STATE OF NORTH CAROLINA
v
.
JEFFREY SCOTT SMITH,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III and Assistant Attorney General,
Patricia A. Duffy, for the State.
Megerian & Wells, by Franklin E. Wells, Jr., for the
defendant-appellant.
WYNN, Judge.
By this appeal, defendant Jeffery Scott Smith presents several
evidentiary questions for our review: Did the trial court
erroneously admit (I) hearsay statements; (II) prior driving while
impaired convictions too remote in time to have any probative
value; (III) an expert opinion outside of the expert's field of
expertise and (IV) testimony on defendant's outstanding arrest
warrants? We find no error in the admission of this evidence.
The evidence at trial tended to show that defendant and his
girlfriend, Melanie Issacs, consumed alcohol throughout the day of
16 January 2001. Ultimately, while riding together in defendant's
pickup truck, they became engaged in a high-speed pursuit by
several Hendersonville police officers that ended in a single-caraccident killing Ms. Isaacs and injuring defendant.
As a result of the incident, the State charged defendant with
second-degree murder, driving while impaired, felonious speeding to
elude arrest, and assault with a firearm on a law enforcement
officer. At trial, the State contended defendant drove the
vehicle; whereas, defendant contended Ms. Isaacs drove it. The
jury acquitted defendant of assault with a firearm on a law
enforcement officer and convicted him of the remaining charges.
Thereafter the trial court sentenced defendant, consecutively, to
terms of 251 to 311 months for second-degree murder; 11 to 14
months for felonious speeding to elude arrest; and 12 months for
driving while impaired. Defendant appealed to this Court.
On appeal, defendant first contends the trial court
erroneously admitted the following hearsay testimony of Officer Jim
Player, who testified he was in the emergency room standing at the
head of defendant's hospital bed during treatment:
Q: Was he asked by the treating nurses and
doctors if he was the driver or the passenger
of the vehicle? Did you hear that question
asked?
A: Yes, sir, I did.
Q: What was his response?
MR. GARDO: Objection.
THE COURT: Overruled.
A: He advised he was the driver.
Q: Did they ask him if he had been drinking?
A: Yes, sir, they did.
Q: What did he tell them?
A: He said, yes he had.
MR. GARDO: Objection.
THE COURT: Overruled.
Defendant contends that Officer Player's hearsay testimony did not
meet the medical diagnosis exception to the hearsay rule. N.C.
Gen. Stat. § 8C-1, Rule 803(4).
(See footnote 1)
However, we need not decide whether this testimony was
admissible as an exception under Rule 803(4) because we hold
defendant's alleged statement constitutes an admission by party-
opponent. Under N.C. Gen. Stat. § 8C-1, Rule 801(d)(A): “A
statement is admissible as an exception to the hearsay rule if it
is offered against a party and it is (A) his own statement, in
either his individual or representative capacity.” “An admission
is a statement of pertinent facts which, in light of other
evidence, is incriminating.” State v. Trexler, 316 N.C. 528, 531,
342 S.E.2d 878, 879-80 (1986).
In this case, defendant was aware he had just been involved in
a high-speed chase with the police that ended in an accident.
Thus, his alleged statement that he was driving is incriminating
and constitutes an admission. Accordingly, we hold that under Rule
801(d)(A), no error was committed in admitting Officer Player'sstatement regarding defendant's admission.
Defendant also contends the trial court erred in admitting his
hospital records because the records contain hearsay statements
that he was the driver of the vehicle “when there was no objective
indication that such statements were reliable and had no way to
determine the source of the statements.” Hospital records are
admissible under the business records exception to the hearsay rule
with the proper foundation. See State of North Carolina v. Wood,
306 N.C. 510, 515, 294 S.E.2d 310, 312-13 (1982). To lay the
proper foundation, “the hospital librarian or custodian of the
record or other qualified witness must testify to the identity and
authenticity of the record and the mode of its preparation, and
show that the entries were made at or near to the time of the act,
condition or event recorded, that they were made by persons having
knowledge of the data set forth, and that they were made ante litem
motam. The court should exclude from jury consideration matters in
the record which are immaterial and irrelevant to the inquiry, and
entries which amount to hearsay on hearsay.” Id.
In this case, Dr. Jones testified the notation that defendant
was the unrestrained driver of the vehicle may have come from the
paramedics. Nurse Walker could not recall the defendant stating he
was the driver. Therefore the notation constituted hearsay on
hearsay and should have been excluded from the jury's
consideration. However, at trial, the trial court gave a limiting
instruction to the jury that they could use the hospital records in
their consideration of the type of medical treatment givendefendant. The trial court specifically said “any other material
or so-called histories of what occurred in regard to the accident
or anything like that, designating him as the driver or passenger
or whatever, you can only consider for corroboration purposes. And
that means this: you can't consider that as substantive evidence
that he was or was not the driver of the vehicle.” We hold that
the trial court's limiting instructing rendered any error in
admitting the hearsay testimony in the records, harmless.
By his next assignment of error, defendant contends the trial
court erred in admitting into evidence certified copies of his
prior convictions for driving while impaired because those
convictions were too remote in time to have probative value.
Specifically, defendant contends the evidence
(See footnote 2)
“tended to show only
that defendant was the sort of person who would drive while under
the influence of some impairing substance and therefore was
impermissible character evidence under N.C. Gen. Stat. § 8C-1,
Rule 404(b).” However, the transcript indicates the state offered
these convictions into evidence to establish the malice element of
second degree murder.
(See footnote 3)
In light of our Supreme Court's holding in
State v. Rich, we find defendant's argument to be without merit.
351 N.C. 386, 400, 527 S.E.2d 299, 307 (2000)(holding the State hadnot violated Rule 404(b) when it entered a defendant's prior
speeding convictions into evidence in a second-degree murder trial
because “the State offered the evidence to show that defendant knew
and acted with a total disregard of the consequences, which is
relevant to show malice”).
Defendant next contends the trial court erred in permitting
the medical examiner to offer an opinion that Ms. Isaacs was killed
when she was struck by the passenger side of the truck's door frame
because it was outside his area of expertise. We find defendant's
argument to be without merit. The medical examiner, Dr. William
Burwell Dunn, III, was accepted by the trial court, without
objection, as a medical expert specializing in forensic pathology
and medical examination. As part of his responsibilities, a
medical examiner is required to “make inquiries regarding the cause
and manner of death” and is “authorized to inspect all physical
evidence and documents which may be relevant to determining the
cause and manner of death of the person whose death is under
investigation.” N.C. Gen. Stat. § 130A-385 (2001). Because Dr.
Dunn was qualified as an expert in medical examination, the trial
court did not err in permitting his expert opinion as to the cause
of Ms. Isaac's death.
Defendant, by his last assignment of error, argues the trial
court erred in permitting testimony about outstanding criminal
charges and unserved warrants against him. Evidence is relevant if
it can assist the jury in understanding the evidence. State v.
Huang, 99 N.C. App. 658, 663, 394 S.E. 2d 279, 283 (1990). “Everycircumstance that is calculated to throw any light upon the
supposed crime is admissible.” State v. Hamilton, 264 N.C. 277,
286-87, 141 S.E. 2d 506, 513 (1965).
In this case, the State pointed out at trial that this
information was presented because “there have been an awful lot of
question about why this pursuit went on, and I think it is relevant
to that issue-- whether or not someone was wanted legitimately by
a criminal process.” Thus, under the facts of this case and our
rules of evidence, evidence as to why the pursuit occurred was
relevant and admissible. Accordingly, we hold that the trial court
did not err in permitting testimony about defendant's outstanding
charges and unserved warrants.
No prejudicial error.
Judge STEELMAN concurs.
Judge TYSON concurs in part and concurs in the result.
TYSON, Judge, concurring in part and concurring in the result.
I concur with the majority opinion which finds no prejudicial
error in the conviction of defendant for second-degree murder,
driving while impaired and felonious speeding to elude. I write
separately with regard to the admission of evidence of outstanding
criminal charges and unserved warrants against defendant. The
majority's language is too broad and sweeping. Relevancy must be
proven by the admitting party under Rule 401 of the North Carolina
Rules of Evidence. Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2001).
Rule 402 of the North Carolina Rules of Evidence states that “[a]ll
relevant evidence is admissible, except as otherwise provided....
Evidence which is not relevant is not admissible.” N.C. Gen. Stat.
§ 8C-1, Rule 402. “[Relevant] evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule
403.
Rule 401 sets a standard to which trial judges
must adhere in determining whether proffered
evidence is relevant; at the same time, this
standard gives the judge great freedom to
admit evidence because the rule makes evidence
relevant if it has any logical tendency to
prove any fact that is of consequence. Thus,
even though a trial court's rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the abuse
of discretion standard applicable to Rule 403,
such rulings are given great deference on
appeal.
State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228
(1991), disc. rev. denied, 331 N.C. 290, 416 S.E.2d 398, cert.
denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992) (citations omitted).
Defendant contends that evidence of outstanding criminal
charges and unserved warrants are not relevant because he did not
know of the outstanding charges or warrants at the time. The Stateresponds that the evidence was not admitted to show the state of
mind of defendant but the state of mind of the police officers
during the high speed pursuit.
During direct examination, Officer Raymond Lyle Case of the
Henderson Police Department testified:
Q In fact, had you had some involvement with
the two of them [defendant and the victim] not
too long before this?
A Yes, sir, about 10 days prior I had helped
the Hendersonville Police Department execute a
search warrant on 514 Dairy Street.
Q Would you tell us whether or not as a
result of that search, there was a criminal
process outstanding for both of these
defendants on January 16th?
A Yes, there was.
[DEFENSE COUNSEL]: Objection
THE COURT: How is that relevant?
[PROSECUTOR]: There have been an awful lot of
question [sic] about why this pursuit went on,
and I think it is relevant to that issue -
whether or not someone was wanted legitimately
by a criminal process.
THE COURT: Overruled.
Officer Case testified that defendant had felony and
misdemeanor warrants outstanding. Although Officer Case was not on
the scene during the chase, he testified that he was en route when
defendant began to flee and transmitted information that defendant
was wanted on outstanding felony warrants via radio to the officers
involved in the pursuit. The police officers' knowledge of the
pending felony warrants and outstanding criminal process at the
time of and during the pursuit is relevant to the state of mind ofthe officers in their pursuit of defendant. The trial court did
not abuse its discretion in determining that the evidence was
relevant and admissible.
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