127 N.C. App. 167 | N.C. Ct. App. | 1997
Defendant argues that the trial court erred in admitting an eyewitness’s out-of-court statement under the residual exception to the hearsay rule. G.S. 8C-1, Rule 804(b)(5) (1983). Defendant contends that admission of the statement here implicated the Confrontation Clause of the Sixth Amendment to the United States Constitution because the trial court relied solely on corroborating evidence in determining the inherent trustworthiness of the unavailable declar-ant’s statement. In light of our Supreme Court’s recent decision in State v. Tyler, 346 N.C. 187, 485 S.E.2d 599 (1997), we agree.
Four days after the shooting, an alleged eyewitness to the shooting, Eddie Roper, gave police a signed statement identifying defendant as one of the murderers. Mr. Roper stated that he knew the defendant well and had known her for approximately eight years prior to the shooting. Mr. Roper stated that defendant had a child with his brother, Darrell Roper. At the time of trial, Mr. Eddie Roper failed to respond to the State’s subpoena. The State argued that Mr. Roper had become unavailable and moved to introduce his signed statement under the residual hearsay exception in Rule 804(b)(5).
“Rule of Evidence 804(b)(5) provides for the admission of hearsay statements when the declarant is unavailable and the statement is not covered by any specific exception, but is determined to have ‘equivalent circumstantial guarantees of trustworthiness.’” State v. Swindler, 339 N.C. 469, 473, 450 S.E.2d 907, 910 (1994) (quoting G.S. 8C-1, Rule 804(b)(5)). Rule 804(b)(5) is considered to be a “residual” hearsay exception, rather than a “firmly rooted” one, Tyler, 346 N.C. at 200, 485 S.E.2d at 606 (1997), and hearsay statements
“[E]ven if certain hearsay evidence does not fall within ‘a firmly rooted hearsay exception’ and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a ‘showing of particularized guarantees of trustworthiness’” Id. at 817, 111 L. Ed. 2d at 653 (quoting Lee v. Illinois, 476 U.S. 530, 543, 90 L. Ed. 2d 514, 527-28 (1986)). The statement must possess the requisite circumstantial guarantees of trustworthiness based on the “totality of circumstances that surround the making of the statement. ...” Id. at 820, 111 L. Ed. 2d at 655-56. The court should consider:
(1) assurances of the declarant’s personal knowledge of the underlying events, (2) the declarant’s motivation to speak the truth or otherwise, (3) whether the declarant has ever recanted the statement, and (4) the practical availability of the declarant at trial for meaningful cross-examination.
State v. Triplett, 316 N.C. 1, 10-11, 340 S.E.2d 736, 742 (1986). If the court is to allow admission of hearsay evidence under Rule 804(b)(5), the statement “must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Wright, 497 U.S. at 822, 111 L. Ed. 2d at 657. Corroborating evidence cannot be relied upon “in finding the circumstantial guarantees of trustworthiness required in order to protect defendant’s rights under the Confrontation Clause of the United States Constitution.” Tyler, 346 N.C. at 202, 485 S.E.2d at 607.
. The trial court here conducted a hearing outside the presence of the jury and entered an order concluding in relevant part “[t]hat the statement [by Mr. Roper] is trustworthy in that it is corroborated by physical evidence and statements of witnesses. . . .” In deciding to admit Mr. Roper’s statement the trial court made eight findings of fact, every one based solely on the presence of corroborating evidence, supporting its conclusion that Mr. Roper’s statement pos
“A violation of the defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.” G.S. 15A-1443(b) (1977). “The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.” Id. We conclude that the State has not carried this burden here.
The evidence here is sharply conflicting. Aside from Mr. Roper’s statement, the State presented three witnesses who testified that they saw defendant Downey shoot Mr. Henderson. Forensic evidence, though not conclusive, also tended to support the contention that defendant Downey was guilty. Furthermore, the State presented strong evidence of defendant Downey’s motive and intent to murder Mr. Henderson.
On the other hand, defendant presented six witnesses here in support of her alibi theory. Defendant also testified in her own defense and denied any participation in the crime. Each of the three State’s witnesses placing defendant Downey at the scene could be characterized on cross-examination as biased due to their close ties to Mr. James Henderson. At least one of the witnesses, Tony Henderson, likely had reason to fear for his own safety if defendant Downey went free because he too had allegedly participated in the theft of defendant Downey’s safe. It is possible that the jury considered Mr. Roper’s statement, which we have held was improperly admitted here, to be more credible than the three witnesses’ testimony because of Mr. Roper’s apparently closer affiliation and allegiance to defendant Downey than to the slain Mr. Henderson.
In sum, while the State’s evidence of record is strong, it is not overwhelming, and on this record we cannot conclude as a matter of law that the trial court’s error was harmless beyond a reasonable doubt. Our role as a reviewing court is not to judge whether a defendant is a good citizen or not, but only to ensure that every citizen is fairly and equally afforded the fair trial guaranteed by the United States Constitution. We note also here that defendant Downey assigns error to the prosecution’s improperly calling defendant Downey’s
New trial.
