confrontation clause in North Carolina

2019App. at ----, 802 S.E.2d at 545 , whereas, "a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber , 390 U.S. at 724 -25 , 88 S.Ct. 1318 , 20 L.Ed. 2d at 260 (finding the State did not make a good faith effort to obtain a witness' presence at trial where the sole reason the witness was not present was because the State did not attempt to seek his presence).

2019App. at ----, 802 S.E.2d at 545 , whereas, "a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber , 390 U.S. at 724 -25 , 88 S.Ct. 1318 , 20 L.Ed. 2d at 260 (finding the State did not make a good faith effort to obtain a witness' presence at trial where the sole reason the witness was not present was because the State did not attempt to seek his presence).

2007“Although the United States Supreme Court has stated that the confrontation clause of the federal constitution guarantees each criminal defendant the fundamental right to personal presence at all critical stages of the trial, our state constitutional right of confrontation has been interpreted as being broader in scope, guaranteeing the right of every accused to be present at every stage of his trial.” State v. Huff, 325 N.C. 1, 29 , 381 S.E.2d 635, 650-51 (1989) (citations omitted), vacated and remanded on other grounds, 497 U.S. 1021 (1990).

2007“Although the United States Supreme Court has stated that the confrontation clause of the federal constitution guarantees each criminal defendant the fundamental right to personal presence at all critical stages of the trial, our state constitutional right of confrontation has been interpreted as being broader in scope, guaranteeing the right of every accused to be present at every stage of his trial.” State v. Huff, 325 N.C. 1, 29 , 381 S.E.2d 635, 650-51 (1989) (citations omitted), vacated and remanded on other grounds, 497 U.S. 1021 (1990).

2015Therefore, we concluded that the statements did “not fall within that category ‘which the confrontation clause was directed’ to protect.” Id. (quoting Crawford, 541 U.S. at 50 , 158 L.

2015Therefore, we concluded that the statements did “not fall within that category ‘which the confrontation clause was directed’ to protect.” Id. (quoting Crawford, 541 U.S. at 50 , 158 L.

2007At the time of defendant's jury trial, Ohio v. Roberts governed Confrontation Clause analysis and allowed an unavailable witness's statement to be admitted against a criminal defendant if the statement bore "adequate `indicia of reliability.'" 448 U.S. 56 , 66, 100 S.Ct. 2531 , 2539, 65 L.Ed.2d 597 , 608 (1980).

2007At the time of defendant's jury trial, Ohio v. Roberts governed Confrontation Clause analysis and allowed an unavailable witness's statement to be admitted against a criminal defendant if the statement bore "adequate `indicia of reliability.'" 448 U.S. 56 , 66, 100 S.Ct. 2531 , 2539, 65 L.Ed.2d 597 , 608 (1980).

2014It is true that under Melendez-Diaz v. Massachusetts and other Confrontation Clause precedent, “[t]he defendant always has the burden of raising his Confrontation Clause objection.” 557 U.S. 305, 327 , 129 S. Ct. 2527, 2541 (2009).

2014It is true that under Melendez-Diaz v. Massachusetts and other Confrontation Clause precedent, “[t]he defendant always has the burden of raising his Confrontation Clause objection.” 557 U.S. 305, 327 , 129 S. Ct. 2527, 2541 (2009).

2025Our Supreme Court has held admissions of testimonial evidence will be construed as “harmless error” in relation to an alleged Confrontation Clause violation where there is “other competent overwhelming evidence of [the] defendant’s guilt[.]” State v. Lewis, 361 N.C. 541, 544 , 648 S.E.2d 824, 827 (2007) (citation and quotation marks omitted).

2025Our Supreme Court has held admissions of testimonial evidence will be construed as “harmless error” in relation to an alleged Confrontation Clause violation where there is “other competent overwhelming evidence of [the] defendant’s guilt[.]” State v. Lewis, 361 N.C. 541, 544 , 648 S.E.2d 824, 827 (2007) (citation and quotation marks omitted).

2022See State v. Delaney, 171 N.C.

2022See State v. Delaney, 171 N.C.

2022See, e.g., State v. Jackson, 348 N.C. 644 , 653–54, 503 S.E.2d 101, 107 (1998) (choosing to analyze a confrontation claim under the North Carolina Constitution in the same way as a Confrontation Clause claim under the United States Constitution); State v. Lawson, 310 N.C. 632, 646 , 314 S.E.2d 493, 502 (1984) (stating that the Court was not inclined to interpret the state and federal constitutions differently in the context of an equal protection challenge to the death penalty statute). ¶ 123 Historically, this Court has consistently deferred to the legislature’s criminal policymaking authorit

2022See, e.g., State v. Jackson, 348 N.C. 644 , 653–54, 503 S.E.2d 101, 107 (1998) (choosing to analyze a confrontation claim under the North Carolina Constitution in the same way as a Confrontation Clause claim under the United States Constitution); State v. Lawson, 310 N.C. 632, 646 , 314 S.E.2d 493, 502 (1984) (stating that the Court was not inclined to interpret the state and federal constitutions differently in the context of an equal protection challenge to the death penalty statute). ¶ 123 Historically, this Court has consistently deferred to the legislature’s criminal policymaking authorit

2022See, e.g., State v. Jackson, 348 N.C. 644 , 653–54, 503 S.E.2d 101, 107 (1998) (choosing to analyze a confrontation claim under the North Carolina Constitution in the same way as a Confrontation Clause claim under the United States Constitution); State v. Lawson, 310 N.C. 632, 646 , 314 S.E.2d 493, 502 (1984) (stating that the Court was not inclined to interpret the state and federal constitutions differently in the context of an equal protection challenge to the death penalty statute). ¶ 123 Historically, this Court has consistently deferred to the legislature’s criminal policymaking authorit

2022See, e.g., State v. Jackson, 348 N.C. 644 , 653–54, 503 S.E.2d 101, 107 (1998) (choosing to analyze a confrontation claim under the North Carolina Constitution in the same way as a Confrontation Clause claim under the United States Constitution); State v. Lawson, 310 N.C. 632, 646 , 314 S.E.2d 493, 502 (1984) (stating that the Court was not inclined to interpret the state and federal constitutions differently in the context of an equal protection challenge to the death penalty statute). ¶ 123 Historically, this Court has consistently deferred to the legislature’s criminal policymaking authorit

2013See Williams,_U.S. at_, 132 S. Ct. at 2241 (identifying as a safeguard against circumvention of the Confrontation Clause the rule that “if the prosecution cannot muster any independent admissible evidence to prove the foundational facts that are essential to the relevance of the expert’s testimony, then the expert’s testimony cannot be given any weight by the trier of fact” (emphasis added)).

2013See Williams, ___ U.S. at ___, 132 S. Ct. at 2241 (identifying as a safeguard against circumvention of the Confrontation Clause the rule that “if the prosecution cannot muster any independent admissible evidence to prove the foundational facts that are essential to the relevance of the expert’s testimony, then the expert’s testimony cannot be given any weight by the trier of fact” (emphasis added)).

1998While the confrontation clause of the United States Constitution has been interpreted to mean that criminal defendants have the right to be present at “all critical stages of the trial,” Rushen v. Spain, 464 U.S. 114, 117 , 78 L.

1998While the confrontation clause of the United States Constitution has been interpreted to mean that criminal defendants have the right to be present at “all critical stages of the trial,” Rushen v. Spain, 464 U.S. 114, 117 , 78 L.

2026“Our Supreme Court has held admissions of testimonial evidence will be construed as ‘harmless error’ in relation to an alleged Confrontation Clause violation where there is ‘other competent overwhelming evidence of [the] defendant’s guilt[.]’” Id. (alterations in original) (quoting State v. Lewis, 361 N.C. 541, 544 (2007)).

2026“Our Supreme Court has held admissions of testimonial evidence will be construed as ‘harmless error’ in relation to an alleged Confrontation Clause violation where there is ‘other competent overwhelming evidence of [the] defendant’s guilt[.]’” Id. (alterations in original) (quoting State v. Lewis, 361 N.C. 541, 544 (2007)).

2013Relying on Fair and Huffstetler, the majority concludes that because “ ‘[i]t is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence,’ ” Fair, 354 N.C. at 162 , 557 S.E.2d at 522 , and that so long as the information relied upon by the testifying expert “[allows] the factfinder ‘to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible,’ ” Huffstetler, 312 N.C. at 108 , 322 S.E.2d at 121 , there is no Confrontation Clause violation.

2013Relying on Fair and Huffstetler, the majority concludes that because “ ‘[i]t is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence,’ ” Fair, 354 N.C. at 162 , 557 S.E.2d at 522 , and that so long as the information relied upon by the testifying expert “[allows] the factfinder ‘to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible,’ ” Huffstetler, 312 N.C. at 108 , 322 S.E.2d at 121 , there is no Confrontation Clause violation.

2023United States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007).

2023United States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007).

2022Accordingly, this Court held that the testifying expert’s “surrogate testimony violated defendant’s Sixth Amendment right to confrontation.” Id. at 57 . ¶ 44 When a Confrontation Clause violation is established, the reviewing court must then “determine if the admission of [the offending] evidence . . . was such prejudicial error as to require a new trial.” State v. Watson, 281 N.C. 221, 232 (1972).

2022Accordingly, this Court held that the testifying expert’s “surrogate testimony violated defendant’s Sixth Amendment right to confrontation.” Id. at 57 . ¶ 44 When a Confrontation Clause violation is established, the reviewing court must then “determine if the admission of [the offending] evidence . . . was such prejudicial error as to require a new trial.” State v. Watson, 281 N.C. 221, 232 (1972).

2022“The admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions.” Jones, 322 N.C.at 414, 368 S.E.2d at 848 ; State v. Maccia, 311 N.C. 222, 228-29 , 316 S.E. 2d 241, 245 (1984). ¶ 13 Further, we note there was no Confrontation Clause violation here as Simms was available for cross-examination.

2022“The admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions.” Jones, 322 N.C.at 414, 368 S.E.2d at 848 ; State v. Maccia, 311 N.C. 222, 228-29 , 316 S.E. 2d 241, 245 (1984). ¶ 13 Further, we note there was no Confrontation Clause violation here as Simms was available for cross-examination.

2021More specifically, our Courts consistently recognize “[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87 , 552 S.E.2d 596, 607 (2001). ¶ 27 Here, Defendant did raise the Confrontation Clause objection in his pretrial Motion to Limit Evidence/Testimony.

2021More specifically, our Courts consistently recognize “[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87 , 552 S.E.2d 596, 607 (2001). ¶ 27 Here, Defendant did raise the Confrontation Clause objection in his pretrial Motion to Limit Evidence/Testimony.

2014“The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” State v. Miller, 197 N.C.

2011See id. at 90-91 , 676 S.E.2d at 554 (finding no Confrontation Clause violation from admission of detectives’ questions which included statements by non-testifying declarants as the evidence was admissible to assist the jury in “understand[ing] the circumstances in which the defendant was caught in a lie, changed his story, and made significant admissions of fact, not to prove the truth of the matter asserted”).

2013Accordingly, we must determine whether the testimony objected to here was an independent opinion obtained through Agent Schell’s own analysis or was merely surrogate testimony repeating testimonial out-of-court statements.1 See id., slip op. at 15 (discussing preservation of error). 1 Consistent with the approach adopted by the majority in Ortiz-Zape, we decline to adopt the concurrence’s four-part test for determining whether there is a Confrontation Clause violation. -5- STATE V.

2013Accordingly, we must determine whether the testimony objected to here was an independent opinion obtained through Agent Schell’s own analysis or was merely surrogate testimony repeating testimonial out-of-court statements.1 See id., slip op. at 15 (discussing preservation of error). 1 Consistent with the approach adopted by the majority in Ortiz-Zape, we decline to adopt the concurrence’s four-part test for determining whether there is a Confrontation Clause violation. -5- STATE V.

2010See State v. Locklear, 363 N.C. 438, 453 , 681 S.E.2d 293, 305 (2009) (finding Confrontation Clause violation. harmless beyond reasonable doubt where “State presented copious evidence” of defendant’s guilt); State v. Galindo, 200 N.C.

2010See State v. Locklear, 363 N.C. 438, 453 , 681 S.E.2d 293, 305 (2009) (finding Confrontation Clause violation. harmless beyond reasonable doubt where “State presented copious evidence” of defendant’s guilt); State v. Galindo, 200 N.C.

1991In California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970), the United States Supreme Court explained that the effect of the Confrontation Clause is to bar admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.

1991In California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970), the United States Supreme Court explained that the effect of the Confrontation Clause is to bar admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.

2026That matters because, to state a Confrontation Clause violation, Defendant must show he “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Van Arsdall, 475 U.S. at 680 (citing Davis, 415 U.S. at 318 ).

2026That matters because, to state a Confrontation Clause violation, Defendant must show he “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Van Arsdall, 475 U.S. at 680 (citing Davis, 415 U.S. at 318 ).