An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

    NO. COA05-654


Filed: 2 May 2006


v .                         Pender County
                            No. 04 CRS 1390

    Defendant appeals from judgment entered 1 December 2004 by Judge Jay D. Hockenbury in the Superior Court in Pender County. Heard in the Court of Appeals 1 December 2005.

    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- appellant.

    HUDSON, Judge.

    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 error.
    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 Crawford , 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 Court also states in Crawford that “where 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 v. Lewis, 166 N.C. App. 596, 601, 603 S.E.2d 559, 562, disc. rev. denied, 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 833 (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 provide“a 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 under Crawford.
Defendant also argues that Ms. Hall's statements were inadmissible hearsay which the court erroneously admitted over defense objection. “' 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. Gen. Stat. § 8C-1 Rule 801(c) (2004). Generally, hearsay 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. “The reason 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. Reid, 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 fabrication.” Id. (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.
No error.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).

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