dominguez amounted to interrogation, and Santos and Dominguez reasonably believed that their statements would be used prosecutorially. Thus, the challenged statements were testimonial. Since it is undisputed that both Santos and Dominguez were unavailable and that defendant did not have an opportunity to cross-examine either declarant, defendant\u2019s Sixth Amendment right to confrontation was violated by the admission of their statements through Officer Barros\u2019s testimony at trial.\nHowever, a violation of defendant\u2019s confrontation rights does not necessarily result in a new trial. \u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2003). \u201c[T]he presence of overwhelming evidence of guilt may render error of constitutional dimension harmless beyond a reasonable doubt.\u201d State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988). In the present case, the evidence of defendant\u2019s guilt, even without considering the statements made by Santos and Dominguez, is overwhelming.\nDefendant argues that the statements made by Santos and Dominguez were prejudicial in that they provided the only evidence of an attempted robbery. However, two of the State\u2019s witnesses, Hairston and Grooms, testified that they, along with defendant, Gillespie and Gaines, were involved in a plan to rob Noyola. Specifically, Hairston testified that on 27 January 1998, Gillespie had told Hairston that Gillespie had a \u201click,\u201d or a robbery, that he wanted Hairston to help him commit. Hairston further testified that he agreed to participate, grabbed his gun, and went with Gillespie to the vehicle where defendant and Gaines were waiting. Hairston stated that the men discussed the robbery on their way to defendant\u2019s aunt\u2019s house, but that the robbery had been defendant\u2019s and Gillespie\u2019s idea. Hairston further testified that defendant not only participated in the planning of the robbery, but also provided the vehicle and the directions to the apartment. Hairston testified that when they arrived at the apartment, Gaines walked toward the back of the building and Hairston, defendant and Gillespie approached the apartment from the front.\nGrooms testified that he agreed to drive the car for a \u201click\u201d that Gillespie wanted to commit. Grooms did not want to drive his vehicle, so Gillespie talked to defendant and then asked Grooms if Grooms would mind driving defendant\u2019s aunt\u2019s vehicle. Like Hairston, Grooms testified that Gaines went behind the apartment building, and that defendant, Hairston, and Gillespie approached from the front. Both Hairston and Grooms testified that defendant was armed with an assault rifle and that Gillespie had a nine millimeter gun when they entered the apartment. Contrary to defendant\u2019s argument, the testimony of Hairston and Grooms amply demonstrates that defendant intended to commit a robbery.\nFurthermore, other evidence presented at trial supports the jury\u2019s guilty verdict. Dr. Lantz testified that Noyola\u2019s wounds were consistent with a high-velocity bullet from a rifle, and that the cause of death was a gunshot wound to the abdomen. The six-year-old girl\u2019s wounds were consistent with a bullet from a nine millimeter gun. Defendant\u2019s testimony corroborated the testimony of the other witnesses in that defendant admitted that he was carrying an assault rifle into the apartment, and that Noyola fell after defendant pulled the rifle\u2019s trigger. The sum of this evidence supports defendant\u2019s guilt to the extent that the trial court\u2019s error in admitting the testimonial hearsay of Santos and Dominguez was harmless beyond a reasonable doubt.\nDefendant also argues that Santos\u2019s identification of Gillespie from the photographic lineup was testimonial because it was made in response to police questioning the day after the killings. We agree. In State v. Lewis, we held out-of-court identifications from photographic lineups to be testimonial, stating:\nIn substance, the information obtained from a photo line-up is not very different from other evidence that is classified as testimonial under Crawford. Indeed, the photo line-up is very similar to the ex parte and extra-judicial examinations by government officials which Crawford makes clear the Sixth Amendment was meant to address.\nLewis, 166 N.C. App. at 602, 603 S.E.2d at 563 (citing Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at 192-93). Moreover, as a photographic lineup has the clear purpose of collecting evidence for prosecution and a person being faced with a photographic lineup must know that his or her identification will be used for prosecution, there is not the same factual question as to whether such an identification is testimonial as discussed above. Thus, the admission of the photographic lineup identification when Santos was not available to testify and defendant did not have the opportunity to confront Santo's about this identification did violate defendant\u2019s right to confront his accuser under the Sixth Amendment.\nHowever, again the State demonstrates that this error was harmless beyond a reasonable doubt. The State asserts that even though Officer .Barros testified that Santos identified a photograph of Gillespie as being the person who shot her daughter, this evidence \u201cdid not directly implicate defendant for the murder of Feliciano Noyola.\u201d This evidence may have prejudiced defendant in that it corroborated the testimony of Hairston and Grooms, showing that Gillespie was present in the apartment when the shooting occurred. However, defendant himself testified that Gillespie was present with him and that shots were fired in the apartment. Aso, the facts that neither Santos nor Dominguez identified defendant, and that defendant was convicted for Noyola\u2019s murder and not for the murder of the six-year-old girl, indicate that the admission of this identification was harmless beyond a reasonable doubt. Cf State v. Herrmann, 679 N.W.2d 503, 510 (S.D. 2004) (finding the admission of an out-of-court statement harmless, even if testimonial, because the statement did not implicate the defendant as the perpetrator and because there was substantial DNA evidence against the defendant).\nFor the foregoing reasons, upon review in light of Crawford, we find no prejudicial error.\nNo prejudicial error.\nJudges HUNTER and CALABRIA concur.\n. Defendant was originally convicted of two counts of first-degree murder, but on appeal, our Supreme Court granted him anew trial. State v. Allen, 353 N.C. 504, 546 S.E.2d 372 (2001). The subsequent trial is the subject of this appeal.\n. We recognize that, after Crawford, whether a statement qualifies as an excited utterance is not a factor in our Confrontation Clause analysis. See Forrest, 164 N.C. App. at 280, 596 S.E.2d 22, 25-28 (demonstrating that, when a defendant\u2019s right to confrontation is implicated, whether a statement qualifies as an exception to hearsay is relevant only upon a finding that the statement was not testimonial); see also Morgan, 359 N.C. at 154, 604 S.E.2d at 900 (analyzing statements as exceptions to hearsay when the defendant did not argue that Crawford applied to a particular statement). Based on the particular circumstances of a case, statements that could be characterized as being excited utterances may or may not be testimonial.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.",
      "Reita P. Pendry for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ANTIONE DENARD ALLEN\nNo. COA02-1624-2\n(Filed 21 June 2005)\nConstitutional Law; Evidence\u2014 right of confrontation\u2014 hearsay \u2014 unavailable witness \u2014 testimonial statements\u2014 photographic lineup identification \u2014 harmless error\nA review of defendant\u2019s case in light of Crawford v. Washington, 541 U.S. 36 (2004), revealed that although defendant\u2019s right to confrontation was violated in a first-degree murder case by the admission of evidence through an officer\u2019s testimony of statements made by two unavailable witnesses to the officer in the victim\u2019s apartment and during one witness\u2019s photographic lineup identification of a coparticipant on 28 January 1998 since the statements were testimonial, the error was harmless beyond a reasonable doubt because: (1) the evidence of defendant\u2019s guilt even without considering the statements made by the two unavailable witnesses is overwhelming; (2) two of the State\u2019s witnesses testified that they, along with defendant and two others, were involved in a plan to rob the victim; (2) the doctor who performed the autopsy testified that the older victim\u2019s wounds were consistent with a high-velocity bullet from a rifle and that the cause of death was a gunshot wound to the abdomen, and defendant admitted that he was carrying an assault rifle into the apartment and that the victim fell after defendant pulled the rifle\u2019s trigger; and (3) even though the officer testified that one of the witnesses identified a photo of a coparticipant as being the person who shot her daughter, this evidence did not directly implicate defendant for the murder of the other victim, defendant himself testified that the coparticipant was present with him and that shots were fired in the apartment, neither witness identified defendant, and defendant was not convicted for the murder of the six-year-old girl.\nAppeal by defendant from judgment dated 1 March 2002 by Judge Melzer A. Morgan, Jr. in Superior Court, Forsyth County. Heard by this Court on 9 October 2003 and opinion filed finding no prejudicial error on 17 February 2004. Remanded to this Court by order of the North Carolina Supreme Court for reconsideration in light of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).\nAttorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.\nReita P. Pendry for defendant-appellant."
  },
  "file_name": "0071-01",
  "first_page_order": 101,
  "last_page_order": 110
}
