This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them.
The basic rule regarding the defendant’s 6th Amendment right to confrontation is that a testimonial statement can only be admitted without the live witness when the witness is unavailable and the defendant had a prior motive and opportunity to cross-examine the witness about the statement. The three recent decisions help unpack this rule. None strike me as particularly groundbreaking, but they are good reminders about what’s testimonial and what’s not, what unavailable means, what a prior opportunity for cross consists of, and when a defendant can forfeit confrontation rights.
Miller: Ongoing Emergency, Prior Opportunity for Cross, and Forfeiture
In State v. Miller, the defendant was charged with the first-degree murder of his wife, among other offenses. The state wanted to present evidence of statements made by the deceased wife to a law enforcement officer at an earlier domestic disturbance call involving the defendant and his wife. This earlier incident took place around a year before the murder. That incident culminated in the wife calling the police and reporting that her husband had restrained her earlier in the evening. She was subsequently interviewed by the officer and the defendant was charged with a misdemeanor offense. That case was tried in district court and, like most district court criminal trials, was not recorded. The State argued that the statements of the wife to the police officer investigating that incident were non-testimonial in nature and that, in the alternative, the defendant had a prior opportunity to cross-examine her at the earlier district court proceeding.
The court rejected both of these arguments. As to whether the statements of the wife to the officer were testimonial, the court found that the officer’s questions were related to the investigation of past events, not in response to an ongoing emergency. The specific statements involved what had already occurred and were solicited by the police in anticipation of prosecution. Statements made in response to police questioning about past events and in the absence of an ongoing emergency will typically be testimonial. Davis v. Washington, 547 U.S. 813 at 822 (2006). The wife’s statements here were thus testimonial.
Regarding the requirement of a prior opportunity for cross-examination, the court declined to find that the earlier, unrecorded trial in district court satisfied that requirement. Without a transcript, there was no evidence that these particular statements were actually introduced in that proceeding. There was thus no indication that the defendant had a prior motive or opportunity for cross-examination about the statements used at the murder trial. The absence of a transcript was “fatal” to the State’s argument on this point. Slip op. at 6.
The State also argued that the defendant had forfeited his confrontation rights since he was responsible for her death. Forfeiture by wrongdoing is one of the exceptions to the general rule about confrontation. Where applicable, an otherwise inadmissible testimonial statement may be admitted when the defendant’s wrongful action resulted in the witness’s absence. Here, the wife was unquestionably unavailable due to her death, allegedly at the defendant’s hands. However, the court found there was no evidence in the record to support a finding that the defendant killed his wife in an effort to keep her from testifying to the earlier statements. Forfeiture of confrontation rights requires “conduct designed to prevent the witness from testifying.” Slip Op. at 7 (quoting Giles v. California, 554 U.S 353 (2008) (emphasis in original). “The mere fact that Miller killed Wells is not enough for forfeiture.” Id. Here, nothing indicated the murder was linked to a desire or intention by the defendant to prevent testimony from the wife, and thus forfeiture did not apply. Finding the admission of the wife’s statements to be prejudicial, the court of appeals awarded the defendant a new trial.
McKiver: Danger to the Police and Public
State v. McKiver was a firearm by felon case where police received an anonymous call about a man with a gun and possible dispute in a neighborhood. The caller later described the defendant, leading to his ultimate apprehension. The court of appeals reversed the conviction, finding that the call was testimonial and that it was prejudicial error to admit it at trial. The caller had made the call from their home, a position of “relative safety.” Additionally, the caller wasn’t aware whether there was an actual dispute or the gun had been pointed at anyone, and she didn’t stay on the phone with police long. To the court of appeals, this indicated no “bona fide physical threat” or ongoing emergency. State v. McKiver, ___ N.C. App. ___, 786 S.E.2d 85 at 93 (May 17, 2016).
The state supreme court disagreed, finding that the report of a gun in a residential neighborhood was an ongoing emergency. Quoting Michigan v. Bryant, 562 U.S. 344 (2011), the court stated that whether an ongoing emergency exists “depend[s] on the type and scope of danger posed to the victim, the police, and the public.” Slip op. at 7. Here, the primary purpose of the caller’s statements was to report a man armed with a gun on the street of a residential neighborhood, a serious situation that was not resolved at the time of the call or subsequent police response. Viewed objectively and in light of all the circumstances, the statements were therefore non-testimonial and did not implicate the Confrontation Clause. The court thus reinstated the conviction that had been vacated by the court of appeals.
Clonts: Deployment and Unavailability
Finally, State v. Clonts involved a witness to an alleged felony assault that the State felt was essential to their case and who was serving active military service. She was expected to be deployed overseas for some period of time, and the state sought to depose her in advance of trial. The witness was subpoenaed for the deposition and, over objection, a deposition was held in the presence of the court. At the end of the deposition, the witness was released from subpoena, again over defense objection. At trial, the defendant moved to continue the trial until the witness could be present. The State indicated that it had made every effort to obtain the witness, that she was unavailable due her deployment and the deposition was an adequate substitute for her in-court testimony. The trial court agreed, allowing the deposition as a testimonial statement for which the defendant not only had the opportunity to cross-examine the declarant, but actually cross-examined her, and further finding that the witness was unavailable.
A majority of the court of appeals reversed. They found that there was no showing that the witness was truly ‘unavailable.’ A finding of unavailability for purposes of the confrontation clause requires a good faith effort on the part of the prosecution to produce the witness at trial. Here, the evidence was that the witness was under subpoena and was released over objection. Additionally, the court noted that there are federal regulations that spell out the procedure for obtaining the presence of currently-deployed members of the military. The State failed to use those federal procedures. A last-minute effort to serve a subpoena on the witness at an Australian military base ten days before trial was insufficient to constitute a good faith effort. Without such a good-faith effort, a finding of unavailability was not proper, and the witness statements should not have been admitted. “In order for the State to show that a witness is unavailable for trial due to deployment, the deployment must, at a minimum, be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.” Slip op. at 53. Here, the deployment was expected to end later that year, and there was no reason that the State could not have either made a better effort to obtain the witness’s presence at trial or assent to a continuance until she was available. The court granted the defendant a new trial, finding that the admission of the deposition testimony under these circumstances was prejudicial.
So there you have it folks, your summer Confrontation Clause cases in a nutshell.
Update: On June 8, 2018, the North Carolina Supreme Court reversed the Court of Appeals decision in Miller, reported above, finding that the challenged statements were nontestimonial and did not violate the Confrontation Clause. The same day, the North Carolina Supreme Court affirmed Clonts, above.