Episode 20: Tate and Gault

[00:00:05.870] [SPEAKER_01] In general, the Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant has had a prior opportunity to confront the witness. Just last year, the United States Supreme Court in Smith v. Arizona clarified the meaning of hearsay in this context. More recently, in State v. Tate, the North Carolina Court of Appeals found no error in the admission of a DNA profile generated by an out-of-state lab absent testimony from the analyst, concluding that the statement was not testimonial. We'll be discussing that case, State v. Tate, today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina.
[00:00:59.734] [SPEAKER_00] So, Joe, first up, I think we've got a case dealing with a confrontation clause issue. Tell us about State v. Tate.
[00:01:05.323] [SPEAKER_01] This is a case out of Pitt County, decided by the Court of Appeals on June 18, 2025. The facts were these. On June 1, 2011, Robin—that's a pseudonym chosen by the Court of Appeals—Robin went to the pool with her friends, got drunk, and she passed out. Robin woke up in a strange bed with a man having vaginal intercourse with her. Robin fled, made her way to the hospital where a nurse completed a sexual assault kit. About six and a half years later, the Greenville Police Department sent the sexual assault kit to a private lab in Utah. The lab produced a DNA profile which it sent back to North Carolina, and the North Carolina State Crime Lab matched the profile with the defendant's DNA. On October 25, 2021, defendant was indicted for second-degree forcible rape. The indictment specifically alleged that the defendant did carnally know and abuse the victim, who was at the time mentally incapacitated, physically helpless, and by force and against her will, The defendant knew that the victim was mentally incapacitated and was physically helpless. That becomes an issue later on. The statute allows for knew or had reasonable grounds to know. This indictment specifically alleged that the defendant knew the victim was mentally incapacitated and physically helpless. The matter came on for trial by jury in January of 2023. At trial, the trial court actually instructed the jury that the state must prove that the defendant knew or should reasonably have known that the alleged victim was mentally incapacitated or physically helpless. The defendant was convicted. The jury found the victim was mentally incapacitated, not physically helpless, and then the defendant appealed. There are basically two broad issues here, but each one of them has a few subparts. The first issue had to do with the jury instructions and the verdict. The defendant argued the trial court erred by instructing the jury on constructive knowledge when the indictment alleged actual knowledge. Under the version of the second-degree rape statute in effect at the time in 2011, it was 14-27.3. That has since been recodified as 14-27.22. A person is guilty of second-degree rape if the person engages in vaginal intercourse with another person either by force and against the victim's will or who is mentally incapacitated or physically helpless and the person knows or reasonably should know of the victim's condition. Under the short-form rape statute 15-144.1, if the victim is mentally incapacitated, it is sufficient to allege that the defendant did carnally know and abuse a person who was mentally incapacitated. Here, the Court of Appeals noted that the North Carolina Supreme Court in Singleton upheld an indictment for second-degree rape that failed to allege knowledge of any kind, that basically just parroted, although not verbatim, the language of that short-form rape statute. Here, the Court of Appeals held, and this is a direct quote, the state's indictment was not fatally deficient in not including the element of constructive knowledge, nor was the trial court precluded from including it in the jury instruction due to its absence from the indictment. The interesting thing here is the Court of Appeals really looked to Singleton for the proposition that there's no problem in this indictment that doesn't bail out all the statutory ways of proving knowledge. What's a little interesting about this is there are other cases. I blogged about this case recently, State v. Tate. There are other cases that have held even if an allegation might not be necessary to be in an indictment, there are certain situations where if the state includes that allegation, it binds the state to prove that particular allegation that it chose to include. Here, the indictment alleged not that the defendant reasonably should have known, but that the defendant knew the victim was mentally incapacitated. And the Court of Appeals found no problem in the trial court allowing the jury to convict the defendant based either on that actual knowledge or the statutory possibility of what it's a constructive knowledge reasonably should have known that the victim was incapacitated. A second issue that arose out of that sort of jury instruction and verdict subheading was that the defendant argued that the disjunctive instruction on knowledge violated his right to unanimous jury. This came up in that recent case we talked about Bowman and those two lines of cases represented on the one hand by State v. Diaz and State v. Hartness. The rule that emerges from those cases basically is that a disjunctive instruction on separate offenses is fatally ambiguous. If it's an or that allows some jurors to find the defendant guilty of one offense and other jurors to find the defendant guilty of a different offense, you can have a fatally ambiguous verdict. But disjunctive instructions on alternative acts that satisfy an element of a single offense is not a problem. The Court of Appeals had no issue in finding that this case fell into that line that says this is not a problem because the disjunctive elements of knowledge are not separate crimes, but alternative avenues to satisfy an element of the single offense of second
[00:05:53.966] [SPEAKER_00] degree rape. Yeah, Joe, they sort of make that analogy, I think, in there talking about referencing back to that Haddock case, you know, just like mental incapacity or physical helplessness would be kind of two different ways of establishing the force. It's the same thing here. Either you did know or you reasonably should have known. But either way, as they say, the gravamen of the offense. This is the element we're getting at. And these are just two different ways to get
[00:06:16.769] [SPEAKER_01] there. Yeah, it's not a separate offense. There wasn't a possibility here that some jurors found him guilty of first-degree forceful rape and other jurors found him guilty of second-degree statutory rape. It was one offense. The second big heading issue that the defendant raises here is that there was insufficient evidence to show either that Robin was incapable of consenting or that the defendant knew or reasonably should have known the victim's condition. In 2011, again, the Court of Appeals has to look back at these older statutes because that was the version of the statute in effect at the time the offense was committed. Mentally incapacitated meant a victim who, due to any act committed upon the victim, is rendered substantially incapable of either reprising the nature of his or her conduct or resisting the act of vaginal intercourse or a sexual act. The Court of Appeals notes that that definition of mentally incapacitated was later recodified at 14-27.20. And then there's a footnote, this is footnote 3 in Tate, says the language of this section remained unchanged. I'm not quite sure what the Court of Appeals meant by that. The definition of mentally incapacitated has been changed since 2011. You can tell that by looking at the legislative history of the statute. So I'm not sure exactly what they meant by that. But suffice to say, the Court of Appeals found the evidence here was sufficient for both of those elements of second-degree rape. The Court of Appeals recited case law for the proposition that the victim's testimony alone is sufficient to support a conviction. Here, in addition to Robin's testimony, there was also evidence that she had alcohol in her system, and the defendant, after he was apprehended, made certain statements to police, particularly referring to Robin as a, quote, drunk bitch, and that she was wasted at the time. Taking all that evidence together, the victim's testimony, the evidence that she had alcohol in her system, and these incriminating statements that the defendant made, the Court of Appeals found there was sufficient evidence both that the victim was mentally incapacitated and given the defendant's statements to police that there was sufficient evidence defendant knew or should have known of the victim's condition.
[00:08:12.427] [SPEAKER_00] So then, Joe, now we sort of get to our big headline event, right? Talking about this Smith v. Arizona issue that comes up with some of the forensic evidence that's offered.
[00:08:20.817] [SPEAKER_01] Right. Because this sexual assault kit was sent away to an out-of-state lab, the out-of-state lab returned those DNA results. And then the North Carolina Crime Lab matched that DNA profile that was obtained by an out-of-state lab with the defendant's profile. This gave rise to an issue under the Confrontation Clause and what has come to be known as the substitute analyst kind of line that was most recently addressed by Smith v. Arizona. The facts of this case are curiously similar to an earlier case, Williams v. Illinois. That was the case that produced a badly fractured United States Supreme Court opinion, couldn't really figure out the rationale there, and it was clarified by Smith v. Arizona. The Court of Appeals recognized that in Smith v. Arizona, they reiterated that the confrontation clause applies only to testimonial hearsay. So the Court of Appeals kind of addresses this question in two parts. First of all, whether this was hearsay and then whether it was testimonial. The Court of Appeals recited Smith v. Arizona for the rule that cleared up this question about hearsay. And the rule is this. If an expert conveys an out-of-court statement in support of his opinion and the statement supports that opinion only if it is true, then the statement has been offered for the truth of the matter asserted. This kind of demolished a rationale that had been proposed by Justice Alito in the Supreme Court and had been adopted by certain courts around the country of an expert is allowed to testify under evidence rule 702, even if the basis of his expert opinion are not independently admissible on their own. So certain courts were saying, well, you've got this scientific report, this forensic analysis that was conducted by an another expert, we can put our expert on the stand to testify to these independent conclusions based on that otherwise inadmissible evidence. Smith v. Arizona rejects that rationale, says if your expert who is testifying is basing his opinion on this other report and the truth of that statement depends on the truth of that other report, then that other report, you can't bypass confrontation that way. Here, Tricia Daniels, who was the forensic scientist from the state crime lab, testified that she compared the DNA profile obtained from the out-of-state lab to defendants' DNA and found a probable match. The Court of Appeals found that the DNA results in this case counted as hearsay under Smith v. Arizona. You do have a confrontation clause problem if... the court goes on to find that these are testimonial. But this is where it gets a little complicated, right? Because Smith v. Arizona actually sent that case back for a determination of whether those statements there were testimonial. And the rule that has emerged from the cases is that a statement is testimonial if it was created solely for the purpose of prosecution, created solely for an evidentiary purpose made in aid of a police investigation. That's a case called Bull Coming v. New Mexico, an earlier United States Supreme Court opinion from 2011. The Court of Appeals in this case recognized that Smith v. Arizona abrogated Williams v. Illinois and that Williams v. Illinois did not produce a majority rationale on the question of whether the statements were testimonial. Nevertheless, the Court of Appeals here analogized to Williams and concluded that the sexual assault kit was sent to an out-of-state lab for a purpose of identifying the potential presence of DNA other than the victim's, not to identify a potential suspect. Hence, the statement was not testimonial because it was not generated solely for the purpose of aiding a police investigation. The Court of Appeals goes on to say further, as in Williams, the profile was not inherently inculpatory, but rather exculpatory of all but one of the seven billion people in the world. Therefore, the Court of Appeals concluded that the trial court did not err in admitting Daniel's testimony based on a comparison of defendant's DNA profile with the profile generated by that out-of-state lab. And then finally, there's kind of a fallback position to say, look, even if this was a violation of the defendant's confrontation clause rights, the error was harmless in light of the substantial evidence of the defendant's guilt. And that included that same evidence that they recited for the sufficiency of the evidence challenge, that there was evidence that the victim was incapacitated, that she testified to waking up in a strange bed into vaginal intercourse, and that the defendant made these inculpatory statements to the police after he was apprehended.
[00:12:16.668] [SPEAKER_00] So, Joe, I know the prosecutors who are listening to this that have been sort of waiting for future guidance after Smith v. Arizona were maybe a little apprehensive after we got that State v. Clark. I think the question people are going to be asking is, If I'm a prosecutor, is this case helpful to me or not helpful to me the next time I have one of these sort of second or substitute analyst cases? I'd like to know your take on it. I feel like it is a little hard to say. It's very limited, right? This is kind of a unique and special circumstance where we had this very early on preliminary identification work that was being done, and then that's just sort of used by this later analyst. Post Smith v. Arizona, I think we're happy to get anything we can get, right? I mean, at the end of the day, this is a North Carolina appellate opinion that is saying it was okay that the state's testifying expert witness was using lab results and statements made by an earlier person who did lab work on this DNA. And did not testify. And did not testify. I think that's great. It may not be everything we want it to be in terms of, for example, a true substitute analyst being able to just sort of give a second look at earlier testing and then give their own opinion. Under their sort of view of why this was not testimonial, We might have a different issue coming up if it was, for example, that person is left from the state crime lab and so a new person is going to look at the results. They might say, well, the first crime lab analyst who ran those tests, that was for a testimonial purpose. Would you see that sort of under the way they seem to be approaching it here? I don't
[00:13:51.989] [SPEAKER_01] know, Jonathan. This is difficult for me, and I'm not entirely convinced by this reliance on Williams v. Illinois, because even at the time, this rationale from Williams v. Illinois did not command a majority of the U.S. Supreme Court. So it's a little curious to see it kind of resurrected here as a basis to get around this confrontation clause challenge. To the extent that this case, Tate, allows... this kind of evidence to come in via a non-testimonial purpose, I worry about a situation where we have to analyze each particular kind of evidence differently. We know from that recent case, Clark, that if you send away drugs to analyze and find out to determine the identity of the drugs, That does count as a testimonial statements because you're identifying the drugs for purposes of prosecuting the defendant. But apparently that's somehow different if it's a DNA test. So do we have to ask what kind of test is being performed in order to determine whether it's testimonial or not? I'm not sure. I think maybe prosecutors are not going to be happy with this advice, but I think we need to wait until we've got a little more guidance from the appellate courts as to how the Smith v. Arizona is going to shake out.
[00:14:54.288] [SPEAKER_00] I think even our appellate courts are also, I think, waiting for some of that additional guidance from the U.S. Supreme Court because, you know, you're right. I mean, the Williams, we had the, what, the 4-4-1 sort of, you know, fractured plurality opinion that talked about this sort of testimonial approach. We've got Justice Thomas sort of maybe a little bit off on his own or arguably overlapping with some of the judges in Williams v. Illinois talking about sort of the formality and solemnity angle. Well,
[00:15:20.301] [SPEAKER_01] he's proposing an entirely different test for how you determine whether a statement is testimonial,
[00:15:24.125] [SPEAKER_00] which, right,
[00:15:24.666] [SPEAKER_01] I mean, ultimately that might prevail, but it hasn't yet. It does raise these questions. Incidentally, Smith v. Arizona dodged the question altogether by sending that case back for the lower courts to figure out whether the statement in Smith v. Arizona itself was testimonial. But I think you're absolutely right, Jonathan. We see some dispute, not only in the lower appellate courts, but also from the U.S. Supreme Court as to how we're going to address these challenges moving
[00:15:48.967] [SPEAKER_00] forward. And, you know, there's a lot of discussion, I mean, like in that Smith case or in some of the others about sort of this how we go about deciding what the primary purpose of it was. You know, this sort of whole other approach to deciding what is or is not testimonial. I mean, that's something that... I hope we'll still have an opportunity to explore in some of these cases that, I mean, even if one of the purposes might be to identify this person that, you know, there are other purposes behind the work that they're doing at the lab, just trying to sort of, I don't know, follow their protocols or, I mean, as these cases say, exonerate the people who are not a match to the DNA. All of that is sort of part of the work. It's It's good to at least have this sort of one example for if your facts mirror these facts. I think I'm with you, Joe. It is still difficult for me to sort of predict exactly what this means for the innumerable other circumstances we're going to have that are mix and match of different bits and pieces of other testimony from a not testifying witness. Right. Right. Exactly.
[00:16:46.059] [SPEAKER_01] We've got one other case on for today. That's State v. Galt.
[00:16:48.835] [SPEAKER_00] Right. So the last case we wanted to talk about is I don't know that we've done a whole lot of probation cases on this podcast up to this point. And this was one that we thought would be worth discussing. This is something we got from the Court of Appeals also on June 18th of 2025, an opinion out of Surrey County. The defendant pled guilty back in July of 2022 to second degree exploitation of a minor and disseminating obscenity. He was sentenced to 20 to 84 months, but placed on 36 months of supervised probation. And as a condition of his probation, he is prohibited from accessing the internet during that 36-month probationary period. And the trial court had some other orders about no contacts with the minor victim and was required to register as a sex offender. The defendant has a probation violation that is filed. A report is filed in March of 2023, and this is the text of the violation that is alleged by probation. It says, of the conditions of probation imposed in that judgment, the defendant has willfully violated, one, general statute 15A, 1343B, one, commit no criminal offense in any jurisdiction in that, and this is what it says in all caps, defendant was charged with a failure to register in regards to having social media site not registered with the Sheriff's Department on January 18th, 2023. This is a violation of defendant's probation. So that's the language that's sort of in there about what it is that he has done that is a violation. They have a hearing on the violation. His primary probation officer, Burnett, doesn't testify. The court just hears from another probation officer, Officer Cook, who was sort of there with Officer Burnett when they did this checkup visit on the defendant back in March of 2023. And what happened in the checkup visit is they went into the defendant's apartment. He was on FaceTime with a female who appeared to be very young. The probation officers also went through his phone, and on the phone they found these pornographic websites and multiple social media applications, Snapchat, Facebook. And the defendant, to the probation officer's knowledge, does not have any of those social media accounts registered. Burnett was the one who actually checked on that registration status with the sheriffs, but again, it was the other officer, Cook, as the one who was testifying there. So the issue that's sort of before the court is, before the appellate court, turns on this one fact that the state didn't really ever present any evidence of specific actions of the defendant on or around January 18th of 2023. Remember, this visit they're doing is happening in March. And so all the testimony that they gave was related to that March visit. But nevertheless, the court And the trial court, after hearing all the evidence, does find that he's in violation and makes findings to that effect based on the testimony that he has failed to violate it. So the matter that's before the Court of Appeals is, the first issue is, was the violation as alleged, was that enough? Was that a sufficient violation to put the defendant on notice as to what he's done? If it's not clear, what we're talking about here is based on a couple of different statutes. It's 14-2008.11. and 14-208.6. But basically what those two things mean together is that a registered sex offender would have to report any new or altered online identifiers, any new user ID they've got on an app or something like that, and would be required to report that to the sheriff within 10 days. And if he fails to do that, then he's committed a crime. He's guilty of this Class F felony. which would be a new criminal offense. And so did the language in the violation report sufficiently allege that crime? That he is a registered sex offender, that he's sort of built these new sites. And again, the language there was defendant was charged with a failure to register in regards to having social media site not registered with the sheriff's department on January 18th, 2023, this is a violation of defendant's probation. The Court of Appeals looking at that says, yes, that was good enough. That was enough to put the defendant on sort of sufficient notice of what it is that we're saying that he did. They referenced back to a North Carolina Supreme Court case called Moore, which they say laid out the standard for what is a sufficient stating of an alleged violation And quoting from Moore, they say, while the condition of probation which the defendant allegedly violated might have been ambiguously stated in the violation report, the report also set forth the specific facts that the state contended constituted violations. So that's sort of really what it comes down to, is a statement of what the defendant did that violated the probation condition. And they feel like that language here, I mean, maybe it could have been a little more specific, maybe it could have been a little more clear, but it's explaining to him the thing you did is failing to register these social media sites with the sheriff. And that is under much
[00:21:35.849] [SPEAKER_01] violation. I mean, even before Singleton, the rigorous rules of an indictment are not going to apply here because we're just talking about probation violation report.
[00:21:44.349] [SPEAKER_00] Yeah, I mean, I think there is some flexibility here, right? I mean, there just needs to be enough that he would be put on sufficient notice of what we're saying that he did. And that's what he's arguing on appeal. He's saying, I didn't get sufficient notice of this violation because the report failed to state a criminal offense because failure to report a social media site is not really a crime on its own. And that, you know, it didn't give him any other information like identifying the case number or citing to the statutes and that kind of thing. And the Court of Appeals here is saying, we don't have to do that. It is not per se a crime, but because of his status, he was required to report these online identifiers to the registering sheriff, and he didn't do that. So those acts are a crime for him, given his status. And so he was put on notice of what the acts themselves were. So they say, we hold the violation report provided defendant with sufficient notice. So I know that is an issue that I think prosecutors often are dealing with in probation violation court. These probation officers, they've got a million people that they're supervising. They may not know every detail of the underlying crime that was to be alleged. Maybe it's not quite as detailed or quite as precise as we might want it to be. And signing back to that Moore North Carolina Supreme Court case are good examples of why it doesn't have to be perfect. And, you know, we're not even under a singleton standard, right? We're not it's not a criminal indictment. We need to put him on notice of the acts we're alleging that he did. And this was enough to do that. So, yes, we're OK on issue number one. Now, issue number two is, given that he was put on notice of this violation, did the state present sufficient evidence of it? And I think I sort of tipped my hand on this one a little bit, talking about the January versus the March, but the Court of Appeals here is saying, unfortunately, no, the state did not put on sufficient evidence of that. And it's not so much a problem that, you know, that we have this other probation officer who's coming into court who was just sort of the secondary officer out there on that day. And it's not necessarily a problem that that second officer is reading things out of the first officer's report, right? It's a probation violation hearing. So, you know, I mean, hearsay is allowed. I mean, it's a lower... standard of formality. We're not doing a trial and we don't have to prove it beyond a reasonable doubt. So yes, it is looser than we might do for a trial, but even under that looser standard, we just didn't quite get there.
[00:23:59.769] [SPEAKER_01] The problem primarily has to do with the dates, right? Because the probation violation report alleged a failure to register on a certain date range and the evidence presented at the violation hearing was pertaining to a different date range altogether.
[00:24:11.247] [SPEAKER_00] That's exactly it, Joe, because the violation report is specifically talking about this January 18th date, but then they're going out sometime later in March of that same year. That's when they're actually visiting him, and there's no other connection that was ever made at the hearing to sort of tie it back. So it's not proof beyond a reasonable doubt, but the trial judge does have to be provided with some form of evidence that the crime was committed. Quote case law saying the evidence is sufficient when the trial court... can independently find that the defendant committed a new offense. But we just don't have that. And they also sort of make the point that this offense that we're alleging in particular, I mean, the date is pretty important, right? Because, you know, there's actually this 10-day time limit. You know, if the defendant required to register does have this new online identifier where he's, you know, on this account or something, if that's even allowed, He's got to make this report to the sheriff within 10 days to notify them of his new online identifier. So, you know, well, January 18th is what is at the end of the 10-day period after which he created it, or it's just not really clear. The Court of Appeals even goes to the point of saying, Even if we were to assume the violation report contained a typographical error, it was meant to state March 18th, 2023, rather than January 18th, 2023. The filing date on March 21st, 2023 would still be a problem, right? Because, well, we haven't even run his 10 days. Like, maybe he was going to go tomorrow. So, you know, I just sort of highlight that to say the date here is particularly important, and we just don't have anything specifically offered today. at the hearing to show why or how or if any of that happened back in January. So yes, it's a lower standard. Yes, it's a little bit looser, but the judge has got to have something to base it on. And unfortunately here, we just didn't ever have anything to make that connection to the date. And so they say that the revocation of his probation is reversed on appeal.
[00:26:01.069] [SPEAKER_01] Well, that's all the time we've got for today. In this episode, we discussed State v. Tate, rejecting the defendant's confrontation clause challenge to the DNA results, and State v. Galt, finding insufficient evidence to support the trial court's revocation of the defendant's probation. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We're coming to you from the recording studio at the School of Government in Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holtz for our music. If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you'd like for us to cover, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at sog.unc.edu.
[00:26:50.817] [SPEAKER_00] And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g. Thank you, John. That would be the showing for the state. Sounds good, Joe. Thanks. Hope it helped.