State v. Huu the Cao

626 S.E.2d 301, 175 N.C. App. 434, 2006 N.C. App. LEXIS 185
CourtCourt of Appeals of North Carolina
DecidedJanuary 17, 2006
DocketCOA05-191
StatusPublished
Cited by16 cases

This text of 626 S.E.2d 301 (State v. Huu the Cao) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Huu the Cao, 626 S.E.2d 301, 175 N.C. App. 434, 2006 N.C. App. LEXIS 185 (N.C. Ct. App. 2006).

Opinions

WYNN, Judge.

“Where testimonial evidence is at issue,... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004). In this case, Defendant contends the trial court committed plain error in admitting laboratory reports without the testing laboratory technician present for cross-examination and therefore violated his Sixth Amendment right to confrontation. We hold that even assuming error by the trial court in the admission of the laboratory reports concluding that the substances obtained from Defendant were cocaine, any error was harmless beyond a reasonable doubt.

However, we remand this case for resentencing because the State failed to satisfy its burden that Defendant’s prior out-of-state convictions were felonies and that the crimes were substantially similar to crimes classified as felonies in North Carolina.

Facts relevant to this appeal show that on 1 March 2004, Detective Eric Duft went to a neighborhood in Charlotte, North Carolina, which was known for drug sales, for the purpose of trying to buy crack cocaine. A man named Guadalupe Morales approached his car and asked what he wanted. Detective Duft replied he wanted crack cocaine. In response, Morales summoned Defendant Huu The Cao, who appeared from behind a dumpster. Defendant asked Detective Duft what he wanted, and Detective Duft responded that he wanted forty dollars worth of crack cocaine. After four or five minutes, Defendant returned with a bag of crack cocaine and completed the sale.

Three days later, Detective Duft returned to the same location and asked Morales where he could find Defendant so that he could buy more crack cocaine. Morales called for Defendant, who came running from nearby apartments. Detective Duft again gave Defendant money, and Defendant obtained and sold crack cocaine to Officer Duft.

After the drug transactions, Detective Duft placed the crack cocaine he received from Defendant in an evidence envelope, sealed [436]*436it, turned it over to property control, and requested that the substances be tested for the presence of cocaine. The testing laboratory technician did not testify at trial; instead, the State had Detective Duft read the results of the tests to the jury.

The jury found Defendant guilty of two counts of selling cocaine and two counts of possession with intent to sell or deliver cocaine. The trial court classified Defendant as a Level IV offender and sentenced him to consecutive sentences of sixty-two to seventy-six months imprisonment.

On appeal to this Court, Defendant argues that the trial court committed plain error by permitting Detective Duft to read into evidence laboratory reports identifying the substances purchased from Defendant as cocaine without the testing laboratory technician present for cross-examination. Defendant argues that under the United States Supreme Court’s decision in Crawford, 541 U.S. 36, 158 L. Ed. 2d 177, such reading violated his Sixth Amendment right to confront the witnesses against him.

“Where testimonial evidence is at issue,... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” See Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. However, “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law[.]” Id. Therefore, the pivotal question in this instance is whether under the Crawford analysis, the laboratory reports were testimonial or non-testimonial in nature.

Although the Crawford court expressly declined to provide a comprehensive definition of “testimonial,” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, it did provide the following analysis:

[vjarious formulations of this core class of ‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ (citation omitted); ‘extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ (citation omitted); ‘statements that were made under circumstances which would lead an objective witness reasonably to [437]*437believe that the statement would be available for use at a later trial,’ (citation omitted).

Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at 192-93.

Our Supreme Court recently addressed the question of what constitutes testimonial evidence under Crawford in State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005). The Court observed that “[t]he United States Supreme Court determined in Crawford that ‘at a minimum’ the term testimonial applies to ‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to -police interrogations.” Id. at 15, 619 S.E.2d at 839, (quoting Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203) (emphasis in original). The Court then addressed what falls within each of these categories. While it is debatable whether a laboratory report requested by the police constitutes a response to structured police questioning — which Lewis holds constitutes “police interrogation” within the meaning of Crawford, 360 N.C. at 17, 619 S.E.2d at 840 — the Lewis Court’s analysis of “police interrogations” persuades this Court to conclude that laboratory reports, in some instances, may constitute “testimonial evidence.”

In Lewis, the Court reviewed the admissibility of statements made by the now deceased victim to an officer who responded to the scene of a crime and that same witness’ identification of the defendant in response to a photographic lineup. The Court held that a trial court must consider two factors in determining whether statements made to the police constitute testimonial evidence: (1) the stage of the proceedings at which the statement was made and (2) the declarant’s knowledge, expectation, or intent that his or her statements would be used at a subsequent trial. Id. at 19-21, 619 S.E.2d at 842-43.

With respect to the first factor, the Court distinguished between statements “made as a result of a patrol officer’s preliminary questioning,” which would “likely be nontestimonial,” and statements “when police questioning shifts from mere preliminary fact-gathering to eliciting statements for use at a subsequent trial,” at which point “any statements elicited [would be] testimonial in nature.” Id. at 19-20, 619 S.E.2d at 842. As for the declarant’s statement of mind, the Court held that the question is whether “considering the surrounding circumstances, ... a reasonable person in the declarant’s position would know or should have known his or her statements would be used at a subsequent trial.” Id. at 21, 619 S.E.2d at 843. The test is an objective one. Id.

[438]*438The Lewis

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State v. Huu the Cao
626 S.E.2d 301 (Court of Appeals of North Carolina, 2006)

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Bluebook (online)
626 S.E.2d 301, 175 N.C. App. 434, 2006 N.C. App. LEXIS 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-huu-the-cao-ncctapp-2006.