2. Evidence_client's statements to attorney_hearsay
The trial court did not err by refusing to compel a witness's attorney to answer questions
in a first-degree murder and assault prosecution where the statements that defendant was seeking
had already been correctly excluded as hearsay.
3. Appeal and Error_preservation of issues--excluded evidence_no offer of
proof_other evidence admitted
The exclusion of evidence of conduct by a murder victim was not properly preserved for
appeal where defendant made no showing of what the answer would have been. Moreover, there
would have been no prejudice because there was other evidence of the victim's penchant for
violence.
Roy Cooper, Attorney General, by Thomas G. Meacham, Jr.,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Charlesena Elliott
Walker, Assistant Appellate Defender, for defendant-appellant.
STEELMAN, Judge.
Defendant was convicted by a jury of first-degree murder and
assault with a deadly weapon inflicting serious injury. Defendant
was sentenced to life imprisonment without parole for the murdercharge, and a consecutive active term of 34 to 50 months for the
assault charge. Defendant appeals.
State's evidence tends to show that on the evening of 21 July
2002, defendant was driving Bill Berry (Berry) in a Ford Explorer
when they came upon Gene Walton (Walton) and Charlie Byers (Byers)
stopped in the road in a white Honda. Walton was in the driver's
seat. Defendant and Berry left the Explorer and approached the
Honda. Defendant was carrying a handgun. Defendant fired his gun
multiple times into the Honda, aiming at Walton. Byers fell out of
the passenger side of the vehicle and defendant walked around the
Honda in Byers' direction. Byers ran off, and defendant returned
to Walton and shot him several more times, then returned to his
Explorer and left. Walton died from his wounds, and Byers, who was
shot once in the side, recovered. Defendant did not deny shooting
the two men, but claimed he acted in self-defense when Walton
reached for a gun. The police did not find any weapon at the crime
scene.
The State offered the testimony of two witnesses who heard
defendant repeatedly yelling “Talk that s**t now, mother f****r” as
he was shooting into the Honda. Byers testified that Walton did
not have a gun with him that evening, and other witnesses testified
that they did not see Walton with a gun before the shooting. Byers
also testified that he and Walton never spoke with John McDowell
(McDowell) the day of the shooting.
Defendant presented testimony from McDowell, who stated that
he saw Walton on a regular basis, and that he was usually armed
with a pistol. McDowell further testified that about an hourbefore the shooting he spoke with Walton, and while looking into
the Honda during the conversation, he saw a handgun inside the
vehicle. McDowell did not mention seeing the gun to investigators
on the night of the shooting, and first mentioned it about two
weeks before defendant's trial.
Byers testified that Walton sometimes carried a gun, and that
he had taken out a warrant on Walton for an incident where Walton
shot over his head. Byers further testified that he was on
probation at the time of the shooting, and that it would have been
a violation of his probation to be in the Honda if Walton did, in
fact, have a gun with him.
Teresa Phillips (Phillips) was the girlfriend of defendant and
the mother of his two children. They were not living together at
the time of the shooting. She had been having sexual relations
with Walton. She testified that she sometimes saw Walton with a
handgun. She further testified that Walton attempted to get her to
stop seeing defendant, but that she refused because of the
children. This angered Walton, and Phillips testified that Walton
told her “he had something for” the defendant and showed her his
gun. She told defendant about the incident, and warned him to be
careful. Shandell Davis testified that she had seen Walton with a
gun, and knew that he owned a gun in the past.
Defendant testified at trial. He testified that when Phillips
told him about her exchange with Walton, he felt he was in danger,
in particular because he had heard that Walton had shot at someone
just a few weeks prior to the shooting in the instant case.
According to defendant, while on his way to visit a friend he cameacross Walton and Byers stopped in the road. He told Berry that he
was going to ask Walton what was going on between him and Phillips.
He brought his gun with him because he was worried Walton might try
and shoot him. Defendant testified that he asked Walton, “Gene,
man, what's going on with you and Teresa?” He claimed that Walton
responded “f**k you, n****r” and reached for a gun. It was at this
point, according to defendant, that he started shooting Walton.
After Byers ran off, defendant claimed that Berry went inside the
passenger side of the car and emerged with a gold chain and
Walton's gun. Defendant's father testified that Berry approached
him on 6 October 2002 and gave him a silver handgun, which
defendant's father then turned over to defendant's attorneys. He
was not allowed to testify that Berry told him it was the gun he
took from the Honda on the night of the shooting.
Defendant tried to introduce evidence that Berry had told
defendant's father, his own attorney, and defendant's attorneys
that he had removed the gun from the Honda after the shooting that
night. Defendant also sought to introduce evidence that Berry's
attorney told both the prosecutor and defendant's attorneys that
Berry had told him this as well. Berry was called at trial and
asked if he had removed the gun from the Honda. He answered “I
choose not to answer that.” On voir dire, the trial court ruled
over defendant's objection that the hearsay statements of Berry
were not admissible under Rule 804(b)(3) of the North Carolina
Rules of Evidence. The trial court instructed the jury on self-
defense. [1] In his second assignment of error defendant argues the
trial court erred in not allowing into evidence hearsay statements
attributed to Berry tending to support defendant's claim of self-
defense. We disagree.
“'Hearsay' is 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.” N.C.R. Evid.
Rule 801(c). Hearsay evidence is not admissible unless allowed by
statute or the Rules of Evidence. N.C.R. Evid. Rule 802. Rule 804
provides exceptions for the admissibility of hearsay in certain
circumstances when the declarant is unavailable. Rule 804(a)(1)
states that a declarant is “unavailable” under the rule if he is
exempted by ruling from the court from testifying due to privilege.
Rule 804 further states:
(b) Hearsay exceptions. _ The following are not excluded
by the hearsay rule if the declarant is unavailable as a
witness:
(3) Statement Against Interest. _ A statement
which was at the time of its making so far
contrary to the declarant's pecuniary or
proprietary interest, or so far tended to
subject him to civil or criminal liability, or
to render invalid a claim by him against
another, that a reasonable man in his position
would not have made the statement unless he
believed it to be true. A statement tending
to expose the declarant to criminal liability
is not admissible in a criminal case unless
corroborating circumstances clearly indicate
the trustworthiness of the statement.
Admission of evidence under the provision of Rule 804 (b)(3)
concerning criminal liability requires satisfying a two prong test:
1) the statement must be against the declarant's penal interest,
and 2) the trial judge must find that corroborating circumstancesinsure the trustworthiness of the statement. State v. Kimble, 140
N.C. App. 153, 157, 535 S.E.2d 882, 885 (2000). In order for a
hearsay statement to pass the first prong of the test, it must
actually subject the declarant to criminal liability, State v.
Singleton, 85 N.C. App. 123, 129, 354 S.E.2d 259, 263 (1987), and
it “also must be such that the declarant would understand its
damaging potential” (i.e. that a reasonable man in declarant's
position would not have said it unless he believed it to be true).
State v. Tucker, 331 N.C. 12, 25, 414 S.E.2d 548, 555 (1992).
In order to satisfy the second prong, there needs to be “
some
other independent, nonhearsay indication of the trustworthiness” of
the statement. State v. Artis, 325 N.C. 278, 305-06, 384 S.E.2d
470, 485 (1989)
, vacated and remanded on other grounds by Artis v.
North Carolina, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990).
“The
determination of whether the trustworthiness of the statement is
indicated by corroborating circumstances is a preliminary matter to
be decided by the trial judge.”
State v. Wardrett, 145 N.C. App.
409, 415, 551 S.E.2d 214, 218 (2001)
(citation omitted).
Broad discretion must be given the trial judge in
determining the reliability of the declaration
and the declarant by consideration of such
factors as spontaneity, relationship between
the accused and the declarant, existence of
corroborative evidence, whether or not the
declaration had been subsequently repudiated
and whether or not the declaration was in fact
against the penal interests of the declarant.
State v. Wardrett, 145 N.C. App. 409, 415, 551 S.E.2d 214, 219
(2001), citing State v, Haywood, 295 N.C. 709, 729, 249 S.E.2d 429,
441-42 (1978). “The facts and circumstances surrounding the
commission of the crime and the making of the declaration mustcorroborate the declaration and indicate the probability of
trustworthiness.” Haywood, 295 N.C. at 730, 249 S.E.2d at 442. The
existence of a motive for declarant to have offered a false
statement will be evidence arguing against its admission. Id. at
729, 249 S.E.2d at 441.
In the instant case, the trial court granted the State's
motion to exclude the evidence, stating “I cannot find any
circumstantial guarantees of trustworthiness. It is certainly not
to be disputed that the statement is against his interest. But I
do not believe that it is so far contrary to his pecuniary or
proprietary interest that a reasonable man in his position would
not have made the statement unless he believed it to be true. I
think there are a multiple of reasons [why] such a statement could
have been given.”
Defendant contends that the trial court applied the incorrect
standard and that the correct standard is whether the statement was
against the declarant's penal interest, not his pecuniary or
proprietary interest. We agree that the trial judge mis-spoke in
phrasing the ruling in terms of the civil aspect of the test rather
than the criminal aspect. However, the essential ruling of the
court was that the statement was against the declarant's interest,
but that it was not a statement that “a reasonable man in his
position would not have made . . . unless he believed it to be
true.” The trial court further held that it did not find
circumstantial guarantees of trustworthiness to exist under the
second prong of the test. The trial court thus made expressrulings that the testimony met neither prong of the test for
admissibility under Rule 803(b)(3).
The facts surrounding the crime and the declaration tend to
show that Berry was present at the crime with defendant, that he
was near the Honda when defendant shot the victims, and that he
left the scene with defendant in the Explorer after the shooting.
Berry made a statement to police on 15 August 2002, less than a
month after the shooting. In this statement, Berry never mentioned
that Walton had a gun, or that he saw or removed a gun from the
Honda. After giving his statement, Berry was arrested for being an
accessory after the fact to the crimes defendant was charged with.
It is true that Berry potentially faced new charges of larceny
of a firearm by telling others he had removed a gun from Walton's
vehicle that night. However, it is also true that he was already
facing charges (accessory after the fact), and that if defendant
was acquitted at trial, the State would not have been able to
proceed against Berry on the accessory charge. State v. Robey, 91
N.C. App. 198, 371 S.E.2d 711, cert. denied, 323 N.C. 479, 373
S.E.2d 874 (1988). Accessory after the fact to first-degree murder
is a Class C felony. N.C. Gen. Stat. § 14-7 (2003). Larceny of a
firearm is a Class H felony. N.C. Gen. Stat. § 14-72 (2003). The
maximum sentence for a Class C felony is 261 months. N.C. Gen.
Stat. § 15A-1340.17. The maximum sentence for a Class H felony is
30 months. Id. There was a clear motive for Berry to fabricate the
story, even in light of the potential new charges. Thus, we cannot
say that the trial judge abused his discretion in finding the
statement was not so far against his penal interests that “areasonable man in his position would not have made the statement
unless he believed it to be true.” Defendant has failed to
demonstrate that he met the requirements of the first prong of the
test.
As to the second prong of the test, the trial judge is in the
best position to determine the credibility and weight to be given
the proffered evidence. In light of all of the evidence, we cannot
say the trial judge abused his broad discretion in determining
defendant failed to meet his burden of showing that there existed
independent, nonhearsay indications of trustworthiness. Defendant
thus has failed to meet the requirements of the second prong of the
test for admissibility under N.C. Gen. Stat. § 804(b)(3). This
assignment of error is without merit.
[2] In defendant's first assignment of error he argues the
trial court erred in refusing on the grounds of attorney client
privilege to compel Berry's attorney to answer certain questions.
These questions pertained to Berry's statements to his attorney
about the gun Berry supposedly retrieved from Walton's vehicle
after the shooting. We disagree.
The trial court had refused to allow testimony of hearsay
statements made by Berry concerning his supposed retrieval of the
gun from Walton's vehicle after the shooting. Having found no
error in the exclusion of the hearsay testimony, we find no error
in refusing to allow Berry's attorney to testify to it. This
assignment of error is without merit.
[3] In defendant's third assignment of error he argues the
trial court erred in sustaining the State's objection todefendant's attempts to offer into evidence specific instances of
conduct by the victim. We disagree.
Shandell Davis (Davis), a witness called by the State, was
cross-examined by defendant about her knowledge of Walton's
reputation for violence. The trial court sustained the State's
objection to defendant's question: “The altercations that you had
heard about, did any of them involve a gun?” Defendant argues that
the evidence was improperly excluded because it added weight to
defendant's contention that he acted in self-defense, and that his
fear of Walton was reasonable.
While evidence of character is generally
inadmissible, N.C.R. Evid. 404(a)(2) provides
that evidence of pertinent character traits of
a victim offered by an accused is admissible.
N.C.R. Evid. 405(b) allows for proof of
character by evidence of specific instances of
conduct in cases where character is an
essential element of a charge, claim or
defense. Where defendant argues he acted in
self-defense, evidence of the victim's
character may be admissible for two reasons:
“to show defendant's fear or apprehension was
reasonable or to show the victim was the
aggressor.”
State v. Ray, 125 N.C. App. 721, 725, 482 S.E.2d 755, 758
(1997)(citations omitted). “Defendant may admit evidence of the
victim's character to prove defendant's fear or apprehension was
reasonable and, as a result, his belief in the need to kill to
prevent death or imminent bodily harm was also reasonable.” State
v. Watson, 338 N.C. 168, 187, 449 S.E.2d 694, 706 (1994), cert
denied, Watson v. North Carolina, 514 U.S. 1071, 131 L.E.2d 569
(1995), overruled in part on other grounds, State v. Richardson,
341 N.C. 585, 461 S.E.2d 724 (1995).
The specific incident of
conduct a defendant seeks to enter into evidence becomes relevant“only if defendant knew about it at the time of the shooting.”
State v. Shoemaker, 80 N.C. App. 95, 101, 341 S.E.2d 603, 607
(1986).
“In order for a party to preserve for appellate review the
exclusion of evidence, the significance of the excluded evidence
must be made to appear in the record and a specific offer of proof
is required unless the significance of the evidence is obvious from
the record.” State v. Ray, 125 N.C. App. 721, 726, 482 S.E.2d 755,
758 (1997). When the defendant objects to the exclusion of
testimony, but does not assert or make an offer of proof for the
record of what the witness' testimony would be, this Court “cannot
assess the significance of the evidence sought to be elicited[.]”
Id., 482 S.E.2d
at 758-59.
In the instant case, defendant has made no showing of what the
witness' answer to the question would have been, and thus we cannot
determine whether the evidence could have been properly admitted
under Rule 405(b).
Furthermore, assuming arguendo that sustaining the State's
objection was error, defendant has not met his burden of proving he
was prejudiced by the error. See State v. Watson, 338 N.C. 168,
188, 449 S.E.2d 694, 706 (1994), Overruled on other grounds by
State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995). There
was plenary evidence from multiple witnesses who testified to
Walton's reputation for violence in the community, and who
testified that Walton often carried a gun. There was testimony
from John McDowell, who said he saw Walton with a handgun in his
vehicle shortly before the shooting. Charlie Byers testified thatWalton shot at him (over his head) a few weeks prior to the
shooting in question.
The defendant's father testified that Berry
flagged him down in his automobile some time after the shooting and
gave him a handgun, which he turned over to defendant's attorneys.
Phillips testified that Walton made threatening remarks to her
about the defendant hours before the shooting and while he was
holding a handgun. She further identified the handgun given to
defendant's father by Berry as the same one she saw Walton
brandish. Defendant testified that Phillips had informed him of
Walton's threat, and that he feared for his safety. He further
testified that when he approached Walton's vehicle that night,
Walton reached for a handgun and that is why he shot Walton.
Defendant also testified that Berry took a gold chain and a handgun
from Walton after the shooting, and he identified the gun obtained
from Berry as the same gun he saw that night.
The exclusion of
Davis
' testimony, even if it would have been
that Walton was involved in an altercation that involved a gun,
does not rise to the level of prejudice on these facts because the
plenary evidence that was already before the jury, showing Walton's
penchant for violence and use of a handgun.
This assignment of
error is without merit.
NO ERROR.
Judges TYSON and BRYANT concur.
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