State v. Stevens
243 S.E.2d 771
N.C.
1978
Check Treatment
SHARP, Chief Justice.

Prior to trial defendant moved to exclude testimony by Officers Wallace and Sharpe with reference to any statements which Belk made to them in the hospital. The grounds assigned were: (1) that the statements failed to meet the requirements of N.C. G.S. 8-51.1 (Cum. Supp. 1977) and our case law for the admission of dying declarations; and (2) that the admission of a decedent’s dying declaration denied defendant the right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. After conducting a voir dire the court ruled that the challenged statements met the requirements for dying declaration and denied the motions to suppress. Assignment of error No. 3 challenges this ruling.

“Dying declarations” by the person whose death is an issue in the case have long been admissible in North Carolina provided (1) At the time they were made the declarant was in actual danger of death; (2) he had full apprehension of the danger; (3) death did in fact ensue; and (4) declarant, if living, would be a competent witness to testify to the matter. See, e.g., State v. Poll, 8 N.C. 442, 9 Am. Dec. 655 (1821); State v. Thomason, 46 N.C. 274 (1854); State v. Jordan, 216 N.C. 356, 5 S.E. 2d 156 (1939); State v. Crump, 277 N.C. 573, 178 S.E. 2d 366 (1971). In 1973, the General Assembly codified the essentials of those requirements in G.S. 8-51.1 which made the “dying declarations of a deceased person regarding the cause or circumstances of his death” admissible in all tribunals “subject to proof that: (1) At the time of the making of such declaration the deceased was conscious of approaching death and believed there was no hope of recovery; (2) Such declaration was voluntarily made.”

Defendant does not contend that Belk’s statements were involuntary. Rather, his contention is that the evidence was insufficient to support the trial judge’s finding that when Belk spoke with Officer Wallace and Detective Sharpe he was “conscious of approaching death and believed there was no hope of recovery.” The admissibility of these declarations was a decision for the *29 trial judge, and our review is limited to the narrow question of whether there was any evidence tending to show the factual prerequisites to admissibility. State v. Bowden, 290 N.C. 702, 712, 228 S.E. 2d 414, 421 (1976); State v. Gordon, 241 N.C. 356, 362, 85 S.E. 2d 322, 326 (1955); State v. Stewart, 210 N.C. 362, 370, 186 S.E. 488, 492 (1936); 1 Stansbury’s North Carolina Evidence § 146 (Brandis rev. 1973).

In State v. Bowden, supra, and in State v. Cousin, 291 N.C. 413, 230 S.E. 2d 518 (1976), we noted, without deciding, that the words “no hope of recovery” in the statute might make the statutory exception to the hearsay rule more restrictive than existing case law. We have now concluded that the statutory prerequisites that the deceased must have been “conscious of approaching death and believed that there was no hope of recovery” do not change our case-law requirements that in order to be admissible the declarations of a decedent must have been “in present anticipation of death.” State v. Brown, 263 N.C. 327, 139 S.E. 2d 609 (1965). See State v. Bowden, 290 N.C. 702, 712, 228 S.E. 2d 414, 421 (1976). See also 1 Stansbury’s North Carolina Evidence § 146 at 488, n. 17 (Brandis rev. Supp. 1976) where Professor Brandis expressed this view. As the rule is commonly stated in the opinions of the Court, declarant must have been “in actual danger of death” and have had “full apprehension of his danger.” State v. Jordan, 216 N.C. 356, 362, 5 S.E. 2d 156, 159 (1939). Further, “[i]t is not necessary that the declarant should be in the very act of dying; it is enough if he be under the apprehension of impending dissolution.” State v. Dalton, 206 N.C. 507, 513, 174 S.E. 422, 426 (1934). Stated in simpler terms, it is enough if he “believed he was going to die.” State v. Tate, 161 N.C. 280, 282, 76 S.E. 713, 714 (1912). Accord, State v. Bright, 215 N.C. 537, 2 S.E. 2d 541 (1939); State v. Boggan, 133 N.C. 761, 763, 46 S.E. 111, 114 (1903). Obviously, if one believes he is going to die he believes there is “no hope of recovery.” This common law and statutory requirement rests upon the tenent that when an individual believes death to be imminent, the ordinary motives for falsehood are absent and most powerful considerations impel him to speak the truth. The solemnity of approaching death “is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.” State v. Jordan, supra at 363, 5 S.E. 2d at 160. *30 Plenary evidence in the record supports the court’s finding that Belk was conscious of approaching death and believed there was no hope of recovery. “This [consciousness] may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the communications, if any, made to him by his medical advisers, if assented to or understandingly acquiesced in by him.” Mattox v. United States, 146 U.S. 140, 151, 36 L.Ed. 917, 921, 13 S.Ct. 50, 54 (1892). See State v. Stewart, 210 N.C. 362, 369, 186 S.E. 488, 492 (1936). Accord, State v. Bowden, 290 N.C. 702, 228 S.E. 2d 414 (1976); State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322 (1955); State v. Rick, 231 N.C. 696, 58 S.E. 2d 717 (1950). Belk had burns over 99 percent of his body and most were third-degree burns. His attending physician had told him explicitly that while he might live three weeks, he would not live to leave the hospital.

The circumstances attending Belk’s declarations were such that he must have known death was impending. Although the tubes in his nose and throat necessitated by his injuries prevented him from speaking, Belk clearly and unequivocally communicated to Detective Sharpe his knowledge that he was so badly burned he was going to die. Defendant, however, insists that Belk’s declarations should have been excluded because they were made in response to leading questions. Ceratinly the questions which the detective propounded were leading. However, it is pertinent to note that could all the circumstances accompanying Belk’s interrogation by the detective have been repeated at the trial below, the judge undoubtedly would have permitted the district attorney to examine Belk similarly. See State v. Greene, 285 N.C. 482, 492, 206 S.E. 2d 229, 235-36 (1974). Further, the qualifying questions were not perfunctory to be used “in the event the injured man perchance took a turn for the worse.” They were clearly appropriate in light of Belk’s severe injuries and inability to speak. They were “as nearly spontaneous as declarations by one under the circumstances could be.” See State v. Gordon, 241 N.C. at 362, 85 S.E. 2d at 326.

Nor does the fact that Belk survived one week longer than Dr. Stevens had told him he might live affect the admissibility of his dying declarations. “The test is the declarant’s belief in the *31 nearness of death when he made the statement, not the actual swiftness with which death ensued.” C. McCormick, Evidence § 281, at 681 (2d Ed. 1972); State v. Jordan, 216 N.C. 356, 363-64, 5 S.E. 2d 156, 160 (1939).

Defendant next contends that the admission of dying declarations violated that portion of U.S. Const, amend. VI which guarantees an accused “the right ... to be confronted with the witnesses against him” and N.C. Const, art. I, § 23 (1971) (formerly § 7 of the Bill of Rights, N.C. Const, of 1776), which provides that “every person charged with crime has the right ... to confront the accusers and witnesses with other testimony. . . .” Albeit a dying declaration is indubitably hearsay and the declarant is, of course, not available for cross-examination, this contention has long since been decided against defendant.

In 1850, in the case of State v. Tilghman, 33 N.C. 513, the defendant contended that the confrontation clause of section 7 of the Bill of Rights excluded the admission of dying declarations in evidence. In rejecting this argument Justice Pearson, later Chief Justice, said: “This section of the Bill of Rights was aimed at the old practice, by which prisoners were not allowed to have witnesses sworn on their behalf, and the testimony came altogether on the part of the crown. Our ancestors did not intend to deny the rule of evidence as to dying declarations, but to assert that in criminal prosecutions prisoners ought to be allowed to have witnesses in their behalf, sworn and examined.” Id. at 554.

Defendant argues that the rationale of this 128-year-old decision is no longer “viable precedent given the treatment of the right to confrontation/cross-examination by the United States Supreme Court” in its more recent decisions interpreting the sixth amendment. E.g., Pointer v. Texas, 380 U.S. 400, 13 L.Ed. 2d 923, 85 S.Ct. 1065 (1965); Douglas v. Alabama, 380 U.S. 415, 13 L.Ed. 2d 934, 85 S.Ct. 1074 (1965); California v. Green, 399 U.S. 149, 26 L.Ed. 2d 489, 90 S.Ct. 1930 (1970). We need not, however, compare these cases with Tilghman, supra, or discuss its rationale, for it is the federal constitution which controls the decision in this case.

The Confrontation Clause of the sixth amendment was made applicable to the states in Douglas v. Alabama, supra. However, *32 we find no conflict in our decisions and those of the United States Supreme Court with reference to the admission of dying declarations in evidence. The opinions of the Supreme Court, before and since Douglas v. Alabama, have made it clear that the constitutional guaranty of confrontation is not coextensive with the hearsay rule. See California v. Green, 399 U.S. 149, 154-56, 26 L.Ed. 2d 489, 495-96, 90 S.Ct. 1930, 1933-34 (1970); Dutton v. Evans, 400 U.S. 74, 80, 27 L.Ed. 2d 213, 222, 91 S.Ct. 210, 215 (1970). Further, the public necessity of preventing secret homicides from going unpunished requires the preservation of this uniquely valuable evidence notwithstanding the inability of the defendant to cross-examine his accuser.

In Mattox v. United States, 156 U.S. 237, 243-244, 39 L.Ed. 409, 411, 15 S.Ct. 337, 340 (1894), Mr. Justice Brown, speaking for the Court, said that many of the constitutional provisions “in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected.” As one such exception he specifically mentioned the admission of dying declarations. “They are admitted,” he said, “not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. . . . [T]he sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath.”

In Kirby v. United States, 174 U.S. 47, 61, 43 L.Ed. 890, 896, 19 S.Ct. 574, 579 (1899) (a case in which the thief’s record of conviction was held inadmissible under the Confrontation Clause in the defendant’s trial for receiving stolen property) the Court said: “It is scarcely necesary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case. This exception was well established before the adoption of the Constitution, and was not intended to be abrogated. The ground upon which such exception rests is that from the circumstances under which dying declarations are made they are equivalent to the evidence of a living witness upon oath. . . .”

*33 In writing the opinion in Pointer v. Texas, supra, a case which reached a result similar to Kirby v. United States, Mr. Justice Black was also careful to say: “This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States. . . . Nothing we hold here is to the contrary.” 380 U.S. at 407, 13 L.Ed. 2d at 928, 85 S.Ct. at 1069. This statement was repeated in the Court’s decision in Dutton v. Evans, 400 U.S. at 80, 27 L.Ed. 2d at 222, 91 S.Ct. at 215 (1970).

The rationale of Mattox and Kirby was reiterated by this Court in State v. Debnam, 222 N.C. 266, 22 S.E. 2d 562 (1942) as follows:

“The theory on which dying declarations are excepted from the hearsay rule and admitted in evidence is that the declaration is made under the realization of approaching death, when there is no longer any motive for making a false statement, thus creating a sanction for truth equal to that of an oath. [Citations omitted.] Perhaps a more potent reason, one strong enough to supersede the right of confrontation, so strongly entrenched in our law, is the necessity of preserving important evidence, which often could come from no other source, of the identity of the killer and such circumstances of the killing as come within the range of the exception.” Id. at 268-69, 22 S.E. 2d at 564.

Defendant’s assignments of error Nos. 4 and 5 are overruled.

For the purpose of impeaching Belk’s dying declaration, defendant attempted to introduce Belk’s record of convictions — one of store breaking and larceny, one of assault with a deadly weapon, and numerous convictions of public drunkness. Defendant also attempted to prove by the testimony of the acting director of the Public Inebriate Program, a treatment center for alcoholics, that Belk was a frequent patient at the center. The court sustained the State’s objection to this evidence and defendant’s assignments 4 and 5 challenge this ruling.

Once admitted into evidence, a dying declaration is no different from other testimony. The extent of its credibility is a matter for the jury and it is subject to impeachment or corroboration upon the same grounds and in the same manner as the testimony of a sworn witness. State v. Debnam, 222 N.C. 266, 22 S.E. 2d 562 (1942); State v. Thomason, 46 N.C. 274 (1854); State v. Tilghman, *34 33 N.C. 513 (1850). See also 1 Stansbury’s North Carolina Evidence § 146 (Brandis rev. 1973) (hereinafter cited as Stansbury). Thus, evidence of the general character or reputation of a decedent is relevant on the issue of his dying declaration and is admissible to impeach or to sustain the declaration. Stansbury §§ 107, 114. This is an exception to the usual rule that “evidence as to the general moral character of the deceased is not admissible in a prosecution for homicide.” State v. Vestal, 278 N.C. 561, 580, 180 S.E. 2d 755, 768 (1971), cert. denied, 414 U.S. 874, 38 L.Ed. 2d 114, 94 S.Ct. 157 (1973). See Stansbury § 106.

Nevertheless, the impeachment of a dying declaration must proceed under the ordinary rules of evidence. Under these rules, for the purpose of impeachment, a party is entitled to introduce evidence only of the general reputation or character of the witness. “Therefore, our courts do not permit the witness to be impeached by independent evidence of particular misconduct.” Specifically, this means that a witness may not “be impeached by record evidence of his conviction of crime, introduced either in contradiction of his denial thereof, or independently as evidence going to his credibility.” State v. King, 224 N.C. 329, 331, 30 S.E. 2d 230, 231 (1944). See State v. Adams, 193 N.C. 581, 137 S.E. 657 (1927); State v. Cathey, 170 N.C. 794, 87 S.E. 532 (1916); Edwards v. Price, 162 N.C. 243, 78 S.E. 145 (1913); Stansbury § 111. Under the circumstances of this case, this same rule applies to Belk’s records at the treatment center for alcoholics.

Defendant argues, however, that had Belk himself been able to testify he could have been cross-examined with reference to his convictions of crime (See State v. Foster, 293 N.C. 674, 239 S.E. 2d 449 (1977); Stansbury § 112); and that, since such cross-examination is impossible in the case of dying declarations, Belk’s criminal record should have been admitted in lieu of cross-examination. We do not agree. The same considerations which engendered the rule that the character of a witness testifying at the trial cannot be proven by specific acts apply to the character of a deceased declarant; another rule “would raise innumerable collateral issues.” State v. Canup, 180 N.C. 739, 741, 105 S.E. 322, 324 (1920). See Stansbury § 111. It was, of course, open to defendant to offer evidence of Belk’s general character and reputation just as he offered evidence of his own, but he did not do so. Assignments of error Nos. 4 and 5 are overruled.

*35 Defendant’s assignment of error No. 13 is that the trial judge erred in allowing the State to elicit as rebuttal evidence the testimony of Officers Hayes and Richardson as to oral statements which each said defendant had made to him on the night of the fire. These statements, as indicated in the preliminary resume of the facts, were inconsistent with defendant’s testimony. When Officers Hayes and Richardson were called, and the import of their testimony ascertained, defendant objected on the grounds that (1) upon defendant’s motion N.C. Gen. Stats. 15A-902 and 15A-903(a)(2) (1975) required the district attorney, before trial, to disclose to defendant the substance of these oral statements; (2) the district attorney had failed to make the disclosure; and (3) this failure required the exclusion of the statements. Upon this objection, in the absence of the jury, the judge conducted a voir dire during which both the district attorney and defense counsel made statements. Together they disclosed the following sequence of events:

Prior to the trial, pursuant to G.S. 15A-902, defense counsel requested the district attorney to make certain disclosures which, upon defendant’s motion, would be required under G.S. 15A-903. Specifically, counsel requested “that the State make available: A, Statements made by the defendant under 15A-903(a)(l),” (i.e., written or recorded statements made by defendant which are under the control of the State); B, Defendant’s prior criminal record; and C, Certain documents and other tangible objects. Counsel did not request disclosure under G.S. 15A-903(a)(2) of “the substance of any oral statement made by defendant which the State intends to offer in evidence at the trial.” In his reponse to counsel’s request, on 9 August 1976 the district attorney wrote him that defendant had made no written or recorded statement and had made no oral statement which he intended to offer in evidence at the trial.

The district attorney made the following explanation to the court: He interpreted G.S. 15A-903(a)(2) as requiring him to divulge only those statements which he intended, before trial, to introduce during the presentation of his case in chief. Since defendant’s statements were all exculpatory he could not use them in making out the State’s case. Therefore, “because in preparation of the case [he] did not intend to offer those in the trial” he had decided not to disclose the statements to counsel. *36 Further, as late as the preceding afternoon, defense counsel had told him that defendant had not decided whether to testify in his own defense.

In answer to the court’s specific inquiries, counsel admitted that he had asked defendant whether he had made any statements to the police; that defendant had told him he had talked to the police and he had taken his client at his word; that he had not moved the court to order the solicitor to divulge the substance of any oral statements made by defendant because he interpreted the solicitor’s statement as meaning “there weren’t any such statements, that he had given [him] everything.”

At this point in the voir dire the district attorney produced the statements for counsel’s inspection. The court then entered an order in which he found facts consistent with the foregoing summary and overruled defendant’s objection to the rebuttal testimony of Officers Richardson and Hayes. The judge also found, inter alia: (1) that in developing its case the State did not offer any oral statements made by defendant; (2) that, only after defendant had decided to take the stand and had testified, did the State decide to offer defendant’s oral statements; and (3) that the State “has not acted in bad faith in this matter and that at the time the State responded to the voluntary request, the State did not intend to offer into evidence any oral statements allegedly made by defendant.”

The judge then recessed court to give defendant’s counsel time to examine the statements and the officers’ original notes. Counsel was also informed that after the recess he would be allowed to cross-examine the officers before they testified before the jury.

It is implicit in the district attorney’s statement to the court that his intention not to offer the questioned evidence was conditional. Obviously, he did intend to use the statements on rebuttal if defendant took the stand and gave testimony inconsistent with them. It is equally obvious that the district attorney could not know whether defendant would take the stand until defendant either did so or rested his case without having testified. This uncertainty, however, differs little from that which surrounds many decisions the prosecutor must make with reference to the introduction of available evidence. To adopt the district attorney’s *37 analysis of G.S. 15A-903(a)(2) would mean that a judge could rarely hold that a district attorney had intended to use a withheld statement at trial.

In view of the obvious intent of the legislature to permit broad pretrial discovery — as evidenced by the statute’s sweeping language, “any oral statement made by the defendant which the State intends to offer in evidence at the trial” — prudent prosecutors will avoid the possibility of having their intent judicially second guessed by turning over all doubtful material to the defense upon request. Likewise, defense counsel would be well advised to specifically request the defendant’s oral statements when, as here, the client informs him he has talked to the officers.

In this case, however, we need not attempt to stake out the limits of G.S. 15A-903(a)(2) or decide whether the district attorney’s reply to counsel’s request obviated the necessity of a motion under that statute. A district attorney’s refusal to comply with a discovery order under G.S. 15A-903 does not automatically require the exclusion of the undisclosed evidence. A variety of sanctions is authorized by G.S. 15A-910, and the choice of which to apply — if any — rests entirely within the discretion of the trial judge. His decision will not be reversed except for abuse of that discretion. State v. Thomas, 291 N.C. 687, 692, 231 S.E. 2d 585, 588 (1977). Clearly, this record shows no abuse of judicial discretion.

Defendant concedes that the State’s use of his oral statements to the officers did not violate any of his Miranda related rights. See Harris v. New York, 401 U.S. 222, 28 L.Ed. 2d 1, 91 S.Ct. 643 (1971); State v. Biggs, 292 N.C. 328, 233 S.E. 2d 512 (1977). In his brief, however, counsel does assert that defendant was irreparably prejudiced by the admission in evidence of his prior contradictory statements because, “[i]f counsel had known of these two statements, he would have advised the defendant to refrain from testifying.” No doubt counsel would have so advised defendant. Notwithstanding, the purpose of the discovery procedure authorized by N.C. Gen. Stats., Ch. 15A, Art. 48 (1975) was not to protect a defendant from the consequences of perjury. It was intended only to protect him from the consequences of unfair surprise and to enable him to have available at the trial any evidence which he could legitimately offer in his defense. Analogous here is the statement of Chief Justice Burger in *38 Harris v. New York, supra at 225, 28 L.Ed 2d at 4-5, 91 S.Ct. at 645-46, a case in which the officers’ failure to give the defendant the Miranda warning prevented the State from offering his statement in evidence on the question of his guilt:

“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations omitted.] Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. . . . The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.”

The trial court’s order granting a recess to allow defendant an opportunity to inspect defendant’s statements and to interview the officers, fully protected defendant’s legitimate rights to know the full extent of the case against him and to be protected from the use of “surprise evidence.” Defendant cannot complain that the order did not also protect him from the folly and crime of false testimony. Assignments of error Nos. 7 and 13 are overruled.

We have carefully examined defendant’s remaining assignments of error. They are without merit and require no discussion. The record manifests that defendant received a fair trial, free from prejudicial error.

No error.