Home / Opinion Digests / Criminal Practice / Criminal Practice – Constitutional – Confrontation Right – Harmless Error – Perpetrator’s Identity – Victim’s Volunteer Work

Criminal Practice – Constitutional – Confrontation Right – Harmless Error – Perpetrator’s Identity – Victim’s Volunteer Work

The trial court should not have allowed a law enforcement officer to testify that an unavailable witness had said defendant was the driver of the car that caused a fatal traffic accident; nevertheless, since there was other, overwhelming evidence that defendant was the driver – including defendant’s DNA on the car’s driver-side airbag – the error in admitting the testimony was harmless beyond a reasonable doubt.

We find harmless error in defendant’s convictions of second-degree murder, felony death by vehicle, driving while license revoked, felony serious injury by vehicle, and careless and reckless driving.

Confrontation Right

Gail Cole, who was purportedly the passenger of the car that caused the fatal accident at issue, was living in Florida at the time of defendant’s trial. Though she was subpoenaed as a material witness, she refused to return to testify for the state. Therefore, she was unavailable as a witness, and defendant was never given the opportunity to cross-examine her.

Nonetheless, the trial court allowed a law enforcement officer, Cpl. Randall Packard, to testify that, at the scene of the accident, Cole said defendant was the driver of the car. While there was still confusion at the scene, the crash had occurred some time before Cole’s statements, and there was no ongoing threat to either the first responders or the victims.

When he approached Cole, Cpl. Packard testified he “may have asked her something along the lines of, ‘What’s going on.’” Cole pointed toward the car, stated she was a passenger in the car, defendant had picked her up, she did not really know him, and that he had caused the accident.

Considering all circumstances surrounding Cole’s statement, the primary purpose of her statement was to exculpate herself and identify defendant as the driver and person who had caused the crash. Consequently, since defendant had no chance to confront her, her testimony was inadmissible.

Nevertheless, other evidence placing defendant in the driver’s seat of the car at the time of the crash is overwhelming. The car was registered to defendant’s father. Blood spatter on the driver’s side airbag tested positive for defendant’s DNA. Despite defendant’s claim that his “cousin” was the driver, no witness testified to a third person being in or around the car, and there was no blood splatter from any other individuals on the airbag.

While it was error for the trial court to admit Cole’s statements at trial without defendant having the right to cross-examine her, the error was harmless beyond a reasonable doubt in light of the other evidence presented.

Volunteer Work

The trial court did not err in allowing the victim’s widow to testify about the victim’s volunteer work.

The state presented evidence that the victim died from blunt-force trauma. On cross-examination, defendant questioned the victim’s health and raised the possibility that his death resulted from some other cause.

This opened the door for the widow to testify about the victim’s volunteer work as an athletic coach. Such testimony makes it more probable that the victim’s cause of death was, in fact, the blunt force trauma he sustained in the crash. The mention of the victim’s work with students by his widow pertained to his physical health, responded to challenges raised by defendant, and was not unduly prejudicial to defendant.

Harmless error.


(Berger, J.) Because the circumstances surrounding Cole’s statements to Cpl. Packard in the immediate aftermath of the accident suggest that they assisted in apprehending defendant and were made while officers secured the scene, I would find the statements nontestimonial.

State v. Brooks (Lawyers Weekly No. 012-166-18, 16 pp.) (John Tyson, J.) (Philip Berger, J., concurring) Appealed from Durham County Superior Court (Carl Fox, J.) Kathryne Hathcock for the state; David Weiss for defendant. N.C. App. Unpub.

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