## Facts

- Sam Babb Clonts, III and Aaron Brandon Allen were former military friends; Clonts lived in Allen’s home in Mint Hill, North Carolina.
- On July 28, 2014, Denise Kathleen Whisman-Vazquez, a Navy service member and mutual friend, visited Allen and Clonts while traveling through the area.
- The three drank alcohol during the evening; a dispute arose involving Allen’s agitation and conflict about Whisman’s plans involving Clonts.
- Allen was shot during the confrontation.
- The State argued the shooting was unjustified; the defense claimed Clonts shot Allen in defense of Whisman.
- Whisman was a key eyewitness but was deployed overseas before trial.
- The trial court denied the defense motion to continue the trial until Whisman could appear and allowed the State to use Whisman’s deposition at trial.
- A jury convicted Clonts, and he appealed, challenging admission of the deposition and denial of a continuance.

## Issues

1. Whether admitting Whisman’s deposition violated the Sixth Amendment and N.C. R. Evid. 804(b)(1) because the State failed to show Whisman was “unavailable” through a good-faith effort to secure her live testimony.
2. Whether the trial court abused its discretion by denying a continuance sought to obtain Whisman’s in-person testimony.

## Decision

- The Court of Appeals vacated the judgment and ordered a new trial.
- The court held the trial court erred by finding Whisman “unavailable” and admitting her deposition under Rule 804(b)(1).
- The court held the trial court abused its discretion by denying a continuance given Whisman’s central role as an eyewitness and the insufficient record of efforts to obtain her live testimony.
- The court concluded the errors were prejudicial because Whisman’s credibility and account bore directly on the defense-of-another theory.

## Legal Principles

- Deposition or other former testimony is admissible under N.C. R. Evid. 804(b)(1) only if the declarant is genuinely unavailable and the proponent has made reasonable, good-faith efforts to obtain the witness’s presence at trial.
- A witness’s overseas military deployment and physical absence, standing alone, do not automatically establish “unavailability” for Confrontation Clause or Rule 804 purposes.
- When evaluating a continuance request to secure a material witness, the trial court must exercise reasoned discretion; denying additional time may be reversible where the witness is critical and the record does not show adequate efforts to obtain live testimony.

## Conclusion

The Court of Appeals ordered a new trial because the State did not adequately establish the deployed eyewitness’s unavailability to justify using her deposition, and the trial court’s denial of a continuance improperly forced the defendant to proceed without her in-person testimony.


State v. Clonts, 802 S.E.2d 531 (N.C. Ct. App. 2017)