Attorney General Roy Cooper, by Assistant Attorney General
Robert K. Smith, for the State.
Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant-
In November 2004, a jury convicted defendant of assault with
a deadly weapon inflicting serious injury. The court sentenced
defendant to an active term of 34 to 50 months. Defendant appeals.
For the reasons discussed below, we conclude that there was no
The evidence tends to show the following facts. On 31
December 2003, at approximately 7:30 p.m., Elmer Johnson shoved or
hit his girlfriend, Geraldine Hall, at their shared residence.
Johnson left the home because Ms. Hall was angry. Ms. Hall called
her son, defendant Eric Christopher Hall, and her brother-in-law,Gregory Jenkins, and they drove to Ms. Hall's residence, where she
relayed what had happened with Johnson. Defendant and Jenkins left
the Hall residence before midnight. Following the shuffle,
Johnson had contacted the police and told them what happened and
they advised him not to return to the Hall residence. However,
after Ms. Hall called him twice, Johnson returned to the residence.
While Johnson and Ms. Hall were getting ready to go to bed, Johnson
saw a car pull into the driveway and he recognized defendant in the
passenger's seat of a dark burgundy, four-door car, being driven by
defendant's girlfriend. When Johnson stepped outside the house, he
saw defendant standing next to the car holding a shotgun. Johnson
proceeded towards defendant to try to talk some sense into him
and defendant instructed his girlfriend to back the car out of the
driveway, as defendant walked backwards next to open passenger
door. Johnson attempted to explain the earlier incident to
defendant and followed the car about halfway down the driveway, at
which point he heard a shot and felt his leg go out from under him.
The car door then closed and the car took off. Ms. Hall came out
and found Johnson on the ground wounded, and a friend who was at
the Hall residence called 911.
Sergeant Thomas Crist, the first officer on the scene,
testified that Ms. Hall found Johnson around 3:15 a.m., that the
call to 911 came in at 3:18 a.m., and that he responded to thescene at 3:20 a.m. When he arrived, he saw Ms. Hall standing over
Johnson, highly intoxicated, and very excited. Ms. Hall
immediately shouted at him, My son shot him. Help him. Help him.
My son, Eric, shot him. Crist testified that Ms. Hall was
agitated, excited, crying and screaming. Johnson also told Crist
that Eric Hall had shot him and left. Paramedics arrived and
began to care for Johnson. Ms. Hall remained highly agitated and
intoxicated and after she refused to comply with several warnings
from Crist to go into the house and not interfere with officers and
paramedics, Crist arrested her for obstructing and delaying. Ms.
Hall was still in an agitated state when another officer arrived
twenty minutes later; this officer testified that she was still so
upset that he could not question her.
Defendant argues that the trial court erred in admitting, over
defense objection, Officer Crist's testimony recounting the
statements Ms. Hall made to him when he arrived at the scene.
Defendant contends that the admission of Ms. Hall's statements to
Crist that defendant shot the victim violated his Sixth Amendment
Confrontation Clause rights under Crawford v. Washington
, 541 U.S.
36, 148 L. Ed. 2d 177 (2004). In
the United States
Supreme Court held that the Confrontation Clause bars admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had aprior opportunity for cross-examination. Id.
at 53-4, 158 L. Ed.
2d at 194. However, the
also states in Crawford
nontestimonial hearsay is at issue, it is wholly consistent with
the Framers' design to afford the States flexibility in their
development of hearsay law. Id.
at 68, 158 L. Ed. 2d at 203.
Here, the sole Crawford
issue is whether Ms. Hall's statement to
Officer Crist was testimonial.
Defendant argues that a witness's statements . . . provided
to police for the purpose of identifying a defendant or recounting
events surrounding a crime are classified as testimonial. State
, 166 N.C. App. 596, 601, 603 S.E.2d 559, 562, disc. rev.
, 359 N.C. 195, 608 S.E.2d 60 (2004). However, Lewis
involved a crime victim's statement to a police officer about the
crime and the subsequent identification of the defendant from a
photo line-up. By contrast, in State v. Forrest
, this Court held
that a victim's extensive, unsolicited statements to an
investigating police officer, made just after the victim was
rescued from her kidnappers, were not testimonial. 164 N.C. App.
272, 280, 596 S.E.2d 22, 27 (2004), aff'd
359 N.C. 424, 611 S.E.2d
(2005). In Forrest
, the victim's statements were unsolicited,
as the detective did not ask her questions, but she immediately,
abruptly started talking. Id.
The Court concluded that the
victim had no time for reflection or thought, and did not providea formal statement, deposition, or affidavit, was not aware that
she was bearing witness, and was not aware that her utterances
might impact further legal proceedings. Id.
The Court thus
concluded that her statements were not testimonial, but were
admissible as excited utterances. Id.
Here, Ms. Hall, like the victim in Forrest
, made unsolicited
statements to Officer Crist. He testified that as he was exiting
his car, before he spoke, she started shouting, My son shot him.
Help him. Help him. My son, Eric, shot him. Furthermore,
another officer who arrived on the scene twenty minutes later
testified that Ms. Hall was still so agitated that he was unable to
question her. As Ms. Hall made these statements to Officer Crist
spontaneously, not in response to police questioning, and while
still excited from the event, we conclude that her statements, like
those of the victim in Forrest,
were not testimonial and thus their
admission did not violate defendant's Confrontation Clause rights
Defendant also argues that Ms. Hall's statements were
inadmissible hearsay which the court erroneously admitted over
defense objection. '
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. Gen.
8C-1 Rule 801(c) (2004). Generally,
evidence isnot admissible. State v. Wilson
, 322 N.C. 117, 131-32, 367 S.E.2d
589, 598 (1988). However, an out-of-court statement may be
admissible, regardless of the declarant's availability to testify,
if the statement satisfies the definition of an excited
utterance. N.C. Gen. Stat. § 8C-1 Rule 803 (2) (2004). An
excited utterance is [a] statement relating to a startling event
or condition made while the declarant was under the stress of
excitement caused by the event or condition. Id.
for allowing this exception is that circumstances may produce a
condition of excitement which temporarily stills the capacity of
reflection and produces spontaneous and sincere utterances . . . .
There is simply no time to fabricate or contrive statements
spontaneously made during the excitement of an event. State v.
, 335 N.C. 647, 662, 440 S.E.2d 776, 784 (1994) (internal
citations and quotation marks omitted). For a statement to
qualify as an excited utterance, there must be (1) a sufficiently
startling experience suspending reflective thought and (2) a
spontaneous reaction, not one resulting from reflection or
(internal quotation marks omitted).
Here, Ms. Hall found her live-in boyfriend bleeding from a
shotgun wound at around 3:15 a.m. and when Officer Crist arrived at
3:20 a.m., as he was getting out of his car, Ms. Hall was screaming
that defendant had shot the victim. Indeed, Ms. Hall, who was alsohighly intoxicated, continued to be so agitated that Officer Crist
had to restrain and arrest her so that police and EMS workers could
perform their work without interference. And, as noted earlier,
when another officer arrived on the scene twenty minutes later, Ms.
Hall was still so agitated that the officer could not question her.
We conclude that Ms. Hall's statements fall squarely within the
excited utterance exception to the hearsay rule and thus were
properly admitted by the trial court.
For the reasons discussed above, we hold that there was no
error by the trial court.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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