State v. ClontsÂ, 254 N.C. App. 95

Background

On July 28, 2014 Defendant shot Allen three times during a violent confrontation involving Whisman at Allen's house; Allen survived but suffered permanent partial paralysis. All three had concealed-carry permits and had been drinking.
Whisman (female) was present at the incident and later deposed in North Carolina before deployment; the State intended to call her at trial as a key witness.
Whisman was deployed with the U.S. Navy/Marines abroad during the scheduled June 2015 trial; the State sought to admit her video deposition under N.C. R. Evid. 804(b)(1) as she was allegedly "unavailable."
The trial court allowed the video deposition over Defendant’s objection; Defendant argued admission violated his Confrontation Clause rights and state constitutional equivalents because the State had not made adequate good‑faith efforts to procure Whisman's live presence.
A jury convicted Defendant of assault with a deadly weapon with intent to kill inflicting serious injury; Defendant moved for relief arguing (inter alia) violation of confrontation rights and insufficient findings of unavailability.
The Court of Appeals granted a new trial: it held the trial court’s Rule 804/unavailability findings were inadequate, the State’s efforts to secure Whisman for trial were insufficient and not shown to be in good faith, and the Confrontation Clause was violated; the error was not harmless beyond a reasonable doubt.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Whether Whisman was "unavailable" under N.C. R. Evid. 804(a)(5) so her prior deposition could be admitted	State: Whisman was deployed overseas, her whereabouts were protected for national security, subpoena efforts were made, and she had been deposed previously	Defendant: State failed to make good‑faith efforts to secure her for trial, could have continued trial or kept subpoena in place, and thus she was not "unavailable"	The court held the trial court made inadequate findings and the record did not show sufficient good‑faith efforts; Rule 804(a)(5) not satisfied
Whether admitting Whisman's deposition without live testimony violated the Sixth Amendment Confrontation Clause and NC constitutional equivalents	State: Deposition was taken with Defendant present and cross‑examination occurred; prior opportunity to cross‑examine satisfies confrontation concerns if witness is unavailable	Defendant: Confrontation Clause requires face‑to‑face presence unless prosecutorial authorities make good‑faith efforts to procure the witness; prior deposition does not cure lack of live confrontation	Held the Confrontation Clause was violated because the State failed to show it made good‑faith efforts to obtain Whisman's presence and the trial court failed to make required findings
Whether the error was harmless beyond a reasonable doubt	State: Evidence against Defendant was overwhelming (three shots to an unarmed man; jury instruction on intent) so error was harmless	Defendant: Whisman's live testimony was critical and could have materially affected credibility findings on defense of another and intent to kill	Held the State failed to show harmlessness beyond a reasonable doubt; prejudice presumed and not overcome
Whether trial court erred by not instructing on imperfect self‑defense/defense of others	Defendant: Requested or argued such instructions were required	State: Argued imperfect defense doctrines not available; defense counsel agreed at trial not to request them	Held no error — defendant invited the instruction ruling and waived appellate review

Key Cases Cited

Barber v. Page, 390 U.S. 719 (U.S. 1968) (unavailability requires good‑faith prosecutorial effort to secure witness for trial)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial statements barred unless witness unavailable and prior opportunity for cross‑examination)
Ohio v. Roberts, 448 U.S. 56 (U.S. 1980) (framework for admitting testimonial statements when declarant unavailable)
Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (harmless‑error standard for Confrontation Clause violations; cross‑examination importance)
Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (Confrontation Clause cannot be relaxed for prosecution convenience)
State v. Nobles, 357 N.C. 433 (N.C. 2003) (proponent bears burden to prove unavailability; good‑faith contact attempt required)
State v. Triplett, 316 N.C. 1 (N.C. 1986) (degree of factual findings required for unavailability depends on circumstances)
State v. Fowler, 353 N.C. 599 (N.C. 2001) (review standard: trial court findings on unavailability must be supported and detailed as appropriate)