{ "id": 11915340, "name": "STATE OF NORTH CAROLINA v. CLAUDE EDWARD DAMMONS", "name_abbreviation": "State v. Dammons", "decision_date": "1995-12-05", "docket_number": "No. COA94-1355", "first_page": "61", "last_page": "67", "citations": [ { "type": "official", "cite": "121 N.C. App. 61" } ], "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": "36 ALR Fed. 742", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "38 ALR4th 378", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "75 ALR4th 199", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "52 ALR4th 999", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "104 L. Ed. 2d 1009", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "490 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605985, 605858, 606052, 605061, 605286, 605446, 604937, 604876, 605069, 605139, 605716, 605395, 605075, 604980, 605430, 605241 ], "opinion_index": 0, "case_paths": [ "/us/490/1101-03", "/us/490/1101-05", "/us/490/1101-08", "/us/490/1101-12", "/us/490/1101-15", "/us/490/1101-14", "/us/490/1101-11", "/us/490/1101-13", "/us/490/1101-01", "/us/490/1101-09", "/us/490/1101-02", "/us/490/1101-10", "/us/490/1101-04", "/us/490/1101-07", "/us/490/1101-06", "/us/490/1101-16" ] }, { "cite": "374 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "323 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565899 ], "year": 1988, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0508-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "817-18" }, { "page": "653-54" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "365 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "566" } ], "opinion_index": 0 }, { "cite": "321 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569277 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0616-01" ] }, { "cite": "450 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "910", "parenthetical": "quoting State v. Nichols, 321 N.C. 616, 624, 365 S.E.2d 561, 566 (1988)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558726 ], "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "quoting State v. Nichols, 321 N.C. 616, 624, 365 S.E.2d 561, 566 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0469-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "740" }, { "page": "741" } ], "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "10-11" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] } ], "analysis": { "cardinality": 625, "char_count": 12937, "ocr_confidence": 0.74, "pagerank": { "raw": 2.069467096217432e-07, "percentile": 0.7575601898025714 }, "sha256": "4fa12a52d23b06076007315e9de711a178f5924c3d51d659e30d2860cd3277ed", "simhash": "1:ae22c482052ea9f4", "word_count": 2095 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CLAUDE EDWARD DAMMONS" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe evidence presented tends to show the following: On the morning of 27 February 1993, defendant drove Elouise Headen and Mary McLaughlin around town in his car. At some point Mary told defendant that she wanted to go home but defendant refused to take her home at that time. He stopped the car at a church. Defendant and Elouise got out of the car and walked across the road to a cemetery. Mary got out of the car and went to a nearby house to use the phone to call her husband to come get her. Upon arriving at the house, Mary and the resident at the house, Mildred Dowdy, heard three gunshots. Ms. Dowdy called the Sheriffs Department. About 2:10 p.m., Sheriff Baker responded to a call at the \u201cShort Stop\u201d where he found defendant in the driver\u2019s seat and Elouise slumped over in the right front seat of defendant\u2019s car. She was moaning and hollering. Sheriff Baker was advised that Elouise had been shot. A few days later, Elouise gave a statement to two law enforcement officers stating that defendant had shot her. In telling her story in the statement, Elouise admitted to a felony of possession of cocaine and to misdemeanor larceny.\nThereafter, Elouise, in approximately three letters, stated that defendant did not commit any crime, that she wished for the charges against defendant to be dropped, and that she did not desire to testify against defendant. She also stated that when she was asked to make a statement, she was \u201cvery confused, and angry, and discussed (sic).\u201d Elouise did not appear at defendant\u2019s trial and was found to be an unavailable witness. Defendant was convicted of assault with a deadly weapon inflicting serious injury and as a habitual felon. In the judgment entered on 25 March 1994, defendant was sentenced to life imprisonment. From this judgment, defendant appeals.\nDefendant argues that the trial court erred by admitting hearsay evidence of Elouise Headen\u2019s out-of-court statement to the police under the residual hearsay exception. Defendant contends that the trial court erred for the following reasons: (1) that the trial court made an insufficient determination of unavailability; (2) that the trial court made insufficient findings under the six-step analysis required for admissibility; and (3) that the trial court impermissibly relied upon corroborating evidence not included in the circumstances surrounding the making of the statement. Hence, it is defendant\u2019s contention that he was thereby denied his federal and state constitutional rights to confrontation of witnesses, to a fair trial, and to due process of law.\nDefendant first contends that the trial court erred in failing to make a sufficient determination that Headen was unavailable as a witness. Prior to admitting hearsay evidence under Rule 804(b)(5) and engaging in the six-part inquiry prescribed by State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985), the trial court must find that Headen is unavailable as a witness. State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986). \u201cThe degree of detail required in the finding of unavailability will depend on the circumstances of the particular case.\u201d Id. at 8, 340 S.E.2d at 740.\nThe \u201ccatchall\u201d provision of Rule 804(b)(5) states that if hearsay evidence is sufficiently trustworthy and sufficient notice was given to the opposing party prior to trial, then the information is admissible. Unavailability of a witness includes situations in which the declarant: \u201cIs absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means.\u201d Rule 804(a)(5). The evidence presented in the record shows that the State had subpoenaed Ms. Headen numerous times to appear in court, but were unable to locate her. The evidence also reveals that defendant was made aware that the State was going to use Ms. Headen\u2019s statement at trial. Thus, the trial court\u2019s determination that Ms. Headen was unavailable was sufficient.\nDefendant\u2019s second contention is that the trial court did not make sufficient findings in the record to determine whether Headen\u2019s statement was admissible under the six-step analysis required for admissibility under the residual hearsay exception. Having deemed a witness unavailable under Rule 804, the trial court must then engage in the six-step inquiry. Triplett, 316 N.C. 1, 340 S.E.2d 736; Smith, 315 N.C. 76, 337 S.E.2d 833.\nThe trial court is required to make the following determinations: (1) that proper notice was given of the intent to offer hearsay evidence under Rules 803(24) or 804(b)(5); (2) that the hearsay evidence is not specifically covered by any of the other hearsay exceptions; (3) that the hearsay evidence possesses certain circumstantial guarantees of trustworthiness; (4) that the evidence is material to the instant action; (5) that the evidence is more probative on an issue than any other evidence procurable through reasonable efforts; and (6) that admission of the evidence will best serve the interests of justice. Id.\nWhen assessing \u201cequivalent circumstantial guarantees of trustworthiness\u201d of hearsay evidence pursuant to the residual hearsay exception under Rule 804(b)(5), the trial court should consider the following factors:\n(1) the declarant\u2019s personal knowledge of the underlying event; (2) the declarant\u2019s motivation to speak the truth; (3) whether the declarant recanted; and (4) the reason, within the meaning of Rule 804(a), for the declarant\u2019s unavailability.\nState v. Swindler, 339 N.C. 469, 450 S.E.2d 907, 910 (1994) (quoting State v. Nichols, 321 N.C. 616, 624, 365 S.E.2d 561, 566 (1988)). Although hearsay evidence offered under Rule 804(b)(5) is presumptively unreliable and inadmissible, the evidence may be admitted if the evidence has been demonstrated to have \u201cparticularized guarantees of trustworthiness.\u201d See Idaho v. Wright, 497 U.S. 805, 817-18, 111 L. Ed. 2d 638, 653-54 (1990); Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608 (1980). A review of the statement by Ms. Headen, in light of the considerations of trustworthiness, reveals that Ms. Headen had personal knowledge of the underlying event, in that, she was personally at the scene at the time of the assault; that Ms. Headen was motivated to tell the truth at the time she was talking to the officers; and that Ms. Headen made declarations against her penal interests in her statement on which she could have been criminally charged. Although Ms. Headen later recanted her statement in three separate letters written to the defense, and to the prosecution, Ms. Headen was unavailable. Our Supreme Court has stated that \u201cif the declarant is unavailable under Rule 804(a)(2) because he \u2018[p]ersists in refusing to testify concerning the subject matter of his statement despite a court order to do so\u2019 the court might weigh this as a factor against admitting declarant\u2019s statement.\u201d Nichols, 321 N.C. at 625 n. 2, 365 S.E.2d at 566-67 n. 2. A review of the evidence shows that the trial court did weigh this factor, but found that \u201c[t]his case has duress, threats, written all over it.\u201d The evidence reveals that she only recanted after paying defendant a visit in jail.\nThe trial court is required to make findings of fact and conclusions of law when determining if an out-of-court hearsay statement possesses the necessary circumstantial guarantee of trustworthiness. See State v. Deanes, 323 N.C. 508, 515, 374 S.E.2d 249, 255 (1988), cert denied, 490 U.S. 1101, 104 L. Ed. 2d 1009; Triplett, 316 N.C. at 10-11, 340 S.E.2d at 741. In the instant action, the trial court stated that the statement was offered as evidence of a material fact; that the statement was more probative on the point for which it was offered than any other evidence the State could produce through reasonable efforts; that the interests of justice would be served by its admission; and that proper notice had been given such that defendant could prepare to meet the statement. In response to defendant\u2019s objection to the statement being untrustworthy, the trial court stated, \u201c[t]o me\u2014 her statement is highly credible on that point. . . [w]hen you look at it, [it is] highly credible.\u201d\nAlthough, it appears from the record that the trial court was sufficiently satisfied as to the trustworthiness of the statement, the trial court in the case sub judice, did not enunciate particularized findings of fact or conclusions of law regarding whether the statement had \u201cequivalent circumstantial guarantees of trustworthiness.\u201d Defendant relies upon State v. Swindler, 339 N.C. 469, 450 S.E.2d 907 in support of its position. However, Swindler\u2019s facts are distinguishable from the instant case in that the hearsay evidence offered therein was written by the defendant\u2019s cellmate who had no personal knowledge of the events depicted in the letter. The cellmate was motivated by the opportunity to strike a deal with police, refused to acknowledge that he wrote the letter which contained many inaccuracies when questioned at trial, and the cellmate may have obtained the facts mentioned while attending the probable cause hearing when he was in court.\nNotwithstanding that Swindler is distinguishable on its facts, our Supreme Court has repeatedly stated that findings of fact and questions of law as to the trustworthiness of the statement must appear in the record. Swindler, 339 N.C. 469, 450 S.E.2d 907; Smith, 315 N.C. 76, 337 S.E.2d 833; Triplett, 316 N.C. 1, 340 S.E.2d 736. The trial court made no findings of fact or conclusions of law as to the trustworthiness of the statement, and his cursory statement that her statement is \u201chighly credible\u201d is in reference to the number of times Elouise stated that she was shot as opposed to the number of times the doctor said she had been shot. The statement of the trial judge that her statement was \u201chighly credible\u201d was not in reference to the court\u2019s duty to make particularized findings of fact or conclusions of law regarding whether the statement given to the police and being offered into evidence possesses \u201cequivalent circumstantial guarantees of trustworthiness. \u201d\nAlthough the record contains sufficient evidence upon which the trial court could have made sufficient findings of fact and conclusions of law regarding the trustworthiness of the statement, it failed to do so. Based on the Supreme Court\u2019s holding in Swindler, we are, therefore, bound to award defendant a new trial.\nIn light of our holding, we find it unnecessary to reach defendant\u2019s remaining collateral arguments.\nIn conclusion, because the trial court failed to show by making the requisite findings of fact and conclusions of law that the statement had \u201cequivalent circumstantial guarantees of trustworthiness,\u201d the verdict and judgment are vacated and remanded for new trial.\nNew trial.\nJudges EAGLES and WYNN concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Archie W. Anders, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Constance H. Everhart, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CLAUDE EDWARD DAMMONS\nNo. COA94-1355\n(Filed 5 December 1995)\n1. Evidence and Witnesses \u00a7 1007 (NCI4th)\u2014 residual exception to hearsay rule \u2014 unavailability of witness \u2014 sufficiency of trial court\u2019s determination\nThe trial court\u2019s determination that a witness was unavailable for purposes of the residual exception to the hearsay rule was sufficient where the State had subpoenaed the witness numerous times to appear in court but she could not be located, and defendant was made aware that the State was going to use the witness\u2019s statement at trial. N.C.G.S. \u00a7 8C-1, Rule 804(b)(5).\nAm Jur 2d, Evidence \u00a7\u00a7 701-703.\nUniform Evidence Rule 803(24): the residual hearsay exception. 52 ALR4th 999.\nResidual hearsay exception where declarant unavailable: Uniform Evidence Rule 804(b)(5). 75 ALR4th 199.\n2. Evidence and Witnesses \u00a7 1009 (NCX4th)\u2014 unavailable witness \u2014 trustworthiness of statement \u2014 failure to make adequate findings and conclusions\nAlthough the record contained sufficient evidence upon which the trial court could have made sufficient findings of fact and conclusions of law regarding the trustworthiness of a statement by an unavailable witness admitted under the residual exception to the hearsay rule, the court failed to do so, and defendant is therefore entitled to a new trial.\nAm Jur 2d, Evidence \u00a7\u00a7 701, 702.\nAdmissibility or use in criminal trial of testimony given at preliminary proceeding by witness not available at trial. 38 ALR4th 378.\nAdmissibility of statement under Rule 803(24) of Federal Rules of Evidence, providing for admissibility of hearsay statement not covered by any specific exception but having equivalent circumstantial guaranties of trustworthiness. 36 ALR Fed. 742.\nAppeal by defendant from judgment entered 25 March 1994 by Judge Wiley F. Bowen in Lee County Superior Court. Heard in the Court of Appeals 26 September 1995.\nAttorney General Michael F. Easley, by Assistant Attorney General Archie W. Anders, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Constance H. Everhart, for defendant-appellant." }, "file_name": "0061-01", "first_page_order": 95, "last_page_order": 101 }