80 N.C. App. 322 | N.C. Ct. App. | 1986
In his sole assignment of error, defendant contends that the trial court erred in allowing Delores White to give hearsay testimony. During direct examination, White related her pursuit of the thief. In doing so, she was allowed to testify, over defendant’s objection, that when she lost sight of the man she was pursuing, a nearby woman yelled at her and asked what she (White) was doing. When White explained that she was looking for a man with some suits that he had taken from the store “she said that he had gone in the lot. She pointed towards the lot behind Perry Apartments.” Defendant contends that such testimony was hearsay, should not have been allowed and was sufficiently prejudicial to require a new trial. We disagree and find no error.
N.C. Gen. Stat. § 8C-1, Rule 803 of the Rules of Evidence provides, in pertinent part:
Rule 803. Hearsay exceptions; availability of declarant immaterial.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. — A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
*324 (2) Excited Utterance. — 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.
Assuming that the statement objected to was arguably hearsay, we nevertheless hold that this statement was admissible under either of the above two exceptions. As Professor Brandis has observed, the trustworthiness of such an utterance “lies in its spontaneity — the unlikelihood of fabrication because the statement is made in immediate response to the stimulus of the occurrence and without opportunity to reflect . ...” 1 Brandis, N.C. Evidence § 164 (2d rev. ed. 1982). The official commentary to the Rules of Evidence is in the same vein:
The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant at the trial even though he may be available.
The underlying theory of Exception (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation .... The theory of Exception (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication .... Spontaneity is the key factor in each instance . . . .1
For the reasons stated, defendant’s assignment of error is overruled and we find no error in the trial.
No error.
. With respect to- Exception (2), our Supreme Court has used the McCormick on Evidence standard, i.e., that for such utterance to qualify under Exception (2) there must be (11 a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication. See State v. Smith, 315 N.C. 76, 337 S.E. 2d 833 (1985).
