{ "id": 4180388, "name": "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT", "name_abbreviation": "State v. Hurt", "decision_date": "2010-11-16", "docket_number": "No. COA09-442", "first_page": "1", "last_page": "26", "citations": [ { "type": "official", "cite": "208 N.C. App. 1" } ], "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": "182 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8170253 ], "opinion_index": -1, "case_paths": [ "/nc-app/182/0162-01" ] }, { "cite": "635 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636933, 12636934, 12636935 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/635/0899-01", "/se2d/635/0899-02", "/se2d/635/0899-03" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "year": 2005, "pin_cites": [ { "page": "280", "parenthetical": "Martin, J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "638 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637356 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "455", "parenthetical": "\"[A]fter Blakely, trial judges may not enhance criminal sentences beyond the statutory maximum absent a jury finding of the alleged aggravating factors beyond a reasonable doubt.\"" }, { "page": "459-60" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0452-01" ] }, { "cite": "641 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637846 ], "weight": 4, "year": 2007, "pin_cites": [ { "parenthetical": "noting the \"general rule\" that our courts construe the two confrontation clauses - Article I, \u00a7 23, and the Sixth Amendment of the state and federal constitutions, respectively - \"as having no significant differences\"" }, { "page": "372", "parenthetical": "noting that Bell's language requiring compliance with Crawford when the State presents testimonial evidence \"to a capital sentencing jury\" suggests the ruling is \"intended to apply only to capital sentencing hearings\"" }, { "page": "371" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0370-01" ] }, { "cite": "618 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633887 ], "year": 2005, "pin_cites": [ { "page": "793", "parenthetical": "\"It is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0790-01" ] }, { "cite": "620 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634170, 12634171, 12634172, 12634173 ], "opinion_index": 0, "case_paths": [ "/se2d/620/0528-01", "/se2d/620/0528-02", "/se2d/620/0528-03", "/se2d/620/0528-04" ] }, { "cite": "643 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638285 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0915-01" ] }, { "cite": "616 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633664 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "913" }, { "page": "913-14" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0910-01" ] }, { "cite": "457 U.S. 537", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191611 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "549" }, { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/us/457/0537-01" ] }, { "cite": "360 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792959 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0569-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "pin_cites": [ { "page": "460", "parenthetical": "Martin, J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "308 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "309 N.C. 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766182 ], "year": 1983, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0538-01" ] }, { "cite": "683 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "690 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "291", "parenthetical": "declining to find Melendez-Diaz abrogates the cases \"that relied on Crawford and were decided prior to Melendez-Diaz . . . where the analyst who testified asserted his or her own expert opinion\"" }, { "page": "290-92", "parenthetical": "holding that while the report at issue \"formed the basis\" of the expert's opinion, it \"was not offered for the proof of the matter asserted and was not prima facie evidence that the substances recovered from the crime scene were, in fact, marijuana and cocaine\"" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "692 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 809", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "684 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2009, "pin_cites": [ { "page": "511" }, { "page": "512" }, { "page": "511" }, { "page": "512" }, { "page": "511", "parenthetical": "\"Although the Court in Melendez-Diaz addressed only drug testing, the Court's analysis easily implicates DNA testing as well.\"" }, { "page": "511" } ], "opinion_index": 0 }, { "cite": "696 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "752" } ], "opinion_index": 0 }, { "cite": "598 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8996879 ], "year": 2004, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0279-01" ] }, { "cite": "681 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "304", "parenthetical": "citing Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203" }, { "page": "305" } ], "opinion_index": 0 }, { "cite": "363 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151754 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "452", "parenthetical": "citing Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203" }, { "page": "452" }, { "page": "452" }, { "page": "452" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0438-01" ] }, { "cite": "105 Colum. L. Rev. 1967", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 2005, "pin_cites": [ { "page": "1967, 1973" } ], "opinion_index": 0 }, { "cite": "313 F.3d 392", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9315030 ], "year": 2002, "pin_cites": [ { "page": "398", "parenthetical": "citing Specht for the proposition that \"the Confrontation Clause applies during those portions of a sentencing proceeding that can lead to an increase in the maximum lawful punishment\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/313/0392-01" ] }, { "cite": "441 F.3d 1330", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1037329 ], "year": 2006, "pin_cites": [ { "parenthetical": "distinguishing the inapplicability of Crawford in the context of non-capital sentencing from the court's previous holding \"that the constitutional right to cross-examine witnesses applies to capital sentencing hearings\" on the basis that \"death is different\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/441/1330-01" ] }, { "cite": "249 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "720", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "295 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568467 ], "year": 1978, "pin_cites": [ { "page": "670", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0655-01" ] }, { "cite": "681 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "275", "parenthetical": "discussing the propriety of closing arguments made during a jury sentencing trial on aggravating factors with reference to \"[t]he rules of procedure and evidence [which] are meant to assure that the evidence a jury hears and considers is reliable\"" }, { "page": "277", "parenthetical": "Brady, J., concurring in the result only" } ], "opinion_index": 0 }, { "cite": "363 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150675 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "540-41" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0535-01" ] }, { "cite": "443 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "336 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535633 ], "year": 1994, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0078-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "521" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "cite": "292 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "221" } ], "opinion_index": 0 }, { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "year": 1982, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "220 S.W.3d 99", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 8307276 ], "year": 2007, "pin_cites": [ { "page": "108", "parenthetical": "concluding that, \"at a minimum,\" a criminal defendant should have confrontation rights at sentencing: \"(1) in cases in which the State seeks imposition of a sentence on the basis of findings beyond those 'reflected in the jury verdict or admitted by the defendant'; and (2" } ], "opinion_index": 0, "case_paths": [ "/sw3d/220/0099-01" ] }, { "cite": "754 N.W.2d 672", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8168471 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "681" }, { "page": "679-80", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "680", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nw2d/754/0672-01" ] }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "45", "parenthetical": "\"[A]fter Blakely, trial judges may not enhance criminal sentences beyond the statutory maximum absent a jury finding of the alleged aggravating factors beyond a reasonable doubt.\"" }, { "page": "51-52" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0041-01" ] }, { "cite": "430 F.3d 1142", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1594132 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding Crawford inapplicable at non-capital sentencing because the \" 'right to confrontation is a trial right,' \" but neither Blakely nor Booker applied and sentence was enhanced based on judicially found fact of prior conviction" } ], "opinion_index": 0, "case_paths": [ "/f3d/430/1142-01" ] }, { "cite": "454 F.3d 1200", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5564827 ], "year": 2006, "pin_cites": [ { "page": "1202-03", "parenthetical": "deeming the Confrontation Clause inapplicable at non-capital sentencing but Booker was not triggered because of advisory guidelines" } ], "opinion_index": 0, "case_paths": [ "/f3d/454/1200-01" ] }, { "cite": "386 U.S. 605", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178839 ], "weight": 7, "year": 1967, "pin_cites": [ { "page": "607" }, { "page": "329" }, { "page": "610" }, { "page": "330" }, { "page": "329", "parenthetical": "noting the Court's continued adherence to Williams but \"declin [ing] the invitation to extend it to this radically different situation\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/us/386/0605-01" ] }, { "cite": "483 F.3d 313", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5744514 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "365", "parenthetical": "Benavides, J., dissenting" }, { "page": "367", "parenthetical": "Benavides, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/f3d/483/0313-01" ] }, { "cite": "893 F.2d 1177", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11651233 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/f2d/893/1177-01" ] }, { "cite": "37 McGeorge L. Rev. 589", "category": "journals:journal", "reporter": "McGeorge L. Rev.", "year": 2006, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "93 L. Ed. 1337", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 4, "year": 1949, "pin_cites": [ { "page": "1339-41" }, { "page": "1342" }, { "page": "1343" } ], "opinion_index": 0 }, { "cite": "337 U.S. 241", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 572499 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "242-45" } ], "opinion_index": 0, "case_paths": [ "/us/337/0241-01" ] }, { "cite": "381 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "325 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490089 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0222-01" ] }, { "cite": "543 U.S. 220", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5925862 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/us/543/0220-01" ] }, { "cite": "536 U.S. 584", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254507 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/us/536/0584-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 10, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "494" }, { "page": "457" }, { "page": "484" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "49 How. L.J. 179", "category": "journals:journal", "reporter": "How. L.J.", "year": 2005, "pin_cites": [ { "parenthetical": "arguing that because of the changes Crawford and Blakely made to the landscape of the Sixth Amendment, the Confrontation Clause should apply at sentencing and therefore bar the use of testimonial hearsay during sentencing proceedings" } ], "opinion_index": 0 }, { "cite": "603 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "115-16" } ], "opinion_index": 0 }, { "cite": "359 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798427 ], "year": 2004, "pin_cites": [ { "page": "34-36" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0001-01" ] }, { "cite": "446 F. Supp. 2d 1115", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3709377 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "1135", "parenthetical": "holding the protections of Crawford \"apply to any proof of any aggravating factor during the penalty phase of a capital proceeding\"" }, { "page": "1124", "parenthetical": "noting the 9th Circuit's \"holding that the hearsay-limiting rights afforded by the Confrontation Clause do not apply to non-capital sentencing, where the judge, not the jury,\" makes the aggravating factor sentencing determination (second emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/446/1115-01" ] }, { "cite": "753 So. 2d 29", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11449360 ], "year": 2000, "pin_cites": [ { "page": "43", "parenthetical": "stating the \"uncontroverted proposition that the Sixth Amendment right of confrontation applies to all three phases of the capital trial\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/753/0029-01" ] }, { "cite": "685 F.2d 1227", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 525657 ], "year": 1982, "pin_cites": [ { "page": "1254", "parenthetical": "holding \"the right to cross-examine adverse witnesses applies to capital sentencing hearings\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/685/1227-01" ] }, { "cite": "565 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "165", "parenthetical": "\"While the Rules of Evidence do not apply to a capital sentencing proceeding, the constitutional right to confront witnesses does apply.\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220071 ], "year": 2002, "pin_cites": [ { "page": "733", "parenthetical": "\"While the Rules of Evidence do not apply to a capital sentencing proceeding, the constitutional right to confront witnesses does apply.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0719-01" ] }, { "cite": "584 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "771", "parenthetical": "\"[0]nce the state decides to present the testimony of a witness to a capital sentencing jury, the Confrontation Clause requires the state to undertake good-faith efforts to secure the 'better evidence' of live testimony before resorting to the 'weaker substitute' of former testimony.\"" }, { "page": "771" } ], "opinion_index": 0 }, { "cite": "357 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491552 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "441" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0433-01" ] }, { "cite": "19 Regent U. L. Rev. 387", "category": "journals:journal", "reporter": "Regent U. L. Rev.", "year": 2007, "opinion_index": 0 }, { "cite": "18 Fed. Sent'g Rep. 230", "category": "reporters:federal", "reporter": "Fed. Sent'g Rep.", "year": 2006, "pin_cites": [ { "page": "230", "parenthetical": "\"Although the Supreme Court has not answered definitively whether a confrontation right ever applies at sentencing, several federal circuits have concluded that it does not.\"" } ], "opinion_index": 0 }, { "cite": "948 So. 2d 655", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 8347021 ], "year": 2006, "pin_cites": [ { "page": "674-75", "parenthetical": "Cantero, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/so2d/948/0655-01" ] }, { "cite": "551 F.3d 516", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5751209 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "527" }, { "page": "527-28", "parenthetical": "holding testimonial hearsay does not affect defendant's right to confrontation at sentencing but doing so under advisory guidelines system where Blakely and Booker did not require factual findings that increase sentence to be found by a jury beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/f3d/551/0516-01" ] }, { "cite": "362 F. Supp. 2d 714", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9015265 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "725", "parenthetical": "\"The Supreme Court... has never decided whether sentencings are 'criminal prosecutions' for Sixth Amendment purposes.\"" }, { "page": "725" }, { "page": "725" }, { "page": "725" }, { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/362/0714-01" ] }, { "cite": "918 F.2d 1084", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539555 ], "year": 1990, "pin_cites": [ { "parenthetical": "expressing \"hope . . . that the Supreme Court in the near future will decide whether confrontation clause principles are applicable at sentencing hearings\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/918/1084-01" ] }, { "cite": "353 F.3d 281", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9294621 ], "year": 2003, "pin_cites": [ { "page": "324", "parenthetical": "\"It is far from clear that the Confrontation Clause applies to a capital sentencing proceeding.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/353/0281-01" ] }, { "cite": "173 N.C. App. 393", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353613 ], "year": 2005, "pin_cites": [ { "page": "396", "parenthetical": "\"It is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0393-01" ] }, { "cite": "174 L. Ed. 2d 314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 3657952 ], "weight": 11, "year": 2009, "pin_cites": [ { "page": "332" }, { "page": "320" }, { "page": "321" }, { "page": "322" }, { "page": "322" }, { "page": "322", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 18, "year": 2004, "pin_cites": [ { "page": "60" }, { "page": "198", "parenthetical": "discrediting the rationale of Roberts for its failure to be \"faithful to the original meaning of the Confrontation Clause\" and criticizing its departure from historical principles" }, { "page": "68-69" }, { "page": "203" }, { "page": "61" }, { "page": "199" }, { "page": "50" }, { "page": "192" }, { "page": "68" }, { "page": "203" }, { "page": "68" }, { "page": "203", "parenthetical": "\"We leave for another day any effort to spell out a comprehensive definition of 'testimonial.' \"" }, { "page": "51-52" }, { "page": "193", "parenthetical": "internal quotation marks, citations, and alteration omitted" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "359 N.C. 846", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798513 ], "opinion_index": 0, "case_paths": [ "/nc/359/0846-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 4, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "361 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739670 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0325-01" ] }, { "cite": "359 N.C. 840", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796233 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "844" }, { "page": "845-46" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0840-01" ] }, { "cite": "594 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "55" }, { "page": "55-56" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918253 ], "year": 2004, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0429-01" ] }, { "cite": "182 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8170253 ], "weight": 3, "pin_cites": [ { "parenthetical": "noting the \"general rule\" that our courts construe the two confrontation clauses - Article I, \u00a7 23, and the Sixth Amendment of the state and federal constitutions, respectively - \"as having no significant differences\"" }, { "page": "165" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0162-01" ] } ], "analysis": { "cardinality": 2220, "char_count": 69542, "ocr_confidence": 0.74, "pagerank": { "raw": 2.2358773577874213e-07, "percentile": 0.7795031679453126 }, "sha256": "7a04c0caa28caf3275095b50d2c6f1fecd09d59896edb8c04f796083e7cc09c5", "simhash": "1:9839512e57279e4c", "word_count": 10897 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and HUNTER, Jr. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT" ], "opinions": [ { "text": "BEASLEY, Judge.\nDavid Franklin Hurt (Defendant) appeals from judgment imposing a sentence in the aggravated range for second-degree murder. Specifically, Defendant challenges the sentencing jury\u2019s finding that, as an aggravating factor, the offense to which he had pled guilty was especially heinous, atrocious, or cruel. For the reasons stated below, we hold Defendant is entitled to a new trial.\nIn 1999, Defendant was indicted for the first-degree murder of Howard Nelson Cook and the first-degree burglary and common law robbery perpetrated in the course thereof. Cook\u2019s nephew, William Parlier, was also charged with Cook\u2019s murder. Parlier pled guilty to first-degree murder and received a sentence of life in prison. After Parlier reneged on his promise to testify against Defendant, the State agreed to negotiate a plea with Defendant, and on 26 August 2002, Defendant pled guilty to second-degree murder in exchange for dismissal of the remaining charges. The trial judge sentenced Defendant to the maximum aggravated range of 276 to 341 months\u2019 imprisonment. Defendant appealed, and a divided panel held that the trial court erred in treating \u201cits finding that [Defendant joined with one other person\u201d as an aggravating factor. State v. Hurt, 163 N.C. App. 429, 435, 594 S.E.2d 51, 55 (2004), rev\u2019d, 359 N.C. 840, 616 S.E.2d 910 (2005), and rev\u2019d in part and aff\u2019d in part as modified, 361 N.C. 325, 643 S.E.2d 915 (2007). This Court vacated Defendant\u2019s sentence, and remanded for resentencing. See id. at 434-35, 594 S.E.2d at 55-56 (reasoning that N.C. Gen. Stat. \u00a7 15A-1340.16(d)(2) provides for an aggravated sentence when \u201c \u2018[t]he defendant joined with more than one other person in committing the offense\u2019 \u201d and remanding for a new sentencing hearing because the trial judge imposed a sentence beyond the presumptive term on the basis of an erroneous finding in aggravation). On the State\u2019s direct appeal, our Supreme Court reversed this Court\u2019s holding as to the aggravating factor issue because \u201caccomplishment of a robbery and murder by uniting with one other individual\u201d is a proper nonstatutory factor under N.C. Gen. Stat. \u00a7 15A-1340.16(d)(20). Hurt, 359 N.C. 840, 844, 616 S.E.2d 910, 913 (2005), vacated in part on other grounds, 361 N.C. 325, 643 S.E.2d 915 (2007). Addressing Defendant\u2019s motion for appropriate relief, however, the Court remanded for resentencing on different grounds in accordance with Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), because his sentence exceeded the statutory maximum but the upward durational departure from the presumptive sentence was based solely on judicially found facts. Hurt, 359 N.C. at 845-46, 616 S.E.2d at 913-14. Issuance of the mandate was stayed, Hurt, 359 N.C. 846, 620 S.E.2d 528, and upon reconsideration, our Supreme Court vacated its earlier opinion in part and remanded the case with instructions to remand to the trial court for a new sentencing hearing, see Hurt, 361 N.C. at 332, 643 S.E.2d at 919 (vacating the portion that remanded due to structural error and, instead, remanding \u201cbecause the trial court\u2019s Blakely error was not harmless beyond a reasonable doubt,\u201d but leaving its aggravating factor analysis undisturbed).\nDuring resentencing, a jury trial on aggravating factors was held at the 31 March 2008 Session of Superior Court in Caldwell County. At the outset of the trial, the court informed the jury panel that Defendant had previously entered a plea of guilty to the second-degree murder of Cook and that the State was now contending the existence of the aggravating factor that the offense pleaded to was especially heinous, atrocious, or cruel (HAC).\nOn 26 February 1999, police found Cook dead in his home. Cook had sustained blunt force trauma and multiple stab wounds. Earlier that morning, Nancy and Jody Hannah were awakened when a man drove a white van into their backyard and got it stuck. Paula Calloway testified that Defendant and Parlier had previously come to her house in a white van. When she and Defendant awoke to Parlier leaving in the van, they went looking for it and found it stuck in a yard. Defendant freed the van, drove it back to Calloway\u2019s house, and fell asleep. Shortly thereafter, Calloway saw police lights and observed officers picking up Parlier in the road. Deputies Jason Beebee and Joel Fish with the Catawba County Sheriff\u2019s Office were responding to a call about a possible drunk driver and the van stuck in a yard when they saw an \u201cextremely intoxicated\u201d Parlier walking up the road and then falling into a ditch. Parlier had on his person four one-dollar bills, two of which had \u201creddish, brown stains on them.\u201d During their encounter with Parlier, the officers observed a white van in Calloway\u2019s driveway, which prompted them to return to her residence later that morning. Fish found Defendant in Calloway\u2019s bed and noticed that the white pants he was wearing had \u201cdarkening red spots\u201d and a \u201cbrown stain\u201d on them. Evidence collected from Calloway\u2019s bedroom included a pair of Defendant\u2019s boots and a sweatshirt lying near Defendant that Fish described as having \u201clarge reddish, brown stains on it.\u201d Another set of officers, also based on information gathered during the encounter with Parlier, went to check on Cook. Officer David Bates arrived at Cook\u2019s residence around 4:00 a.m. and found Cook laying on the floor in a large amount of blood. Paramedics and EMS personnel testified to the gross amount of blood at the scene and gaping wounds on Cook\u2019s body.\nSpecial Agent Susie Barker, expert forensic biologist and serologist with the State Bureau of Investigation (SBI), testified that her section received a series of physical items in this case. The evidence was assigned to Special Agent Todd, who tested the items for the presence of blood and other bodily fluids and prepared a lab report detailing his results. Barker testified, over objection, that Todd had identified blood on Defendant\u2019s sweatshirt and boots and on a cigarette butt found outside Cook\u2019s front door. David Freeman, a special agent in the DNA unit of the SBI, then testified that former SBI Special Agent D.J. Spittle performed DNA testing on several items received from the serologist division. Over Defendant\u2019s objection, Freeman testified to the results of Spittle\u2019s analysis, including his conclusion that DNA found on Defendant\u2019s sweatshirt and boots matched Cook\u2019s DNA profile. Freeman also testified that the saliva-end of the cigarette found at the crime scene matched Defendant\u2019s DNA.\nDr. Patrick Lantz, a forensic pathologist and the Forsyth County Medical Examiner, testified in regards to Cook\u2019s autopsy report, completed by former forensic pathologist Dr. David Winston. Lantz testified, over objection by defense counsel, that Cook\u2019s \u201cfinal autopsy diagnosis included sharp force injuries or stab wounds of the head and the neck, the thorax, the abdomen, the back, some blunt trauma to the head, neck[,] chest, abdomen, and some incised wounds.\u201d He continued that \u201c[a]ccording to Dr. Winston\u2019s report he listed twelve major stab wounds involving the neck, the chest, the abdomen, and the back.\u201d Over objection, Lantz recited Winston\u2019s findings as to each of the stab wounds and testified to his opinion as a pathologist that six of the major stab wounds noted in the autopsy hit vital organs and could have been fatal in and of themselves. Lantz indicated that \u201c[t]he stab wounds would have caused bleeding inside and outside of [Cook\u2019s] body\u201d and would have been painful. However, because the stab wounds did not hit a major blood vessel or \u201cany vital organs that would have caused immediate loss of consciousness,\u201d Lantz testified that it might have taken five to ten minutes before Cook went unconscious due to the blood loss. An additional five to ten minutes could have transpired after Cook lost consciousness before the time he died.\nAt the conclusion of the State\u2019s evidence, Defendant made a motion to dismiss the jury\u2019s consideration of the aggravating factor that this offense was especially heinous, atrocious, or cruel. The trial court denied this motion, and Defendant did not present any evidence at this stage. The jury found, beyond a reasonable doubt, the existence of the aggravating factor that the offense was especially heinous, atrocious, or cruel.\nDuring the mitigation phase, Defendant offered a \u201cmitigation report\u201d that had been compiled for his 2002 plea bargain proceedings, but the trial court sustained the State\u2019s hearsay objection and refused to admit the notebook. The defense first called Parlier, who admitted to currently being in custody for a conviction on his plea to first-degree murder but denied killing Cook and said it was Defendant who had done so. Defense counsel then attempted to impeach Parlier\u2019s testimony by asking about an affidavit he had previously signed. The affidavit stated that on the night of 25 February 1999, Parlier told Defendant that he needed a ride to Cook\u2019s house to borrow twenty dollars from his uncle; that Defendant waited outside in his van while Parlier went inside; that it was Parlier who stabbed Cook and thereafter directed Defendant to drive to the Rhodhiss Dam to dispose of evidence. Parlier, however, testified that the affidavit was false and, on cross-examination, explained that Defendant paid him forty dollars to copy and sign the affidavit. Defendant testified at the mitigation phase, and his recitation of the facts mirrored those that appeared in Parlier\u2019s affidavit, with additional details. Evidence was also heard from an inmate Parlier had approached for help in preparing his testimony for this case and from Defendant\u2019s aunt and uncle. The State then presented victim impact evidence.\nDefense counsel requested a mitigated range sentence because Defendant played a minor role and read a portion of the 2002 plea hearing transcript wherein the prosecutor opined \u201cParlier [was] the actual killer.\u201d Despite defense counsel\u2019s argument that the State showed only that Defendant brought Parlier to Cook\u2019s house, was at the front door, and helped dispose of evidence, the trial court rejected the proposal that Defendant was a passive participant and declined to find any non-statutory mitigating factors. The trial court found that the HAC factor outweighed the factors in mitigation and that an aggravated sentence was thus justified. The trial court imposed a sentence in the maximum aggravated range, 276 to 341 months, from which Defendant appeals.\nDefendant raises five arguments on appeal, specifically that the trial court erred in (1) denying his motion to dismiss due to the State\u2019s failure to establish that the offense was heinous, atrocious, or cruel; (2) granting the State\u2019s motion to quash a subpoena for the appearance of Assistant District Attorney Jason Parker, as it deprived Defendant of the opportunity to elicit the State\u2019s \u201cjudicial admissions\u201d made during guilty plea proceedings; (3) \u201cpermitting SBI Agent Freeman to testify that he is able to state whether a person committed the charged crime based upon whether a DNA match is made\u201d; (4) refusing to admit Defendant\u2019s \u201cmitigation report\u201d on hearsay grounds at the mitigation phase; and (5) admitting hearsay evidence regarding blood tests, DNA analyses, and autopsy findings performed by non-testifying witnesses in the absence of a showing by the State that the non-testifying witnesses were unavailable, thereby depriving Defendant of confrontation and cross-examination rights. Because we conclude that the admission of certain forensic evidence violated Defendant\u2019s constitutional rights and was not harmless, we hold the trial court committed reversible error \u2014 rendering our review of Defendant\u2019s remaining contentions unnecessary \u2014 and address only his final argument.\nI.\nWhether a defendant has a right to confront witnesses against him at sentencing trials conducted pursuant to Blakely is an issue of first impression in our courts. Defendant contends that United States Supreme Court decisions Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and, by extension, Melendez-Diaz v. Massachusetts, 557 U.S. -, 174 L. Ed. 2d 314 (2009), should apply at all sentencing proceedings, whether capital or non-capital, that are held before a jury. For the reasons discussed herein, we agree that the Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant\u2019s sentence beyond the statutory maximum. Thus, because the trial court\u2019s admission of testimonial hearsay, evidence during the aggravation phase of Defendant\u2019s sentencing proceedings violated the Confrontation Clauses of the federal and state constitutions and the constitutional errors were not harmless beyond a reasonable doubt, we remand this case for a new sentencing hearing.\nA.\nWhether a defendant\u2019s constitutional right to confrontation has been violated is a question of law which we review de novo. See State v. Thorne, 173 N.C. App. 393, 396, 618 S.E.2d 790, 793 (2005) (\u201cIt is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.\u201d). Generally, we interpret the Confrontation Clause of 'the North Carolina Constitution identically to its federal counterpart; thus, our analysis under each tends to be uniform, and, although Defendant\u2019s brief cites both provisions, we consider the federal version only in addressing his arguments. See State v. Sings, 182 N.C. App. 162, 164 n.2, 641 S.E.2d 370, 371 n.2 (2007) (noting the \u201cgeneral rule\u201d that our courts construe the two confrontation clauses \u2014 Article I, \u00a7 23, and the Sixth Amendment of the state and federal constitutions, respectively \u2014 \u201cas having no significant differences\u201d); see also infra note 2.\nThe Confrontation Clause of the Sixth Amendment provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.\u201d U.S. Const, amend. VI. The United States Supreme Court, however, has never explicitly ruled whether the Confrontation Clause applies at sentencing. See, e.g., United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003) (\u201cIt is far from clear that the Confrontation Clause applies to a capital sentencing proceeding.\u201d); United States v. Kikumura, 918 F.2d 1084, 1103 n.19 (3d Cir. 1990) (expressing \u201chope . . . that the Supreme Court in the near future will decide whether confrontation clause principles are applicable at sentencing hearings\u201d); United States v. Gray, 362 F. Supp. 2d 714, 725 (S.D. W. Va. 2005) (\u201cThe Supreme Court... has never decided whether sentencings are \u2018criminal prosecutions\u2019 for Sixth Amendment purposes.\u201d). Despite the lack of any clear directive from the Supreme Court, the prevailing view among federal circuit courts and several state courts is that the constitutional right to confrontation does not apply at sentencing. See, e.g., United States v. Paull, 551 F.3d 516, 527 (6th Cir. 2009) (\u201cWhile recent developments in sentencing and Confrontation Clause jurisprudence \u2018may be a broad signal of the future, there is nothing specific in Blakely, Booker or Crawford that would cause this Court to reverse its long-settled rule of law that [the] Confrontation Clause permits the admission of testimonial hearsay evidence at sentencing proceedings,\u2019 and so we will \u2018continue to observe [our] precedent that testimonial hearsay does not affect a defendant\u2019s right to confrontation at sentencing.\u2019 \u201d); Rodgers v. State, 948 So. 2d 655, 674-75 (Fla. 2006) (Cantero, J., concurring) (collecting recent federal appellate cases denying Confrontation Clause rights at sentencing); Michael S. Pardo, Confrontation Clause Implications of Constitutional Sentencing Options, 18 Fed. Sent\u2019g Rep. 230, 230 (2006) (\u201cAlthough the Supreme Court has not answered definitively whether a confrontation right ever applies at sentencing, several federal circuits have concluded that it does not.\u201d).\nStill, the issue is far from settled. See Wayne R. LaFave et al., Criminal Procedure \u00a7 26.4(f), at 768 (3d ed. 2007) (\u201c[Although the federal courts of appeals unanimously declined to recognize a federal defendant\u2019s right to confrontation under either the Sixth Amendment or the Due Process Clause in the guidelines setting, several of these decisions have been divided . . . .\u201d). Where the judiciary has grappled with the issue in both the capital and non-capital context, the scholastic writing has focused in large part on the extension of confrontation rights to capital sentencing. See generally, e.g., Penny J. White, \u201cHe Said, \u201d \u201cShe Said, \u201d and Issues of Life and Death: The Right to Confrontation at Capital Sentencing Proceedings, 19 Regent U. L. Rev. 387 (2007). And while one court observed that \u201cCrawford v. Washington ... has breathed new life into the debate,\u201d Gray, 362 F. Supp. 2d at 725, the Supreme Court of North Carolina had already applied the right of confrontation to the sentencing phase of capital trials prior to Crawford. See State v. Nobles, 357 N.C. 433, 441, 584 S.E.2d 765, 771 (2003) (\u201c[0]nce the state decides to present the testimony of a witness to a capital sentencing jury, the Confrontation Clause requires the state to undertake good-faith efforts to secure the \u2018better evidence\u2019 of live testimony before resorting to the \u2018weaker substitute\u2019 of former testimony.\u201d); State v. Holmes, 355 N.C. 719, 733, 565 S.E.2d 154, 165 (2002) (\u201cWhile the Rules of Evidence do not apply to a capital sentencing proceeding, the constitutional right to confront witnesses does apply.\u201d). Thus, our courts have already resolved, without noting any controversy regarding the issue, the question of the Confrontation Clause\u2019s applicability at capital sentencing, with which many courts have struggled prior to Crawford, see, e.g., Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir. 1982) (holding \u201cthe right to cross-examine adverse witnesses applies to capital sentencing hearings\u201d); Rodriguez v. State, 753 So. 2d 29, 43 (Fla. 2000) (stating the \u201cuncontroverted proposition that the Sixth Amendment right of confrontation applies to all three phases of the capital trial\u201d), or in light of Crawford, see, e.g., United States v. Mills, 446 F. Supp. 2d 1115, 1135 (C.D. Cal. 2006) (holding the protections of Crawford \u201capply to any proof of any aggravating factor during the penalty phase of a capital proceeding\u201d).\nCrawford did, however, cast doubt on our jurisprudence in this area where our reasoning was based on the interconnection between confrontation rights and the rules of evidence. After the landmark ruling in Crawford, which is further detailed below, our Supreme Court applied the Confrontation Clause and the standard outlined by Crawford to capital sentencing testimony in State v. Bell, 359 N.C. 1, 34-36; 603 S.E.2d 93, 115-16 (2004). This Court recently declined to extend Bell\u2019s ruling to a non-capital sentencing hearing in State v. Sings, upon which the State now relies. See Sings, 182 N.C. App. at 165, 641 S.E.2d at 372 (noting that Bell\u2019s language requiring compliance with Crawford when the State presents testimonial evidence \u201cto a capital sentencing jury\u201d suggests the ruling is \u201cintended to apply only to capital sentencing hearings\u201d). The State contends that Sings is dispositive of the issue that Crawford does not apply in the non-capital sentencing context and forecloses Defendant\u2019s argument. However, where the sentencing in Sings was based on the defendant\u2019s stipulation to three aggravating factors and not pursuant to a Blakely hearing, see id. at 163, 641 S.E.2d at 371, our holding there cannot be read to encompass the facts of this case, where the factor potentially augmenting Defendant\u2019s sentence was determined by a jury. Because such stipulations dispensed with the necessity of impaneling a sentencing jury to find aggravating factors, we agree with Defendant that Sings \u201cdoes not bear on the resolution of this issue.\u201d Rather, we hold today that Crawford does indeed apply to evidence offered to prove sentencing facts in the Blakely context, and the rationale therefor mirrors the justification for securing the right to confrontation in the capital sentencing context. An overview of the evolution in Confrontation Clause jurisprudence and its interplay with the United States Supreme Court\u2019s sentencing decisions will illuminate the bases for our conclusion. See generally, Nigel Hugh Holder, Comment, Confrontation at Sentencing: The Logical Connection Between Crawford and Blakely, 49 How. L.J. 179 (2005) (arguing that because of the changes Crawford and Blakely made to the landscape of the Sixth Amendment, the Confrontation Clause should apply at sentencing and therefore bar the use of testimonial hearsay during sentencing proceedings).\nIn overruling Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597 (1980), Crawford extricated the constitutional mandate of the right to confrontation from the rules of evidence by \u201creuniting] Confrontation Clause protection with the historical motivation for the clause.\u201d Gray, 362 F. Supp. 2d at 725; see also Crawford, 541 U.S. at 60, 158 L. Ed. 2d at 198 (discrediting the rationale of Roberts for its failure to be \u201cfaithful to the original meaning of the Confrontation Clause\u201d and criticizing its departure from historical principles). Where the Roberts test conditioned admissibility of out-of-court statements on: (1) unavailability of the declarant and (2) reliability based on either a \u201cfirmly rooted hearsay exception\u201d or, if none qualified, \u201cparticularized guarantees of trustworthiness,\u201d Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, Crawford dispensed with the vague \u201creliability\u201d criterion in favor of applying the Confrontation Clause to only a subset of hearsay statements: those which are \u201ctestimonial,\u201d see generally Crawford, 541 U.S. 36, 158 L. Ed. 2d 177. The new rule provided that \u201c[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.\u201d Id. at 68-69, 158 L. Ed. 2d at 203.\nThe Court\u2019s sentencing decisions have evolved from Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), a non-capital case holding \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; to Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002), holding aggravating circumstances in capital cases function as elements and must be found by jurors, not judges; and, most recently to Blakely, 542 U.S. 296, 159 L. Ed. 2d 403, and United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621 (2005), extending Apprendi\u2019s rule to sentencing guidelines that supply fixed ranges, within the statutory maximum, based on additional findings of fact and explaining that the relevant statutory maximum is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant. \u201cAll these cases stand for the proposition that any additional findings that increase a defendant\u2019s sentence beyond what state or federal law authorizes based solely on the jury\u2019s verdict are, in effect, \u2018elements\u2019 that must be submitted to a jury and proven beyond a reasonable doubt.\u201d Pardo, supra, at 231.\nThe North Carolina courts have addressed the scope of confrontation at sentencing but have not elaborated thereon in detail since Blakely. In State v. Phillips, 325 N.C. 222, 381 S.E.2d 325 (1989), our Supreme Court relied on Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337 (1949), for the proposition that \u201c[t]he use of hearsay evidence at sentencing hearings does not violate the Constitution of the United States.\u201d Phillips, 325 N.C. at 224, 381 S.E.2d at 326. In Williams, the United States Supreme Court addressed a capital defendant\u2019s due process challenge to an out-of-court presentence investigation report and concluded that due process did not limit the information available to sentencing judges, who were afforded broad discretionary power to fashion individualized sentences. See Williams, 337 U.S. at 242-45, 93 L. Ed. at 1339-41. Based on the emerging philosophy of the time \u2014 a rehabilitative model of punishment, individualizing sentences under an indeterminate scheme \u2014 the Court noted that the wide latitude of discretion given judges \u201cmade it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial,\u201d id. at 247, 93 L. Ed. at 1342, and recognized that most of the information relied upon by judges at sentencing \u201cwould be unavailable if . . . restricted to that given in open court by witnesses subject to cross-examination,\u201d id. at 250, 93 L. Ed. at 1343. Notwithstanding the retained validity of Williams, \u201csome writers have argued that the combination of Crawford and Blakely v. Washington, which gave defendant a right to jury trial on facts that must be proved to enhance a sentence, should extend the right of confrontation to sentencing trials.\u201d 30A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure \u00a7 6371.2, at 84 (Supp. 2010) (footnotes omitted); see also LaFave et al., supra, \u00a7 26.4(f), at 767-68 (\u201cNevertheless, whether a defendant has a right to confrontation at sentencing has proved to be a controversial question in modem sentencing systems that, unlike the discretionary sentencing examined in Williams, clearly tie the severity of a sentence to particular findings of fact[,]\u201d and \u201c \u2018[t]o rely on a decision made in a different world 40 years ago as the measure of due process, is to ignore the realities of the present system.\u2019 \u201d).\nOne such scholar, noting that Williams by no means settled the \u201cconfrontation question,\u201d emphasizes the critical mistake of the courts\u2019 reliance on their pre-Booker or pre-Blakely cases and argues that such precedent \u201cfails to seriously engage the text of the Sixth Amendment\u201d and \u201cis based on an erroneous understanding of the Confrontation Clause . . . [and] on now-rejected sentencing policy.\u201d Benjamin C. McMurray, Challenging Untested Facts at Sentencing: The Applicability of Crawford at Sentencing After Booker, 37 McGeorge L. Rev. 589, 605 (2006). As an example of the courts\u2019 misplaced dependence on Williams, he criticizes the 10th Circuit\u2019s analysis in United States v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990):\nThere the court stated, \u201c[t]he Supreme Court has made clear that the constitutional requirements mandated in a criminal trial as to confrontation and cross-examination do not apply at non-capital sentencing proceedings.\u201d Reading this statement, we would expect the cited authorities to point us to some Supreme Court exposition of the significance of the Sixth Amendment, but as noted above, the Supreme Court has never addressed this issue. The cited authority is simply another Tenth Circuit case, which in turn relied on Williams for the proposition that \u201c[i]t seems clear from these decisions that the requirements mandated in a criminal trial as to confrontation and cross-examination are not applicable at sentencing proceedings. The right to confrontation is basically a trial right.\u201d But Williams said nothing about the Confrontation Clause. By reading earlier authorities as if they had resolved this constitutional issue, the pre-Booker courts have perpetuated the critical failure. Because no court has grappled with the meaning of the Sixth Amendment, circuit courts should welcome the opportunity to resolve this issue in the wake of Crawford and Booker.\nId. at 607-08 (footnotes omitted). Another scholar has noted that the refusal to extend the Confrontation Clause to sentencing based on Williams rests on two flawed assumptions: \u201cFirst, trial and sentencing are different procedures that raise fundamentally different types of evidentiary demands and requirements. And second, the confrontation right is just a constitutionally required hearsay rule and thus no different from other evidence rules, which typically do not apply at sentencing.\u201d Pardo, supra, at 230 (footnote omitted). Professor Pardo continues: \u201cThe Court\u2019s recent sentencing decisions, from Apprendi to Booker, have vitiated the first assumption, and Crawford has explicitly rejected the second.\u201d Id. Where Apprendi eradicated the import of labels that attempt to distinguish \u201c \u2018elements,\u2019 \u201d required to be proven to a jury beyond a reasonable doubt, from \u201c \u2018sentencing factors,\u2019 \u201d and emphasized that \u201cthe relevant inquiry is one not of form, but of [the] effect\u201d of the factual finding on punishment, Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, Blakely and Booker extended the reasonable doubt requirement to sentencing guidelines that impose fixed ranges within the statutory maximum. As such, the combination of Apprendi with Booker and Blakely has eroded any notion of a clear line separating trial from sentencing and distinguishing the procedural rights that must be afforded defendants at each phase. In Crawford, the Court rebuffed the notion that protection of the Confrontation Clause of the Sixth Amendment was intended to be left \u201cto the vagaries of the rules of evidence,\u201d thus rejecting the antiquated premise that the Confrontation Clause is just a constitutional ban on hearsay, inextricably tied to evidentiary rules. Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199; see also United States v. Fields, 483 F.3d 313, 365 (5th Cir. 2007) (Benavides, J., dissenting) (\u201cThe Confrontation Clause and the rules of evidence offer entirely separate protections. Conforming to evidentiary rules regarding hearsay will not satisfy the Confrontation Clause[;]... if a hearsay statement is not testimonial, the Confrontation Clause offers no protection.\u201d).\nWhile some courts have clung steadfastly to Williams in post-Crawford cases, our Supreme Court has not demanded continued adherence to its tenets where the proceedings are so different in nature. In fact, no North Carolina appellate court has cited to Williams after Crawford. Thus, we are not bound to apply Williams to a context as distinct as Blakely sentencing hearings. Furthermore, many courts declining to extend confrontation rights to non-capital sentencing have overlooked the United States Supreme Court\u2019s decision in Specht v. Patterson, 386 U.S. 605, 18 L. Ed. 2d 326 (1967), another due process case that extended confrontation rights to the enhancement stage of sentencing for a sex offense. Where a state statute provided that, upon conviction, a sex offender was subject to an additional sentence if the judge found that the defendant constituted a threat of bodily harm or was a habitual offender and mentally ill, Specht, 386 U.S. at 607, 18 L. Ed. 2d at 329, the Court held that because the statute required \u201cthe making of a new charge leading to criminal punishment,\u201d the defendant must \u201chave an opportunity to .. . be confronted with witnesses against him, [and] have the right to cross-examine,\u201d id. at 610, 18 L. Ed. 2d at 330. One court summarized the Supreme Court\u2019s ruling in Specht\nthat the Constitution extends certain trial rights \u2014 including the right to confrontation \u2014 to some proceedings where a factfinder finds facts that necessarily subject a criminal defendant to additional liability. Although Specht did not explicitly mention the Sixth Amendment, the Court held that \u201c[d]ue process . . . requires that [the defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.\u201d Therefore, once the activity of a sentencer stops being an exercise of discretion and becomes constitutionally significant factfinding, the right to confrontation attaches.\nMills, 446 F. Supp. at 1125 (internal citation omitted). Importantly, Specht involved the non-capital sentencing context and explicitly distinguished itself from Williams because the sentence imposed upon conviction was not within the judge\u2019s discretion but, rather, further findings were necessary for any enhancement thereof. See id. at 608, 18 L. Ed. 2d at 329 (noting the Court\u2019s continued adherence to Williams but \u201cdeclin [ing] the invitation to extend it to this radically different situation\u201d (emphasis added)).\nMoreover, a large percentage of the cases that have declined to apply the Confrontation Clause to non-c\u00e1pital sentencing proceedings post -Blakely (or, more relevantly, post-Booker) were reported from federal jurisdictions. See, e.g., Paull, 551 F.3d at 527-28 (holding testimonial hearsay does not affect defendant\u2019s right to confrontation at sentencing but doing so under advisory guidelines system where Blakely and Booker did not require factual findings that increase sentence to be found by a jury beyond a reasonable doubt); United States v. Bustamante, 454 F.3d 1200, 1202-03 (10th Cir. 2006) (deeming the Confrontation Clause inapplicable at non-capital sentencing but Booker was not triggered because of advisory guidelines); United States v. Cantellano, 430 F.3d 1142 (11th Cir. 2005) (holding Crawford inapplicable at non-capital sentencing because the \u201c \u2018right to confrontation is a trial right,\u2019 \u201d but neither Blakely nor Booker applied and sentence was enhanced based on judicially found fact of prior conviction); Mills, 446 F. Supp. 2d at 1124 (noting the 9th Circuit\u2019s \u201cholding that the hearsay-limiting rights afforded by the Confrontation Clause do not apply to non-capital sentencing, where the judge, not the jury,\u201d makes the aggravating factor sentencing determination (second emphasis added)). In these cases, \u201c[arguments that sentencings under the [federal] Guidelines closely simulate trials so as to require the same procedural protections have been significantly undermined by the Booker remedy that makes [those] Guidelines advisory.\u201d Gray, 362 F. Supp. 2d at 725.\nThus, a review of the caselaw negating that Crawford plays a role in sentencing proceedings after Blakely and Booker is a bit misleading because this view is held largely by Booker sentencing regimes, where the question becomes more difficult because the judge is not bound by the guideline calculation. See id. (\u201cUnder the advisory [Guideline] system, the factual findings that [judges] make at sentencing no longer mandate a defendant\u2019s punishment with mathematical precision. In the absence of such mandatory, fact-driven penalty determinations, arguments for constitutional procedural protections at. sentencing are weakened.\u201d). Our Supreme Court, however, has held that, under the North Carolina sentencing system, any factor that authorizes an upward durational departure from the statutory maximum must be found pursuant to Blakely. See State v. Blackwell, 361 N.C. 41, 45, 638 S.E.2d 452, 455 (2006) (\u201c[A]fter Blakely, trial judges may not enhance criminal sentences beyond the statutory maximum absent a jury finding of the alleged aggravating factors beyond a reasonable doubt.\u201d). Where sentencing facts are thus necessary in our state system to enable a judge to impose a sentence that exceeds the presumptive range for the convicted offense, such facts are the functional equivalent of elements of the underlying crime pursuant to Apprendi and Blakely under the federal constitution. For, if aggravating factors warrant treatment as elements for due process purposes \u2014 in that a defendant is entitled to have a jury find them beyond a reasonable doubt before being eligible for an aggravated sentence \u2014 the logical corollary is that the same Confrontation Clause protections that are guaranteed at the guilt-innocence phase of trial also apply to evidence presented at a sentencing hearing to prove these factors. One state court has expressly agreed, and the facts are analogous to the instant case.\nIn State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008), the Supreme Court of Minnesota held \u201cthat the right of confrontation applies in jury sentencing trials\u201d because \u201cif the Sixth Amendment right to a jury trial applies in jury sentencing trials, then the right of cross-examination, which is a core component of the jury trial right, applies in jury sentencing trials.\u201d Rodriguez, 754 N.W.2d at 681. The Minnesota court reasoned that the United States Supreme Court \u201cturned to the historical understanding of the Sixth Amendment\u201d in both Apprendi and Blakely, just as it did in Crawford, where the Court \u201cquot[ed] Blackstone\u2019s observation that the open examination of witnesses ... is much more conducive to the clearing up of truth.\u201d Id. at 679-80 (internal quotation marks and citations omitted). Rodriguez also connected the Court\u2019s emphasis in Apprendi and Blakely on \u201cthe right to have a jury find the truth of every accusation beyond a reasonable doubt\u201d to its emphasis in Crawford \u201cthat the Confrontation Clause requires that the reliability of testimonial statements be assessed by testing in the crucible of cross-examination.\u201d Id. at 680 (internal quotation marks omitted). Therefore, the Minnesota court rationalized that\n[tjhe admission at a jury sentencing trial of testimonial statements of a witness who did not testify and who has not previously been subject to cross-examination surely constitutes the \u201cuse of ex parte examinations as evidence against the accused,\u201d which is \u201cthe principal evil at which the Confrontation Clause was directed.\u201d\nId. (quoting Crawford, 541 U.S. at 50, 158 L. Ed. 2d at 192). While it does not appear that another case emulating Rodriguez has been reported, several courts have expressed their approval of a rationale similar to that employed by the Minnesota court. See Gray, 362 F. Supp. 2d at 725 (proposing that \u201cthe truth-seeking function of the Confrontation Clause deserves attention at sentencing\u201d because \u201c[t]he adversarial system provides the best method of establishing the reliability of testimonial evidence and the appropriate weight to assign to such evidence,\u201d and, therefore, \u201cstrongly encourag[ing] the use of witness testimony and cross-examination to resolve factual disputes at sentencing, notwithstanding [the court\u2019s] finding that Crawford does not apply at sentencing under the post -Booker sentencing regime.\u201d); In re M.P., 220 S.W.3d 99, 108 (Tex. App. 2007) (concluding that, \u201cat a minimum,\u201d a criminal defendant should have confrontation rights at sentencing: \u201c(1) in cases in which the State seeks imposition of a sentence on the basis of findings beyond those \u2018reflected in the jury verdict or admitted by the defendant\u2019; and (2) whenever the State calls a witness to testify at punishment\u201d); see also LaFave et al., supra, \u00a7 26.4(f), at 769 (\u201c[Sentencing factors that qualify as elements, for which the defendant has a right to a jury determination and proof beyond a reasonable doubt, should be established by evidence that would meet the confrontation requirements for admission at trial.\u201d). We believe Rodriguez and the authorities sharing its rationale represent the better-reasoned view.\nWhile we have never held that the right of confrontation applies to the sentencing phase of non-capital trials, no North Carolina case has addressed the similarities between the penalty phase of a capital case and jury sentencing hearing in a non-capital case under Blakely. Both require the State to prove an element to a jury beyond a reasonable doubt, and without a finding of an aggravating factor by the trier of fact, the presumptive sentence is the maximum sentence that can be imposed for the crime. Where confrontation rights apply in one context, they should apply equally to the other. Our caselaw supports this conclusion by comparing sentencing proceedings to jury trials on several occasions, suggesting that any factual issue required to trigger a certain sentence is a \u201ctrial issue,\u201d whether arising during the guilt or sentencing phase of trial. See, e.g., State v. Pinch, 306 N.C. 1, 22, 292 S.E.2d 203, 221 (1982) (equating capital sentencing to a trial proceeding by noting that, \u201c[a]s a general matter, the truthfulness of any aspect of any witness\u2019s testimony may be attacked on cross-examination\u201d and explaining that \u201c[t]his basic rule applies to all trial proceedings, including both the guilt and sentencing phases in capital cases\u201d), abrogated in part on other grounds by State v. Wilson, 322 N.C. 117, 145, 367 S.E.2d 589, 605 (1988), and overruled in part on other grounds by State v. Benson, 323 N.C. 318, 326, 372 S.E.2d 517, 521 (1988), and State v. Robinson, 336 N.C. 78, 110, 443 S.E.2d 306, 321 (1994). Notably, our Supreme Court in State v. Lopez, 363 N.C. 535, 681 S.E.2d 271 (2009), a non-capital case conducted pursuant to Blakely, discussed the rules of procedure and evidence meant to assure the evidence a sentencing jury hears and considers is reliable by referring to N.C. Gen. Stat. \u00a7 7A-97, which deals with jury trials. See Lopez, 363 N.C. at 540-41, 681 S.E.2d at 275 (discussing the propriety of closing arguments made during a jury sentencing trial on aggravating factors with reference to \u201c[t]he rules of procedure and evidence [which] are meant to assure that the evidence a jury hears and considers is reliable\u201d); see also id. at 544, 681 S.E.2d at 277 (Brady, J., concurring in the result only) (\u201cThe jury was charged with answering one question: Did the evidence presented support the finding of the aggravating factor? This is purely a factual question, and much like in the guilt-innocence phase of the trial, the jury is asked to evaluate whether the State presented sufficient evidence to prove its case.\u201d (emphasis added)). Our Supreme Court has also stated in another non-capital case, long before Crawford and Blakely, albeit without further discussion, that \u201c[a]lthough G.S. 15A-1334(b) makes inapplicable \u2018formal rules of evidence\u2019 at the sentencing hearing, the statute does require that defendant be given an opportunity to confront and cross-examine witnesses against him and to present witnesses and arguments in his own behalf.\u201d State v. Williams, 295 N.C. 655, 670, 249 S.E.2d 709, 720 (1978) (emphasis added), superceded by statute on other grounds.\nWhile it has been said that \u201cdeath is different,\u201d we perceive the importance of safeguarding the accuracy and propriety of jury fact-finding in sentencing clearly as pertaining to both the capital and non-capital context. See United States v. Brown, 441 F.3d 1330, 1361 n.12 (11th Cir. 2006) (distinguishing the inapplicability of Crawford in the context of non-capital sentencing from the court\u2019s previous holding \u201cthat the constitutional right to cross-examine witnesses applies to capital sentencing hearings\u201d on the basis that \u201cdeath is different\u201d). But see Fields, 483 F.3d at 367 (Benavides, J., dissenting) (\u201cI agree that the Confrontation Clause typically will not apply at noncapital sentencing, so long as the sentencing facts apply to an indeterminate scheme and a judge has broad discretion in imposing the sentence. Only to that extent is Williams\u2019s application plain. But the Supreme Court recently recognized [in Apprendi] that even noncapital sentencing is not always so different from trial proceedings, and if the sentencing facts \u2018increase the prescribed range of penalties to which a criminal defendant is exposed\u2019 such that the sentencing fact is the \u2018equivalent of an element of a greater offense than the one covered by the jury\u2019s guilty verdict,\u2019 then the Confrontation Clause should apply and Williams does not control even in the noncapital context.\u201d (emphasis added)); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002) (citing Specht for the proposition that \u201cthe Confrontation Clause applies during those portions of a sentencing proceeding that can lead to an increase in the maximum lawful punishment\u201d). For, it appears that, in a system such as ours where confrontation rights are already embedded in the capital sentencing scheme, the better approach compares the nature of those proceedings (along with the guilt-innocent phase), rather than the nature of the punishment, as Apprendi, a non-capital case, intimates:\nIf a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not- \u2014 -at the moment the State is put to proof of those circumstances \u2014 be deprived of protections that have, until that point, unquestionably attached.\nApprendi, 530 U.S. at 484, 147 L. Ed. 2d at 451. Without minimizing the unrivaled severity of capital punishment, we simply acknowledge that in both capital and non-capital jury sentencing, the defendant endures another \u201cmini-trial,\u201d which has often been bifurcated or even trifurcated from the trial on the substantive offense, to discover whether he will lose more liberty than otherwise allowable under the applicable statute. See John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 1967, 1973 (2005) (\u201c[d]rawing on the history of unified trials in the era of the Framers,\u201d who \u201cknew nothing of a \u2018guilt\u2019 phase and a \u2018penalty\u2019 phase,\u201d and noting that the Sixth Amendment hails from a time where guilt and sentencing \u201cwere determined simultaneously by a single jury verdict in a trial with full adversarial rights,\u201d in support of his argument that the later-evolved practice of bifurcating trial from sentencing, cannot be viewed as an indication \u201cthat the \u2018trial rights\u2019 of the Sixth Amendment were conceived with such a separation in mind\u201d). Thus, we believe that in determining the availability of constitutional procedural protections in specific contexts, the proper focus is on the essential characteristics of the procedure at issue and not on the incommensurate punitive measures different defendants may face at those otherwise similar stages. Accordingly, we distinguish the procedural aspects of Sings, where sentencing proceeded after the defendant stipulated to the aggravating factors at issue, and limit our holding there to the facts of that case. See Sings, 182 N.C. App. at 163, 641 S.E.2d at 371. Where, however, the sentencing fact to be proved is covered by Blakely, such that it must be found beyond a reasonable doubt before a judge may impose a sentence above that allowed by the presumptive range, Crawford applies.\nOur holding is consistent with the syllogism illustrated by Professor Pardo: (1) additional findings that are required to increase a defendant\u2019s sentence are \u201celements,\u201d and, as such, \u201cdespite their labels and when they occur,\u201d these \u201cissues at \u2018sentencing\u2019 function as as-yet-undecided \u2018trial\u2019 issues\u201d; (2) the Confrontation Clause applies to trial issues; and (3) \u201cthe confrontation right should apply to sentencing issues that function as \u2018elements\u2019 or trial issues\u201d just like those adjudicated at trial Pardo, supra, at 231.\nB.\nHaving determined that the Confrontation Clause applies during non-capital jury sentencing trials, we must determine if Defendant\u2019s rights thereunder were violated and, if so, whether such error was harmless. We conclude that Melendez-Diaz, an extension of Crawford in Confrontation Clause jurisprudence, prohibited the introduction of the results of the non-testifying forensic analysts, and the trial court\u2019s error in allowing the substitute witnesses to testify was not harmless.\n\u201cThe Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant.\u201d State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citing Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203). Our analysis of whether Defendant\u2019s confrontation rights were violated consists of a three-part inquiry implemented pursuant to Crawford, and 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 State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (2004). While Crawford did not explicitly define \u201ctestimonial\u201d evidence, leaving the lower courts to shape the term\u2019s parameters, see Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203 (\u201cWe leave for another day any effort to spell out a comprehensive definition of \u2018testimonial.\u2019 \u201d), the United States Supreme Court did provide various examples of the types of statements that are testimonial in nature, including:\nex parte in-court testimony or its functional equivalent \u2014 that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.\nId. at 51-52, 158 L. Ed. 2d at 193 (internal quotation marks, citations, and alteration omitted).\nFurther illustrating the Sixth Amendment\u2019s prohibition against the prosecution\u2019s attempt \u201cto prove its case via ex parte out-of-court affidavits,\u201d the United States Supreme Court recently applied the Crawford holding to documents or reports that the government seeks to enter into evidence that are \u201ctestimonial\u201d in nature. Melendez-Diaz, 557 U.S. at -, 174 L. Ed. 2d at 332. In Melendez-Diaz, the Court addressed the admissibility of a sworn \u201ccertificate of analysis,\u201d displaying the results of forensic testing, as evidence that a seized substance was illegal contraband. Id. at \u2014, 174 L. Ed. 2d at 320. Reasoning that \u201c[t]he \u2018certificates\u2019 are functionally identical to live, in-court testimony, doing \u2018precisely what a witness does on direct examination,\u2019 \u201d the Court had no doubt that these documents \u201cfall within the \u2018core class of testimonial statements\u2019 \u201d described in Crawford. Id. at -, 174 L. Ed. 2d at 321. As such, \u201cthe analysts\u2019 affidavits were testimonial statements, and the analysts were \u2018witnesses\u2019 for purposes of the Sixth Amendment.\u201d Id. at -, 174 L. Ed. 2d at 322. \u201cThus, when the State seeks to introduce forensic analyses, \u2018[a]bsent a showing that the analysts [are] unavailable to testify at trial and that [defendant] had a prior opportunity to cross-examine them\u2019 such evidence is inadmissible under Crawford.\u201d Locklear, 363 N.C. at 452, 681 S.E.2d at 305 (quoting Melendez-Diaz, 557 U.S. at -, 174 L. Ed. 2d at 322). Stated alternatively, if it is not shown that an analyst is unavailable to testify at trial and that there was a prior opportunity for cross-examination available to the accused, Melendez-Diaz entitles the criminal defendant \u201cto be confronted with the analysts at trial.\u201d Melendez-Diaz, 557 U.S. at \u2014, 174 L. Ed. 2d at 322 (internal quotation marks omitted)..\nThe North Carolina Courts \u201chave applied the reasoning of Melendez-Diaz to other types of witnesses and testimony\u201d in a series of opinions based on that decision. State v. Craven, - N.C. App. -, -, 696 S.E.2d 750, 752 (2010). In Locklear, our Supreme Court extended the Melendez-Diaz holding from its focus on the admissibility of documents themselves as an offer of forensic proof to likewise govern testimony of experts who essentially rely on such documents as the basis for their opinions. See Locklear, 363 N.C. at 452, 681 S.E.2d at 304-05 (applying Melendez-Diaz to proscribe in-court expert testimony as to the opinions rendered by other experts, where the State\u2019s witnesses merely recited the contents and findings contained within \u201ctestimonial\u201d reports prepared by the non-testifying forensic examiners). There, it was error for the trial court to admit \u201cevidence of forensic analyses performed by a forensic pathologist and a forensic dentist who did not testify\u201d because \u201c[t]he State failed to show that either witness was unavailable to testify or that defendant had been given a prior opportunity to cross-examine them.\u201d Id. at 452, 681 S.E.2d at 305. However, \u201c[w]ell-settled North Carolina case law allows an expert to testify to his or her own conclusions based on the testing of others in the field.\u201d State v. Mobley, 200 N.C. App. -, -, 684 S.E.2d 508, 511 (2009), disc. review denied, 363 N.C. 809, 692 S.E.2d 393 (2010); see also State v. Hough, \u2014 N.C. App. -, -, 690 S.E.2d 285, 291 (2010) (declining to find Melendez-Diaz abrogates the cases \u201cthat relied on Crawford and were decided prior to Melendez-Diaz . . . where the analyst who testified asserted his or her own expert opinion\u201d). Thus, when an \u201cunderlying report, which would be testimonial on its own, is used as a basis for the opinion of an expert who independently reviewed and confirmed the results,\u201d it is \u201cnot offered for the proof of the matter asserted\u201d and does not implicate the Confrontation Clause. Mobley, 200 N.C. App. at -, 684 S.E.2d at 512.\nIn Mobley, we distinguished the expert testimony at issue from the facts of Locklear. Where the medical examiner in Locklear \u201cdid not testify to his own expert opinion based upon the tests performed by other experts, nor did he testify to any review of the conclusions of the underlying reports or of any independent comparison performed,\u201d the testifying expert in Mobley \u201ctestified not just to the results of other experts\u2019 tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts\u2019 tests, and her own expert opinion based on a comparison of the original data.\u201d Id. at -, 684 S.E.2d at 511. As such, the challenged testimony did not implicate the Confrontation Clause, and accordingly no violation of Crawford or Melendez-Diaz occurred. See id. at -, 684 S.E.2d at 512. In Hough, this Court approved the admission of expert testimony as to the identity of controlled substances delivered by a witness who did not conduct or witness the underlying testing performed by a non-testifying forensic chemist. See Hough, \u2014 N.C. App. at -, 690 S.E.2d at 290-92 (holding that while the report at issue \u201cformed the basis\u201d of the expert\u2019s opinion, it \u201cwas not offered for the proof of the matter asserted and was not prima facie evidence that the substances recovered from the crime scene were, in fact, marijuana and cocaine\u201d). The witness had described in great detail that which her \u201cpeer review\u201d entailed, sufficiently showing that \u201cher expert opinion was based on an independent review and confirmation of test results,\u201d but we emphasized, notably, that \u201c[i]t is not our position that every \u2018peer review\u2019 will suffice to establish that the testifying expert is testifying to his or her expert opinion.\u201d Id. at -, 690 S.E.2d at 291.\nHere, the prejudicial testimony from testifying experts summarizing another non-testifying expert\u2019s reports consisted of the serologist and DNA evidence offered by SBI Agents Barker and Freeman respectively. Both lab reports were clearly testimonial under the tenets of Melendez-Diaz. See Locklear, 363 N.C. at 452, 681 S.E.2d at 305 (\u201cThe [Supreme] Court specifically referenced autopsy examinations as one such kind of forensic analyses [that qualify as testimonial statements].\u201d); Mobley, 200 N.C. App. at -, 684 S.E.2d at 511 (\u201cAlthough the Court in Melendez-Diaz addressed only drug testing, the Court\u2019s analysis easily implicates DNA testing as well.\u201d). Still, the admissibility of Barker and Freeman\u2019s testimony will not be governed by the Melendez-Diaz if the reports upon which they relied merely provided a basis for their independent expert opinions but were offered neither as proof of the matter asserted nor prima facie evidence that the items linking Defendant to the crime contained blood or saliva that matched his DNA profile. We conclude, however, that the reports in the instant case were not limited to this permissible function. As discussed below, the testimony elicited from Barker and Freeman intended to reveal their level of participation in the forensic testing at issue or their independent familiarity with the results thereof falls short of that held to be sufficient in Mobley and Hough. Rather, the facts here more closely mirror those of State v. Galindo, - N.C. App. -, 683 S.E.2d 785 (2009). In Galindo, even though the expert chemist explained the lab\u2019s chain of custody protocol, which had been followed, and testified that the analytical procedures \u201cexceeded industry standards\u201d and were \u201crelied upon by experts in the field of forensic chemistry,\u201d it was clear that his identification of certain chemical substances was \u201cbased \u2018solely\u2019 on the lab report\u201d prepared by another non-testifying analyst. Id. at -, 683 S.E.2d at 787.\nNeither expert in the case sub judice testified to having taken part in conducting any of the testing of the substance, nor did either perform any independent analysis. Special Agent Barker testified that the items sent to the serologist division were assigned to Special Agent Todd, who is no longer employed with the SBI. While Barker approved of the techniques and procedures employed by Todd, her testimony demonstrates that her familiarity with this case was limited to her role as \u201ctechnical reviewer\u201d of Todd\u2019s report. Barker stated that \u201c[i]t\u2019s required for any report before it goes out that it have a peer review by someone who is certified in that area\u201d and that she \u201cactually did the peer review on this case.\u201d She found the procedures used by Todd to be in accordance with standard methods and concurred with his analyses and results, but there is absolutely no indication that Barker conducted any independent testing designed to confirm the conclusions of the non-testifying expert, made any comparison of the original data in formulating her opinion, or ever even inspected any item of physical evidence prior to testifying in this case. In fact, Barker\u2019s recognition of the evidence tested by Todd seems to have been limited to her ability to identify Todd\u2019s initials on each envelope containing the particular item and not on any personal examination thereof or confirmation of the results relating thereto. As the State presented each exhibit, Barker recited which tests Todd had performed thereon and what the results of those tests were. Only after eliciting testimony as to Todd\u2019s results did the State revisit each exhibit and ask Barker, based on her review of the tests and analyses performed, to provide her opinion as a forensic biologist of what bodily fluids each exhibit contained. Thus, Barker\u2019s initial testimony as to the results was clearly a mere recitation of the findings contained in Todd\u2019s lab report. Only later did Barker purport to offer her expert opinions, which conformed entirely to that which Todd\u2019s report indicated, without explanation of any review or confirmation she performed on any particular item. Barker\u2019s general testimony at the outset of her examination that she concurred with Todd\u2019s results is not sufficient to show that the opinions she offered were indeed her own.\nSpecial Agent Freeman with the DNA unit likewise testified as the technical reviewer of non-testifying declarant Agent Spittle\u2019s work. While Freeman indicated that he was \u201cvery familiar with the testing that was used\u201d because he \u201chelped validate the system,\u201d his dealings with this particular case were limited to \u201cthe specific report that [Spittle] generated and all the subsequent notes.\u201d Freeman also identified the State\u2019s exhibits solely through recognition of Todd and Spittle\u2019s initials. The only further explanation of Freeman\u2019s involvement with this case referenced his \u201creview of the notes and the fact that [he was] the person that basically did the peer review.\u201d After identifying each exhibit, Freeman reported the results of the DNA testing performed thereon by Spittle and then offered his \u201copinion[s] as to the [DNA results] that [he] just testified to.\u201d This putative opinion testimony, however, mirrored the findings of Spittle\u2019s underlying report exactly. On cross-examination, Freeman further indicated that he had conducted no independent research to confirm the contents of the underlying report, when defense counsel asked, \u201cNow, you tested other items as part of your analysis, DNA analysis, is that correct?\u201d Freeman clarified that \u201c[o]ther items were tested by Special Agent Spittle\u201d and continued to testify specifically to Spittle\u2019s conclusions and what \u201c[h]is results indicate.\u201d The State elicited no testimony that Freeman\u2019s \u201copinion as to [Spittle\u2019s] results,\u201d finding various DNA matches between Defendant and the evidence tested, was based on anything other than the witness\u2019s reading of the lab report.\nThe mere peer review of the retired agents\u2019 methods and conclusions does not suffice in this case, for the transcript reveals that these experts were merely summarizing the results of the absent analysts. Neither Barker nor Freeman provided any insight as to the nature or details of their peer review, and it is clear from their testimony that they took no part in conducting any testing or independent analyses of the evidence at issue. Accordingly, Barker and Freeman were not using the reports of another expert as the basis for their own independent expert opinions but, rather, were \u201cmerely reporting the results of other experts.\u201d Mobley, \u2014 N.C. App. at \u2014, 684 S.E.2d at 511. As such, the reports were clearly being utilized by the testifying experts as a vehicle through which they impermissibly offered the statements of other expert analysts for the truth of the matter asserted, implicating the Confrontation Clause.\nThis case is akin to Locklear because the challenged evidence\u2014 Barker and Freeman\u2019s testimony based solely on the lab reports of non-testifying analysts \u2014 was testimonial in nature and therefore was subject to the requirements of Crawford and Melendez-Diaz. Accordingly, it was constitutional error for the trial court to admit the serology and DNA reports as well as Barker and Freeman\u2019s testimony as to the contents thereof because there was no showing by the State regarding any prior opportunity for cross-examination by Defendant. Crawford and Melendez-Diaz thus entitle Defendant to be confronted with the analysts at trial. Moreover, testimony that the original SBI analysts had retired does not suffice to establish that the State made \u201cgood-faith efforts\u201d to procure their presence as witnesses at trial, Nobles, 357 N.C. at 441, 584 S.E.2d at 771, and does not constitute a showing of unavailability. Barker and Freeman should not have been allowed to testify to the presence of blood on the several items of evidence submitted to the SBI or to the follow-up DNA test results implicating Defendant because these opinions were based exclusively on the tests that Agents Todd and Spittle claimed to have performed and their unconfirmed observations. Furthermore, these errors were certainly not harmless. Where it was proper for the jury \u201cto consider ... [Defendant's actual role in the offense as opposed to his legal liability for the acts of others,\u201d State v. Benbow, 309 N.C. 538, 546, 308 S.E.2d 647, 652 (1983), evidence of his participation and involvement in the crime was submitted only in the form of this forensic evidence that was improperly admitted under the Confrontation Clause. Accordingly, Defendant is awarded a new sentencing trial.\nNew trial.\nJudges STEPHENS and HUNTER, Jr. concur.\n. Although the State\u2019s notice to Defendant listed several non-statutoiy aggravating factors it intended to try before the resentencing jury, including Defendant\u2019s joining with one other person in the robbery and murder of Cook without being charged with committing conspiracy for the offenses, the State elected to proceed only on the HAC aggravator under N.C. Gen. Stat. \u00a7 15A-1340.16(d)(7).\n. To the extent that aggravating factors are not considered elements of a crime for purposes of Article I, \u00a7 23, of our state constitution, which grants \u201cperson[s] charged with crime... the right... to confront the accusers and witnesses with other testimony,\u201d N.C. Const, art. I, \u00a7 23, our reversal of this case is based on Defendant\u2019s federal Confrontation Clause rights, and a \u00a7 23 analysis would not change our conclusion. Compare Blackwell, 361 N.C. at 51-52, 638 S.E.2d at 459-60 (stating \u201caggravating factors are not, and have never been, elements of a \u2018crime\u2019 for purposes of Article I, Section 24 analysis\u201d \u2014 requiring a unanimous jury verdict for any criminal conviction \u2014 and \u201cdeclining] to superimpose Blakely\u2019s definition of aggravator upon the well recognized definition of \u2018crime\u2019 under [\u00a7] 24\u201d), with Apprendi, 530 U.S. at 494 n.19, 147 L. Ed. 2d at 457 n.19 (indicating that regardless of the term used, whether labeled \u201csentencing factor,\u201d \u201caggravating factor,\u201d or \u201csentence enhancement,\u201d if it \u201cdescribe^] an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury\u2019s guilty verdict.\u201d), and State v. Allen, 359 N.C. 425, 460, 615 S.E.2d 256, 280 (2005) (Martin, J., concurring in part and dissenting in part) (\u201c[T]he instant case deals with the failure to submit an aggravating factor, as opposed to an essential element, for jury determination. But this distinction provides no viable basis for distinguishing Neder [v. United States, 527 U.S. 1, 144 L. Ed. 2d 35 (1999)], as the Blakely line of cases firmly establishes the principle that aggravating factors are the \u2018functional equivalent\u2019 of essential elements of the crime for purposes of the Sixth Amendment right to jury trial.\u201d), withdrawn, 360 N.C. 569, 635 S.E.2d 899 (2006).\n. We note that our holding has no effect on the established inapplicability of other evidence rules at sentencing, nor do we hold or suggest that they should apply. Our evidence rules are matters of legislative discretion; thus, \u201cit is not inconsistent to conclude that the Confrontation Clause should apply at sentencing because it is a constitutionally mandated requirement, while other evidence rules (such as those involving hearsay, character, and impeachment) may not apply.\u201d Pardo, supra, at 231.\n. While Melendez-Diaz was decided over one year after Defendant\u2019s resentencing trial was finalized, the Supreme Court\u2019s reasoning is applicable to the instant case. See United States v. Johnson, 457 U.S. 537, 549, 73 L. Ed. 2d 202, 213 (1982) (\u201c[W]hen a decision of [the Supreme] Court merely has applied settled precedents to new and different factual situations, no real question has arisen as to whether the later decision should apply retrospectively. In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered that rule in any material way.\u201d).\n. While the United States Supreme Court included autopsy examinations in its list of forensic analyses controlled by Melendez-Diaz and our courts have explicitly deemed autopsy reports to constitute testimonial evidence thereunder, see Locklear, 363 N.C. at 462, 681 S.E.2d at 305 (citing Melendez-Diaz, 557 U.S. at - n.5, 174 L. Ed. 2d at 326 n.5), we do not discuss Lantz\u2019s testimony to the non-testiiying pathologist\u2019s autopsy findings at great length. For, even if Lantz\u2019s recitation of stab wounds visually observed by Dr. Winston and listed in the latter\u2019s report are considered a type of testimonial forensic evidence contemplated by Melendez-Diaz, his description of Cook\u2019s stab wounds was not prejudicial. Several responding officers and EMS personnel also testified to the wounds they personally observed, and several photographs of the victim\u2019s body were published to the jury for inspection. Moreover, Lantz\u2019s opinion testimony regarding the impact of the various wounds and the time it would have taken for Cook to lose consciousness was clearly based, not on the report at all, but on his own independent experience as a pathologist.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Daniel P. O\u2019Brien, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT\nNo. COA09-442\n(Filed 16 November 2010)\n1. Constitutional Law\u2014 Confrontation Clause \u2014 non-capital sentencing \u2014 -jury determination required to increase sentence\nThe Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings, both capital and non-capital, where a jury determines a fact that would increase the defendant\u2019s sentence beyond the statutory maximum. Stale v. Sings, 182 N.C. App. 162, involved defendant\u2019s stipulation to aggravating factors and was limited to its facts.\n2. Constitutional Law\u2014 forensic analysts \u2014 summaries of reports of others\nThe Confrontation Clause was violated where two SBI forensic analysts merely summarized the results of absent analysts.\nAppeal by Defendant from judgment entered 4 April 2008 by Judge Thomas D. Haigwood in Caldwell County Superior Court. Heard in the Court of Appeals 1 October 2009.\nAttorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Daniel P. O\u2019Brien, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant." }, "file_name": "0001-01", "first_page_order": 25, "last_page_order": 50 }