1. Evidence-videotape--not properly authenticated
The trial court erred in a prosecution for cocaine
possession and possession of a firearm by a felon by admitting
videotapes found in a search of the house in which defendant was
arrested in which defendant was shown holding money, talking on a
cell phone, holding a beer and handling weapons similar to those
seized in the house. The only testimony purporting to
authenticate the tape was evidence that the chain of custody had
not been broken; the State did not call any witnesses to testify
that the camera was operating properly or that the information
depicted on the videotape was an accurate representation of the
events at the time of filming.
2. Evidence--videotape--date--inadmissible hearsay
The trial court erred in a prosecution for possession of a
firearm by a convicted felon (reversed on other grounds) in
admitting a videotape with a date in a corner to prove possession
of a weapon after the date of a prior felony conviction.
3. Evidence--statements on videotape--not adopted admissions
The trial court erred in a prosecution for possession of a
firearm by a felon (reversed on other grounds) by admitting a
videotape on which statements were made concerning defendant's
guns. The circumstances under which the statements were made
were not such that a denial by defendant would naturally be
expected, and the statements were not adopted by defendant.
N.C.G.S. § 8C-1, Rule 801(d).
Attorney General Michael F. Easley, by Assistant Attorney
General Lisa Granberry Corbett, for the State.
Clifford Clendenin O'Hale & Jones, LLP, by Walter L. Jones,
for the defendant-appellant.
EAGLES, Chief Judge.
The defendant was indicted and tried on charges of possession
with intent to sell and deliver a controlled substance and
possession of a firearm by a felon. Defendant was convicted of
possession of a firearm by a felon and the lesser offense of
possession of cocaine. Judge Greeson imposed an active sentence of
15-18 months for the possession of a firearm by a felon count and
a sentence of 6-8 months incarceration for the possession of
cocaine count, suspended on condition that defendant serve a 2
month split sentence and pay a $2,000 fine.
The evidence tended to show the following. On 16 January
1998, the Greensboro Police Department obtained a valid search
warrant for 412 Spicewood Drive, Greensboro, a residence neither
owned nor occupied by defendant. At approximately 9:00 p.m. the
officers knocked on the door and announced their presence. Because
no one answered, the officers “rammed” the door to gain entry.
Defendant was found in a bedroom with James Simpson. There were
seven people in the home at the time and all were arrested. The
officers searched the home and found two rocks of crack cocaine
under the bed where defendant was sitting. The officers could “not
recall exactly if it was underneath the mattress or exactly
underneath the bed.” The officers also found several weapons in
the home, two of which were a Faradon 9 millimeter semi-automatic
pistol and a .380 caliber Llama semi-automatic pistol. The guns
were found in the hallway, about 10 feet from the entrance to theroom in which defendant and Mr. Simpson were located. Further, the
officers seized two videotapes from the living room. From the
defendant's person, the officers recovered $433 in cash, a Motorola
cell phone and a pager.
The videotapes were admitted as substantive evidence at trial
over defendant's objections. The first tape shows a date of 1/6/98
at the very beginning. It also shows people in a room that the
officers identified as 412 Spicewood Drive. That tape shows
defendant holding money, talking on a cell phone and holding a
beer.
The second tape is labeled with titles “Monster Dog,”
“Eliminators” and “Devil Time.” During the entire course of this
tape a date, 1/10/98, appears in the bottom left hand corner. Inthis tape defendant is shown handling weapons similar to those
seized. There were many comments made by other people on the tape
about the defendant holding the guns. One person is shown on the
videotape referring to “Mike's big old gun.”
Defendant appeals on two grounds. First he argues that the
trial court committed reversible error in allowing these videotapes
to be admitted as substantive evidence and second, that the trial
court erred in failing to dismiss at the close of the State's
evidence based on the insufficiency of the evidence. Because we
hold that these videotapes were not authenticated and contained
inadmissible hearsay, we agree with defendant's first contention
and reverse.
[1]Defendant's argument is that the State failed to lay a
proper foundation for the admissibility of these confiscated
videotapes. Upon laying of the proper foundation, videotapes are
admissible in evidence for both substantive and illustrative
purposes under G.S. § 8-97 (1981). State v. Mewborn, 131 N.C. App.
495, 498, 507 S.E.2d 906, 909 (1998). State v. Cannon, 92 N.C.
App. 246, 374, 254 S.E.2d 604, 608 (1988), rev'd on other grounds,
326 N.C. 37, 387 S.E.2d 450 (1990). In Cannon, this Court
discussed how to lay a proper foundation for the admission of
videotape evidence.
The prerequisite that the offeror lay a proper foundation
for the videotape can be met by: (1) testimony that the
motion picture or videotape fairly and accurately
illustrates the events filmed (illustrative purposes);
(2) "proper testimony concerning the checking and
operation of the video camera and the chain of evidence
concerning the videotape . . ."; (3) testimony that "the
photographs introduced at trial were the same as those[the witness] had inspected immediately after
processing," (substantive purposes); or (4) "testimony
that the videotape had not been edited, and that the
picture fairly and accurately recorded the actual
appearance of the area 'photographed.'"
Cannon, 92 N.C. App. at 254, 374 S.E.2d at 608-09 (citations
omitted). Defendant argues that there was no testimony by anyone
present at the time of filming as to the “checking and operation”
of the video equipment. In Mewborn, the State was able to offer
testimony from three people that, when taken together, fulfilled
the authentication requirement. There was testimony from the store
owner as to the workings of the video equipment and testimony as to
the chain of custody of the tape after it had been seized. Mewborn,
131 N.C. App. at 499, 507 S.E.2d at 909. Here, the only testimony
purporting to authenticate the tape was evidence that the chain of
custody had not been broken. The State did not call any witnesses
to testify that the camera was operating properly or that the
information depicted on the videotape was an accurate
representation of the events at the time of filming.
The State argues that State v. Rael should guide us here.
Id., 321 N.C. 528, 364 S.E.2d 125 (1988). Our Supreme Court in
Rael allowed pornographic videotapes and magazines seized from a
defendant's home to corroborate the testimony of the victim; that
the victim had been there and that the defendant forced the victim
to view the tapes. Id. at 533, 364 S.E.2d at 129. The detective
testified only that he seized the tapes pursuant to the defendant's
consent, and that the tapes had not been altered since their
seizure. Id. However, the defendant in Rael objected only on thegrounds that the tapes and magazines were inadmissible char
acter
evidence. The question of the videotapes' authenticity was neither
raised nor addressed by any of the parties. Thus, Rael does not
control here. The Cannon test is the inquiry when determining
admissibility of videotape evidence for its substance. Cannon, 92
N.C. App. at 254, 374 S.E.2d at 608. Accordingly, we hold that the
videotapes were not properly authenticated and thus are not
inadmissible for any purpose.
Since several other admissibility issues raised on appeal
appear likely to reoccur upon retrial, we address them as well.
1. THE DATE APPEARING IN THE VIDEO
[2]The first hearsay objection is whether the trial court
properly admitted the videotapes bearing the date, “1/10/98,”
appearing on the lower lefthand corner as substantive evidence. The
evidence was admitted as substantive evidence to prove that
defendant was in possession of a weapon after the date of his prior
felony conviction. Defendant's conviction of possession of a
firearm after the date of his felony conviction was based on this
evidence alone.
Hearsay is defined as a “statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” G.S. § 8C-1,
Rule 801(c) (1992). A "statement" may be a written or oral
assertion or nonverbal conduct intended by the declarant as an
assertion. State v. Satterfield, 316 N.C. 55, 340 S.E.2d 52 (1986).
An act, such as a gesture, can be a statement for purposes ofapplying rules concerning hearsay. Id.; State v. Fulcher, 294 N.
C.
503, 517, 243 S.E.2d 338, 348 (1978) (decided before adoption of
the North Carolina Rules of Evidence). Here, the declarant is
unknown. There is no testimony as to the identity of the operator
of the camera. The statement, that this video was filmed on
1/10/98, is offered for its truth, e.g., that defendant was in
possession of a weapon on that date. “ An assertion of one other
than the presently testifying witness is hearsay and inadmissible
if offered for the truth of the matter asserted.” Livermon v.
Bridgett, 77 N.C. App. 533, 540, 335 S.E.2d 753, 757 (1985). 1
Brandis, North Carolina Evidence § 138 (2d Rev. Ed. 1982); G.S. §
8C-1, Rules 801 (c) and 802 (1983).
It is conceded by the State that the only evidence of
defendant possessing a weapon after the commission of a felony is
this videotape. The Virginia Court of Appeals addressed a similar
issue in Hanson v. Commonwealth, 416 S.E.2d 14 (Va.App. 1992). In
Hanson, the issue was whether the postmark on an envelope was
admissible to prove the date upon which it was affixed. Id. at 20.
The court held that “although a postmark is within the traditional
definition of hearsay, it is admissible as an exception to the
hearsay rule when used to prove the date on which the postal
service affixed its postmark in the regular course of business.”
Id. at 21. The Virginia court held that using the postmark to
prove the day upon which it was affixed is hearsay, admissible
under the public records and business records exceptions to the
hearsay rule. Id. Here, this videotape contains inadmissiblehearsay for which there is no exception to the hearsay rule. We
hold that the admission of this videotape bearing the date notation
on this record was reversible error.
2. ADOPTIVE ADMISSIONS
[3]The second hearsay objection made by the defendant is that
all other information with regard to the defendant on the videotape
is inadmissible hearsay. The State argues that statements made by
others on the videotape, e.g., “[t]his is Mike's big old gun” are
admissible against Mr. Sibley because they are adoptive admissions.
An admission may be express or may be implied from conduct. Rule
801 of the North Carolina Rules of Evidence states:
(d) Exception for Admissions by a Party-Opponent. A
statement is admissible as an exception to the hearsay
rule if it is offered against a party and it is . . . (B)
a statement of which he has manifested his adoption or
belief in its truth . . . .
G.S. § 8C-1, 801(d). FCX, Inc. v. Caudill, 85 N.C. App. 272, 278,
354 S.E.2d 767, 772 (1987). A person may expressly adopt another's
statement as his own, or an adoptive admission may be inferred from
"other conduct of a party which manifests circumstantially the
party's assent to the truth of a statement made by another person."
FCX, Inc., 85 N.C. App. at 278, 354 S.E.2d at 772. Adoptive
admissions fall generally into two categories -- those inferred
from an affirmative act of a party, and those inferred from silence
or a failure to respond in circumstances that call for a response.
Id. The State also argues that defendant's actions on the
videotape were implied admissions that he possessed these weapons. Our Supreme Court in State v. Spaulding, 288 N.C. 397, 219 S.E.2d
178 (1975) stated:
Implied admissions are received with great caution.
However, if the statement is made in a person's presence
by a person having first hand knowledge under such
circumstances that a denial would be naturally expected
if the statement were untrue and it is shown that he was
in a position to hear and understand what was said and
had the opportunity to speak, then his silence or failure
to deny renders the statement admissible against him as
an implied admission.
Id. at 406, 219 S.E.2d at 184; see State v. Whitley, 58 N.C. App.
539, 541, 293 S.E.2d 838, 839, disc. rev. denied and appeal
dismissed, 306 N.C. 750, 295 S.E.2d 763 (1982). The videotape in
question seems to be attempting to communicate some sort of
intimidation or threat. To whom, or in what capacity is unclear;
but it is clear that the circumstances under which these videotaped
third person statements were made are not circumstances where a
denial by the defendant would naturally be expected. Id.
Additionally, we hold that the statements made by persons other
than the defendant on this tape were not adopted by the defendant.
Since these videotapes were inadmissible because they were not
properly authenticated, we hold that it was reversible error for
the trial court to have admitted them. We further hold that the
date, “1/10/98,” on the video recording is inadmissible hearsay.
Finally we hold that any statements made by out of court declarants
on these videotapes are not admissible here as adoptive admissions
by the defendant.
The only other evidence the State presented on the defendant's
drug charge was that defendant was arrested in a home containingdrugs, as well as seven other people, and the defendant had $433 in
cash, a cell phone and a beeper on his person. The content of
these tapes is so prejudicial that their improper admission
infected the entire trial proceeding. Thus we need not reach
defendant's remaining assignments of error. Accordingly the
judgment in both cases is reversed and the cause remanded.
New trial.
Judges TIMMONS-GOODSON and FULLER concur.
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