in the Supreme Court on 13 March 2018.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
801 S.E.2d 696 (2017), vacating judgments entered on 8 April
2016 by Judge Edwin G. Wilson, Jr., in Superior Court,
Guilford County, and remanding for further proceedings. On 17
August 2017, the Supreme Court allowed defendant's
conditional petition for discretionary review as to
H. Stein, Attorney General, by David J. Adinolfi II, Special
Deputy Attorney General, for the State-appellant/appellee.
Montgomery for defendant-appellee/appellant.
issue before this Court in this case is whether the Court of
Appeals erred by vacating the judgments entered by the trial
court based upon defendant, Marvin Everette Miller, Jr.'s
convictions for first-degree murder and attempted
first-degree murder on the grounds that certain evidence had
been admitted in violation of defendant's constitutional
right to confront the State's witnesses against him.
After careful consideration of the record in light of the
applicable law, we reverse the decision of the Court of
Appeals and remand this case to the Court of Appeals for
consideration of defendant's remaining challenges to the
trial court's judgments.
August 2013, Lakeshia Wells and her boyfriend, Marcus
Robinson, celebrated Ms. Wells's birthday with family and
friends at the Shriners nightclub in Greensboro. At some
point after 2:00 a.m. on 1 September 2013, Ms. Wells and Mr.
Robinson returned to Ms. Wells's apartment on Bulla
Street. After the couple entered Ms. Wells's bedroom and
had sexual intercourse, Ms. Wells told Mr. Robinson that she
had heard something and asked Mr. Robinson to investigate the
source of the noise. Upon determining that nothing was amiss
on the lower floor of the apartment, Mr. Robinson returned to
the upper floor, where he saw an individual, whom he later
identified as defendant, standing in the hallway holding a
being seen by Mr. Robinson, defendant, who was Ms.
Wells's estranged husband, entered Ms. Wells's
bedroom, where an altercation occurred. As Mr. Robinson ran
back downstairs in order to retrieve his cell phone and car
keys, he was followed by defendant,  who cut Mr. Robinson's
face before Mr. Robinson escaped through the back door while
wearing only a tank top. Once he managed to get outside of
Ms. Wells's apartment, Mr. Robinson called the police.
Following the arrival of investigating officers, Mr. Robinson
was transported to the hospital, where he was treated for his
Benjamin Mitchell of the Greensboro Police Department
responded to a call regarding a stabbing at a Bulla Street
address at 3:28 a.m. on 1 September 2013. Upon encountering
Mr. Robinson, Officer Mitchell learned that someone had
broken into Ms. Wells's apartment, that the intruder had
begun stabbing the occupants, and that investigating officers
needed to check on Ms. Wells, who was apparently still inside
the apartment. As he entered the apartment, Officer Mitchell
did not observe any signs of a forcible intrusion; however,
he did determine that "some type of disturbance had
occurred in the kitchen." For that reason, Officer
Mitchell and other investigating officers began to search the
apartment for both intruders and Ms. Wells. Upon making his
way to the second floor, Officer Mitchell discovered the dead
body of Ms. Wells at the top of the stairs.
December 2012, approximately nine months before Ms. Wells was
killed, Officer E.R. Kato of the Greensboro Police Department
responded to a call at Ms. Wells's Bulla Street apartment
relating to a domestic dispute. According to Officer Kato,
Ms. Wells stated that she had been held in her apartment
against her will for a period of two hours by her estranged
husband. Although Officer Kato did not recall having observed
any signs that Ms. Wells had sustained a physical injury, he
noticed a tear and stress marks in the cotton shirt that Ms.
Wells was wearing. At that point, Officer Kato accompanied
Ms. Wells to her apartment and checked the premises to make
sure that defendant had not remained at that location.
Subsequently, defendant was charged with and convicted of
domestic criminal trespass.
November 2013, the Guilford County grand jury returned bills
of indictment charging defendant with first-degree burglary,
attempted first-degree murder, and first-degree murder. The
charges against defendant came on for trial before the trial
court and a jury at the 4 April 2016 criminal session of the
Superior Court, Guilford County. On 8 April 2016, the jury
returned verdicts acquitting defendant of first-degree
burglary and first-degree murder on the basis of malice,
premeditation, and deliberation and convicting defendant of
attempted first-degree murder and first-degree murder on the
basis of the felony murder rule using either first-degree
burglary, attempted murder, or assault with a deadly weapon
inflicting serious injury as the predicate felony. Based upon
the jury's verdicts, the trial court arrested judgment in
the case in which defendant had been convicted of attempted
first-degree murder and entered a judgment sentencing
defendant to a term of life imprisonment without the
possibility of parole based upon defendant's first-degree
murder conviction. Defendant noted an appeal to the Court of
Appeals from the trial court's judgments.
seeking relief from the trial court's judgments before
the Court of Appeals, defendant argued that the trial court
had erred by overruling his confrontation-based objection to
the introduction of Officer Kato's testimony concerning
the statements that Ms. Wells made to him on 10 December
2012. According to defendant, the statements that Ms. Wells
had made to Officer Kato were testimonial in nature given the
absence of any ongoing emergency at the time those statements
were made, citing State v. Bodden, 190 N.C.App. 505,
514, 661 S.E.2d 23, 28 (2008) (explaining that
"[s]tatements are testimonial when circumstances
objectively indicate there is no ongoing emergency and the
primary purpose of the interrogation is to establish or prove
past events that will be relevant later in a criminal
prosecution"), appeal dismissed and disc. rev.
denied, 363 N.C. 131, 675 S.E.2d 660, cert.
denied, 558 U.S. 865, 130 S.Ct. 175, 175 L.Ed.2d 111
(2009). In addition, defendant argued that the forfeiture
doctrine did not extinguish defendant's confrontation
rights given the absence of any evidence tending to show that
defendant had killed Ms. Wells for the purpose of preventing
her from testifying about the domestic criminal trespass case
that resulted from the 10 December 2012 incident, citing
Giles v. California, 554 U.S. 353, 361, 128 S.Ct.
2678, 2684, 171 L.Ed.2d 488, 497 (2008) (explaining
"that unconfronted testimony would not be
admitted without a showing that the defendant intended to
prevent a witness from testifying"). Finally, defendant
asserted that the trial court had erred by failing to make
findings of fact or conclusions of law in support of its
decision to overrule his objection to the challenged portion
of Officer Kato's testimony, (citing State v.
Silva, 304 N.C. 122, 136, 282 S.E.2d 449, 457-58
State, on the other hand, argued that Officer Kato's
testimony concerning the statements that Ms. Wells made at
the time of the 10 December 2012 incident stemmed from an
informal conversation that occurred during an ongoing
emergency arising from a domestic dispute between defendant
and Ms. Wells, citing Davis v. Washington, 547 U.S.
813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224, 237
(2006) (explaining that "[s]tatements are nontestimonial
when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet
an ongoing emergency" and "are testimonial when the
circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events
potentially relevant to later criminal prosecution").
According to the State, the nontestimonial nature of the
challenged statements was established by Officer Kato's
observations concerning the damage to Ms. Wells's
clothing and Officer Kato's decision to "clear"
Ms. Wells's apartment. In the State's view, a
reviewing court must consider the degree of "informality
of the situation and the interrogation" in deciding
whether to treat challenged extra-judicial statements as
either testimonial or nontestimonial, quoting Michigan v.
Bryant, 562 U.S. 344, 377, 131 S.Ct. 1143, 1166, 179
L.Ed.2d 93, 109 (2011), with the statements at issue in this
case being informal rather than formal. Moreover, even if the
statements that Ms. Wells made to Officer Kato were
testimonial rather than nontestimonial in nature, defendant
had previously had an opportunity to cross-examine Ms. Wells
concerning those statements when the 10 December 2012
domestic criminal trespass charge came on for trial, citing
Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct.
1354, 1374, 158 L.Ed.2d 177, 203 (2004) (explaining that,
"[w]here testimonial evidence is at issue, "
"the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for
cross-examination"). Finally, the State contends that
defendant had forfeited his right to confront Ms. Wells by
wrongfully killing her, citing United States v.
Jackson, 706 F.3d 264, 269 (4th Cir.) (explaining that
"defendants might be tempted to murder, injure, or
intimidate witnesses before trial and then invoke their
constitutional right to confrontation to ensure that those
witnesses' statements are never heard in court"),
cert. denied, 569 U.S. 1024, 133 S.Ct. 2782, 186
L.Ed.2d 229 (2013), with "[d]efendant's clear intent
to prevent Ms. Wells from testifying at any subsequent case
[being inferable] from defendant's action of fatally
stabbing her in the heart."
noting that defendant had properly preserved this issue
purposes of appellate review, State. Miller, __
N.C.App. __, ___, 801 S.E.2d 696, 698 (2017), the Court of
Appeals pointed out that "[t]he Confrontation Clause of
the Sixth Amendment bars admission of testimonial statements
of a witness who did not appear at trial, unless the witness
was unavailable to testify and the defendant had a prior
opportunity to cross-examine the witness, " id.
At ___, 801 S.E.2d at 698 (citing Bodden, 190
N.C.App. at 513, 661 S.E.2d at 28). According to the Court of
Appeals, the statements that Ms. Wells made to Officer Kato
on 10 December 2012 were testimonial in nature because
"there was no immediate threat or ongoing emergency when
the officer spoke to [Ms.] Wells" given that Ms. Wells
had reached a safe location by the time that she called for
assistance. Id. At ___, 801 S.E.2d at 698 (citing
State v. Lewis, 361 N.C. 541, 547, 648 S.E.2d 824,
828-29 (2007)). In addition, the Court of Appeals concluded
that the questions that Officer Kato posed to Ms. Wells
"were focused on 'what happened' rather than
'what is happening.' " Id. At ___, 801
S.E.2d at 698 (quoting Lewis, 361 N.C. at 547, 648
S.E.2d at 829). The Court of Appeals rejected the State's
contention that defendant had "had an opportunity to
cross-examine [Ms.] Wells on these issues at an earlier trial
for criminal domestic trespass, " reasoning that it had
no way to know if Ms. Wells "actually gave this
testimony at the earlier trial because the record does not
contain any transcripts or evidence from that proceeding,
" id. at, 801 S.E.2d at 699, and held that
defendant had not forfeited his right to confront Ms. Wells
despite having killed her on the theory that "forfeiture
[by wrongdoing] applies 'only when the defendant engaged
in conduct designed to prevent the witness from
testifying, ' " with the record being devoid of any
indication that defendant killed Ms. Wells for that purpose.
Id. At ___, 801 S.E.2d at 699 (quoting
Giles, 554 U.S. at 359, 128 S.Ct. at 2683, 171
L.Ed.2d at 496-98). Finally, the Court of Appeals held that
the State's failure to argue that the admission of the
challenged statements constituted harmless error precluded it
from determining that the admission of Officer Kato's
testimony concerning Ms. Wells's statements was
non-prejudicial. Nonetheless, the Court of Appeals observed
that, in light of the presence of overwhelming evidence of
defendant's guilt, the disputed ...