NO. COA04-1452
Appeal by the juvenile from an adjudication of delinquency
entered 5 May 2004 by Judge Richard G. Chaney
and
a final juvenile
delinquency disposition and order signed 13 July 2004
by Judge
Elaine M. O'Neal in Durham County Juvenile Court. Heard in the
Court of Appeals 15 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Barry Bloch, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon for the
juvenile-appellant.
BRYANT, Judge.
A.L.
(See footnote 1)
(the juvenile) appeals from
an adjudication of
delinquency entered 5 May 2004
and a final juvenile delinquency
disposition and order signed 13 July 2004
placing him in Level I
supervised probation for a period of one year
.
On 14 January 2004, A.L. was charged as a juvenile with having
committed assault by pointing a gun, a violation of N.C. Gen. Stat.
§ 14-34, a misdemeanor, Class A1. The charge was set forth in ajuvenile petition for misdemeanor assault and filed on 23 January
2004. On 5 May 2004, the juvenile's case was heard in Durham
County
Juvenile Court, before the Honorable Richard G. Chaney.
The State's evidence tended to show: Officer Daniel Gomez, of
the Durham Police Department,
testified that on the evening of 7
January 2004, he was dispatched to respond to a call reporting
property damage. Mr. Sanchez
met Officer Gomez at the scene and
was asked what happened. According to Officer Gomez, Mr. Sanchez
reported he heard a loud bang coming from outside the apartment and
saw four males standing in the street throwing rocks at the
apartment window. When he yelled at them to stop, one of the males
pulled out what appeared to be a gun and said, “What you want?”
Mr. Sanchez said that he got scared and went back inside the house.
The four males walked away. Officer Gomez testified Mr. Sanchez
told him one of the males was wearing an orange shirt or jacket.
After getting a description of the males, Officer Gomez went to
look for them. When he saw four males running on foot, one who was
wearing an orange jacket, he pursued them and caught A.L. While
searching the juvenile, Officer Gomez found a toy gun in his
pocket.
A.L. testified that on the evening of 7 January 2004, he had
a toy gun and was with three boys. Another boy also had a toy gun
and yet another boy threw rocks at Mr. Sanchez's window. Accordingto A.L., when Mr. Sanchez came out of the apartment, another boy in
the group pulled out his toy gun and said, “What then?” A.L.
stated he ran when he saw Officer Gomez because he “didn't want to
get caught for something that [he] didn't do.” A.L. also stated
Officer Gomez drove him back to the apartment where Mr. Sanchez
identified him. A.L. denied having pulled out his toy gun while
outside Mr. Sanchez's house. At the close of the State's evidence,
A.L. moved to dismiss, arguing the evidence was insufficient to
establish that A.L. had been the individual who pointed a gun at
Mr. Sanchez. The trial court denied the motion, found the juvenile
guilty of assault by pointing a gun and adjudicated him delinquent.
On 13 July 2004, A.L. appeared for disposition before Judge
Elaine M. O'Neal. The juvenile was placed in Level I supervised
probation for a period of one year, conditioned upon his attendance
at school, passing his classes, compliance with laws and curfews,
submission to substance abuse monitoring and treatment, and other
conditions. The juvenile appeals.
A.L. raises two issues on appeal: whether the trial court
erred in (I) admitting Officer Gomez's testimony
regarding the
victim's assault and (II) denying the juvenile's motion to dismiss
the assault by pointing a gun charge based on insufficient
evidence.
The juvenile argues the trial court erred inadmitting Officer Gomez's testimony
regarding the assault
of Mr.
Sanchez because it was inadmissible hearsay. He also claims Mr.
Sanchez's identification of defendant was “unreliable, not within
a proper exception, and unfairly prejudicial.” We determine
Officer Gomez's testimony regarding the assault of Sanchez was
properly admitted. However, because the identification testimony
was unfairly prejudicial, we reverse and remand this case back to
the juvenile court.
In a juvenile adjudicatory hearing, the respondent is entitled
to have the evidence evaluated by the same standards as apply in
criminal proceedings against adults.
In re Meaut, 51 N.C. App.
153, 275 S.E.2d 200 (1981);
In re Dulaney, 74 N.C. App. 587, 328
S.E.2d 904 (1985). “The Sixth Amendment's Confrontation Clause
bars the use of a testimonial statement made by a witness who does
not appear at a criminal trial, unless the witness is unavailable
to testify at trial and was subject to cross-examination at the
time the statement was made.”
State v. Forrest, 164 N.C. App. 272,
278
, 596 S.E.2d 22, 26
(2004) (quotation omitted).
The trial court
must first determine whether the offered hearsay is testimonial in
nature, and then decide whether it contains “particularized
guarantees of trustworthiness.”
Forrest at 280
, 596 S.E.2d at 27
(holding
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177
(2004)
did not apply to a spontaneous statement made to police bya woman who contacted the police and “immediately abruptly started
talking” before being questioned by the police)
.
Our Supreme Court determined in
State v. Lewis:
Police who respond to emergency calls for help
and ask preliminary questions to ascertain
whether the victim, other civilians, or the
police themselves are in danger are not
obtaining information for the purpose of
making a case against a suspect. [Statements
made as a result of these questions are] not
made in anticipation of eventual prosecution,
but [are] made to assist in securing the scene
and apprehending the suspect. . . . [Such
statements] are not testimonial because they
are not, by their very nature, considered
structured police questioning.
Lewis, 360 N.C. 1, 19, 619 S.E.2d 830, 842 (2005) (citations
omitted).
“[A] line [characterizing statements as testimonial] is
crossed when police questioning shifts from mere preliminary
fact-gathering to eliciting statements for use at a subsequent
trial.”
Id. at 20, 619 S.E.2d at 842.
In the instant case, Officer Gomez responded to a call to the
police regarding property damage. Upon arrival, he noted the
victim, Mr. Sanchez, was upset and excited. Officer Gomez asked
“What happened?” and the victim immediately responded and explained
to the officer what happened, noting that only about five minutes
had passed since the incident. Officer Gomez then left in pursuit
of the four black males described by the victim.
Considering the circumstances of this case, we hold that the
victim's response to Officer Gomez's question “What happened?” was
non-testimonial. Mr. Sanchez's statement to Officer Gomez was a
part of the criminal incident, not a part of the prosecution.
See
Forrest at 279, 596
S.E.2d at 27 (A call to the police is non-
testimonial and, therefore, statements made immediately upon
arrival at the crime scene are non-testimonial. “[A] 911 call can
usually be seen as part of the criminal incident itself, rather
than as part of the prosecution that follows.”);
but compare
State
v. Allen, ___ N.C. App. ___, 614 S.E.2d 361 (2005)
(where an
officer took witnesses
' statements twenty minutes after shootings
-- statements were held to be testimonial
under
Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004)
as they were not
given during the criminal incident itself, but rather with the
officer's anticipation toward trial
).
Further, we find the non-
testimonial statement in the case
sub judice was properly admitted
as an excited utterance exception to the hearsay rule pursuant to
N.C. Gen. Stat. § 8C-1, Rule 803(2)
.
However, based on our Supreme Court's recent holding in
State
v. Lewis, Mr. Sanchez's show-up identification of defendant as the
perpetrator was testimonial and not subject to any hearsay
exception.
Lewis, 360 N.C. 1, 619 S.E.2d 830
(2005). In
Lewis the
identification of the defendant by the victim was held to betestimonial as part of police procedure where the identification
took place while the victim was in the hospital, yet in a calm
state of mind.
In the instant case
Officer Gomez testified that of the four
males he observed running, he only apprehended defendant and found
a toy gun in defendant's possession. Officer Gomez then returned
to Mr. Sanchez's apartment, with defendant handcuffed and in the
backseat of the police cruiser
.
Officer Gomez asked Mr. Sanchez
whether defendant was the individual who had pointed the gun, and
Mr. Sanchez affirmatively identified defendant.
Mr. Sanchez's
show-up identification of defendant was not “a spontaneous
utterance” but was made in response to structured police
questioning. Therefore,
Officer Gomez's testimony is hearsay which
does not fall within an exception and should have been excluded.
“Unless an affirmative reason, arising from the circumstances in
which the statement was made, provides a basis for rebutting the
presumption that a hearsay statement is not worthy of reliance at
trial, the Confrontation Clause requires exclusion of the
out-of-court statement.”
Lewis at 12
, 619 S.E.2d at 837.
The
present case is unlike
State v. Lewis
, where the victim's
identification of the defendant from a photo lineup
at the hospital
was held to be harmless error in light of other overwhelming
evidence of the defendant's guilt, and
also unlike
State v. Morgan,where
“[the witness'] statement to [law enforcement, while]
testimonial in nature because it was 'knowingly given in response
to structured police questioning,
'” was nevertheless harmless error
in light of other evidence of defendant's guilt.
See State v.
Morgan, 359 N.C. 131, 155-56, 604 S.E.2d 886, 901 (2004)
.
Here, on
this record, we can find no reliable evidence of the juvenile's
identification other than that offered through Officer Gomez.
Therefore
, the trial court's admission of Officer Gomez's testimony
of the show-up identification by the victim is prejudicial error.
Because we find the admission of Officer Gomez's
identification testimony to be hearsay and unfairly prejudicial, we
decline to address the juvenile's second argument.
We reverse and
remand the trial court's judgment.
Reversed and remanded.
Judges MCCULLOUGH and TYSON concur.
Report per Rule 30(e).
Footnote: 1