State v. Wood

• Decision Date: 25 August 1982
• Docket Number: No. 74A81,74A81
• Parties: STATE of North Carolina v. John WOOD.
• Court: North Carolina Supreme Court

Page 310

294 S.E.2d 310

306 N.C. 510

STATE of North Carolina v. John WOOD.

No. 74A81.

Supreme Court of North Carolina.

Aug. 25, 1982.

Adam Stein, Appellate Defender by Ann B. Peterson, Asst. Appellate Defender, Raleigh, for defendant-appellant.

EXUM, Justice.

The question presented is whether the trial court erroneously admitted the testimony of state's witness, Dr. Joseph Deese, concerning findings on certain stained slides of body fluids when these findings were made by someone other than Dr. Deese. We conclude that the doctor's testimony is inadmissible hearsay, improperly admitted into evidence over defendant's objection, and constituted prejudicial error for which a new trial must be given.

Evidence presented by the state tended to show the following:

At 5:30 a.m. on 2 January 1981 while on her way to work Mrs. Vera Stevens stopped at the Little Giant Store on Highway 177 just outside Hamlet, N. C., to get some cigarettes. After making her purchase she left the store, got in her car and drove towards her work place. Moments after leaving the store Mrs. Stevens heard a noise in the back seat of her car. When she turned to look she saw a man sitting in the back seat holding a blue steel pistol pointed at her. Mrs. Stevens described him as being a light-skinned black man wearing a black coat, toboggan and tinted glasses. The man told her that he wanted her to "carry him somewhere," giving her directions as they drove along. Eventually he told her to turn off onto a dirt road. A short distance down the dirt road he ordered her to stop and to get in the back seat. At that point he made her take off her clothes and forced her to have sexual intercourse with him. The man kept his coat on the entire time. Mrs. Stevens testified that the material felt like it was either vinyl or leather and came down as far as his knees. It was dark at the time. Afterwards, the man let her dress and told her to drive back to the paved highway. He remained in the back seat of the car. As they were driving toward Ellerbe defendant stated he needed money. Mrs. Stevens said she had only change, less than two dollars, in her apron pocket. The man got the change. Around 6:45 that morning on Highway 211 near its intersection with Highway 5, Mrs. Stevens, at defendant's demand, let him out of the car. Mrs. Stevens drove to a nearby house and sought help. Later she was examined by Dr. Joseph Deese.

Officer Clingsmith of the Pinehurst Police Department was dispatched around 7:10 a.m. to the residence where Mrs. Stevens had gone. On his way he observed a black male wearing a three-quarter length black leather coat, toboggan and sunglasses walking along the side of Highway 211 at the entrance to Moore Memorial Hospital. After receiving a description of the assailant from Mrs. Stevens, Officer Clingsmith realized it matched that of the man he earlier had seen. An officer was dispatched to Moore Memorial Hospital to locate the man. That officer observed a black male wearing a three-quarter length black leather coat waiting in the hospital emergency room. The officer followed the man into a washroom and arrested him after the officer saw a blue steel pistol behind a commode. The officer found a toboggan and a pair of pink colored sunglasses on his person.

Defendant testified and denied his participation in the assault on Mrs. Stevens. His evidence tended to show as follows: On 2 January 1981 at approximately 5 a.m. he was at his aunt's house in Hamlet. He remained there until approximately 6:14 a.m. when he rode with his aunt and Sergeant First Class Leon J. Jiles to Aberdeen. The ride consumed approximately twenty-two to twenty-three minutes. After his aunt and Sergeant Jiles dropped him in Aberdeen, he walked to his girlfriend's house to find she had already left for work at Moore Memorial Hospital. He caught a ride part of the way, then walked the rest of the distance to the hospital. He was unable to locate his girlfriend when he got there, so he told a woman that if she saw the girl, he would be waiting in the cafeteria. After eating breakfast he went to the bathroom where he was confronted by police and placed under arrest.

The principal question for the jury at trial was the identity of Mrs. Stevens' assailant. A voir dire was conducted to determine the admissibility of Mrs. Stevens' in-court identification of defendant. The trial court, upon the basis of Mrs. Stevens' testimony, made findings of fact essentially as follows: Mrs. Stevens was abducted while it was dark at 5:30 a.m. on 2 January 1981; during the hour and fifteen minutes that Mrs. Stevens was with her assailant she had some opportunity to see his face; the parking area surrounding the Little Giant Store was well lighted and during their long drive, including passing through the town of Hamlet, they went through several areas lighted by street lights; the dashboard lights provided some illumination of the interior of the car; Mrs. Stevens had seen the man on one or two previous occasions at the Little Giant Store; it "was becoming light" at 6:45 a.m. when Mrs. Stevens' assailant left her; no pretrial identification procedures were conducted by the state; and Mrs. Stevens did recognize defendant as her assailant immediately upon his entering the courtroom. Upon these findings the judge overruled defendant's objections to Mrs. Stevens' in-court identification.

In addition to Mrs. Stevens' testimony before the jury, which accorded with her voir dire testimony, the state relied on its medical witness, Dr. Deese, to provide evidence implicating defendant as the perpetrator of the offenses. Dr. Deese testified that during examination of Mrs. Stevens he prepared a slide of liquid he observed at the bottom of her vagina beneath the cervix. During examination of defendant he likewise prepared a slide of a liquid discharge from defendant's penis. Both slides were sent to the hospital's laboratory for staining (the physician referred to it as a "gram stain") and interpretation. Dr. Deese never saw the slides after he sent them to the laboratory. He neither stained nor interpreted the slides. Yet, over objection, he was permitted to testify that both stained slides revealed the presence of gonococcus bacteria, a bacteria that causes the venereal disease gonorrhea. As to Mrs. Stevens' slide, Dr. Deese did not say how he learned of the interpretation of the slide. As to defendant's slide, Dr. Deese referred to "results of the gram stain" which had been "returned" to him. The trial transcript does not reveal the form of the returned results. We do not know whether they were oral or written.

Obviously Dr. Deese testified to an observable fact, i.e., the presence of gonococcus bacteria in liquid samples as revealed by the stained slides, when he himself did not make the observation. His testimony is based upon what someone else who did stain, observe and interpret the slides told him about that person's observation. Furthermore, Dr. Deese's testimony is offered to prove the truth of someone else's observation, i.e., that the stained slides did reveal the presence of gonococcus bacteria. Thus Dr. Deese's testimony as to what the slides revealed is hearsay and inadmissible unless it comes within an exception to the hearsay rule. "Hearsay evidence consists of the offering into evidence of a statement, oral or written, made by a person other than the witness for the purpose of establishing the truth of the matter so stated." Wilson v. Hartford Accident and Indemnity Co., 272 N.C. 183, 188, 158 S.E.2d 1, 5 (1967); Bullock v. Insurance Company of North America, 39 N.C.App. 386, 250 S.E.2d 732, cert. denied 297 N.C. 176, 254 S.E.2d 39 (1979). The state concedes as much.

The state urges first the applicability of the business records exception to the hearsay rule. This Court stated the business records exception in Sims v. Insurance Co., 257 N.C. 32, 35, 125 S.E.2d 326, 329 (1962), as follows:

Ordinarily, therefore, records made in the usual course of business, made contemporaneously with the occurrences, acts, and...