{ "id": 3738232, "name": "STATE OF NORTH CAROLINA v. ANGELA DEBORAH LEWIS", "name_abbreviation": "State v. Lewis", "decision_date": "2007-08-24", "docket_number": "No. 558PA04-2", "first_page": "541", "last_page": "550", "citations": [ { "type": "official", "cite": "361 N.C. 541" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "619 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634030 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/se2d/619/0830-01" ] }, { "cite": "126 S. Ct. 2266", "category": "reporters:federal", "reporter": "S. 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Ct.", "year": 2005, "opinion_index": 0 }, { "cite": "544 U.S. 909", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5883840, 5894978, 5878466, 5901510, 5894599, 3537800, 5880967, 5898989, 5864815, 5911695, 5900303, 5911316, 5867098, 5893946 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/544/0909-08", "/us/544/0909-01", "/us/544/0909-04", "/us/544/0909-03", "/us/544/0909-12", "/us/544/0909-06", "/us/544/0909-13", "/us/544/0909-07", "/us/544/0909-10", "/us/544/0909-11", "/us/544/0909-09", "/us/544/0909-05", "/us/544/0909-14", "/us/544/0909-02" ] }, { "cite": "358 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985799 ], "year": 2004, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0551-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "24" }, { "page": "828" }, { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "829 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8945803 ], "year": 2005, "pin_cites": [ { "page": "458-59" } ], "opinion_index": 0, "case_paths": [ "/ne2d/829/0444-01" ] }, { "cite": "809 N.E.2d 945", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 9230157 ], "year": 2004, "pin_cites": [ { "page": "953" } ], "opinion_index": 0, "case_paths": [ "/ne2d/809/0945-01" ] }, { "cite": "64 P.3d 661", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2003, "pin_cites": [ { "page": "669" } ], "opinion_index": 0 }, { "cite": "116 Wash. App. 81", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 265654 ], "year": 2003, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/wash-app/116/0081-01" ] }, { "cite": "111 P.3d 844", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "en banc" }, { "page": "851" } ], "opinion_index": 0 }, { "cite": "154 Wash. 2d 291", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 5629345 ], "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "en banc" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/154/0291-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "2539" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "165 L. Ed. 2d 985", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "126 S. Ct. 2983", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2006, "opinion_index": 0 }, { "cite": "603 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412501 ], "year": 2004, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0596-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 15, "year": 2004, "pin_cites": [ { "page": "60" }, { "page": "1369" }, { "page": "198" }, { "page": "53-54" }, { "page": "1365" }, { "page": "194" }, { "page": "51-52, 68" }, { "page": "1364, 1374" }, { "page": "193, 203" }, { "page": "62" }, { "page": "1370" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "126 S. Ct. 2266", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3275498 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/us/547/0813-01" ] }, { "cite": "360 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3786515 ], "year": 2005, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0001-01" ] } ], "analysis": { "cardinality": 966, "char_count": 23564, "ocr_confidence": 0.778, "pagerank": { "raw": 2.8451262160900677e-07, "percentile": 0.8402316119588439 }, "sha256": "cd1f3031ab934eb1fa8257a82cd269202744faea80c252f1722ac2d3938e8604", "simhash": "1:0af7b1aeefdaa3a7", "word_count": 3819 }, "last_updated": "2023-07-14T16:19:48.141297+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice HUDSON did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. ANGELA DEBORAH LEWIS" ], "opinions": [ { "text": "NEWBY, Justice.\nHaving originally decided this case concerning defendant\u2019s Confrontation Clause rights through the general approach provided by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), we now address it under the specific guidance of Davis v. Washington, -U.S. -, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). We conclude that Davis controls and that defendant is entitled to a new trial, thereby modifying and affirming the decision of the Court of Appeals.\nI. BACKGROUND\nDefendant was indicted for assault with a deadly weapon inflicting serious injury on eighty-year-old Nellie Joyner Carlson (\u201cCarlson\u201d); felony breaking and entering into Carlson\u2019s residence at 1312 Glenwood Towers, a public housing development for senior citizens located in Raleigh, North Carolina; and robbery of currency valued at approximately three dollars from Carlson perpetrated through use of a dangerous weapon at the time of the assault. The charges were consolidated for trial on 22 and 27 January 2003. Carlson, the only witness to the crimes, died before defendant\u2019s trial, and the State relied in part on the testimony of Officer Narley Cashwell (\u201cCashwell\u201d) and Detective Mark Utley (\u201cUtley\u201d) of the Raleigh Police Department regarding statements Carlson made during their investigation of the offenses.\nAt trial, Officer Cashwell testified that, after receiving a call at 5:43 p.m. on 22 November 2001 concerning a robbery, he went to Carlson\u2019s apartment. Upon his arrival, Officer Cashwell observed Carlson \u201csitting in a chair. ... kind of hunched over.\u201d Before speaking with Carlson, he talked with Ida Griffin (\u201cGriffin\u201d) and John Woods, two elderly friends and neighbors of Carlson. Officer Cashwell took a statement from Griffin that after several unsuccessful attempts to reach Carlson by telephone, she went to Carlson\u2019s apartment around 5:00 p.m. and found the door ajar, the apartment \u201ctore up,\u201d and Carlson sitting in a chair. The exact timing of the incident between Carlson and defendant was not developed at trial, although the State posited it occurred during the afternoon sometime after 12:00 p.m. or 1:00 p.m. Officer Cashwell then spoke with Carlson, whose face and arms were badly bruised and swollen. Carlson complained of pain in her head, but seemed coherent and cognizant of her surroundings. She was able to get out of her chair and move around the room. At some point before taking a statement from Carlson, Officer Cashwell summoned Emergency Medical Services. Officer Cashwell testified, over defendant\u2019s objection, that in response to a series of questions he took the following statement from Carlson:\nI was in the hall opening my door. My door was locked. I \u2014 I was at the door and she slipped up behind me. She asked me for some money. I said what do I look like, the money tree. She said\u2014 she said, you don\u2019t like me because I\u2019m black. I told her I don\u2019t like whatever color she was. I opened the door and she pushed me inside. She grabbed my hair and pulled my hair. She hit me with her fist. She also hit me with a flashlight, phone and my walking stick. She hit me in the ribs with my walking stick. She took a small brown metal tin that I had some change in. I also had some change on the table that she took. I know her. She comes\u2019up here all the time begging for money. She visits a man at the end of the hall. I don\u2019t know her name but he might.\nCarlson also provided a brief description of her assailant.\nDetective Utley testified that he was called to the scene later in the evening and was informed by Officer Cashwell that one of Carlson\u2019s neighbors, Burlee Kersey (\u201cKersey\u201d), might know the name of the assailant. Detective Utley met with Kersey, who gave defendant\u2019s name as the person Carlson had described. Detective Utley used defendant\u2019s picture and created a six-person photographic lineup that he took to Wake Medical Center, where Carlson was being treated for injuries sustained during the assault. He showed Carlson one photograph at a time and instructed her \u201cthe person that assaulted you or robbed you . . . may or may not be in this photographic lineup. This is something you would have to tell me.\u201d Detective Utley testified, over defendant\u2019s objection, that Carlson selected defendant\u2019s photograph and identified defendant as the person who assaulted and robbed her.\nOn 27 January 2003, the jury found defendant guilty of assault with a deadly weapon inflicting serious injury, robbery with a dangerous weapon, and misdemeanor breaking and entering, which is a lesser included offense of felonious breaking and entering. Defendant was sentenced to consecutive terms of 144 months minimum to 182 months maximum imprisonment for robbery with a dangerous weapon and 48 months minimum to 67 months maximum imprisonment for the remaining offenses. Defendant appealed, and on 19 October 2004 the Court of Appeals reversed defendant\u2019s convictions and awarded her a new trial, relying principally on Crawford, which was decided on 8 March 2004. The Court of Appeals did not reach defendant\u2019s argument that Carlson\u2019s statements to police should not have been admitted on hearsay grounds because it concluded the admissions of Carlson\u2019s statements violated defendant\u2019s rights under the Confrontation Clause. State v. Lewis, 166 N.C. App. 596, 600, 603 S.E.2d 559, 561 (2004). This Court allowed the State\u2019s petition for discretionary review, reversed the decision of the Court of Appeals, and remanded the case to that court for consideration of defendant\u2019s additional assignments of error. We concluded that under Crawford, Carlson\u2019s statements to Officer Cashwell were nontestimonial and thus their admission did not violate defendant\u2019s Confrontation Clause rights and that although Carlson\u2019s identification of defendant to Detective Utley was testimonial, its admission was harmless error because other \u201ccompetent overwhelming evidence of defendant\u2019s guilt existed.\u201d State v. Lewis, 360 N.C. 1, 29, 619 S.E.2d 830, 848 (2005).\nDefendant petitioned the United States Supreme Court for writ of certiorari. On 19 June 2006, that Court issued Davis, clarifying when statements made to police are testimonial. On 30 June 2006, that Court granted defendant\u2019s petition for writ of certiorari to review Lewis, vacated the judgment, and remanded the case to this Court for further consideration in light of Davis. Lewis v. North Carolina, -U.S. -, 126 S. Ct. 2983, 165 L. Ed. 2d 985 (2006).\nII. ANALYSIS\nThe Sixth Amendment to the United States Constitution provides in part 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. At the time of defendant\u2019s jury trial, Ohio v. Roberts governed Confrontation Clause analysis and allowed an unavailable witness\u2019s statement to be admitted against a criminal defendant if the statement bore \u201cadequate \u2018indicia of reliability.\u2019 \u201d 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597, 608 (1980). While defendant\u2019s direct appeal was pending, the United States Supreme Court determined that Roberts provided an incorrect application of the Confrontation Clause. Crawford, 541 U.S. at 60, 124 S. Ct. at 1369, 158 L. Ed. 2d at 198. Crawford holds the Confrontation Clause forbids \u201cadmission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.\u201d Id. at 53-54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 194. The Court declined to endorse a particular definition of testimonial statements because it found the statements at issue in Crawford \u201ctestimonial under even a narrow standard.\u201d Id. at 51-52, 68, 124 S. Ct. at 1364, 1374, 158 L. Ed. 2d at 193, 203.\nIn Davis, the Supreme Court consolidated two state cases, Davis v. Washington and Hammon v. Indiana, which required the Court to further define the testimonial nature of statements made to police officers. The relevant statements in Davis were made to a 911 operator by the victim as she was being attacked by her former boyfriend. Davis, -U.S. at -, 126 S. Ct. at 2270-71, 165 L. Ed. 2d at 234-35. As soon as the victim identified the defendant by name, the defendant ran out the door and left in a can Id. at -, 126 S. Ct. at 2271, 165 L. Ed. 2d at 234. The operator then asked the victim a series of questions about the defendant and the context of the assault. Id. at -, 126 S. Ct. at 2271, 165 L. Ed. 2d at 234. The victim did not testify, and the trial court, over the defendant\u2019s objection, admitted the recording of the 911 call, redacted to remove references to a police visit to the residence two days earlier. State v. Davis, 154 Wash. 2d 291, 296 & n.1, 111 P.3d 844, 847 & n.1 (2005) (en banc). The Washington Court of Appeals in affirming defendant\u2019s conviction found no error. State v. Davis, 116 Wash. App. 81, 96, 64 P.3d 661, 669 (2003). The Supreme Court of Washington affirmed, concluding that the portion of the call identifying the defendant was nontestimonial and that in light of other untainted evidence, admission of any other portions of the call that may have been testimonial was harmless error. Davis, 154 Wash. 2d at 305, 111 P.3d at 851.\nIn Hammon, two police officers arrived at the home of a reported domestic disturbance to find the victim \u201calone on the front porch, appearing \u201c \u2018somewhat frightened,\u2019 \u201d but she told them \u2018 \u201cnothing was the matter.\u201d \u2019 \u201d Davis, -U.S. at -, 126 S. Ct. at 2272, 165 L. Ed. 2d at 235. After entering the house with permission, the officers found the defendant in the kitchen. Id. at \u2014, 126 S. Ct. at 2272, 165 L. Ed. 2d at 235. One of the officers remained with the defendant, while the other officer questioned the victim, who gave a verbal description of what happened and then completed a form battery affidavit by hand. Id. at \u2014, 126 S. Ct. at 2272, 165 L. Ed. 2d at 235. The victim did not testify, and the trial court, over the defendant\u2019s objection, admitted the victim\u2019s affidavit and allowed the officer to testify as to what the victim told him. Id. at -, 126 S. Ct. at 2272, 165 L. Ed. 2d at 236. The Indiana Court of Appeals affirmed in relevant part. Hammon v. State, 809 N.E.2d 945, 953 (Ind. App. 2004). The Supreme Court of Indiana affirming, concluded that the victim\u2019s oral statement was nontestimonial and that admission of the affidavit was harmless error. Hammon v. State, 829 N.E.2d 444, 458-59 (Ind. 2005).\nIn order to resolve the specific situations before it, the United States Supreme Court held:\nStatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.\nDavis, -U.S. at -, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.\nAfter noting that it was only asked to consider the statements from the 911 call that identified the defendant in Davis, the Court concluded that the circumstances in that case objectively indicated the primary purpose of the investigation that elicited the identifying statements was to enable police assistance to meet an ongoing emergency. The Court cited several factors in support of its decision: (1) the victim \u201cwas speaking about events as they were actually happening, rather than describing past events\u201d; (2) the victim was facing an ongoing emergency and her \u201ccall was plainly a call for help against bona fide physical threat\u201d; (3) \u201cthe elicited statements were necessary to be able to resolve the present emergency\u201d; (4) the interrogation was very informal and the victim\u2019s \u201cfrantic answers were provided over the phone, in an environment that was not tranquil, or even . . . safe.\u201d Id. at -, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240 (citations, emphasis, brackets, and internal quotation marks omitted). Further examining the victim\u2019s statements, the Court emphasized that \u201c[s]he simply was not acting as a witness; she was not testifying. What she said was not \u2018a weaker substitute for live testimony\u2019 at trial.\u201d Id. at -, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240-41 (citation omitted). Moreover, \u201c[n]o \u2018witness\u2019 goes into court to proclaim an emergency and seek help.\u201d Id. at -, 126 S. Ct. at 2277, 165 L. Ed. 2d at 241. The Court was clear to limit its analysis to the early statements made by the victim identifying the defendant and not the later parts of the 911 call, adding in dicta that \u201c[i]t could readily be maintained\u201d the ongoing emergency ended when the defendant left the victim\u2019s presence and the victim\u2019s subsequent statements to the 911 operator were testimonial. Id. at -, 126 S. Ct. at 2277, 165 L. Ed. 2d at 241.\nTurning to Hammon, the Court determined that the victim\u2019s statements to police were testimonial. Notwithstanding that flames were coming out of the shattered glass door of the home\u2019s living room gas heating unit and that the defendant repeatedly tried to intervene in the victim\u2019s conversation with the police, the Court determined that \u201c[t]here was no emergency in progress\u201d and that \u201c[i]t is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct.\u201d Id. at -, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242. Several factors influenced the Court\u2019s decision including: (1) when the police arrived the victim \u201ctold them that things were fine\u201d; (2) the victim faced \u201cno immediate threat to her person\u201d; (3) the officer questioning the victim \u201cwas not seeking to determine . . . \u2018what is happening,\u2019 but rather \u2018what happened\u2019 \u201d; (4) the interrogation was \u201cformal enough\u201d because it was conducted in a separate room away from the defendant as part of a police officer\u2019s investigation; (5) the victim\u2019s statement \u201cdeliberately recounted, in response to police questioning, how potentially criminal past events began and progressed\u201d; and (6) the interrogation occurred \u201csome time after the events described were over.\u201d Id. at -, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242. These characteristics led the Court to conclude the victim\u2019s statements were \u201cneither a cry for help nor the provision of information enabling officers immediately to end a threatening situation,\u201d but were instead \u201can obvious substitute for live testimony, because they [did] precisely what a witness does on direct examination; they [were] inherently testimonial.\u201d Id. at -, 126 S. Ct. at 2278-79, 165 L. Ed. 2d at 242-43.\nHaving revisited the case sub judice in light of Davis, we conclude that the United States Supreme Court\u2019s analysis of the circumstances surrounding the victim\u2019s statements in Hammon controls and that Carlson\u2019s statements to Officer Cashwell in her home and her photo identification of defendant to Detective Utley while at the hospital were testimonial. Because it is clear that Carlson\u2019s photo identification of defendant was testimonial, see United States v. Billingslea, 204 F. Appx. 856, 858 (11th Cir. 2006) (unpublished) (per curiam), our discussion will focus on Carlson\u2019s statements to Officer Cashwell.\nThe circumstances surrounding Carlson\u2019s statements to Officer Cashwell bear almost all the characteristics of those circumstances surrounding the victim\u2019s statements in Hammon. At the time she made her statement to Officer Cashwell: (1) Carlson faced no immediate threat to her person; (2) Officer Cashwell was seeking to determine \u201cwhat happened\u201d rather than \u201cwhat is happening\u201d; (3) the interrogation bore the requisite degree of formality because Officer Cashwell questioned Carlson as part of his investigation and outside defendant\u2019s presence; (4) Carlson\u2019s statement \u201cdeliberately recounted, in response to police questioning, how potentially criminal past events began and progressed\u201d; and (5) the interrogation occurred \u201csome time after the events described were over.\u201d See Davis, -U.S. at -, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242.\nConversely, the circumstances surrounding Carlson\u2019s statements bear little resemblance to those circumstances the United States Supreme Court found relevant in its analysis of the Davis facts. Carlson was not speaking about events as they actually happened. She was not plainly calling for help while encountering a bona fide physical threat or facing an ongoing emergency. Therefore, the statements elicited by Officer Cashwell were not necessary to resolve an emergency. Finally, the environment in which Carlson provided answers to Officer Cashwell\u2019s questions was not chaotic or unsafe. See id. at -, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240.\nThe circumstances surrounding Officer Cashwell\u2019s interrogation of Carlson objectively indicate that no ongoing emergency existed and that the primary purpose of the interrogation was to establish or prove past events potentially relevant to a later criminal prosecution. The assault occurred hours before Carlson was discovered, and Carlson\u2019s neighbors were with her for a period of time before Officer Cashwell arrived. Although defendant\u2019s location was unknown at the time of the interrogation, Davis clearly indicates that this fact does not in and of itself create an ongoing emergency. Id. at \u2014, 126 S. Ct. at 2279 n.6, 165 L. Ed. 2d at 243 n.6. Carlson\u2019s statements were \u201cneither a cry for help nor the provision of information enabling [Officer Cashwell] immediately to end a threatening situation.\u201d Id. at -, 126 S. Ct. at 2279, 165 L. Ed. 2d at 243. Rather, Carlson \u201cdeliberately recounted, in response to police questioning, how potentially criminal past events began and progressed.\u201d Id. at -, 126 S. Ct. at 2278, 165 L. Ed. 2d at 242. As such, Carlson\u2019s statements to Officer Cashwell were testimonial, and admission of those statements at trial violated defendant\u2019s right to confrontation because she was not afforded an opportunity to cross-examine Carlson.\n\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless ... it was harmless beyond a reasonable doubt.\u201d N.C.G.S. \u00a7 15A-1443(b) (2005). Because Carlson was the only eyewitness to the crimes, we cannot say \u201cbeyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.\u201d Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967). Likewise, because the identification of defendant as the perpetrator of the crimes depended almost entirely on Carlson\u2019s statements and photo identification, we cannot say beyond a reasonable doubt that the total evidence against defendant was so overwhelming that the error was harmless. See e.g., State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 536 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005).\nWe briefly address the concept of forfeiture, which, in the context of the Confrontation Clause, means that \u201cone who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.\u201d Davis, -U.S. at -, 126 S. Ct. at 2280, 165 L. Ed. 2d at 244. We are mindful that Roberts governed Confrontation Clause analysis at the time of defendant\u2019s original trial and the State had little incentive, if any, to argue forfeiture as \u201c[t]he Roberts approach to the Confrontation Clause undoubtedly made recourse to [the forfeiture] doctrine less necessary, because prosecutors could show the \u2018reliability\u2019 of ex parte statements more easily than they could show the defendant\u2019s procurement of the witness\u2019s absence.\u201d Id. at \u2014, 126 S. Ct. at 2280, 165 L. Ed. 2d at 244. Indeed, forfeiture has not been raised in this case because, at the court\u2019s request and in light of the Roberts framework, the State stipulated that Carlson\u2019s death was not a result of defendant\u2019s actions. Both Crawford and Davis explicitly reaffirmed that defendants can forfeit their Confrontation Clause rights because \u201c \u2018the rule of forfeiture by wrongdoing... extinguishes confrontation claims on essentially equitable grounds.\u2019 \u201d Id. at -, 126 S. Ct. at 2280, 165 L. Ed. 2d at 244 (citing Crawford, 541 U.S. at 62, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199) (alteration in original)). The parties are, of course, free to develop this issue during defendant\u2019s new trial.\nIII. DISPOSITION\nFor the reasons stated above, the opinion of the Court of Appeals granting defendant a new trial is modified and affirmed.\nMODIFIED AND AFFIRMED.\nJustice HUDSON did not participate in the consideration or decision of this case.", "type": "majority", "author": "NEWBY, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Daniel P. O\u2019Brien, Assistant Attorney General, for the State.", "Paul M. Green for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANGELA DEBORAH LEWIS\nNo. 558PA04-2\n(Filed 24 August 2007)\nConstitutional Law\u2014 right to confrontation \u2014 unavailable witness \u2014 testimonial statements\nA review in light of Davis v. Washington, U.S. \"(2006), revealed that defendant\u2019s right to confrontation was violated in an assault with a deadly weapon inflicting serious injury, robbery with a dangerous weapon, and misdemeanor breaking and entering case, and she is entitled to a new trial based on the erroneous admission of testimonial evidence including the unavailable witness victim\u2019s statements to an officer in her home and her photo identification of defendant to a detective while at a hospital, because: (1) at the time the victim made her statement to an officer, she faced no immediate threat to her person, the officer was seeking to determine what happened rather than what was happening, the interrogation bqre the requisite degree of formality because the officer questioned the victim as part of his investigation and outside defendant\u2019s presence, the victim\u2019s statement in response to police questioning deliberately recounted how potentially criminal past events began and progressed, and the interrogation occurred some time after the events described were over; (2) the circumstances surrounding the officer\u2019s interrogation of the victim objectively indicated that no ongoing emergency existed and that the primary purpose of the interrogation was to establish or prove past events potentially relevant to a later criminal prosecution; (3) although defendant\u2019s location was unknown at the time of the interrogation, this fact does not in and of itself create an ongoing emergency; (4) it cannot be said beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained when the victim was the only eyewitness to the crimes; and (5) it cannot be said beyond a reasonable doubt that the total evidence against defendant was so overwhelming that the error was harmless when the identification of defendant as the perpetrator of the crimes depended almost entirely on the victim\u2019s statements and photo identification. The parties are free to develop the issue of forfeiture during defendant\u2019s new trial.\nJustice Hudson did not participate in the consideration or decision of this case.\nOn order of the United States Supreme Court entered 30 June 2006 granting defendant\u2019s petition for writ of certiorari to review our decision reported in 360 N.C. 1, 619 S.E.2d 830 (2005), vacating said judgment and remanding the case to this Court for further consideration in light of Davis v. Washington,-U.S.-, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Heard on remand in the Supreme Court 17 October 2006.\nRoy Cooper, Attorney General, by Daniel P. O\u2019Brien, Assistant Attorney General, for the State.\nPaul M. Green for defendant-appellant." }, "file_name": "0541-01", "first_page_order": 599, "last_page_order": 608 }