State v. Hamlette, 3

• Decision Date: 07 April 1981
• Docket Number: No. 3,3
• Citation: 302 N.C. 490,276 S.E.2d 338
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Edward HAMLETTE.

Page 338

276 S.E.2d 338

302 N.C. 490

STATE of North Carolina v. William Edward HAMLETTE.

No. 3.

Supreme Court of North Carolina.

April 7, 1981.

Rufus L. Edmisten, Atty. Gen. by Thomas F. Moffitt, Asst. Atty. Gen., Raleigh, for State.

James E. Ramsey and Mark Galloway, Roxboro, for defendant-appellant.

HUSKINS, Justice:

Defendant assigns three errors to the guilt determination phase and eight errors to the sentence determination phase of the trial. We shall address all errors in the guilt phase. In view of our disposition in that phase requiring a new trial, we discuss only two of the errors assigned in the sentencing phase.

Guilt Phase

In his first assignment of error, defendant contends the trial court erred in permitting police officers Pricilla Betterton and Steve Clayton to relate the victim's statements made to them within three to thirteen minutes of the shooting. Defendant argues the statements lacked the necessary spontaneity to qualify as part of the res gestae. We disagree and uphold the trial court's admission of the spontaneous utterances as part of the res gestae.

At approximately 11 p. m. on the night of 21 February 1980, Betterton was sitting in her car in the Convenience Corner parking lot. She was off duty but in uniform. She heard four to six gunshots and saw Bailey run by her car into the convenience store and say something to the attendant. The attendant picked up the phone and appeared to make a phone call. Before the attendant replaced the receiver, Bailey came back outside. Betterton approached him and saw he had been shot. Blood was coming from his mouth and the front of his shirt. She first asked him to sit down and he did. She asked him what was wrong and who shot him. He replied, "William Hamlette." This occurred within three minutes after the gunshots were fired. She broke off the conversation and went into the store to ascertain if an ambulance and the police had been called. She picked up a brown paper bag upon which to make notes and returned to Bailey. No more than one minute had passed. She asked him a second time who shot him and he again responded, "William Hamlette." She asked how he left and Bailey said he left with Earl Torain in a 1965 Mercury. She asked if they had an argument and Bailey responded that he was hurting and wanted an ambulance.

Within two minutes an ambulance and Officer Clayton arrived. This was ten minutes after the shots were fired. Clayton received the call on the shooting at 11:03 and arrived on the scene at 11:08. He talked with Betterton for two minutes and then talked to Bailey as the ambulance attendants prepared him for the trip to the hospital. Clayton observed blood running out of his mouth and a bloodstain on his shirt. In response to Clayton's questions, Bailey stated he had been shot by William Hamlette; Earl Torain was with Hamlette; Hamlette and Torain left in a 1965 Mercury headed north toward South Boston; the shooting had occurred at the telephone booth, and "he could see the people when the shooting occurred."

The trial court conducted voir dire examinations of both Betterton and Clayton and concluded statements made to them by Bailey were admissible under the res gestae rule. Defendant argues the statements were hearsay narratives of the shooting, a prior event, and were not made contemporaneously with the event or with enough spontaneity to qualify as admissible res gestae statements.

Statements are admissible as spontaneous utterances when made by a participant or bystander in response to a startling or unusual incident whereby the declarant is without opportunity to reflect or fabricate. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); see generally, 1 Stansbury's N.C. Evidence § 164 (Brandis rev. 1973); McCormick on Evidence § 297 (1972). "(S)uch statements derive their reliability from their spontaneity when (1) there has been no sufficient opportunity to plan false or misleading statements, (2) they are impressions of immediate events and (3) they are uttered while the mind is under the influence of the activity of the surroundings." State v. Deck, 285 N.C. 209, 214, 203 S.E.2d 830, 833-34 (1974); see also State v. Johnson, 294 N.C. 288, 239 S.E.2d 829 (1978); State v. Cox, 271 N.C. 579, 157 S.E.2d 142 (1967). It is this spontaneity and not being part of the incident which makes it relevant evidence. For example, where the utterance is made by an observer and not a participant, the statement may be admissible. See, e. g., State v. Feaganes, 272 N.C. 246, 158 S.E.2d 89 (1967). Also, statements made after and therefore not part of the event are admissible if they are spontaneous utterances. See, e. g., State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909); Annot., 4 A.L.R.3d 149 (1965).

In the instant case, only three minutes passed between the witness Betterton's hearing of the shots and Bailey's statement that defendant shot him. Within thirteen minutes after the shooting, Bailey told Clayton that defendant had shot him. When he made these statements, he was suffering from three gunshot wounds, was bleeding from the mouth and chest, was at the crime scene and, at the time of the second statement, was being prepared by ambulance attendants for the trip to the hospital. These circumstances support the trustworthiness of these statements made while the victim was under the immediate influence of the act. The statements are admissible spontaneous utterances.

The statements do not in any way lose their spontaneous character because they were in response to questions such as: "What is wrong?" "Who shot you?" "How did they leave?" See, e. g., State v. Johnson, supra ("Who shot you?"); State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976) ("What happened?"). This was not a situation wherein the declarant had time to reflect and fabricate untruthful answers. Rather, the responses were excited reactions to a startling event.

In his second assignment of error, defendant argues the trial court erred in admitting certain hearsay testimony to the effect that the victim identified defendant as the man who shot him. This questioned testimony was admitted into evidence as dying declarations of the victim.

Under the dying declaration hearsay exception, the State sought to offer the testimony of three witnesses that the victim identified defendant as the person who shot him. The testimony of Linda Walton to this effect was excluded while that of Debbie Moss and police officer Melvin Ashley was admitted.

Dying declarations by the person whose death is at issue have long been admissible in North Carolina provided: (1) at the time they were made the declarant was in actual danger of death; (2) he had full apprehension of the danger; (3) death did in fact ensue; and (4) defendant, if living, would be a competent witness to testify to the matter. State v. Stevens, 295 N.C. 21, 28, 243 S.E.2d 771, 776 (1978); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); State v. Poll, 8 N.C. 442, 9 Am.Dec. 655 (1821); see generally 1 Stansbury's N.C. Evidence § 146 (Brandis rev. 1973). The General Assembly codified the essentials of these requirements in G.S. 8-51.1 which reads:

The dying declarations of a deceased person regarding the cause or circumstances of his death shall be admissible in evidence in all civil and criminal trials and other proceedings before courts, administrative agencies and other tribunals to the same extent and for the same purposes that they might have been admissible had the deceased survived and been sworn as a witness in the proceedings, subject to proof that:

(1) At the time of the making of such declaration the deceased was conscious of approaching death and believed there was no hope of recovery;

(2) Such declaration was voluntarily made.

The party seeking admission of the out-of-court statement need not show that the declarant stated he had given up all hope of living or considered himself to be in the throes of death. All that must be shown is that the declarant believes he is going to die. State v. Stevens, supra; State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978). This belief is best shown by his express communication to this effect. State v. Lester, supra. However, it is not necessary that declarant personally express his belief that he has no chance of recovery. This may be shown by the circumstances. State v. Brown, 263 N.C. 327, 139 S.E.2d 609 (1965); State v. Franklin, 192 N.C. 723, 135 S.E. 859 (1926). The rationale behind this exception to the hearsay rule is the general trustworthiness of statements made under such circumstances. The ordinary motives for falsehood are absent and there are powerful considerations which would impel the dying declarant to speak the truth, perhaps more so than does a solemn oath in court. State v. Stevens, supra; State v. Lester, supra. The admissibility of these declarations is a decision for the trial judge, and appellate review is limited to the narrow question of whether there is any evidence tending to show the prerequisites of admissibility. State v. Stevens, supra, 295 N.C. at 28-29, 243 S.E.2d at 776; see also State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976). With these rules of evidence in mind, we turn to the hearsay testimony of the three witnesses which the State sought to offer as dying declarations.

The only question as to admissibility in all three situations is whether the declarant had full apprehension of his danger. Clearly, the other prerequisites to competency contained in G.S. 8-51.1 and our case law were met. For example, defendant does not contest the competency of the declarant to testify had he lived nor the fact that death was impending even though the declarant lingered twelve days before finally dying. We address the declarations in the order in which the declarant made them in the last days of his life.

Melvin Ashley, a police officer, was called as a defense witness. Upon cross-examination, Ashley testified about a...