State v. Stevens

• Decision Date: 08 May 1978
• Docket Number: No. 74,74
• Citation: 295 N.C. 21,243 S.E.2d 771
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Byron James STEVENS.

Page 771

243 S.E.2d 771

295 N.C. 21

STATE of North Carolina v. Byron James STEVENS.

No. 74.

Supreme Court of North Carolina.

May 8, 1978.

Atty. Gen. Rufus L. Edmisten and Associate Atty. Gen. Donald W. Grimes for the State.

Shelly Blum and Michael A. Sheely, Charlotte, for defendant.

SHARP, Chief Justice.

Prior to trial defendant moved to exclude testimony by Officers Wallace and Sharpe with reference to any statements which Belk made to them in the hospital. The grounds assigned were: (1) that the statements failed to meet the requirements of N.C.G.S. 8-51.1 (Cum.Supp.1977) and our case law for the admission of dying declarations; and (2) that the admission of a decedent's dying declaration denied defendant the right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. After conducting a voir dire the court ruled that the challenged statements met the requirements for dying declaration and denied the motions to suppress. Assignment of error No. 3 challenges this ruling.

"Dying declarations" by the person whose death is an issue in the case 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) declarant, if living, would be a competent witness to testify to the matter. See, e. g., State v. Poll, 8 N.C. 442, 9 Am.Dec. 655 (1821); State v. Thomason, 46 N.C. 274 (1854); State v. Jordan, 216 N.C. 356, 5 S.E.2d 156 (1939); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971). In 1973, the General Assembly codified the essentials of those requirements in G.S. 8-51.1 which made the "dying declarations of a deceased person regarding the cause or circumstances of his death" admissible in all tribunals "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."

Defendant does not contend that Belk's statements were involuntary. Rather, his contention is that the evidence was insufficient to support the trial judge's finding that when Belk spoke with Officer Wallace and Detective Sharpe he was "conscious of approaching death and believed there was no hope of recovery." The admissibility of these declarations was a decision for the trial judge, and our review is limited to the narrow question of whether there was any evidence tending to show the factual prerequisites to admissibility. State v. Bowden, 290 N.C. 702, 712, 228 S.E.2d 414, 421 (1976); State v. Gordon, 241 N.C. 356, 362, 85 S.E.2d 322, 326 (1955); State v. Stewart, 210 N.C. 362, 370, 186 S.E. 488, 492 (1936); 1 Stansbury's North Carolina Evidence § 146 (Brandis rev. 1973).

In State v. Bowden, supra, and in State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976), we noted, without deciding, that the words "no hope of recovery" in the statute might make the statutory exception to the hearsay rule more restrictive than existing case law. We have now concluded that the statutory prerequisites that the deceased must have been "conscious of approaching death and believed that there was no hope of recovery" do not change our case-law requirements that in order to be admissible the declarations of a decedent must have been "in present anticipation of death." State v. Brown, 263 N.C. 327, 139 S.E.2d 609 (1965). See State v. Bowden, 290 N.C. 702, 712, 228 S.E.2d 414, 421 (1976). See also 1 Stansbury's North Carolina Evidence § 146 at 488, n. 17 (Brandis rev. Supp. 1976) where Professor Brandis expressed this view. As the rule is commonly stated in the opinions of the Court, declarant must have been "in actual danger of death" and have had "full apprehension of his danger." State v. Jordan, 216 N.C. 356, 362, 5 S.E.2d 156, 159 (1939). Further, "(i)t is not necessary that the declarant should be in the very act of dying; it is enough if he be under the apprehension of impending dissolution." State v. Dalton, 206 N.C. 507, 513, 174 S.E. 422, 426 (1934). Stated in simpler terms, it is enough if he believed he was going to die. " State v. Tate, 161 N.C. 280, 282, 76 S.E. 713, 714 (1912). Accord, State v. Bright, 215 N.C. 537, 2 S.E.2d 541 (1939); State v. Boggan, 133 N.C. 761, 763, 46 S.E. 111, 114 (1903). Obviously, if one believes he is going to die he believes there is "no hope of recovery. " This common law and statutory requirement rests upon the tenet that when an individual believes death to be imminent, the ordinary motives for falsehood are absent and most powerful considerations impel him to speak the truth. The solemnity of approaching death " 'is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.' " State v. Jordan, supra, 216 N.C. at 363, 5 S.E.2d at 160.

Plenary evidence in the record supports the court's finding that Belk was conscious of approaching death and believed there was no hope of recovery. "This (consciousness) may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the communications, if any, made to him by his medical advisers, if assented to or understandingly acquiesced in by him." Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 54, 36 L.Ed. 917, 921 (1892). See State v. Stewart, 210 N.C. 362, 369, 186 S.E. 488, 492 (1936). Accord, State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Gordon, 241 N.C. 356, 85 S.E.2d 322 (1955); State v. Rich, 231 N.C. 696, 58 S.E.2d 717 (1950). Defendant had burns over 99 percent of his body and most were third-degree burns. His attending physician had told him explicitly that while he might live three weeks, he would not live to leave the hospital.

The circumstances attending Belk's declarations were such that he must have known death was impending. Although the tubes in his nose and throat necessitated by his injuries prevented him from speaking, Belk clearly and unequivocally communicated to Detective Sharpe his knowledge that he was so badly burned he was going to die. Defendant, however, insists that Belk's declarations should have been excluded because they were made in response to leading questions. Certainly the questions which the detective propounded were leading. However, it is pertinent to note that could all the circumstances accompanying Belk's interrogation by the detective have been repeated at the trial below, the judge undoubtedly would have permitted the district attorney to examine Belk similarly. See State v. Greene, 285 N.C. 482, 492, 206 S.E.2d 229, 235-36 (1974). Further, the qualifying questions were not perfunctory, to be used "in the event the injured man perchance took a turn for the worse." They were clearly appropriate in light of Belk's severe injuries and inability to speak. They were "as nearly spontaneous as declarations by one under the circumstances could be." See State v. Gordon, 241 N.C. at 362, 85 S.E.2d at 326.

Nor does the fact that Belk survived one week longer than Dr. Stevens had told him he might live affect the admissibility of his dying declarations. "The test is the declarant's belief in the nearness of death when he made the statement, not the actual swiftness with which death ensued." C. McCormick, Evidence § 281, at 681 (2d Ed. 1972); State v. Jordan,216 N.C. 356, 363-64, 5 S.E.2d 156, 160 (1939).

Defendant next contends that the admission of dying declarations violated that portion of U.S.Const. amend. VI which guarantees an accused "the right . . . to be confronted with the witnesses against him" and N.C.Const. art. I, § 23 (1971) (formerly § 7 of the Bill of Rights, N.C.Const. of 1776), which provides that "every person charged with crime has the right . . . to confront the accusers and witnesses with other testimony . . . ." Albeit a dying declaration is indubitably hearsay and the declarant is, of course, not available for cross-examination, this contention has long since been decided against defendant.

In 1850, in the case of State v. Tilghman, 33 N.C. 513, the defendant contended that the confrontation clause of section 7 of the Bill of Rights excluded the admission of dying declarations in evidence. In rejecting this argument Justice Pearson, later Chief Justice, said: "This section of the Bill of Rights was aimed at the old practice, by which prisoners were not allowed to have witnesses sworn on their behalf, and the testimony came altogether on the part of the crown. Our ancestors did not intend to deny the rule of evidence as to dying declarations, but to assert that in criminal prosecutions prisoners ought to be allowed to have witnesses in their behalf, sworn and examined." Id. at 554.

Defendant argues that the rationale of this 128-year-old decision is no longer "viable precedent given the treatment of the right to confrontation/cross-examination by the United States Supreme Court" in its more recent decisions interpreting the sixth amendment. E. g., Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). We need not, however, compare these cases with Tilghman, supra, or discuss its rationale, for it is the federal constitution which controls the decision in this case.

The Confrontation Clause of the sixth amendment was made applicable to the states in Douglas v. Alabama, supra. However, we find no conflict in our decisions and those of the United States Supreme Court with reference to the admission of dying declarations in evidence. The opinions of the Supreme Court, before and since Douglas v. Alabama, have made it clear that the...