State v. Fearing, 68A85

• Decision Date: 10 December 1985
• Docket Number: No. 68A85,68A85
• Citation: 315 N.C. 167,337 S.E.2d 551
• Parties: STATE of North Carolina v. Francis Vesper FEARING.
• Court: North Carolina Supreme Court

Page 551

337 S.E.2d 551

315 N.C. 167

STATE of North Carolina v. Francis Vesper FEARING.

No. 68A85.

Supreme Court of North Carolina.

Dec. 10, 1985.

Lacy H. Thornburg, Atty. Gen. by Ellen B. Scouten, Asst. Atty. Gen., Raleigh, for the State.

Gerald L. Bass, Raleigh, for defendant-appellant.

Adam Stein, Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, amicus curiae.

Interact, Inc. by Lou A. Newman, Apex and Thomas W. Jordan, Jr., Raleigh, amicus curiae.

MEYER, Justice.

The defendant was charged with first-degree rape, incest, and taking indecent liberties with his three-year-old daughter. A neighbor had discovered the victim wandering outdoors on a cold October morning wearing only a nightgown and panties. A medical examination of the child revealed indications of sexual abuse.

Prior to the trial of this case, the State filed a motion entitled "Motion in Limine to Allow Witnesses to Testify " seeking to admit the testimony of a social worker, two detectives, a licensed practical nurse, and a medical doctor. A "motion in limine" is customarily defined as one seeking "to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial," and is not usually employed for the purpose of seeking the admission of evidence. Black's Law Dictionary 914 (5th ed.1979) (emphasis added). The trial judge correctly treated the motion, pursuant to N.C.G.S. § 8C-1, Rule 104, as one raising a preliminary question concerning the qualification of witnesses to testify. Each of these witnesses had been present when the child made statements as to the cause of her injuries and the identity of the perpetrator. The State cited N.C.G.S. § 8C-I, Rule 803 (hearsay exceptions), as its basis for requesting the introduction of the testimony. The State gave defendant written notice of its intention to call these witnesses and provided defendant with copies of affidavits executed by each witness. On the same day, defendant filed a motion in limine to prevent the child victim from testifying at trial.

The trial judge, after making written findings of fact and conclusions of law, granted both motions and entered orders allowing the testimony of the State's witnesses and preventing the child victim from testifying. In the latter order, the trial judge noted that defendant and the State had stipulated that the child should not testify and adopted the stipulation as the court's own in allowing the motion. The Mixed Findings of Fact and Conclusions of Law were set forth by the trial judge as follows:

MIXED FINDINGS OF FACT AND CONCLUSIONS OF LAW

(1) The Court has considered defendant's Motion in Limine pursuant to G.S. 8C-1, Rule 104, as raising a preliminary question concerning the qualification of a person to be a witness and as such has not been bound by the rules of evidence in making its determination.

(2) The stipulation of the parties that the minor child ... during all times since January 1984 when this matter might have been called for trial and for at least the rest of 1984 is incapable of understanding and appreciating the meaning of an oath or affirmation and the duty of a witness with regard to testifying under oath or affirmation is hereby accepted and adopted by the court as its own.

(3) In granting defendant's motion the court notes that the special meaning of "competency" with regard to Rules 601(b)(2) and 603 relates to the qualifications of a witness to testify at trial and not the ability of the declarant to intelligently and truthfully relate personal information. Thus, the court's ruling in this case is based on the finding that the child ... is incapable pursuant to Rules 601(b)(2) and 603 to understand the theological implication and ethical considerations of testifying under oath or affirmation and the court's ruling in no way addresses the qualification of [the child] as a declarant out of court to relate truthfully personal information and beliefs.

WHEREFORE, THE COURT allows that portion of Defendant's Motion and Orders that the child ... may not testify in the trial of these matters.

This the 3 day of August, 1984.

s/ ANTHONY BRANNON

Anthony M. Brannon

Judge Presiding

Although it appears from his order that the trial judge carefully considered the contents of the case file and the arguments of attorneys in open court on this matter, it is clear that the trial judge never personally examined the four-and-one-half-year-old child or observed the child being examined by counsel on voir dire to determine her competency as a witness. The child did not testify at trial, although four of the State's five "hearsay" witnesses did testify.

In his order allowing the State's "hearsay" witnesses to testify, the trial judge determined that the testimony of the licensed practical nurse and the medical doctor were admissible, upon a proper foundation, pursuant to N.C.G.S. § 8C-1, Rule 803(4) (statements made for purposes of medical treatment or diagnosis). After setting out the text of rules 803(24) and 804(b)(5) (residual hearsay exceptions), the following findings appear:

11. That the statements of [the child] in the aforementioned affidavits are statements of a material fact; and that the statements are more probative on the point than any other evidence which the State can procure through reasonable efforts; and that the general purposes of the rules of § 8C and the interest of justice will best be served by admission of the statements, upon a proper foundation being laid at trial by the State; and

12. That there are sufficient circumstantial guarantees of trustworthiness of the statements of [the child] to the five persons named in the affidavits to satisfy Rule 803(24) and 804(5) [sic] and the federal and state constitutional requirements as well as the previous North Carolina evidence law. ...

13. That there is no federal or state constitutional impediment to the admission of these statements. The two-pronged test of Ohio v. Roberts, 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597] (1980), unavailability/necessity and reliability has been met, the child not being allowed to testify and reliability being inferred from the statements' falling within the firmly established hearsay exception of statements for purposes of medical diagnosis and treatment and perhaps also as being statements described in Rule 803(3), and there being sufficient circumstantial guarantees of trustworthiness of the statements, which factors also satisfy the State constitutional requirement of necessity and a reasonable probability of truthfulness. ...

(Citations omitted; emphasis added.)

Although the order specifies Rule 803(4) as the basis for admitting the testimony of the doctor and the nurse, it does not state the basis for admitting the testimony of the social worker and the detectives. It is apparent, however, from the above-quoted findings that the trial judge admitted at least some of the "hearsay" testimony pursuant to the residual hearsay exceptions, Rules 803(24) and 804(b)(5).

Except for the requirement of Rule 804(b)(5) that the witness be "unavailable," Rules 803(24) and 804(b)(5) are worded identically:

Other Exceptions.--A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.

The availability of a witness to testify at trial is a crucial consideration under either residual hearsay exception. Although the availability of a witness is deemed immaterial for purposes of Rule 803(24), that factor enters into the analysis of admissibility under subsection (B) of that Rule which requires that the proffered statement be "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." If the witness is available to testify at trial, the "necessity" of admitting his or her statements through the testimony of a "hearsay" witness very often is greatly diminished if not obviated altogether. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). See also United States v. Mathis, 559 F.2d 294 (5th Cir.1977); 4 D. Louisell & C. Mueller, Federal Evidence § 472 (1980).

The trial judge clearly admitted at least some of the State's "hearsay" witness testimony pursuant to one or both of the residual hearsay exceptions, Rules 803(24) and 804(b)(5). As we have seen, the "availability" of the declarant to testify at trial unavoidably enters into the determination of admissibility of a "hearsay" witness's testimony as to out-of-court statements made by the declarant pursuant to either residual hearsay exception. The testimony admitted by the trial judge here was extremely prejudicial to the defendant because it included statements in which the victim allegedly described the cause of her injuries and identified the defendant as the perpetrator. Since the order allowing the State's motion to admit this testimony was apparently based in large part upon the trial judge's determination that the victim herself was "unavailable" to testify to these allegations at trial, we find it necessary to review the process by which the trial judge reached his conclusion that the child victim...