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Criminal Practice – Constitutional – Confrontation Right – Unavailable Witness – Probable Cause Hearing Testimony

At the time of defendant’s trial for kidnapping and attempted human trafficking of a minor, the state was unable to find the victim, “Amy.” Over defendant’s objection, the trial court allowed the state to enter into evidence Amy’s testimony from defendant’s probable cause hearing. Where (1) after the probable cause hearing, the state increased the kidnapping charge against defendant from second-degree to first-degree and added the attempted human trafficking of a minor charge; (2) after the probable cause hearing, discovery revealed important discrepancies between Amy’s testimony at the hearing and her earlier statements to police; and (3) at the probable cause hearing, the court imposed significant limitations on defendant’s sole opportunity to cross-examine Amy, the trial court erred by ruling that Amy’s prior testimony was admissible under the Confrontation Clause.

We vacate defendant’s convictions for first-degree kidnapping and attempted human trafficking of a minor involving sexual servitude.

This case is distinguishable from State v. Ross, 216 N.C. App. 337, 720 S.E.2d 403 (2011), disc. review denied, 366 N.C. 400, 735 S.E.2d 174 (2012), in which we held that the trial court did not err in admitting an unavailable witness’s prior testimony from a probable cause hearing. In Ross, the defendant argued that “he had no meaningful opportunity to cross-examine [the witness] at the probable cause hearing because the various charges had not yet been joined, [his] lead trial counsel had not yet been appointed, and his counsel at that time had not yet had an opportunity to review all the discovery.”

Here, the state eventually tried defendant on two different, greater felony charges than those he faced at the time of the probable cause hearing. Therefore, defendant’s motives to cross-examine Amy at the probable cause hearing were necessarily different than they would have been at this trial.

While it is true that our courts have never held that discovery must be complete for a cross-examination opportunity to be adequate, we cannot, in good faith, ignore the significance of discovery timelines in a case such as this. At the probable cause hearing, defense counsel lacked information about a litany of meaningful inconsistencies in Amy’s testimony, and the trial court limited counsel’s ability to test Amy’s credibility and recall.

On top of these limits, the trial court further limited counsel’s cross-examination of Amy precisely because it was only a probable cause hearing. The repeated invocation of procedural posture regarding the previous proceeding directly implicates the constitutional inadequacy of defendant’s prior opportunity to cross-examine Amy. We agree with defendant that the district court’s limitations of his cross-examination at the probable cause hearing “thwart[ed] any full and effective opportunity to cross-examine Amy.”

We emphasize, however, that these are highly case-specific determinations. Our holding should not be construed as an attempt to quantify or otherwise categorically resolve the issue of what constitutes a “constitutionally adequate” prior opportunity for cross-examination during a probable cause hearing, where the testifying witness subsequently becomes unavailable for trial.

Because the state has made no argument that the constitutional error in question was harmless beyond a reasonable doubt, the error is prejudicial and entitles defendant to a new trial.

Vacated and remanded.

State v. Smith (Lawyers Weekly No. 012-025-23, 19 pp.) (Valerie Zachary, J.) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) Jasmine McGhee for the state; Wyatt Orsbon for defendant. N.C. App. Unpub.

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