IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-115
Filed 17 October 2023
Wake County, No. 19CRS223407
STATE OF NORTH CAROLINA
v.
ANDRE EUGENE LESTER
Appeal by defendant from judgment entered 21 July 2022 by Judge Thomas H.
Lock in Wake County Superior Court. Heard in the Court of Appeals 20 September
2023.
Attorney General Joshua H. Stein, by Deputy General Counsel Tiffany Y. Lucas, and General Counsel Fellow Zachary R. Kaplan, for the State.
Mark L. Hayes, for the defendant-appellant.
TYSON, Judge.
Andre Eugene Lester (“Defendant”) appeals from judgments entered upon a
jury’s verdicts of guilty of statutory rape of a child, statutory sex offense with a child,
and indecent liberties with a child. The State has failed to show the Constitutional
error was harmless beyond a reasonable doubt. Defendant is entitled to a new trial.
I. Background
Thirteen-year-old Riley lived in an apartment in Cary with her father and her
fifteen-year-old brother. (Per N.C. R. App. P. 42(b) a pseudonym is used to protect STATE V. LESTER
Opinion of the Court
the identity of minors). Riley’s father worked during the day and left his children at
home alone after school. Riley’s mental health diagnoses included major depressive
disorder without psychosis, which had previously required “several inpatient
psychiatric hospitalizations.” Riley also exhibited signs of cutting herself.
Riley’s father took her to a Duke Hospital Clinic (“Duke”) in the summer of
2019. Riley met with social worker Kristen Russell (“Russell”). Russell inquired of
Riley about her sexual health and experiences. Riley asserted she had previous
sexual experiences with a man around thirty years old. Riley told Russell she did not
believe this experience was wrong and did not want to tell an adult. Duke is a
mandatory reporter of alleged sexual assaults and reported her allegations to Riley’s
father and law enforcement officers. Riley was referred to and interviewed at the
SAFEchild Advocacy Center.
Cary Police Corporal Armando Bake received Russell’s report on 12 September
2019 at the Juvenile Crimes Unit. Corporal Bake spoke with Riley, her father, and
her brother. Riley’s brother identified the alleged perpetrator as “Ray-Ray,” and he
told Corporal Bake that “Ray-Ray” was currently in jail for an alleged robbery.
Riley told Corporal Bake she and “Ray-Ray” had communicated via text
messages and cellular phone calls. Riley also gave Corporal Bake her and “Ray-Ray’s”
cell phone numbers. Corporal Bake contacted Cary Police Detective Jim Young, who
was investigating the alleged robbery. Detective Young identified “Ray-Ray” as
Defendant and confirmed his date of birth and his cell phone number.
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Corporal Bake and Detective John Schneider obtained a court order requesting
Defendant’s cell phone records from Verizon from May 2019 until July 2019. The
officers used PenLink, a computer program, to create a derivative record showing
communications between Defendant’s and Riley’s cellular phones. PenLink derived
“over 100 communications . . . between the two phones” within the May to July 2019
time period.
Riley testified she and her brother used their apartment as a “crack house,”
bringing people over for “drugs and sex,” while their father was away working. Riley
initially met then thirty-two-year-old Defendant at a hotel with her brother. Riley
later encountered Defendant outside while walking her dog near the family’s
apartment during the summer of 2019. After some “small talk,” Defendant told Riley
that he was waiting to meet her brother. Riley “offered to let [Defendant] wait in the
house because it was hot outside.”
Riley and Defendant talked, which “led to [Riley] doing a tarot card reading”
for Defendant. Riley pulled out a tarot card which “had a naked lady on it,” which
steered the conversation towards the topic of sex. Riley produced and showed
Defendant her “pleasure toys.” Riley asked Defendant if he wanted to have sex.
Defendant agreed and the two went into Riley’s brother’s bedroom.
Once inside the bedroom, Defendant and Riley removed their pants. Riley
began performing oral sex on Defendant. Defendant noticed Riley “was struggling”
with oral sex. Riley “got on the bed” and Defendant “told [Riley] what position to get
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in.” Riley testified she got onto her hands and knees on the bed, Defendant positioned
himself behind her, and he inserted his penis inside her vagina. Defendant also
grabbed Riley’s breasts. Riley’s vagina hurt and she screamed from the pain.
Defendant continued penetrating Riley’s vagina.
After Defendant removed his penis from Riley’s vagina, Riley began
performing oral sex on Defendant again. While Riley engaged in oral sex, Defendant
began “thrusting with his hips” and Riley reported she “felt like [she] was choking”
but did not tell him to stop “because [she] felt bad.” Defendant removed his penis
from Riley’s mouth and masturbated until he ejaculated onto the floor. Defendant
and Riley got dressed. Defendant asked Riley if they were “dating,” kissed Riley on
the mouth, and left the apartment.
Riley told her brother what had happened when he arrived home a short time
later. Riley did not tell her father or any adult until her visit at Duke because she
was “scared.” Defendant received Riley’s cell phone number from her brother and
began to communicate with her.
Defendant was indicted for statutory rape of a person fifteen years or younger,
statutory sexual offense with a child fifteen years or younger, and indecent liberties
with a child.
During pretrial proceedings on the day trial was scheduled to begin
Defendant’s attorney stated: “Your honor, the defendant requests that I move to
withdraw, so I move to withdraw.” Defendant’s attorney stated he had been
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representing Defendant for several years in multiple different cases. Defendant’s
attorney asserted this representation had begun cordially, but their relationship had
become difficult after Defendant had “refused to talk to him.” Defendant’s attorney
stated he had received all discovery materials and an offer of a plea agreement, which
he had forwarded to Defendant. Defendant’s attorney stated he was familiar with
the case and was fully prepared to try the case.
Defendant stated his counsel had not come to see him much and had once
“yelled” at him during a visit. Defendant disagreed with his counsel’s trial strategy,
specifically his counsel’s refusal to challenge the indictment and file a motion for
discovery. Defendant acknowledged he had received all materials provided by the
State, including the plea agreement offer.
The trial court denied Defendant’s motion, trial proceeded, and a jury convicted
Defendant of all three charges. The trial court consolidated his convictions for
statutory rape of a person fifteen years or younger and statutory sexual offense with
a child fifteen years or younger and sentenced Defendant to an active-term sentence
of 317 to 441 months imprisonment. Defendant was also sentenced to a consecutive
term of 21 to 35 months imprisonment for the indecent liberties with a child
conviction, the sentences to run consecutively. Defendant appeals.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).
III. Issues
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Defendant argues the trial court erred by: (1) admitting phone records which
were hearsay and violating his rights under the Confrontation Clause, (2) admitting
hearsay evidence to link him to a phone number; (3) allowing an in-court
identification based on an impermissibly suggestive pretrial procedure; (4) denying
his motion to have his attorney withdraw as counsel; and, (5) denying his motion for
a new attorney.
IV. Confrontation Clause
Defendant asserts the admission of State’s Exhibit #2 of Verizon records
showing calls made to and from (984)-328-XXXX from 1 May 2019 to 13 July 2019
and State’s Exhibit #3 showing calls to Defendant’s purported number ending in 1545
and (984)-328-XXXX were inadmissible hearsay, and the admission of those exhibits
violated his Sixth Amendment right to confront and cross-examine witnesses and
challenge the evidence admitted against him.
A. Standard of Review
Whether a defendant’s right to confrontation has been violated is reviewed de
novo. State v. Jackson, 216 N.C. App. 238, 241, 717 S.E.2d 35, 38 (2011) (citation
omitted). “A violation of the defendant’s rights under the Constitution of the United
States is prejudicial unless [the State proves] . . . it was harmless beyond a reasonable
doubt.” State v. Lewis, 361 N.C. 541, 549, 648 S.E.2d 824, 830 (2007) (citing N.C.
Gen. Stat. § 15A-1443(b) (2005)).
“When the State fails to prove the error was harmless beyond a reasonable
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doubt, ‘the violation is deemed prejudicial[,] and a new trial is required.’” State v.
Glenn, 220 N.C. App. 23, 25, 725 S.E.2d 58, 61 (2012) (citation omitted).
B. Analysis
1. Sixth Amendment Confrontation Clause
Defendant argues he suffered Constitutional and prejudicial error when the
trial court admitted the hearsay cellular phone data records. Hearsay is a “statement
other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule
801(c) (2021). Rule 803(24) governs the admission of a hearsay statement, as a catch
all, which is not covered by another exception, but the evidence carries sufficient
indicia of reliability. The admission of hearsay business records is governed by Rule
803(6), a separate and distinct exception. See N.C. Gen. Stat. § 8C-1, Rule 803(6)
(2021). While Verizon’s hearsay records kept in the ordinary course of business may
have been qualified and properly admitted as business records, the State merely
failed to authenticate them to warrant admission under that specific exception. Id.;
State v. Smith, 315 N.C. 76, 93, 337 S.E.2d 833, 844 (1985).
The Supreme Court of the United States held: “The Sixth Amendment’s
Confrontation Clause provides that, [i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him. We have held
that this bedrock procedural guarantee applies to both federal and state
prosecutions.” Crawford v. Washington, 541 U.S. 36, 42, 158 L.Ed.2d 177, 187 (2004)
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(citations and quotation marks omitted).
The Confrontation Clause within the Sixth Amendment of the Constitution of
the United States bars admission of testimonial evidence, unless the declarant is
unavailable to testify and the accused had a prior opportunity to cross-examine the
declarant.” State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009). The
Confrontation Clause “does not bar admission of an unavailable witness’s statement
against a criminal defendant if the statement bears adequate indicia of reliability.”
Crawford, 541 U.S. at 42, 158 L.Ed.2d at 187 (quotation marks omitted). To meet
that test and be admitted, evidence must either fall within a “firmly rooted hearsay
exception” or bear “particularized guarantees of trustworthiness.” Id.
In the majority’s opinion in Crawford, Justice Scalia reasoned:
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability. . . . Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.
Id. (internal quotation marks omitted).
2. Rule of Evidence 803(6)
The State initially attempted to admit State’s Exhibits #2 and #3 as business
records pursuant to Rule 803(6). The trial court, after objection, correctly denied their
admission as business records. N.C. Gen. Stat. § 8C-1, Rule 803(6). No official or
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agent from Verizon appeared in court to authenticate them, and the cover letter
purporting to authenticate the records were not sworn under seal nor notarized, to
qualify them as an affidavit. Id.
State’s Exhibit # 3 was also inadmissible as a business record because
Detective Schneider testified the document was made for the purpose of litigation and
not produced or retained in the regular course of Verizon’s business. Id. The trial
court then admitted both the challenged documents “under rule 803(6) read in
conjunction with Rule 803(24), the so-called catch-all exception.”
3. Rule of Evidence 803(24) Catch all
The residual or “catch all” exception to the rule against the admission of
hearsay is codified by N.C. Gen. Stat. § 8C-1, Rule 803(24) (2021).
The residual hearsay exception allows the admission of:
[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines 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 offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.
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N.C. Gen. Stat. § 8C-1, Rule 803(24) (emphasis supplied).
In order for hearsay statements to be admissible under Rule 803(24), the trial
court must also determine and conjunctively find:
(1) whether proper notice has been given, (2) whether the hearsay is not specifically covered elsewhere, (3) whether the statement is trustworthy, (4) whether the statement is material, (5) whether the statement is more probative on the issue than any other evidence which the proponent can procure through reasonable efforts, and (6) whether the interests of justice will be best served by admission.
State v. Valentine, 357 N.C. 512, 518, 591 S.E.2d 846, 852 (2003) (citations omitted)
(emphasis supplied).
The trial court also must “make adequate findings of fact and conclusions of
law sufficient to allow a reviewing court to determine whether the trial court [erred]
in making its ruling.” State v. Sargeant, 365 N.C. 58, 65, 707 S.E.2d 192, 196 (2011)
(citation omitted). “If the trial court either fails to make findings or makes erroneous
findings, we review the record in its entirety to determine whether that record
supports the trial court’s conclusion concerning the admissibility of a statement
under a residual hearsay exception.” Id. (citation omitted).
Here, the trial court made oral findings to support its ruling to admit State’s
Exhibit #2:
The court does not find that it is admissible under the express terms of Rule 801 - - I’m sorry, 803(6). However, the court will accept the document under Rule 803(6) read in conjunction with Rule 803(24), the so-called catch-all exception to the hearsay rule under Rule 803, in that the
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document is not specifically covered by any of the foregoing exceptions under the rule, but does have equivalent circumstantial guarantees of trustworthiness, in that the statement is offered as evidence of a material fact; it is more probative on the point for which it is offered than any other evidence which the proponent could procure through reasonable efforts; and the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
The court, moreover, does find, and I believe there is no dispute as to this, that the proponent did give written notice stating its intention to offer this statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.
When the State sought to introduce their Exhibit #3 at trial, Defendant
renewed and objected on the same grounds as previously asserted, and the trial court
again overruled Defendant’s objection. The State failed to argue before the trial court
the residual exception applied to warrant its admission solely on that basis. N.C.
Gen. Stat. § 8C-1, Rule 803(24).
Defendant concedes the State provided valid prior notice it intended to
introduce the exhibits under the hearsay rule and that the evidence was material. “If
the trial judge determines that the statement is covered by one of the other specific
exceptions, that exception, not the catchall Rule 803(24), governs; admission
pursuant to Rule 803(24) is not necessary[.]” Smith, 315 N.C. at 93, 337 S.E.2d at
844. The source and contents of the hearsay phone records under State’s Exhibit #2
and #3 are “specifically covered” by the business records exception in Rule 803(6) but
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the State failed to properly authenticate to admit under that hearsay exception.
Valentine, 357 N.C. at 518, 591 S.E.2d at 852; N.C. Gen. Stat. § 8C-1, Rule 803(6).
The record does not show these out-of-court statements bear the required
“circumstantial guarantees of trustworthiness.” N.C. Gen. Stat. § 8C-1, Rule 803(23).
In Valentine, our Supreme Court articulated the factors the trial court must consider
in evaluating the trustworthiness: “(1) whether the declarant had personal
knowledge of the underlying events; (2) whether the declarant is motivated to speak
the truth or otherwise; (3) whether the declarant ever recanted the testimony; and
(4) the practical availability of the declarant at trial for meaningful cross-
examination.” Valentine, 357 N.C. at 518, 591 S.E.2d at 852-53 (citation omitted).
The letter and Detective Schneider’s testimony states the cellular phone data
was provided by Verizon at the request of the Cary Police Department. State’s
Exhibits #2 and #3 are purported to be print outs of data files prepared and sent by
Verizon. The only factor, in evaluating the trustworthiness, that points to admission
is if the declarant had recanted the testimony. Id. The documents were compiled,
derived, and presented for the upcoming litigation, and the Exhibits were not
compiled nor maintained in the regular course of Verizon’s business. No one was
present at trial with knowledge or authority to validate or testify to their
maintenance, retention, compilation, or authenticity.
The State’s Exhibits #2 and #3 are no more probative than other evidence the
State could have presented. The State could have presented an affidavit along with
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the records or from a billing statement of one of the cell phone accounts. Instead, the
State presented a form of an unverified Verizon data file sent in non-certified nor
sworn response to a purported Cary Police Department request.
The interests of justice do not support the application of the catch-all provision
in Rule 803(24) to allow admission under these facts. In this manner, using the
residual exception to supplant the authentication requirement as a business record
is specifically foreclosed in subsection (2) of the residual exception in Rule 803(24),
which specifies “whether the hearsay is not specifically covered by any of the foregoing
exceptions” covered elsewhere. N.C. Gen. Stat. § 8C-1, Rule 803(24) (2021) (emphasis
supplied).
The admission of the State’s Exhibits #2 and #3 did not fall either within a
“firmly rooted hearsay exception” or bear “particularized guarantees of
trustworthiness” to allow their admission under the Confrontation Clause. Crawford,
541 U.S. at 42, 158 L.Ed.2d at 187. The primary purpose of the request and
preparation of data records by Verizon was to prepare evidence for Defendant’s trial.
Exhibits #2 and #3 were offered and admitted as substantive evidence. Exhibits #2
and #3 were testimonial and their admission violated Defendant’s rights under the
Confrontation Clause.
4. Harmless Error
The State recognizes the potential error and argues their erroneous admission
was “harmless beyond a reasonable doubt.” Lewis, 361 N.C. at 549, 648 S.E.2d at 830
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(citation omitted). Without these records, the State’s case relies solely on Riley’s
allegations and testimony. The phone records were certainly corroborative of the
State’s case. The jury was left to adjudicate Defendant’s guilt solely upon Riley’s
credibility.
The State has failed to carry its burden to prove the erroneous admission of
the hearsay phone records in violation of the Confrontation Clause was “harmless
beyond a reasonable doubt.” Id. (citation omitted). The cellular phone contacts
between Defendant and Riley after the alleged assault gave corroboration and
credibility to her testimony, where no other physical or corroborative evidence was
admitted to support the State’s case. The State cannot demonstrate, absent the
cellular phone data hearsay or other physical or direct evidence, the jury would have
found Riley’s allegations as credible to meet its burden to demonstrate the
Constitutional error was “harmless beyond a reasonable doubt.” Id.
V. Conclusion
The State failed to carry its burden to demonstrate the error in the admission
of the admittedly hearsay cell phone records in State’s Exhibits #2 and #3 was
“harmless beyond a reasonable doubt.” Id. We vacate Defendant’s convictions for
statutory rape of a person fifteen years or younger, statutory sexual offense with a
child fifteen years or younger, and indecent liberties with a child, the trial court’s
judgment entered thereon, and remand for a new trial. In light of our disposition on
this issue, we need not address Defendant’s remaining arguments. It is so ordered.
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NEW TRIAL.
Judges COLLINS and WOOD concur.
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