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					NO. 05-134                                  SECOND DISTRICT

               NORTH CAROLINA COURT OF APPEALS
              ********************************

STATE OF NORTH CAROLINA        )
                               )
V.                             )          From Hyde
                               )          03CRS50058
DONALD ALISON BLOUNT, JR.      )
              ********************************
                 DEFENDANT/APPELLANT’S BRIEF
              ********************************




                              1
                            -i-

                         I N D E X


TABLE OF CASES AND AUTHORITIES ................     ii

QUESTIONS PRESENTED ...........................         1

STATEMENT OF THE CASE .........................         2

STATEMENT OF JURISDICTION .....................         2

STATEMENT OF THE FACTS ........................         2

ARGUMENTS:

I. THE HEARSAY STATEMENTS OF S.F. DEPRIVED THE
DEFENDANT OF HIS RIGHT OF CONFRONTATION AND DUE
PROCESS AND THEIR ADMISSION WAS ERROR AND PLAIN
ERROR...........................................    14

II. THE TRIAL COURT’S OUTBURST DENIGRATED COUNSEL
AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO TRIAL
BEFORE A FAIR AND IMPARTIAL TRIBUNAL............ 28

CONCLUSION .....................................   32

CERTIFICATE OF SERVICE .........................   33

APPENDIX .......................................   A1




                             2
                            -ii-

               TABLE OF CASES AND AUTHORITIES


Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318,
   20 L.Ed.2d 255, 258(1968)....................   16

Chambers v. Mississippi, 410 U.S. 284, 302,
   35 L.Ed.2d 297, 313 (1973)...................   20

Crawford v. Washington, 541 U.S. ,124 S.Ct. 1354
   158 L.Ed.2d 177(2004)........................ 15

Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d
   491(1968)....................................   29

Gray v. Mississippi, 481 U.S. 648, 95 L.Ed.2d
   622(1987) ...................................   29

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139,
   111 L.Ed.2d 638(1990)........................   18

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.2531(1980) 19

Snyder v. Massachusetts, 297 U.S. 97(1934)......   21

State v. Barts, 321 N.C. 170,362 S.E.2d 235(1987) 19

State v. Blackstock, 314 N.C. 232, 333 S.E.2d
   245(1985) ...................................   29

State v. Canipe, 240 N.C. 60, 81 S.E.2d 173(1954) 29

State v. Durham, 74 N.C.App. 159, 327 S.E.2d 920
   (1985)........................................ 19

State v. Faircloth, 297 N.C. 388, 255 S.E.2d
   366(1979)....................................   31

State v. Galloway, 304N.C.485,284 S.E.2d 509(1981)21

State v. Harris, 308 N.C. 159,301 S.E.2d 91(1983) 30

State v. Heath, 77 N.C.App. 264, 335 S.E.2d
   350(1985), rev’d on other grounds, 316 N.C. 337,
   341 S.E.2d 565 (1986)......................... 21


                             3
                           -iii-

State v. Jenkins, 115 N.C.App. 520, 445 S.E.2d
   622(1994)..................................... 31

State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984). 31

State v. Martin, 322 N.C. 229,367 S.E.2d 618(1988)21

State v. Odom, 307 N.C. 655, 300 S.E.2d 275(1983).21

State v. Staley, 292 N.C. 160, 232 S.E.2d
   680(1977)....................................   30

State v. Ollis, 318 N.C. 320,348 S.E.2d 777(1986).19

United States v. Ah Kee Eng, 241 F.2d 157(1957).. 30

CONSTIUTIONAL PROVISIONS

U.S. Const. amend. VI ....................... passim

U.S. Const. amend. XIV ...................... passim

STATUTORY PROVISIONS

N.C.G.S.7A-27(b) ...............................    2

N.C.G.S.8C-1, Rule 103(a)(2) ..................    20

N.C.G.S.8C-1, Rule 803(24) .....................   17

N.C.G.S.8C-1, Rule 804(b)(5) ...................   17

N.C.G.S.15A-1222 ...............................   29

N.C.G.S.15A-1232 ...............................   29

N.C.G.S.15A-1442 ...............................    2

N.C.G.S.15A-1443(a).............................   21

N.C.G.S.15A-1444 ...............................    2




                             4
NO. 05-134                                      SECOND DISTRICT



                NORTH CAROLINA COURT OF APPEALS

               ********************************

STATE OF NORTH CAROLINA       )
                              )
V.                            )          From Hyde
                              )          03CRS50058
DONALD ALISON BLOUNT, JR.     )
              ********************************

                  DEFENDANT/APPELLANT’S BRIEF

               ********************************

                      QUESTIONS PRESENTED



I.    THE HEARSAY STATEMENTS OF S.F. DEPRIVED THE DEFENDANT

OF HIS RIGHT OF CONFRONTATION AND DUE PROCESS AND THEIR

ADMISSION WAS ERROR AND PLAIN ERROR.

II.    THE TRIAL COURT’S OUTBURST DENIGRATED COUNSEL AND

DEPRIVED THE DEFENDANT OF HIS RIGHT TO TRIAL BEFORE A FAIR

AND IMPARTIAL TRIBUNAL.




                               5
                     STATEMENT OF THE CASE



    This cause came on for hearing during the June 21,

2004 session of Hyde County Criminal Superior Court, the

Honorable William C. Griffin, Jr., Superior Court Judge

Presiding.   The defendant tendered pleas of not guilty to

charges of first degree rape, first degree sexual offense

and indecent liberties.

    The jury returned verdicts of guilty as charged.    The

charges were consolidated for judgment and the defendant

received an active term of imprisonment of not less than

336 months nor more than 413 months.   He gave timely notice

of appeal and the undersigned was appointed as appellate

counsel.

                   STATEMENT OF JURISDICTION

    Pursuant to Appellate Rule of Procedure 28(b)(4),

jurisdiction for this appeal derives from N.C.G.S.§15A-1442

and 1444 and N.C.G.S.§7A-27(b). This appeal is from a final

order.

                    STATEMENT OF THE FACTS

    Hattie Floyd testified that she is the mother of the

minor girl, S.F.   Floyd told the jury she had tendered a

plea of guilty to second degree rape and felony child

abuse.   Her possible sentence was five to ten years.   A


                               6
charge of indecent liberties was dismissed.       In return, she

was to testify against the defendant. (Tp.5-8)

    She testified that she met the defendant at work and

they became girlfriend and boyfriend.       Sometimes the two of

them stayed at the defendant’s mother’s house.       Their room

had a queen size bed and S.F.’s bed was in front of it,

length-wise.   While they were at the house they would

drink, smoke marijuana and occasionally they would smoke or

snort cocaine. (Tpp.9-15)

    On one of those occasions, after they had consumed

alcohol, marijuana and cocaine, they went to bed.      S.F. was

asleep at the time.   Floyd awoke to see the defendant

standing over S.F., then he removed her clothes and then

his own.   He had a partial erection.      Floyd saw him put

lotion on S.F.’s vaginal area, penetrate S.F. with his

penis, and then pull out.   After that, he left the room.

At this point S.F. was awake.       Hattie Floyd turned over.

She was high and scared, and did not know what to do.

(Tpp.15-22)

           Floyd said the defendant was picked up for

failure to pay child support a few days later.      When he

returned to the area, she resumed her relationship.       S.F.,

stayed with Floyd’s mother the whole time.       Floyd would

call every once in a while and learned that S.F. went to


                                7
the doctor, that S.F. had been “messed with” and Social

Services was going to investigate.       She later learned that

S.F. had gonorrhea.    Floyd never told anyone what she saw

because she was afraid the defendant would hit her, as he

had done on one occasion. (Tpp.22-29)

    Floyd had talked with Angie Beasley from Social

Services in December of 2002.       She did not tell her

anything about the incident.     After she was arrested, in

April of 2003, she spoke with Deputy Sheriff Elks and told

him what the defendant had done.       Her statement was read to

the jury.    During this time period, March and April of

2003, Floyd and the defendant were having their “ups and

downs.”     The defendant hung out and partied with his

friends. (Tpp.29-40)

    On cross-examination, Floyd said the defendant and

S.F. had a good relationship, that he showed concern and

care for her.    Other than the incident she testified to,

she had never seen him be inappropriate with S.F.       She and

the defendant had a satisfying sexual relationship.

(Tpp.40-43).

    Floyd said she bathed her daughter the next day but

did not notice any redness, swelling, bleeding or bruising.

During the incident, S.F. did not cry or scream.       S.F. has

never said anything negative or bad about the defendant to


                                8
Floyd.   After the defendant got out of jail on the child

support charges, Floyd spent time with him, and resumed

their sexual relationship.    Floyd did not tell Beasley

about the incident, but the assault she said occurred,

happened after Floyd spoke with Beasley. (Tpp.43-53)

    Floyd was asked by Social Services to have some tests

done, and made the appointments for her.    She never had the

test done.    She was told she could not see S.F. unless she

had the test for gonorrhea but as of the time of trial, a

year later, she had not had the tests.    In April of 2003,

Floyd wrote in her journal that she loved the defendant and

wanted to spend the rest of her life with him.    She also

wrote in her journal that she thought her mother was trying

to blame the defendant for S.F.’s condition but that it

could not have been him because he was in jail at the time.

(Tpp.53-58)

    The court had a hearing outside of the presence of the

jury to determine S.F.’s competency to testify as a

witness.   The five year old child said she knew the

difference between a truth and a lie and that if the

prosecutor pointed to the grey wall and called it red, that

would be a fib.    When S.F. tells fibs, she gets a spanking.

Based on this, the court determined she was a competent

witness. (Tpp.71, 72)


                               9
    The prosecutor asked S.F. is something happened

between the defendant and her mom.     S.F. began to cry and

only nodded affirmatively.     She nodded affirmatively when

asked if she told her grandmother what happened.     On cross-

examination, she nodded yes to questions about whether she

talked to her grandmother about it, that the grandmother

asked questions, and that the grandmother suggested to her

that the defendant had something to do with the incident.

On redirect, she indicated she did not know the meaning of

the word “suggest”.(Tpp.72-77)

    S.F.’s grandmother, Jenny Culpepper testified that she

was aware of the living arrangements of her daughter and

the defendant.     In November of 2002, Culpepper obtained

custody of S.F.    She told the jury that S.F. seemed to

change from being a happy-go-lucky child to one who seemed

a little scared.    She did not sleep or eat well and clung

to Culpepper. (Tpp.78-80)

    At the beginning of December, Culpepper took S.F. to

the hospital and to a pediatrician because S.F. complained

about hurting in her vagina area.     Culpepper was informed

that S.F. had gonorrhea.    Over objection, Culpepper said

that S.F. told her that she was held down and the defendant

gave her a black needle with white medicine in her vaginal

area.   As she told her, she was crying and was upset.     She


                                10
also told her that Hattie held her down as the defendant

did this. S.F. said that she was then given a bath and was

told it was a big secret and she was not to tell anyone or

else her toys would be taken away and she would be

punished. Culpepper denied saying anything to S.F. about

the defendant, upon the advice of Beasley and an

investigating officer. (Tpp.80-87).

    Lisa Bunch testified that she was with Culpepper the

night S.F. told her what had happened.    Over objection, she

read the following statement that she wrote for Angela

Beasley at DSS:

         What she told me was that she had been hurt

    by Hattie and D.J.[the defendant].     She said that

    D.J. had stuck a black needle in her with black

    medicine while Hattie held her neck, and she had

    pointed to her vagina area.    She pulled down her

    shorts and said that it hurt.     She bled.   She

    cried.   And she was very upset when she said it.

    She was crying.(Tp.106)



    Bunch testified that S.F. said the medicine was white.

Bunch said S.F. also said that if she told anybody they

would take her toys away and she would be punished.      Bunch




                              11
had never heard Culpepper talk about the incident with

S.F., and she had never talked about it with S.F. (Tpp.107)

    On cross-examination, Bunch admitted that Dare County

investigators had been to talk to S.F. and to her

knowledge, S.F. did not tell them anyone had done anything

to her. (Tpp.108,109).

    Pediatrician Lisa Johnson examined S.F.   She was told

that S.F. complained of vaginal pain and burning, and pain

during urination.   Tests disclosed that S.F. had gonorrhea

and those results were turned over to the Dare County DSS.

According to Johnson, the time from contact with an

infected person to the appearance of symptoms can be

anywhere from several days to several weeks. (Tpp.109-118)

    Johnson had examined S.F. but did not observe any

bruising or tears to the vaginal area. (Tpp.118, 119)

    Johnson told the jury that women may be asymptomatic

or may not show any symptoms for days or weeks after

contact.   Men almost always experience significant pain and

significant outward symptoms. (Tpp.116,120)

    Dare County social worker, Angela Beasley, testified

that she spoke with S.F. on December 16, 2002.   She was

unable to talk to S.F. alone and has never been able to

speak to her alone. (Tpp.126, 127)   A further physical




                              12
examination was not done because of the finding of

gonorrhea by Dr. Johnson. (Tp.128)

    Beasley spoke with Hattie Floyd.     Floyd told her that

she had been living with the defendant, and that the

defendant’s brother lived in the house and that two uncles

and a male neighbor came to the house, but that none of

them were ever alone with S.F.     Floyd said she and the

defendant were willing to be tested for gonorrhea.     Beasley

never received any test results.(Tpp.128-139)

    Floyd never told Beasley that she knew anything about

any sexual abuse of S.F. (Tp.144).     Beasley did learn that

a friend of Floyd’s, Jessica Thomason, had gotten gonorrhea

from an Alvin Gallop.   S.F. never told Beasley that the

defendant molested her. (Tpp.144-152)

    Wendy Meadows testified that she used to be employed

by Kids First, Incorporated, a nonprofit organization

specifically designed to provide free counseling and

assessment services to the public.     Meadows’ background and

training was in counseling.   She saw S.F. on four

occasions.   Over objection, Meadows told the jury that

during the third session that S.F. said her mother held her

neck and that the defendant held her legs and “put some

medicine right here” as she grabbed her vaginal area.       She

said it was a black needle with white medicine.      S.F.


                              13
demonstrated the incident with anatomically correct dolls

and told Meadows that was all, “it hurt and I cried.” S.F.

said her mom gave her a bath and told her not to tell about

the “secret.”(Tpp.152-167)

    During another session, Meadows testified, over

objection, that S.F. said the defendant was a monster.      She

went on to say that Floyd held her by the neck and the

defendant put some medicine “right here” with the needle,

and grabbed her crotch.   She told Meadows that the incident

occurred during the day and that the defendant’s clothes

were on, but then pulled the pants of the doll halfway

down.   S.F. said the medicine looked like lotion, that the

defendant put it on his hand and put it “here” as she

pointed to the genital area of the girl doll.   S.F. said

“he put the needle there” and pointed to the genital area

of the girl doll. (Tpp.167-172)

    Kelly Roberts, a private counselor in Dare County,

testified that she also spoke with S.F. and that she still

sees her once approximately once a week.   Over objection,

she testified that S.F. told her the same thing she told

Meadows, as well as the fact that she was having

nightmares. (Tpp.180-188).    Roberts asked S.F. to draw a

picture of what happened to her and the picture was

introduced into evidence.    It indicated that the needle


                               14
came in between her legs. (Tpp.189-192)    A second picture

was similar in nature. (Tpp.192-195)

    On cross-examination, Roberts said she knew that S.F.

had been drawing pictures at home with Culpepper.     She did

not know if S.F. had been coached when drawing pictures at

home. (Tpp.197, 198)    Roberts did not know if S.F. had

nightmares before the incident in question.

    Earl Murray, detective with the Nags Head Police

Department, testified that he spoke with the defendant.

Murray told him they were trying to find out who may have

given S.F. gonorrhea.   At the end of the interview, the

defendant asked him if S.F. could have gotten gonorrhea by

any means other than sexual intercourse. (Tpp.201-206).

The defendant denied having anything to do with it.

(Tp.208)

    Deputy Sheriff Ervin Elks told the jury that he spoke

with Hattie Floyd.   She was in jail at the time.    He read

her statement to the jury, the same statement Floyd had

read out during her testimony. (Tpp. 209-213).      Elks spoke

with the defendant and he denied having done anything to

S.F. (Tpp.215, 216). Elks said that Floyd never said she

held S.F. down or touched her in any way. (Tp.221)

    The State stipulated that the defendant tested

negative for gonorrhea. (Tp.228)


                               15
       The defendant’s mother, Mayola Blunt, testified that

whenever the defendant, Floyd and S.F. stayed with her,

others were also in the home.        Specifically, she said it

would include her daughter, her son, her two brothers and

their four children.    At no time prior to the defendant’s

arrest for child support in November, was the house vacant.

She had the opportunity to see the defendant and S.F. and

they appeared to have a very close relationship. (Tpp.229-

236)

       After the arrest for child support, Floyd came back to

the house with S.F.    She was with Jessica Thomason at the

time. (Tpp.238, 239)    When the defendant got out of jail,

Floyd came back and stayed with him at Mayola Blount’s

house.    Floyd never said anything to her about the

defendant doing anything to S.F.        She did not notice the

defendant getting sick or experiencing any pain. (Tp.240-

244)

       Seretha Clarke, the defendant’s former girlfriend, and

mother of his son, told the jury she had been with the

defendant since November of 2002.        They stayed with his

mother, but then Clarke returned to school.       After she left

she found out that he and Floyd had a relationship.          They

still had sexual relations in November of 2002.        She

learned that the defendant was accused of giving S.F.


                                16
gonorrhea and so she was tested.   The test results were

negative. (Tpp.252-258).

    The jury was instructed on first degree rape, first

degree sexual offense and indecent liberties.   The jury

found the defendant guilty of all three charges.   The

charges were consolidated for judgment.




                             17
       I.   THE HEARSAY STATEMENTS OF S.F. DEPRIVED THE

DEFENDANT OF HIS RIGHT OF CONFRONTATION AND DUE PROCESS AND

THEIR ADMISSION WAS ERROR AND PLAIN ERROR.

       Assignment of Error Number 5, Record page 26

       Amended Assignment of Error Number 1a Motion p.1

       A. Introduction and Facts

       The trial court erred in admitting S.F.’s statements

to Culpepper and Bunch because they fit no exception to the

hearsay rule.     Further, the court erred in admitting S.F.’s

statements to Meadows and Roberts, because they were

testimonial statements, and the defendant never had an

opportunity to cross-examine S.F. about these statements.

       Following a cursory voir dire examination to determine

the young child’s competency as a witness, S.F. was unable

to give any meaningful answers to questions about what

happened to her.     She nodded her head yes to the question

of whether something happened between the defendant and her

mother, and if she told her grandmother about it. (Tpp.74-

76).    She was equally unavailing on cross-examination, only

able to nod affirmatively about whether she went to the

doctor and if her grandmother talked to her about her being

sick.

       Over objection, Culpepper testified that S.F. told her

that she was held down and the defendant gave her a black


                                18
needle with white medicine in her vaginal area.                               She said

that Hattie held her down as the defendant did this.

(Tpp.85-87; App.pp. A1-A3).                          Lisa Bunch, a friend of

Culpepper’s read a statement Bunch had given to Angela

Beasley, a DSS worker.                      Bunch said that S.F. told her that

the defendant stuck a black needle in her with medicine,

and pointed to her vaginal area.(Tpp.106, 107;App.pp.A3,A4)

         Further, Wendy Meadows, a counselor referred by DSS,

testified that S.F. told her that Hattie held her down.

(Tp.159;App.p.A6).                  S.F. said the defendant put medicine

“right here” and grabbed her vaginal area.                              She further

demonstrated the incident with anatomically correct

dolls.(Tpp.164-172,177,178;App.pp.A11-A19).

         Finally, Kelly Roberts, a private counselor testified

that S.F. told her the same thing, and drew a picture of

what happened to her. (Tpp.184-195; App.pp.A20-A29)1

         The defendant was never able to fully confront the

evidence against him because of the inability of the child

to testify.             He objected to the statements given to

Culpepper and Bunch.                    He further argued that the decision

in Crawford v. Washington, 541 U.S.                                , 158 L.Ed.2d

177(2004), precluded the admission of the hearsay

statements given to Meadows and Roberts.                              However, the

1
    All of the objectionable testimony is found in the appendix.


                                                     19
trial court erroneously ruled that the hearsay was

corroborative and that the eyewitness testimony of Hattie

Floyd and the diagnosis of gonorrhea supplied the necessary

indicia of trustworthiness. (Tpp.163, 164; App.pp.A10,A11)

The court made a further explanation of the ruling and

determined that the child was unavailable, the hearsay

statements were offered as evidence of material facts, the

statements were more probative on the point than the

statements procured from any other witness, and the

purposes of the Rules of Evidence were best served by the

admission of the statements.   The court reiterated that the

circumstantial guarantees of trustworthiness were the

partial corroboration by an eyewitness and the contraction

of a venereal disease by the child. (Tpp.224, 225;

App.pp.A30, A31)

    B. Applicable Legal Principles

    The Sixth Amendment to the United States Constitution

guarantees a criminal defendant the right to confront and

cross-examine his accuser.   U.S. Const. amend. VI.   The

right of confrontation applies to the States through the

Fourteenth Amendment to the United States Constitution.

Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1319, 20

L.Ed.2d 255, 258(1968).




                               20
    Certain hearsay statements are admissible regardless

of the availability or unavailability of the declarant.

N.C.G.S.803(24) and 804(b)(5) provide for the admission of

a hearsay statement not specifically covered by any of the

other statutory exceptions, but having equivalent

circumstantial guarantees of trustworthiness.   However, the

court must determine that:

    (A) the statement is offered as evidence of
    a material fact; (B) the statement is more
    probative on the point for which it is being
    offered than any other evidence which the
    proponent can procure through reasonable
    efforts; and (C) the general purposes of these
    rules [of evidence] and the interests of
    justice will best be served by the admission
    of the statement into evidence. N.C.G.S.8C-1, Rule
    803(24); Rule 804(b)(5)


    The statements are admissible only if the evidence is

both trustworthy and necessary.   Necessity is not only

based on unavailability, but can also include situations in

which the court cannot expect to get evidence of the same

value from the same or other sources. 5 John Henry Wigmore,

Evidence }1421(2) (James H. Chadbourn rev. (1974).   In

determining whether a statement is trustworthy, the court

must consider, among other things, the declarant’s

motivation to speak the truth or otherwise, whether the

statement has been recanted, and the nature and character

of the statement and the relationship of the parties.     The


                             21
guarantees come from the circumstances surrounding the

making of the statement, taken as a whole, that make the

declarant worthy of belief.    “In other words, if the

declarant’s truthfulness is so clear from the surrounding

circumstances that the test of cross-examination would be

of marginal utility,” then the hearsay is not barred. Idaho

v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111

L.Ed.2d 638, 655 (1990).

    In Idaho v. Wright, supra, the Court said the State

cannot “bootstrap on” other evidence to prove the

statements trustworthy. “To be admissible under the

Confrontation Clause, hearsay evidence used to convict a

defendant must possess indicia of reliability by virtue of

its inherent trustworthiness, not by reference to other

evidence at trial.” Id, 497 U.S. at 822.

    Aside from the violation of the rules of evidence, the

admission of the evidence deprived the defendant of his

right to confrontation.    These rights are guaranteed by the

Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Sections 19 and 23 of the North

Carolina Constitution.    The Confrontation Clause operates

in two separate ways to restrict the introduction of

admissible hearsay.   First, in conformance with the

preference for face-to-face accusation, the Sixth Amendment


                               22
establishes a rule of necessity.     The prosecution must

produce the declarant or demonstrate his unavailability.

Second, once the declarant is found to be unavailable, the

statement is admissible only if it bears adequate “indicia

of reliability.”     Reliability can be inferred if the

statement comes within a firmly rooted hearsay exception.

Otherwise, it must be excluded unless there is a showing of

particularized guarantees of trustworthiness. Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 2531(1980); Idaho v.

Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d

638(1990).   The trustworthiness is the substitute for

cross-examination.    There is a “presumption of

inadmissibility accorded accusatory hearsay statements not

admitted pursuant to a firmly rooted hearsay exception.”

Idaho v. Wright, 497 U.S. 805, 827.

    The denial of these constitutional rights is error of

such magnitude that it is prejudicial unless the state can

show that the denial was harmless beyond a reasonable

doubt. State v. Durham, 74 N.C.App. 159, 327 S.E.2d

920(1985); N.C.G.S.15A-1443(b).      There are times when a

rule of evidence must yield to the protections guaranteed

by the United States Constitution in order to afford due

process. See, e.g. State v. Barts, 321 N.C. 170, 362 S.E.2d

235 (1987); State v. Ollis, 318 N.C. 320, 348 S.E.2d 777


                                23
(1986).   Rules of evidence “...may not be applied

mechanistically to defeat the ends of justice.” Chambers v.

Mississippi, 410 U.S. 284, 302, 35 L.Ed.2d 297, 313 (1973).

    Failure to object to every hearsay statement of S.F.’s

is not fatal to the defendant’s right to relief.        First,

Rule 103(a)(2) provides that an objection need not be

renewed after there has been a definitive ruling on the

evidence.    The trial court clearly ruled that the

defendant’s objection to S.F.’s hearsay statements was

overruled, beginning on page 85 and continuing throughout

the trial.   Further, on pages 163 and 164, the trial court

further ruled on the objections to the hearsay.        The

defendant submits that this is sufficient to preserve all

of the hearsay statements for appellate review.

    Second, out of caution, the defendant contends the

hearsay statements set out in the amended assignment of

error constitute plain error.        This Court can review the

issue as plain error, in that it affects a fundamental

right, the right to confrontation. Crawford v. Washington,

supra, and fundamental fairness and due process.       What is

fundamental fairness is considered on a case by case basis.

What is fair varies with the circumstances of the

particular proceedings.   Fairness is a relative, not an

absolute concept. Snyder v. Massachusetts, 297 U.S. 97,


                                24
(1934).   As an error involving a fundamental right, and one

that was prejudicial, the defendant is entitled to review

under the plain error standard. State v. Odom, 307 N.C.

655, 300 S.E.2d 275(1983).

    Not every erroneous ruling on the admission of

evidence will result in a new trial being ordered. State v.

Galloway, 304 N.C. 485, 284 S.E.2d 509 (1981).   To warrant

a new trial, an appellant must show not only error, but

also that “there is a reasonable possibility that, had the

error not been committed, a different result would have

been reached at trial.” State v. Martin, 322 N.C. 229, 238-

39, 367 S.E.2d 618, 624 (1988); N.C.G.S.15A-1443(a).

Whether a new trial should be granted is to be determined

in view of all of the circumstances, and the burden is on

the defendant to show prejudice. State v. Heath, 77

N.C.App. 264, 271, 335 S.E.2d 350, 355 (1985), rev’d on

other grounds, 316 N.C. 337, 341 S.E.2d 565 (1986).

    C. Discussion

    1. The statements to Culpepper and Bunch have no

guarantees of reliability or trustworthiness.

    The State offered the hearsay statements pursuant to

Rule 803(24) and 804(b)(5).   They were not offered under

any other exception to the hearsay rule, not as any of the




                              25
exceptions that have a built-in guarantee of reliability, a

substitute for the revered right of confrontation.     The

United States Supreme Court has determined that the

residual hearsay exception is not a firmly rooted hearsay

exception, based on an Idaho statute identical to

N.C.G.S.8C-1, Rule 803(24) except that apparently Idaho

does not have a notice requirement. Idaho v. Wright, 497

U.S. 805, 816(1990)

    In this case, the trial judge erroneously bootstrapped

extraneous evidence to confer reliability to the statements

relayed by Bunch and Culpepper.     The court determined that

the fact that the child had gonorrhea was evidence that

substituted for cross-examination.     However, the defendant

tested negative for gonorrhea.     Hattie Floyd testified she

never had any symptoms of gonorrhea and she had sexual

relations with the defendant both before and after the

alleged incident.   Third, the child was around another

couple after the defendant went to jail on the child

support charges, and the male in that group had gonorrhea.

(Tpp.149-151).   Hattie said Sadie was never alone with any

other males, but evidently Hattie’s presence in the room

was no guarantee the child would not be molested.     Under

these circumstances, the fact that the child had gonorrhea




                              26
did not guarantee the trustworthiness of the statements

that the defendant abused S.F.

    The trial judge also found that the eyewitness

testimony of Hattie Floyd bolstered the reliability of the

statements.    This was indeed a stretch.   Floyd painted

herself as a hapless eyewitness, who could see the

defendant insert his penis in the child even though it was

nighttime and she was lying down.    S.F. told Meadows the

event happened during the day. (Tp.176)     According to Floyd

she did nothing, but according to the child, Floyd held her

down during the act.    According to Floyd the child lay

passively while this occurred; according to the child’s

statements, she cried.    According to Floyd, the defendant

then left the room and she turned over and went to sleep;

according to the child, they bathed her and threatened her

if she told.    Floyd was trying to save her own hide, so her

testimony should be treated with the utmost skepticism,

instead of being used to bolster the State’s case.

    Without the bootstrapping, all that is left is the

confusing story about medicine and needles, a gesture to

her crotch, and a sad little girl who has been pulled from

pillar to post by a drug-addicted mother.     Although she was

clearly abused by someone, it could have been any number of

men with sufficient funds or drugs to distract Hattie from


                               27
her responsibilities.    These unreliable hearsay statements,

statements that are to a certain extent non-sensical,

should not be used to incarcerate the defendant for almost

thirty-five years.

    2.   The statements to Meadows and Roberts were

testimonial and their admission was contrary to the

defendant’s right of confrontation.

    Meadows and Roberts were counselors referred by the

Department of Social Services, the agency investigating

this incident and following conversations with the

detectives involved.    As such, any statements S.F. made to

them were testimonial and should have been excluded because

the defendant had no opportunity to confront the declarant.

    The defendant cited Crawford v. Washington,      U.S. ,

124 S.Ct. 1354, 158 L.Ed.2d 177(2004).    The judge told the

prosecutor that the statements were testimonial. (Tp.161,

163) However, the trial judge harkened back to a similar,

yet unidentified, case with a child with gonorrhea.    Of

course, in that case, according to the trial judge, the

defendant had gonorrhea as well.    The judge went on to

state that the testimony of Hattie Floyd “makes the

difference.”

    While the trial court’s approach may have been

appropriate at one time, the United States Supreme Court


                               28
expressly overruled this standard for determining the

admissibility of out-of-court testimonial statements in

Crawford v. Washington, supra.    Crawford holds that it

violates the confrontation clause of the Sixth Amendment to

the United States Constitution to permit an out-of-court

testimonial statement unless the witness is unavailable and

the party against whom the evidence is offered has had a

prior opportunity to cross-examine the witness on the

matters at issue.

    The Court determined that the “totality of the

circumstances” standard used to determine admissibility of

certain hearsay by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.

2531, 65 L.Ed.2d 597(1980) was constitutionally infirm.

The Court noted that the Roberts test allows a jury to hear

evidence untested by the adversary process, based on a mere

judicial determination of reliability.   The consti-

tutionally prescribed method of assessing reliability,

confrontation, is replaced with a “wholly foreign one.     In

this respect, it is very different from exceptions to the

Confrontation Clause that make no claim to be surrogate

means of assessing reliability....Dispensing with

confrontation because testimony is reliable is akin to

dispensing with jury trial because a defendant is obviously




                             29
guilty.   This is not what the Sixth Amendment prescribes.”

Crawford, __U.S.__, 124 S.Ct. at 1370-71.

    The trial judge correctly characterized the statements

to Meadows and Roberts as testimonial.     Crawford notes that

“[i]nvolvement of government officers in the production of

testimony with an eye toward trial presents unque potential

for prosecutorial abuse – a fact borne out time and again

through history with which the Framers were keenly

familiar.” Crawford, supra, 124 S.Ct. at 1377, n.7.

Although the Court was discussing law enforcement officers

at this point in the opinion, the analysis would apply to a

social worker when the worker is investigating the

circumstances in a manner similar to police and “with an

eye toward trial.”   Crawford instructed that the use of the

term “interrogation” in the decision, was used in its

colloquial sense, rather than in a technical, legal sense.

Crawford, supra, 124 S.Ct. at 1364, n.4.     Clearly, the

Crawford Court did not intend to limit its ruling to law

enforcement interrogation.

    In this case, Meadows and Roberts were the counselors

used by the Department of Social Services.    There was a

decision to turn to them, after a discussion with the

detectives working on the case.    To allow the prosecutor

access to these untested statements, through a “straw man”


                              30
would be contrary to Crawford’s affirmation of the

importance of the Sixth Amendment’s right of confrontation.

    The defendant was harmed by the admission of the

statements.   Without them, there was the testimony of

Hattie Floyd.   She admitted to a drug and alcohol problem,

she repeatedly placed her child in precarious situations,

she no longer had custody of the child, and she was looking

to get out of trouble.   There was no other forensic

evidence tying the defendant to the crime.   He denied the

actions when confronted by the police.   His past record

revealed no similar crimes.   Witnesses testified that he

and S.F. had a good relationship, not an abusive one.     The

child’s statements were “fantastic” indicating an inability

to accurately report what had happened to her, and perhaps,

who had done this to her. This was not a slam-dunk case for

the State, thus the search for evidence that the defendant

did test positive for gonorrhea, evidence they never

produced.   Under these circumstances, the admission of

these statements was harmful to the defendant.   He is

therefore, entitled to a new trial wherein these statements

are excluded.




                              31
    II.   THE TRIAL COURT’S OUTBURST DENIGRATED COUNSEL AND

DEPRIVED THE DEFENDANT OF HIS RIGHT TO TRIAL BEFORE A FAIR

AND IMPARTIAL TRIBUNAL.

    Assignment of Error Number 6, Record page 27

    A. Introduction and Facts

    The trial court expressed dissatisfaction with the

participants in this trial on at least two occasions.

During the first outburst, the social worker told the court

she would need to have a court order before she could

testify about the facts of the case.    The response of the

court was as follows:

          THE COURT: I’m so tired of this stupidity,
          I don’t know what to do.
          It’s got nothing to do with this case,
          members of the jury. (Tp.125)


    During the second outburst, the following occurred:

          MR. JOHNSTON: Objection; motion to strike.

          THE COURT: Well, why didn’t you object
          before she testified?

          MR. JOHNSTON: I did object.

           THE COURT: Well, I sustained to the
           particular question, and then you let the
           next ones come, and I’m sitting here waiting
           to sustain the objection, and I’m waiting
           for the objection to come. Motion allowed.
          (Tp.142)




                              32
    B. Applicable Legal Principles

    In a criminal case, when the jury may reasonably infer

that the judge’s actions or comments amount to an opinion

on a factual issue, the defendant’s guilt, the weight of

the evidence or a witness’s credibility, prejudicial error

results. State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d

245, 248 (1985)    The trial judge has the responsibility to

control the courtroom.    Poised contra to the authority of

the trial judge to make certain a trial proceeds in an

orderly manner, is the absolute duty of the trial judge to

remain impartial during a trial.     The Constitution not only

gives a criminal defendant a right to have the jury

determine his guilt of every element of a crime, but also

to have the trial before an impartial judge and jury. Gray

v. Mississippi, 481 U.S. 648, 95 L.Ed.2d 622(1987); Duncan

V. Louisiana,     391 U.S. 145, 20 L.Ed.2d 491(1968).

    The founders of our state legal system realized the

importance of an impartial judge and as early as 1796

enacted a statute which included a prohibition of judicial

opinion during a trial. State v. Canipe, 240 N.C. 60, 81

S.E.2d 173(1954).    This statute, now G.S.15A-1222 and 1232,

has been construed to mean that a trial judge must not

express any opinion as to the weight or credibility of any



                                33
evidence presented to the jury.    State v. Harris, 308 N.C.

159, 301 S.E.2d 91(1983).   It matters not whether the

opinion is expressed in the jury instructions, during the

examination of a witness, in ruling on evidence, or in any

other situation in front of the jury. As noted in Canipe:

       The judge occupies an exalted station and jurors
    entertain a profound respect for his opinion. As
    a consequence, the judge prejudices a party or
    his cause in the minds of the trial jurors
    whenever he violates the statute by expressing
    an adverse opinion on the facts. When this
    occurs, it is virtually impossible for the
    judge to remove the prejudicial impression
    from the minds of the trial jurors by anything
    which he may afterwards say to them by way of
    atonement or explanation. State v. Canipe, supra,
    (citations omitted)


    Prior decisions have acknowledged “...how earnestly,

in general, juries seek to ascertain the opinion of the

judge who is trying a cause upon the controverted facts,

and how willing they are to shift their responsibility from

themselves to the court...” State v. Staley, 292 N.C. 160,

163, 232 S.E.2d 680, 683 (1977)(quoting from Nash v.

Morton, 48 N.C. 3.)   Indications of impatience and

displeasure which indicate the judge thinks little of

counsel’s intelligence and his theory of defense, are

damaging to a fair presentation of the defense. Id., citing

from United States v. Ah Kee Eng, 241 F.2d 157, 161(1957).




                              34
    Certainly not every improper remark by a trial judge

requires a new trial.   It is only grounds for a new trial

if, when considered in the light of the circumstances under

which it was made, it prejudiced the defendant’s case.

State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).     The

motive of the trial judge is immaterial.     The question is

how did the statement or action affect the jury. State v.

Staley, supra; State v. Jenkins, 115 N.C.App. 520, 445

S.E.2d 622(1994).   The burden of showing prejudice is on

the appellant. State v. Faircloth, 297 N.C. 388, 255 S.E.2d

366(1979).

    C. Discussion

    The first outburst was caused by the social worker’s

insistence on a “court order” before she would testify.

Lawyers and other judges can understand the court’s

exasperation, but it was not clear at all that the judge

was only irritated with the social worker.    This fit of

pique was unnecessary and inappropriate.     The court’s

explanation was insufficient as there was no way for the

jury to know whose “stupidity” he was referring to.

    The first outburst became even more harmful when

coupled with the second outburst.   This second incident was

specifically addressed to defense counsel.     Counsel was

berated for not making a timely objection and made to look


                              35
the fool.   This was also unnecessary, inappropriate, and

unduly prejudiced the defendant in the eyes of the jury.

    To reiterate, this was not a slam-dunk case for the

State.   The judge’s belittling of counsel had to have the

effect of undercutting his credibility and persuasiveness.

The defendant is therefore entitled to a new trial, in a

calm and impartial tribunal.

                          CONCLUSION

    Based on the foregoing, the defendant submits that he

is entitled to a new trial.

    Respectfully submitted, this the 25th day of April,

2005.



                                _____________________________
                                Nora Henry Hargrove
                                Attorney for Defendant
                                616 Market Street
                                Wilmington, NC 28401
                                910-254-1004
                                email: postconvict@ec.rr.com




                               36
                  CERTIFICATE OF SERVICE

     I hereby certify that I have this date served Ms.
Celia Latta, Assistant Attorney General, by U.S. Mail,
postage prepaid, properly addressed, at P.O. Box 629,
Raleigh, NC 27602, as by law provided.

    This the 25th day of April, 2005.


                              ___________________________
                              Nora Henry Hargrove
                              Attorney at Law




                             37