{ "id": 8526137, "name": "STATE OF NORTH CAROLINA v. DAVID ROY EGGERT", "name_abbreviation": "State v. Eggert", "decision_date": "1993-06-15", "docket_number": "No. 9226SC619", "first_page": "614", "last_page": "620", "citations": [ { "type": "official", "cite": "110 N.C. App. 614" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "429 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549057, 2547238, 2548908, 2547631, 2547999 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0536-05", "/nc/333/0536-03", "/nc/333/0536-02", "/nc/333/0536-01", "/nc/333/0536-04" ] }, { "cite": "424 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "172" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524910 ], "year": 1993, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0536-01" ] }, { "cite": "426 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "419", "parenthetical": "quoting Boyd v. Nationwide Mutual Ins. Co., 108 N.C. App. 536, 543, 424 S.E.2d 168, 172, disc. review allowed, 333 N.C. 536, 429 S.E.2d 553 (1993) and Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991)" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524673 ], "year": 1993, "pin_cites": [ { "page": "151", "parenthetical": "quoting Boyd v. Nationwide Mutual Ins. Co., 108 N.C. App. 536, 543, 424 S.E.2d 168, 172, disc. review allowed, 333 N.C. 536, 429 S.E.2d 553 (1993) and Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0136-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "statements against interest were admissible although made to persons outside the presence of law enforcement officers or personnel" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "parenthetical": "statements against interest were admissible although made to persons outside the presence of law enforcement officers or personnel" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "cite": "375 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "704" }, { "page": "705" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527479 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "655" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0651-01" ] } ], "analysis": { "cardinality": 601, "char_count": 13911, "ocr_confidence": 0.759, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20556603879222302 }, "sha256": "e68b8e1000de606b5779f0afa357889acad0f74dc109774ed6864d2345d308d9", "simhash": "1:9643a472a40ed6ca", "word_count": 2349 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and McCRODDEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID ROY EGGERT" ], "opinions": [ { "text": "EAGLES, Judge.\nThe sole issue on appeal is whether the trial court committed reversible error by excluding hearsay statements allegedly made by Mr. Burton to Mr. Malezewski and by Mr. Burton to the defendant. Specifically, defendant argues that Mr. Burton made statements admitting that the LSD found in the box underneath the defendant was his and that his statements were admissible as statements made against his penal interests under G.S. 8C-1, Rule 804(b)(3).\n\u201cG.S. 8C-1, Rule 804(b)(3) provides that, if the declarant is not available as a witness, statements against the declarant\u2019s interest are not excluded by the hearsay rule.\u201d State v. Agubata, 92 N.C. App. 651, 655, 375 S.E.2d 702, 704 (1989). The State concedes in its brief that because \u201c[Mr.] Burton asserted his privilege against self-incrimination, he was clearly an unavailable witness.\u201d Our attention focuses now on whether the statements were against Mr. Burton\u2019s penal interest as required by Rule 804(b)(3).\n\u201c \u2018Rule 804(b)(3) requires a two-pronged analysis;\u2019 State v. Wilson, 322 N.C. 117, 134, 367 S.E.2d 589, 599 (1988). First, the trial court must be satisfied that the statement is against the declarant\u2019s penal interest. Second, corroborating circumstances must clearly indicate the trustworthiness of the statement. G.S. 8C-1, Rule 804(b)(3).\u201d Agubata, 92 N.C. App. at 655, 375 S.E.2d at 705.\nHere, Mr. Malezewski testified, outside the presence of the jury, that Mr. Burton \u201cdid admit\u201d that the LSD found in the box was his. The defendant testified, outside the presence of the jury, that although he was not able to remember Mr. Burton\u2019s exact words, \u201cbasically [Mr. Burton] said [to me] that he felt bad for me being arrested . . . because that [LSD in the box] wasn\u2019t your stuff.\u201d However, when the defendant asked Mr. Burton who the LSD belonged to, Mr. Burton declined to answer.\nClearly, the alleged statement made by Mr. Burton to Mr. Malezewski was against Mr. Burton\u2019s penal interest. Moreover, we find sufficient corroborating circumstances to clearly indicate the trustworthiness of the statement: (1) Mr. Burton was seated next to the defendant in the van; (2) the drugs were found where the defendant was seated, necessarily in close proximity to Mr. Burton; and (3) Mr. Burton admitted owning a bag found by officers which contained drug paraphernalia and \u201cone suspected hit of LSD.\u201d Accordingly, we reverse and remand for a new trial.\nThe State argues, however, that the alleged statement should not have been admitted because Mr. Malezewski was unable to \u201crecall the exact statement allegedly made by Mr. Burton.\u201d We disagree. Mr. Malezewski testified on direct examination as follows:\nQ. What did Larry Burton tell you, Mr. Malezewski?\nA. He told me it was \u2014 well, he told me he felt bad because David was busted and that he pretty much admitted that the LSD was his.\nQ. When you say that he pretty much admitted\u2014\nA. He did admit.\nQ. He did admit?\nA. Yes.\n* * *\nQ. Tell me again, I am not clear, tell the Judge for the record exactly what you recall Mr. Burton telling you. What was the conversation about?\nA. We were talking about being arrested and all that, and he brought up about David being charged with trafficking and possession of LSD, and Larry said he felt bad about that and I asked him, well, it was yours, wasn\u2019t it, and he said yes.\nOn cross-examination Mr. Malezewski testified:\nQ. His words were that he owned it. Is that right? Is that your testimony, that it was his?\nA. He didn\u2019t say own. He said it was his.\nMr. WALKER: That is all I have, Your Honor.\nTHE COURT: Let me ask him one thing. Did he tell you, his words were \u2014 tell me what his exact words were again.\nA. Sir, this was in July. I can\u2019t remember his exact words. Our conversation was about him feeling bad about David being charged for that, and he admitted that LSD was his.\nThe COURT: But you testified that you asked him was it yours.\nA. Yes, I did ask him that particular comment. We talked for a while.\nThe COURT: I mean, did you ask him was it yours, is it yours?\nA. Yes, sir.\nThe COURT: And what did he say?\nA. He said yes.\nThe COURT: Did he ever tell you \u2014\nA. I asked him why he felt bad.\nThe COURT: Did he ever tell you that it was not David\u2019s?\nA. Not specifically, no, but I assumed that it was when he said that it was his.\nThe COURT: But he didn\u2019t tell you that?\nA. No, sir, he didn\u2019t tell me that.\nMr. Malezewski\u2019s testimony was sufficiently definite to form a statement as defined by our hearsay rules. Accordingly, the State\u2019s argument is overruled.\nThe State also argues that Mr. Burton would not understand the statement\u2019s \u201cdamaging potential\u201d and that the alleged statement was not trustworthy because it \u201cwas made to another prisoner outside the presence of law enforcement officers or personnel. Under these circumstances, Mr. Burton would not necessarily understand that his statement would subject him to criminal liability.\u201d This argument is wholly without merit. See State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990) (statements against interest were admissible although made to persons outside the presence of law enforcement officers or personnel).\nDefendant next argues that the alleged statement made by Mr. Burton to the defendant was admissible as a statement against penal interest. We disagree. The defendant testified:\nQ. Tell the court reporter, please, and the Judge the nature of that conversation, what was said.\nA. I don\u2019t recall the exact words but basically what he said that he felt bad for me being arrested, and I said why, and he..said because that wasn\u2019t your stuff.\nQ. He said, \u201cI know that wasn\u2019t your stuff.\u201d?\nA. Yes.\nQ. Very good. Did you respond to him at that point?\nA. I just said whose stuff was it and he declined to answer.\nQ. He did decline to answer?\nA. Yes.\nOn cross-examination the defendant testified:\nQ. You said, in answer to Mr. Morgan\u2019s questions that you did not recall his exact words? Isn\u2019t that what you said?\nA. I don\u2019t recall the exact words of the conversation but that is a good part of what I just spoke of. I do recall the words.\n\u201cIn order for a statement to be a declaration against interest, the statement must expose the declarant to criminal liability. Rule 804(b)(3) (1988).\u201d State v. Artis, 325 N.C. 278, 304, 384 S.E.2d 470, 484 (1989), judgment vacated, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Here, the statements allegedly made by Mr. Burton to the defendant were not against Mr. Burton\u2019s penal interest. The State correctly points out in its brief, \u201c[i]t is simply not a crime to know that drugs do not belong to a particular individual.\u201d In addition, the defendant admitted that Mr. Burton expressly declined to say to whom the LSD belonged. Accordingly, we conclude that the trial court did not err by excluding Mr. Burton\u2019s alleged statements to the defendant.\nFinally, we note that the defendant argues that his constitutional rights were violated by exclusion of the alleged statements. \u201c \u2018[T]he scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal.\u2019 \u201d State v. Ainsworth, 109 N.C. App. 136, 151, 426 S.E.2d 410, 419 (1993) (quoting Boyd v. Nationwide Mutual Ins. Co., 108 N.C. App. 536, 543, 424 S.E.2d 168, 172, disc. review allowed, 333 N.C. 536, 429 S.E.2d 553 (1993) and Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991)). Here, the defendant\u2019s sole assignment of error does not purport to raise any constitutional challenge to the exclusion of the statements attributed to Mr. Burton. Accordingly, this argument is overruled.\nNew trial.\nJudges LEWIS and McCRODDEN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General L. Darlene Graham, for the State.", "Charles L. Morgan, Jr., for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID ROY EGGERT\nNo. 9226SC619\n(Filed 15 June 1993)\nEvidence and Witness \u00a7 1026 (NCI4th)\u2014 trafficking in LSD \u2014 possession of LSD \u2014 exclusion of hearsay statements as to ownership \u2014reversible error\nIn a prosecution of defendant for trafficking in LSD by possession, the trial court committed reversible error by excluding hearsay statements allegedly made by a person arrested at the same time and place as defendant to a second person arrested at the same time and place as defendant, but the court did not err in excluding the first person\u2019s statements to defendant, since the first person allegedly told the second person that he felt bad about defendant\u2019s having been arrested because the LSD was in fact his and not defendant\u2019s; the statement was clearly against the first person\u2019s penal interest; the first person was unavailable as a witness because he asserted his privilege against self-incrimination; there were sufficient corroborating circumstances to indicate the trustworthiness of the statement, including the fact that the first person was seated next to defendant in a van, the drugs were found where defendant was seated which was necessarily in close proximity to the first person, and the first person admitted owning a bag found by officers which contained drug paraphernalia and \u201cone suspected hit of LSD\u201d; but the first person\u2019s statements to defendant indicated that he knew that LSD was not defendant\u2019s, but stopped short of claiming ownership; and the first person\u2019s statements to defendant therefore were not against his penal interest. N.C.G.S. \u00a7 8C-1, Rule 804(b)(3).\nAm Jur 2d, Evidence \u00a7 620.\nAppeal by. defendant from judgment entered 20 November 1991 by Judge A. Leon Stanback, Jr., in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 May 1993.\nDefendant was indicted and convicted of trafficking in lysergic acid diethylamide (LSD) by possession. He was sentenced to fourteen years in prison.\nAt trial the State\u2019s evidence tended to show the following: On 11 June 1991 Officer Faulkenbury of the Charlotte Police Department\u2019s Street Drug Interdiction Squad was patrolling the Charlotte Coliseum during a Grateful Dead concert. Officer Faulkenbury was working on a team which included Agent Sellers of the North Carolina Alcohol Law Enforcement Division of the Department of Crime and Control and Public Safety and Officer Sauciuc, a Charlotte police officer assigned to the Vice and Narcotics Division.\nAt approximately 7:00 p.m. Officer Faulkenbury and his teammates saw three people standing beside a van with an open sliding door. The defendant and Mr. Burton were seated in the van on a bench seat. As Officer Faulkenbury approached the van, he saw the defendant smoke from a bong, a device used to smoke marijuana. The defendant handed the bong to Mr. Burton, seated closest to the van\u2019s door, who in turn handed the bong to Mr. Malezewski, who was standing beside the van. Officer Faulkenbury walked over to the van and detected \u201ca very strong odor of marijuana[.]\u201d Officers arrested the defendant, Mr. Burton, Mr. Malezewski and a fourth person standing outside the van holding two bongs.\nAfter handcuffing and searching Mr. Malezewski and the person holding the two bongs outside the van, officers instructed Mr. Burton to step out of the van. He complied and was searched. Officers then instructed the defendant to step out of the van. Officer Faulkenbury searched the defendant and found a small square \u201ccontaining 80 plus hits of LSD\u201d in defendant\u2019s left front overalls pocket. Officer Sauciuc handcuffed the defendant to Mr. Burton. At the same time Agent Sellers called Officer Faulkenbury\u2019s attention to a small box that \u201che had found from underneath Mr. Eggert when Mr. Eggert had stood up.\u201d The box contained \u201cnumerous suspected hits of LSD[.]\u201d The officers also found a bag which contained a marijuana pipe, a marijuana cigarette and a small ceramic egg containing a small square of LSD. Mr. Burton claimed ownership of the bag, but did not claim to own the box containing the LSD.\nAgent Sellers testified that he entered and secured the van prior to Mr. Burton or the defendant exiting the van. When the defendant stood to leave the van, Agent Sellers saw a small box located \u201cexactly right where [the defendant] was sitting.\u201d The box, a hard plastic container about three inches by three inches in size, contained approximately 698 doses of LSD. Agent Sellers testified that the LSD in the box and the LSD taken from the defendant\u2019s pocket were on blotter paper which \u201cappeared to [have] the same design.\u201d Officer Sauciuc also testified that the blotter papers had the same design.\nThe defendant presented the testimony of three witnesses. First, John Malezewski testified inter alia that he was handcuffed to Mr. Burton for about fifteen minutes. After the two were separated they were then taken to the Mecklenburg County Intake Center where they were processed. Mr. Malezewski testified out of the jury\u2019s presence that while he was in a holding cell with Mr. Burton, Mr. Burton said that \u201che felt bad because [the defendant] was busted and that he pretty much admitted that the LSD was his.\u201d Mr. Malezewski then testified that Mr. Burton \u201cdid admit\u201d that the LSD was his. However, he never said \u201cthat it was not [the defendant\u2019s].\u201d\nThe defendant then testified in his own behalf. The defendant testified that he spoke with Mr. Burton two or three days after they had been arrested and while they were still in jail. Out of the presence of the jury, defendant testified that although he was not able to remember Mr. Burton\u2019s exact words, \u201cbasically [Mr. Burton] said that he felt bad for me being arrested, and I said why, and he said because that wasn\u2019t your stuff.\u201d When the defendant asked Mr. Burton who owned the LSD, Mr. Burton \u201cdeclined to answer.\u201d\nFinally, the defendant called Mr. Burton to the stand. However, Mr. Burton asserted his Fifth Amendment privilege against self-incrimination, and refused to testify as to his involvement in the incident involving the defendant.\nFrom judgment imposing sentence, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General L. Darlene Graham, for the State.\nCharles L. Morgan, Jr., for the defendant-appellant." }, "file_name": "0614-01", "first_page_order": 644, "last_page_order": 650 }