# State v. Smith > Supreme Court of North Carolina · December 4, 1984 · 312 N.C. 361 URL: https://www.frixlaw.com/law-library/cases/9855377 ## Case - **Full name:** State of North Carolina v. Eileen M. Smith - **Court:** Supreme Court of North Carolina - **Decided:** December 4, 1984 - **Citations:** 312 N.C. 361; 323 S.E.2d 316; 1984 N.C. LEXIS 1810 - **Precedential status:** Published - **Opinion:** Dissent by Martin - **Judges:** Mitchell, Martin, Exum, Frye - **Cited by:** 32 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855377 ## How later opinions describe it (automated extraction) - holding that statutory procedures allowing admission of affidavit by chemical *468 analyst was “constitutionally permissible procedure attuned to scientific and technological advancements which have insured reliability in chemical testing for blood alcohol concentration,” and … - holding that statutory procedures allowing admission of affidavit by chemical analyst was "constitutionally permissible procedure attuned to scientific and technological advancements which have insured reliability in chemical testing for blood alcohol concentration," and such … - recognizing that the General Assembly can create new exceptions to the hearsay rule - holding chemical analyst’s affidavit admissible to prove blood-alcohol content ## Opinion text Justice Martin dissenting. I respectfully dissent. The recent efforts of the Governor and General Assembly of North Carolina to improve highway safety are indeed laudatory. It is essential to the safety of the public *386 that the dangers of drinking and driving be reduced and eliminated. However, even in such praiseworthy pursuits, constitutional principles must be preserved. See Coolidge v. New Hampshire, 403 U.S. 443 , 29 L.Ed. 2d 564 (1971). I find that the use of the affidavit as evidence pursuant to N.C.G.S. 20-139.1(el) violates the confrontation clause of the federal and state constitutions. U.S. Const, amend. VI; N.C. Const, art. I, § 23. A brief look at the historical reasons for the confrontation clause is helpful. At the common law in the seventeenth century it was a common practice to try criminal defendants on evidence which consisted solely of ex parte affidavits or depositions, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of the fact. The confrontation clause was included in the federal and state constitutions for the purpose of preventing this method of trial. California v. Green, 399 U.S. 149 , 26 L.Ed. 2d 489 (1970). Among the purposes of the confrontation clause are: (1) to ensure that the witness will give his testimony under oath, impressing upon him the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury, (2) requiring the witness to submit to cross-examination, certainly the greatest method of discovering the truth, and (3) to allow the fact finder to observe the demeanor of the witness and determine the credibility to be given to his testimony. Id. The famous case of the trial of Sir Walter Raleigh for treason in 1603 gave strong impetus to the development of the confrontation clause. The crucial evidence against Raleigh consisted of a series of statements by one Cobham, charging Raleigh with complicity in a plot to seize the English throne. Raleigh demanded that Cobham be produced to testify face to face at his trial. This request was denied. Subsequently, after a long period of incarceration in the Tower of London, Raleigh was executed. The right of confrontation is broader than the right of cross-examination. A defendant has a right to face his accusers and to have the witnesses against him appear before the fact finder and give their testimony under oath, as well as to be subject to cross-examination in the event that the defendant desires to do so. *387 These means of testing accuracy are so important that the absence of proper confrontation at trial “calls into question the ultimate ‘integrity of the fact-finding process.’ ” Chambers v. Mississippi, 410 U.S. 284, 295 , 35 L.Ed. 2d 297 , 93 S.Ct. 1038 (1973), quoting Berger v. California, 393 U.S. 314, 315 , 21 L.Ed. 2d 508 , 89 S.Ct. 540 (1969). Ohio v. Roberts, 448 U.S. 56, 64 , 65 L.Ed. 2d 597, 606 (1980). The primary objective of the confrontation clause is to prevent the use of depositions or ex parte affidavits in criminal cases in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but also of compelling him to stand face to face with members of the jury in order that they may look at him and judge him by his demeanor upon the stand and the manner in which he gives his testimony to determine what weight and credit they should give to the same. Mattox v. United States, 156 U.S. 237 , 39 L.Ed. 409 (1895). This cannot be done when the witness comes before the court in the garb of an affidavit. Today one cannot doubt the fundamental nature of the right of confrontation. Along with the right to be represented by counsel, the right to present evidence, and the right to an impartial judiciary, the right of confrontation lies at the very core and foundation of the criminal trial process. These are the hallmarks of a fair criminal trial. While the legislature may adopt reasonable rules of evidence, it may not encroach upon fundamental constitutional guarantees. The legislature has the power to alter or create rules of evidence, except for rules of evidence which have been expressly sanctioned by the constitution, such as the privilege against self-incrimination and the right of confrontation and cross-examination. State v. Scoggin, 236 N.C. 19 , 72 S.E. 2d 54 (1952). There are occasions when the confrontation rule must yield to exceptional circumstances. Principally, they are when the witness is truly unavailable because of death or other similarly compelling circumstances and when there has been provided sufficient indicia of reliability of the evidence that would afford the trier of fact an opportunity for evaluating the truth of the evidence. Ohio v. Roberts, 448 U.S. 56 , 65 L.Ed. 2d 597 ; Mattox v. United States, 156 U.S. 237 , 39 L.Ed. 409 . But the confrontation clause requires the state to produce any available witness whose declarations it *388 seeks to use in a criminal trial. California v. Green, 399 U.S. 149, 174 , 26 L.Ed. 2d 489, 506 (Justice Harlan concurring). Also, if the evidence to be offered does not address an essential issue in the case, there is less reason to rigidly adhere to the requirements of the confrontation clause. In other words, such an exception would not be likely to result in prejudicial error. Turning now to the majority opinion, it attempts to justify the result reached by first asserting that what the legislature has done is to create a statutory exception to the hearsay rule. As stated above, the legislature has the authority to so do, provided it does not thereby trample upon constitutional guarantees such as the right to be represented by counsel or the rights under the confrontation clause. State v. Scoggin, 236 N.C. 19 , 72 S.E. 2d 54 . The issue at bar is not a simple one of whether the challenged evidence is admissible as an exception to the hearsay rule. It is a constitutional issue. The majority analyzes the issue as being similar to the hearsay exception for business and public records. The affidavit as allowed by the challenged statute is not a business or public record within the meaning of that exception to the hearsay rule. While it is true that evidence in certificate or affidavit form concerning the qualifications of a breathalyzer operator, the inspection and testing of such machines, and the testing of the ampules and other materials used in the test have been admitted into evidence as an exception to the hearsay rule on the basis of business or public records, that evidence is substantially different from an affidavit which purports to show the essential gravamen of the charged offense, namely, the alcohol concentration of the defendant. N.C. Gen. Stat. § 20-138.1 (a)(2) (1983). The above referred to exceptions concern themselves with things done in the ordinary course of maintaining the equipment and maintaining the skill of the operator of the equipment, and those records are entered in the normal course of business. They are made ante litem motam, that is, when the declarant had no motive to distort the truth in the keeping of these records. Specific prosecution against a particular defendant is not in mind at the time these records are made. However, the affidavit in the present case was prepared for the specific purpose of being used by the state in the prosecution *389 and trial of this defendant. Therefore, there is clearly reason to determine that such evidence does not bear the indicia of reliability required of all exceptions to the hearsay rule: the person preparing the affidavit is not preparing business records from a position of neutrality with respect to prosecution of criminal defendants; instead, he is an agent of the state whose accuracy in performing the incriminating test and recording its results deserves the most rigorous examination. See Ohio v. Roberts, 448 U.S. 56 , 65 L.Ed. 2d 597 . The majority argues that the equipment used for the purpose of performing these tests is extremely accurate and that there is very little opportunity for the operator to influence the result of the test. However, critical evidence of a key element of an offense, such as the affidavit in this case, should never be admissible without compliance with the confrontation clause, regardless of how reliable and accurate the evidence appears to be. Although the operator has a statutory duty to prepare the affidavit in question, the fact that it is required by statute does not cure the constitutional defect. Additionally, even though required by statute, that does not guarantee the accuracy or trustworthiness of the affidavit. The majority would hold that if the evidence is reliable, then it should be competent, regardless of the confrontation clause. This appears to be putting the cart before the pony, because it is the process of confrontation that makes the evidence reliable. The majority says that the district court judge is an educated and experienced fact finder. This of course may very well be true in some cases, but in others a defendant can just as easily be tried the first day that a district court judge is upon the bench. This seems to me to be a slender reed upon which to establish an exception to a constitutional requirement. The majority relies upon Kay v. United States, 255 F. 2d 476 (4th Cir.), cert. denied, 358 U.S. 825 (1958). It must be remembered that in Kay the results of the blood alcohol analysis were only evidence of the defendant’s guilt of driving under the influence. In the present prosecution, the results of the analysis for alcohol constitute the very crucial element of the offense to be proved: if the defendant has a alcohol concentration greater than the statutory maximum, he is guilty of the offense. This was not so in *390 Kay . This fact is a powerful distinction between the two cases. The evidence in the Kay fact situation comes closer to being a peripheral or nonessential factor of the offense, rather than being the central issue in the case as is true in the present appeal. I find the reasoning in United States v. Oates, 560 F. 2d 45 (2d Cir. 1977), to be more persuasive. In that case the Court held that where the evidence was necessary to prove an essential element of the offense, the government had the burden to produce the witnesses or to demonstrate that they were in truth unavailable to testify. The affidavit in question before us is not one based upon purely ministerial observations, but is one designed specifically to prosecute and convict the defendant in the very case in question. Next, the majority argues that because the statute grants the defendant the right to call the operator as an adverse witness, it serves as a saving clause for the statute. This part of the statute does not grant the defendant anything new. Prior to the statute he had a constitutional right to call the operator as a witness. Moreover, allowing the defendant to call the operator and examine him as an adverse witness does not solve the constitutional dilemma. The state has the burden of proving all of the elements of the offense. In re Winship, 397 U.S. 358 , 25 L.Ed. 2d 368 (1970). Procedures which shift the burden of persuasion of an element of the offense to the defendant are constitutionally impermissible. Mullaney v. Wilbur, 421 U.S. 684 , 44 L.Ed. 2d 508 (1975). Requiring the defendant to produce the witness, who will provide critical evidence of the essential element of the offense, so as to safeguard the defendant’s right to confront that very witness surely offends due process standards. Further, the statute apparently contemplates the defendant calling the operator as a witness after the state has introduced the affidavit into evidence. The statute expressly states that the affidavit, if properly executed, is admissible in evidence without further authentication. This means that when the defendant calls the operator for the purpose of cross-examining him concerning the facts surrounding the alcohol level test, he is doing so after the state has established a prima facie case. The evidence adduced by such cross-examination would not go to the admissibility of the affidavit in question but would simply go to the credibility of the facts stated in the affidavit. By the time the defendant is allowed to begin the *391 race, the state has already crossed the finish line, and defendant is faced with the unpleasant duty of attempting to demonstrate to the trier of fact, the judge, that he should give little weight to the affidavit in deciding the factual issues. If the legislature had made a provision in the statute that upon motion the defendant could call the operator as a witness in a voir dire hearing to determine the admissibility of the affidavit, the constitutional issue with respect to confrontation would not be so pivotal. This would allow a defendant to attack the admissibility of the affidavit and the test results before they were allowed into evidence, and the calling of the operator would be a meaningful exercise of the defendant’s right of cross-examination and confrontation. However, this the General Assembly did not do, leaving the defendant with the meaningless cross-examination of the operator after the state has made out its case against the defendant by the admission of the affidavit. The majority then seeks to justify its holding by reciting that the defendant has a right to a trial de novo before a jury in the superior court. 1 This, of course, is true. To me, this is simply a statement that constitutional rights are not guaranteed in the district court and that this is not error because one can assert them on trial de novo in the superior court. As we all know, practically all criminal cases that are tried in the district court are finally disposed of in that court. Only a small percentage are appealed to the superior court for trial de novo. Not all defendants have the financial means to bring their cases to the superior court, and if the expense of such trials is placed upon the state, additional financial burdens will be lodged against the taxpayers. This could be easily avoided by protecting defendants’ constitutional rights at the trial of first instance. I find the case of Ward v. Monroeville, 409 U.S. 57 , 34 L.Ed. 2d 267 (1972), both instructive and persuasive. In Ward the defendant was tried in the first instance by a mayor who had inconsistent responsibilities for revenue production and law en *392 forcement. The defendant contended that this violated his due process rights, particularly the guarantee of a trial before a disinterested and impartial judicial officer. In that case the Supreme Court held that even though the defendant was entitled to an appeal as a matter of right and a trial de novo, an accused is entitled to a neutral and detached judge in the first instance and the trial by the mayor was not constitutionally acceptable. The Ward Court’s holding is very appropriate here in that although the state eventually offers the defendant a fair trial, that does not mean that his initial trial can be constitutionally defective. The right of confrontation is a core element of a fair trial and, as Ward demonstrates, a trial procedure containing a constitutional defect cannot stand. The principle in Ward is also distinguishable from those cases that hold that the right to trial by jury is not violated where a defendant has a de novo right of appeal to obtain a trial by jury, the difference being that a defendant can have a fair trial without a jury. A judge can give a defendant just as fair a trial as a defendant can receive when he is tried by a jury, but where a fundamental right of a defendant is violated in a trial, whether by jury trial or bench trial, that violation cannot be cured by a trial de novo. It is the very fairness issue which has been violated in the initial trial and which cannot be cured by subsequent retrial. For these reasons, I find State v. Spencer, 276 N.C. 535 , 173 S.E. 2d 765 (1970), and Ludwig v. Massachusetts, 427 U.S. 618 , 49 L.Ed. 2d 732 (1976), to be distinguishable. Both of those cases deal with the right of trial de novo for the purpose of obtaining a jury trial. In neither of these cases is it argued or contended that the defendant did not receive a fair trial at his trial in the inferior court. Defendant simply argued that he was entitled to a jury trial in the court of first instance. In this regard the majority cites In re Arthur, 291 N.C. 640 , 231 S.E. 2d 614 (1977). This case concerned delinquency proceedings and was a case of statutory construction. Arthur did not reach the constitutional issue with which this Court is now faced. In Arthur the Court, through Justice Exum, expressly stated that no opinion as to the correctness of the constitutional arguments was made by the Court, the case being decided upon statutory issues rather than constitutional principles. Further support for this dissent is found in Dist. of Columbia v. Clawans, 300 U.S. 617 , 81 L.Ed. 843 (1937), where defendant *393 was charged with an offense triable at the first instance without a jury. The Supreme Court held that as the offense was punishable by not more than ninety days, it was a “petty” offense and could be tried without a jury. However, the Court further held that defendant’s conviction must be reversed because the trial court had prejudicially restricted defendant’s constitutional right of confrontation. Where fundamental rights affect the fairness of a trial, they must be safeguarded at the initial trial. Finally, I find that State v. Watson, 281 N.C. 221 , 188 S.E. 2d 289 , cert. denied, 409 U.S. 1043 (1972), strongly supports a defendant’s right of confrontation. Watson was a case involving the use in evidence of an authenticated copy of a death certificate for the purpose of proving an essential element of the homicide charge, the cause of death. In discussing the defendant’s constitutional right of confrontation with respect to the North Carolina and federal constitutions, this Court, through Justice (now Chief Justice) Branch, stated: The right of confrontation confirms the common-law rule that, in criminal trials, the witnesses must be present and subject to cross-examination. . . . The right of confrontation is an absolute right rather than a privilege, and it must be afforded an accused not only in form but in substance. Id. at 230 , 188 S.E. 2d at 294 (citations omitted). This statement of principle applies with equal fervor in the present appeal. I find N.C.G.S. 20-139.1(el), in its present form, to be a violation of the defendant’s constitutional right of confrontation. Justices EXUM and FRYE join in this dissenting opinion. . Whether the affidavit is admissible as evidence in the superior court is an open question. However, if the majority’s position that the confrontation clause is not violated by the use of the affidavit in the district court is sound, there appears to be no reason why the affidavit, properly authenticated, would not be admissible in the superior court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855377. Public record. Not legal advice.