Criminal Practice – Constitutional – Confrontation Right – 1999 Incident – Victim’s Interview – Unavailable Witness – Prejudice

State v. Glenn (Lawyers Weekly No. 12-07-0423, 28 pp.) (Ann Marie Calabria, J.) Appealed from New Hanover County Superior Court. (Phyllis M. Gorham, J.) N.C. App. Full-text opinion.

Holding: A police officer interviewed the victim of an alleged 1999 assault in a safe place after the alleged assailant had released the victim and driven away. The now-deceased victim’s statements were testimonial, and their admission violated defendant’s right to confront the witnesses against him.

Defendant is entitled to a new trial.

Facts

In this case, victim Kara Moore had been out drinking and using drugs. While she was looking for a taxi to take her home, a vehicle pulled up, and the driver asked her if she needed a ride. Moore mistakenly believed the vehicle was a cab, and she sat in the front passenger seat. When Moore discovered that the vehicle was not a cab and that the male driver was naked from the waist down and had an erection, she tried to get out of the vehicle. The driver called her a bitch and grabbed her shirt, but Moore managed to jump out of the moving vehicle. It dragged her, and her shirt was torn from her body.

Moore sustained road rash, back and neck injuries and a permanent scar. From a photographic line-up, she selected two men, one of whom was defendant.

Defendant was charged with and convicted of first-degree kidnapping, assault with a deadly weapon inflicting serious injury, and indecent exposure.

1999 Incident

In 1999, Misty Hooper accused defendant of raping her at knifepoint in Aurora, Colorado; however, defendant was only convicted of menacing.

By the time of the trial in the present case, Hooper had passed away. A police officer from Aurora testified about Hooper’s first police interview.

Defendant contends that Hooper’s statements to police were testimonial, so admission of the officer’s testimony violated his right to confront the witnesses against him. We agree.

At the time of Hooper’s interview, there was no impending danger, because the driver had released her, and she was waiting at a restaurant in a presumably safe environment. In addition, the officer questioned her with the requisite degree of formality because the questioning was part of an investigation, outside the defendant’s presence. Hooper’s statement deliberately recounted how potentially criminal events from the past had progressed. Finally, Hooper gave the officer a physical description of the driver, how he was dressed, his approximate age, and the type of vehicle he was driving. This information would be potentially relevant to later criminal prosecution. Hooper’s statements were therefore testimonial in nature.

Defendant has also shown that he was prejudiced by the admission of this evidence.

Defendant was indicted for first-degree kidnapping of Moore, and the state alleged that the purpose of the kidnapping was the commission of a felony, serious injury and terrorizing the victim. During closing arguments, the state used Hooper’s statement to prove its theory, that defendant intended to rape and terrorize Moore. The jury ultimately determined that defendant kidnapped Moore for the purpose of terrorizing her.

Hooper’s statement was the only testimony introduced that indicated defendant would physically harm a woman. The state’s introduction of evidence that defendant terrorized and raped another woman surely influenced the jury and was not harmless beyond a reasonable doubt.

Additionally, since the evidence presented to the jury was only a portion of the Hooper investigation, it misrepresented the nature of Hooper and defendant’s encounter. While Hooper initially claimed that defendant raped her, defendant only pled guilty to menacing. Furthermore, evidence was presented during the pretrial hearing that Hooper participated in prostitution. While this evidence should not have been entered into evidence, neither should the officer’s testimony about Hooper’s initial interview.

Furthermore, the state’s evidence of defendant’s guilt was not overwhelming.   During trial, Moore positively identified defendant as her potential attacker, yet at the photo lineup she identified two men. Substantial evidence was presented that Moore had a long history of drug and alcohol abuse and that she had consumed seven alcoholic beverages and smoked crack cocaine on the night of the incident. In addition, Moore was only in the car approximately 10 to 30 seconds before jumping out. Evidence regarding the car was ambiguous: Moore’s description was vague, and no evidence was found in defendant’s car to prove Moore had been in it.

The state has failed to prove that the introduction of Hooper’s statement was harmless beyond a reasonable doubt; therefore, we grant defendant a new trial.

2000 Incident

The trial court also admitted the testimony of Chelsie Clark, a woman assaulted in Longmont, Colorado in 2000. Clark testified that a man approached her while she was enjoying her early morning walk, pulled down his pants and grabbed at her as she ran away to a neighbor’s house. Clark was able to identify defendant in both a photo lineup and in court.

In both the instant case and the Clark case, an assailant exposed himself to the women and grabbed them, but the circumstances were very different.

Furthermore, the incident with Clark occurred nine years prior to the incident with Moore. Given the differences in the two instances, as well as the remoteness in time of the incident with Clark, we find the admission of the evidence was error.

New trial.