{ "id": 8520703, "name": "STATE OF NORTH CAROLINA v. WILLIAM EDWARD HAMLETTE", "name_abbreviation": "State v. Hamlette", "decision_date": "1983-01-18", "docket_number": "No. 829SC102", "first_page": "306", "last_page": "320", "citations": [ { "type": "official", "cite": "60 N.C. App. 306" } ], "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": "276 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": -1 }, { "cite": "302 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567551 ], "year": 1981, "opinion_index": -1, "case_paths": [ "/nc/302/0490-01" ] }, { "cite": "147 S.E. 2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "266 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562904 ], "year": 1966, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0713-01" ] }, { "cite": "127 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "258 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559504 ], "year": 1962, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0064-01" ] }, { "cite": "246 S.E. 2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "40" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553226 ], "year": 1978, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0432-01" ] }, { "cite": "199 S.E. 704", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "214 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631499 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/nc/214/0484-01" ] }, { "cite": "220 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570581 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0680-01" ] }, { "cite": "230 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "291 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557839 ], "year": 1976, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0223-01" ] }, { "cite": "4 ALR 3d 149", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1965, "opinion_index": 0 }, { "cite": "65 S.E. 995", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1909, "opinion_index": 0 }, { "cite": "151 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655954 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/nc/151/0676-01" ] }, { "cite": "158 S.E. 2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572457 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0246-01" ] }, { "cite": "157 S.E. 2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565591 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0579-01" ] }, { "cite": "239 S.E. 2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572628 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0288-01" ] }, { "cite": "203 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "833-34" } ], "opinion_index": 0 }, { "cite": "285 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562949 ], "year": 1974, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0209-01" ] }, { "cite": "228 S.E. 2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564470 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0702-01" ] }, { "cite": "276 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "342" }, { "page": "343" }, { "page": "346" }, { "page": "345-46" } ], "opinion_index": 0 }, { "cite": "302 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567551 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "494-495" }, { "page": "497" }, { "page": "501" }, { "page": "500-02" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0490-01" ] } ], "analysis": { "cardinality": 1028, "char_count": 30172, "ocr_confidence": 0.796, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.751724135268118 }, "sha256": "2fed652f2d677c3f8514acc36ef068eb97242257a5ea18e072f1f73bfa27e845", "simhash": "1:97a1f281e23e9f5c", "word_count": 5010 }, "last_updated": "2023-07-14T17:52:46.639047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge BECTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM EDWARD HAMLETTE" ], "opinions": [ { "text": "JOHNSON, Judge.\nOn 21 February 1980, around 11:00 p.m., in Roxboro, North Carolina, Willard Lawrence Bailey was shot three times. Shortly after the shooting Bailey talked with three law enforcement officials and one lay witness. Bailey identified the defendant as the person who shot him to each oil these witnesses. Bailey died 5 March 1980 as a result of the gunshot wounds.\nDefendant presented evidence which tended to show that he did not shoot Bailey, but that Bailey was shot by Earl Torain. Defendant presents eleven assignments of error and argues that the trial court erred in its evidentiary rulings.\nI\nDefendant contends that the trial court committed prejudicial error in permitting Officer Pricilla Betterton and Detective Steve Clayton to testify to statements Bailey made to them under the res gestae exception to the hearsay rule. Defendant argues that the statements were untrustworthy in that they contained a fabrication, to wit; when Bailey was asked if he knew where defendant and Torain lived, Bailey stated that he did not know and further, Bailey\u2019s statements were made only in response to specific inquiries and were not made contemporaneously with the events or with enough spontaneity to qualify as admissible res gestae statements.\nExcept for the additional argument that Bailey\u2019s utterances contained a fabrication, defendant raised this exact objection at his previous trial. As in Hamlette I, the evidence in this case showed that at 11:00 p.m. on 21 February 1980, in Roxboro, North Carolina, Pricilla Betterton, an off-duty policewoman, while sitting in her parked car in front of a Convenience Corner store, heard four to six gunshots. Approximately one minute after hearing the shots she saw Bailey run past her car into the Convenience Corner store. As Bailey emerged from the store Betterton approached him. She saw blood below his rib cage and in his mouth and asked him what was wrong. He replied that he had been shot. She told him to sit down and asked him who shot him. Bailey replied, \u201cWilliam Hamlette.\u201d Bailey also stated that Hamlette left with Earl Torain in a 1965 Mercury. Betterton then went into the store, got a paper bag upon which to make notes, and returned to Bailey. She again asked him who shot him, and for the second time he replied, \u201cWilliam Hamlette.\u201d She asked if they had an argument and Bailey responded that he \u201cwas hurting\u201d and wanted an ambulance. This conversation between Betterton and Bailey took place within three minutes of the shots.\nDet. Clayton arrived at the scene and observed Bailey lying on the sidewalk with blood running from his mouth and blood stains on his shirt. Clayton talked to Officer Betterton for about two minutes and proceeded to talk with Bailey at approximately 11:10 p.m. In response to Clayton\u2019s questions, Bailey stated he had been shot by William Hamlette, Earl Torain was with Hamlette, Hamlette and Torain left in a 1965 Mercury headed north toward South Boston, the shooting had occurred at the telephone booth, and \u201che could see the people when the shooting occurred.\u201d Clayton asked Bailey if he knew where defendant and Torain lived. Bailey responded that he did not. Bailey was then transported by ambulance to Person County Hospital.\nThe trial court conducted voir dire to determine the admissibility of Bailey\u2019s statements to the officers. At the conclusion of the hearing, the court ruled that the statements were admissible under the res gestae exception to the hearsay rule.\nThe evidence regarding Bailey\u2019s statements to the officers and the circumstances surrounding the taking of the statements is identical to that presented in Hamlette I, with the exception of Bailey\u2019s statement that he didn\u2019t know where defendant and Torain lived and defendant\u2019s evidence that Bailey had visited Torain\u2019s and defendant\u2019s residences on prior occasions. On the basis of this additional evidence, defendant argues that the Supreme Court\u2019s ruling that the statements are admissible as spontaneous utterances in Hamlette I is not applicable in the case sub judice.\nStatements are admissible as spontaneous utterances when made by a participant or bystander in response to a startling or unusual incident whereby the declarant is without opportunity to reflect or fabricate. State v. Bowden, 290 N.C. 702, 228 S.E. 2d 414 (1976); see generally, 1 Stansbury\u2019s N.C. Evidence \u00a7 164 (Brandis rev. 1973); McCormick on Evidence \u00a7 297 (1972). \u201c[S]uch statements derive their reliability from their spontaneity when (1) there has been no sufficient opportunity to plan false or misleading statements, (2) they are impressions of immediate events and (3) they are uttered while the mind is under the influence of the activity of the surroundings.\u201d State v. Deck, 285 N.C. 209, 214, 203 S.E. 2d 830, 833-34 (1974); see also State v. Johnson, 294 N.C. 288, 239 S.E. 2d 829 (1978); State v. Cot, 271 N.C. 579, 157 S.E. 2d 142 (1967). It is this spontaneity and not being part of the incident which makes it relevant evidence. For example, where the utterance is made by an observer and not a participant, the statement may be admissible. See, e.g., State v. Feaganes, 272 N.C. 246, 158 S.E. 2d 89 (1967). Also, statements made after and therefore not part of the event are admissible if they are spontaneous utterances. See, e.g., State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909); Annot., 4 ALR 3d 149 (1965). (Emphasis original.)\nHamlette, 302 N.C. at 494-495, 276 S.E. 2d at 342. The Supreme Court ruled that the following facts and circumstances supported the trustworthiness of Bailey\u2019s statements:\n[O]nly three minutes passed between the witness Betterton\u2019s hearing of the shots and Bailey\u2019s statement that defendant shot him. Within thirteen minutes after the shooting, Bailey told Clayton that defendant had shot him. When he made these statements, he was suffering from three gunshot wounds, was bleeding from the mouth and chest, was at the crime scene and, at the time of the second statements, was being prepared by ambulance attendants for the trip to the hospital.\nId.\nThe Court stated that the statements do not in any way lose their spontaneous character because they were made in response to questions such as \u201cWhat is wrong?\u201d, \u201cWho shot you?\u201d, and \u201cHow did they leave?\u201d\nDefendant argues that certain evidence produced tends to show that Bailey fabricated his statements regarding his knowledge of where Torain and defendant lived and that the trial court failed to consider this additional evidence in making its ruling.\nThe evidence defendant points to may indicate that Bailey had visited either Torain or defendant or both on different occasions. However, it does not indicate that Bailey was untruthful when he stated he did not know where defendant and Torain lived. Bailey\u2019s answers to Det. Clayton\u2019s questions were not obviously false; indeed it is possible that Bailey did not know their exact street addresses. The evidence defendant presented upon retrial contains no additional indication that Bailey had an opportunity to reflect upon or fabricate his statements at the time of the shooting.\nIt must be remembered that the slight possibility that Bailey may not have been accurate in all of his statements is to be viewed in light of the circumstances under which the statements were made. Bailey had just been shot three times, was in pain and bleeding. Nothing in the record suggests that Bailey had the opportunity or time to have planned to mislead or reflect upon and prepare false statements. Rather, the responses are more appropriately characterized as excited utterances produced by a startling event.\nThe trial court considered all of the evidence including that which indicated Bailey knew where Torain and defendant lived and had visited them on various occasions. The trial court correctly admitted the subject statements into evidence as part of the res gestae of the event under the rule announced in Hamlette I. Therefore, defendant\u2019s assignment is without merit.\nII\nDefendant next argues that the trial court erred in admitting into evidence Bailey\u2019s statement to Lieutenant Ashley that defendant was the one who shot him.\nThis exact assignment of error was also raised in Hamlette I, where the Supreme Court held the statements admissible under the dying declaration exception to the hearsay rule. Defendant contends that the ruling in Hamlette I is not applicable because there was evidence presented upon retrial that Bailey, while hospitalized, had indicated that he would \u201cbe okay,\u201d thus negating a belief in impending death.\nThe trial court conducted voir dire. The evidence showed that Lt. Ashley talked to Bailey in the emergency room at Person County Hospital. The conversation took place between thirty minutes and one hour after Bailey was shot. Bailey had gunshot wounds to his chest, had not yet undergone surgery, and was being administered blood transfusions. Bailey was in extreme pain and appeared to have difficulty breathing. Ashley asked Bailey who shot him. Bailey twice stated that \u201cWilliam Hamlette\u201d shot him. The following morning before Bailey underwent surgery, Ashley returned to Person County Hospital and spoke to him in the Intensive Care Unit. Bailey again identified defendant as the person who shot him. At the time no one told Bailey he was dying and Bailey did not indicate he had such a belief.\nDebbie Moss testified that she talked to Bailey at Person County Hospital the night of 21 February 1980, but that Bailey did not say anything about how he felt. Sometime after 21 February 1980, she again saw Bailey at Person County Hospital at which time Bailey stated that he would \u201cbe okay.\u201d\nIn Hamlette I the Supreme Court stated:\nThe wounds, the time and the surroundings were such that a man could justifiably believe his death was imminent and believe he had no hope of recovery. The fact that Bailey lingered for several days does not render his statement inadmissible.\n302 N.C. at 497, 276 S.E. 2d at 343.\nIn the case sub judice the trial court held that Bailey\u2019s statements to Ashley on the evening of 21 February 1980, were admissible as dying declarations and his later statements to Ashley on 22 February 1980 were admissible to corroborate the earlier dying declarations.\nThe evidence presented upon retrial is virtually identical to that presented in Hamlette I. The trial court\u2019s ruling is consistent with the Supreme Court\u2019s decision in Hamlette I. The fact that Bailey indicated some hope of recovery on a date after having previously given a statement qualifying as a dying declaration, does not preclude the earlier statement from qualifying as a dying declaration. State v. Hamlette, supra, citing State v. Harding, 291 N.C. 223, 230, 230 S.E. 2d 397, 401 (1976). The defendant\u2019s assignment of error is without merit.\nIll\nDefendant next contends that the court erred in excluding testimony from Det. Clayton as to the identity of the person on the telephone line being used by Bailey at the time he was shot.\nOn direct examination Det. Clayton testified that after Bailey was removed from the scene he observed the damage to the telephone booth Bailey was using and noticed that the telephone receiver was hanging from the hook. On cross-examination Clayton testified that he picked up the receiver and discovered that someone was on the line, that he identified himself and the other person then identified herself. Defense counsel sought to have Clayton testify to the name the person identified herself by. The court sustained the State\u2019s objection. Defendant\u2019s motion to include Clayton\u2019s answer into record was allowed. In the jury\u2019s absence Clayton testified, \u201cShe said she was Debbie Moss.\u201d He admitted he had never talked to Debbie Moss on the telephone before, did not know or recognize her voice and did not know if in fact it was Debbie Moss on the telephone. Det. Clayton testified further that he never interviewed anyone named Debbie Moss.\nAt the conclusion of this hearing, the court again sustained the objection. The jury was returned to the courtroom and the defense was permitted to conclude its cross-examination of Det. Clayton. Lt. Melvin Ashley was called as the State\u2019s next witness. The State sought to introduce Bailey\u2019s statements to Ashley shortly after the shooting as dying declarations.\nThe court again conducted voir dire during which Debbie Moss testified for the defendant. She testified that she heard gunshots on the night in question while talking on the phone with Bailey. She stayed on the phone for a while. Someone spoke and identified himself as Det. Steve Clayton and she then identified herself. Det. Clayton told her to \u201ccome to town.\u201d Moss went to Person County Memorial Hospital and talked to Bailey. Defendant further examined Moss regarding statements Bailey purportedly made to her regarding how he felt.\nDefendant\u2019s examination of Moss during Lt. Ashley\u2019s voir dire was to show that (1) she went to Person County Memorial Hospital shortly after the shooting, (2) she talked to Bailey and (3) at the time she talked to Bailey he had hopes of survival. The State was attempting to introduce Bailey\u2019s statements to Lt. Ashley as dying declarations, while defendant was seeking to have Bailey\u2019s statements to Ashley excluded.\nDefendant argues that Moss\u2019 testimony given during Ashley\u2019s voir dire establishes the identity of the person Det. Clayton talked to on the telephone shortly after the shooting, and that the court therefore erred in excluding Clayton\u2019s testimony that the person identified herself as \u201cDebbie Moss\u201d as hearsay.\nBefore a witness may relate what he heard during a telephone conversation with another person, the identity of the person with whom the witness was speaking must be established. The identity of the person may be established by testimony that the witness recognized the other person\u2019s voice, or by circumstantial evidence. State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975).\nDefendant is correct that Moss\u2019 testimony establishes the identity of the person with whom Det. Clayton spoke to by telephone shortly after the shooting. However, this evidence was presented during the voir dire hearing regarding Lt. Ashley\u2019s testimony and did not relate back to the examination of Det. Clayton. At the time defendant presented this evidence as to the identity of Debbie Moss, all examination of Det. Clayton had concluded, the court had reaffirmed its ruling and the State had called and was examining its next witness regarding other matters. At no time after the court\u2019s ruling and after Moss\u2019 testimony did defendant request the court to reconsider its earlier ruling. We hold that the court\u2019s ruling was correct. This assignment of error is without merit.\nIV\nBy assignments of error 6, 7, 8 and 11, defendant contends that the court erred in excluding certain testimony from the defendant and Lieutenant Donnell Clayton concerning statements made to them by Earl Torain.\nDefendant testified it was not he, but Earl Torain who shot Bailey. Further, that while he was driving his car north on U.S. 501 Torain, who was in the passenger\u2019s seat, directed defendant to turn around and enter the Convenience Corner parking lot. Defendant did so without any knowledge of Torain\u2019s intention to shoot someone. Defendant testified Torain shot Bailey without warning.\nDefendant argues that certain testimony excluded by the trial court would show that Torain possessed ill will toward Bailey and a motive to shoot him.\nDefendant was allowed to testify that on the Monday night before the Thursday shooting, he drove Torain to Debbie Moss\u2019 house. Torain entered the house while defendant remained in the car. Approximately five minutes later Torain returned to the car, followed by Bailey who was holding a shotgun. Defendant and Torain drove away. The trial court excluded testimony that Torain stated as they left, \u201cLet\u2019s go, but he won\u2019t always have the ups on me like this.\u201d The court also would not permit defendant to testify that on the night of the shooting, Earl Torain stated, \u201cWillard Bailey thinks he\u2019s running things down at Debbie\u2019s house.\u201d Defendant was allowed to testify that he and Torain drove past the Convenience Corner. The trial court excluded testimony that Torain stated to defendant, \u201cturn around and go back, that\u2019s the man I want to see.\u201d Defendant was allowed to testify that as they drove toward the Convenience Corner, they stopped at the Foodliner where Torain attempted to make a telephone call. The trial court excluded defendant\u2019s testimony that Torain stated, \u201cthe line was busy now, we\u2019ll try another booth before we get there, before we get to Debbie Moss\u2019 house.\u201d Defendant was allowed to testify that immediately after the shooting he stopped at Roy Paylor\u2019s place where Torain got out and left with the gun. Defendant went home and shortly after he arrived home Torain came to his apartment and made a statement to him. The trial court excluded defendant\u2019s testimony that Torain told him, \u201cBe cool, don\u2019t say nothing, everything is under control.\u201d\nLt. Ashley was allowed to testify that on 28 February 1980 he talked to Torain. Torain told him that on the night of the shooting Hamlette drove the car, turned it around, pulled up to the telephone booth and shot the victim. After the shooting, Torain got out of the car at Roy Paylor\u2019s place and ran.\nDet. Steve Clayton and Lt. Donnell Clayton testified that Earl Torain was also arrested and charged with the shooting. Lt. Clayton testified further that he and Lt. Ashley talked to Torain on a Thursday shortly after the shooting. They asked him about the gun and told him they needed it. The trial court then excluded the following testimony of Lt. Clayton:\nA. I think after he finished giving the statement, I told him that we needed the gun and I asked him did he think that he could get the gun, and he said that he didn\u2019t \u2014 he didn\u2019t know, he\u2019d try.\nQ. Did he tell you where he had found the gun?\nA. He told me that he found the gun in the ditch not far from an old place called the Chicken Shack on the Clay Road where he thought that the subject, where he thought Hamlette threw the gun out.\nQ. All right. Did he tell you how long the gun had been in his possession?\nA. He told me when he called me that he had just got back to the house after he had found the gun, so evidently he just found it then.\nLt. Donnell Clayton was then allowed to testify that on 6 March 1980 Torain called and informed him that he had the gun and on that same date Torain delivered the gun to him. The gun was wrapped in a towel. Both were in a brown paper bag.\nDefendant contends this excluded evidence corroborates his version of the shooting that Torain is the guilty party and its exclusion was prejudicial to the defendant. We agree.\nThe applicable principles of law regarding the introduction of evidence tending to show that someone other than the defendant committed the crime charged are stated in Hamlette I.\nA defendant may introduce evidence tending to show that someone other than defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another\u2019s guilt is inadmissible . . . (Citations omitted.) \u201c[T]he admissibility of another person\u2019s guilt now seems to be governed, as it should be, by the general principle of relevancy under which the evidence will be admitted unless in the particular case it appears to have no substantial probative value.\u201d 1 Stansbury\u2019s N.C. Evidence, \u00a7 93 at 302-03 (Brandis rev. 1973).\n302 N.C. at 501, 276 S.E. 2d at 346.\nThe excluded evidence goes beyond inference or conjecture. It is all relevant as direct or corroborative evidence pointing directly to Torain as the guilty party and should have been admitted. Its exclusion was prejudicial error.\nV\nDefendant next contends that the trial court committed error in the admission of negative testimony by Det. Clayton and Lt. Clayton.\nOver defendant\u2019s objection, Det. Clayton testified that in the course of his investigation he was not able to establish that Earl Torain had taken any part in the killing of Willard Bailey; nor was he able to determine exclusively whether the gun in evidence had anything to do with the death of Willard Bailey.\nOver defendant\u2019s objection, Lt. Clayton testified that in the course of his investigation he never found any evidence to establish that Earl Torain had shot Willard Bailey.\nDefendant argues that the testimony was inadmissible as negative evidence and as an improper expression of opinion on the ultimate facts of the case. The State contends the witnesses were qualified to testify concerning information within their own knowledge resulting from their own investigations.\nOur courts have defined negative evidence as testimony that an alleged fact does not exist. Johnson & Sons, Inc. v. R.R. and Johnson v. R.R., 214 N.C. 484, 199 S.E. 704 (1938). See also Black\u2019s Law Dictionary, 4th Ed., Rev. 1968. In allowing negative testimony that a deceased did not have large sums of money, this Court stated:\nNegative evidence is not inadmissible merely because it is negative . . . Upon a showing that a witness was in a position to know of the existence of a fact had it been true, negative testimony as to the nonexistence of the fact is not incompetent . . . There was testimony tending to show that both witnesses were familiar with decedent\u2019s financial condition and were in a position to know whether decedent possessed large sums of money on the days in question. The weight to be accorded this negative testimony was a question for the jury. (Citations omitted.)\nArcher v. Norwood, 37 N.C. App. 432, 435, 246 S.E. 2d 37, 40 (1978). In State v. Tedder, 258 N.C. 64, 66, 127 S.E. 2d 786, 787 (1962) the court stated:\n[A] witness is not competent to testify as to the nonexistence of a fact when his situation with respect to the matter is such that the fact might well have existed without the witness being aware of it.\nA similar principle is stated in Vann v. Hayes, 266 N.C. 713, 716, 147 S.E. 2d 186, 188 (1966). The question subject to negative testimony concerned whether headlights were burning on a car. The court stated:\nWith respect to negative evidence, that is, that one did not see or one did not hear, it was meaningless if the non-seeing or non-hearing are equally consistent with the occurrence of the events themselves. The showing that a witness was in a position to hear or see or would have heard or would have seen is a prerequisite to the admissibility of negative evidence that the witness did not hear or see. In the absence of such preliminary showing negative testimony does not possess sufficient probative force to require its submission to a jury.\nThe testimony objected to here is negative testimony. The essential question therefore, is whether the officers\u2019 position with respect to the matter was such that they would have known of the existence of the fact had it been true.\nThe record shows that Det. Clayton\u2019s investigation and Lt. Clayton\u2019s involvement in the case were limited. When Det. Clayton arrived at the scene of the shooting, Officer Betterton informed him as to matters Bailey stated to her. Det. Clayton then spoke with Bailey, who corroborated Betterton\u2019s report. Shortly after midnight he obtained arrest warrants for Hamlette and Torain on charges of assault with a deadly weapon inflicting serious injury with intent to kill. He arrested Hamlette during the early morning hours of 22 February 1980, but was unable to locate Torain. Torain was subsequently arrested, but Det. Clayton did not participate in his arrest. Det. Clayton searched Hamlette\u2019s car and apartment and found no evidence connected to the crime. On 6 March 1980 he received a bag containing a towel and a .32 caliber pistol from Lt. Clayton and sent this evidence to the SBI for analysis. The Roxboro Police Department failed to test the gun for fingerprints and no paraffin tests were performed on Hamlette. Det. Clayton did not know how Lt. Clayton obtained the gun.\nIn late February 1980 Torain approached Lt. Clayton to talk to him about the shooting. He directed Torain to Lt. Ashley who was the assigned investigating officer in the case. Lieutenants Clayton and Ashley interrogated Torain, who stated that Hamlette shot Bailey. On 6 March 1980 Torain gave Lt. Clayton a bag containing a towel and a .32 caliber pistol. Lt. Clayton delivered the bag and its contents to Det. Clayton. Lt. Clayton was unable to identify the pistol at the time of the retrial.\nThe extent of Det. Clayton\u2019s investigation and Lt. Clayton\u2019s involvement in this case was insufficient to form an adequate basis for admission of their negative testimony. Neither Det. Clayton nor Lt. Clayton, without relying upon statements made by others, was in a position to know first hand that Torain did or did not take part in the shooting or that the gun in evidence was or was not the weapon used in the shooting. This particular negative testimony was inadmissible hearsay evidence in that its value for truthfulness depended in part upon the veracity or competency of some other person. The negative testimony was also inadmissible because it was no more than conjecture and speculation. The admission of this evidence was prejudicial error.\nIn light of our holding that the evidence was improperly admitted, we do not find it necessary to address defendant\u2019s other assignments of error regarding this testimony.\nDefendant is entitled to a new trial.\nNew trial.\nChief Judge MORRIS and Judge BECTON concur.\n. This statement is virtually the same as evidence excluded in the first trial which the Supreme Court held was prejudicial error to exclude. 302 N.C. at 500-02, 276 S.E. 2d at 345-46.\n. Lieutenant Clayton was not an investigator in the case. The question asked of him assumed that he was an investigator when in fact he was not. His only involvement was to direct Torain to Lt. Ashley, the assigned investigator, whom Lt. Clayton assisted in taking a statement from Torain and to deliver a bag and its contents to Detective Clayton.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Daniel C. Oakley, for the State.", "Ramsey, Hubbard & Galloway, by Mark Galloway, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM EDWARD HAMLETTE\nNo. 829SC102\n(Filed 18 January 1983)\n1. Criminal Law \u00a7 73.4\u2014 victim\u2019s statements to police \u2014admissibility as res gestae\nIn a prosecution for second degree murder, the trial court correctly admitted into evidence as part of the res gestae certain statements made by the victim to police officers shortly after he was shot. The prosecution was a retrial of defendant\u2019s case, and the Supreme Court had found the victim\u2019s statements admissible in defendant\u2019s first trial. The only additional evidence defendant offered upon retrial was that the victim had visited the defendant and his accomplice or both on different occasions; however, that evidence did not indicate that the victim was untruthful when he stated he did not know where defendant and his accomplice lived.\n2. Homicide \u00a7 16.1\u2014 dying declaration \u2014 later statement indicating hope of recovery\nThe fact that a victim indicated some hope of recovery on a date after having previously given a statement qualifying as his dying declaration, did not preclude the earlier statement from qualifying as a dying declaration.\n3. Criminal Law \u00a7 69\u2014 telephone conversation \u2014 identity of person on other end of telephone inadmissible\nIn a prosecution for second degree murder where the victim was shot while speaking on the telephone in a telephone booth, and where an investigating officer testified that he picked up the receiver and discovered that someone was on the line, that he identified himself and the other person then identified herself, the trial court correctly sustained the State\u2019s objection as to the other person\u2019s identity since the officer admitted he had never talked to the other person on the telephone before, did not know or recognize her voice and did not know if in fact it was the person identified on the telephone.\n4. Criminal Law \u00a7 35\u2014 offense committed by another \u2014 evidence corroborating defendant\u2019s version improperly excluded\nThe trial court improperly excluded the testimony of two officers which tended to show that the person who defendant contended committed the murder he was charged with found the gun and delivered the weapon to the officers after being instructed to do so. The excluded evidence corroborates defendant\u2019s version of the shooting that the other person was the guilty party and its exclusion was prejudicial to the defendant.\n5. Criminal Law \u00a7 35\u2014 negative evidence that crime not committed by another \u2014inadmissible\nThe trial court erred in allowing a detective and a lieutenant to testify that in the course of their investigations they were unable to establish that the person who defendant had said shot the victim had taken any part in the killing of the victim since the extent of their involvement in the case was insufficient to form an adequate basis for admission of their negative testimony. Neither the detective nor the lieutenant, without relying upon statements made by others, was in a position to know first hand that the person whom defendant accused of shooting the victim did or did not take part in the shooting or that the gun in evidence was or was not the weapon used in the shooting.\nAppeal by defendant from Hob good, Judge. Judgment entered 4 September 1981 in Superior Court, PERSON County. Heard in the Court of Appeals 13 September 1982.\nThe present appeal is the second appeal of this case. In State v. Hamlette, 302 N.C. 490, 276 S.E. 2d 338 (1981) (\u201cHamlette D, defendant was found guilty of murder in the first degree of Willard Lawrence Bailey. The Supreme Court reversed the conviction for erroneous exclusion of evidence offered by the defendant tending to show that it was not the defendant, but State\u2019s witness \u2014 Earl Torain \u2014 who shot Bailey. On retrial, defendant was found guilty of second degree murder. From the conviction and judgment, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Daniel C. Oakley, for the State.\nRamsey, Hubbard & Galloway, by Mark Galloway, for defendant appellant." }, "file_name": "0306-01", "first_page_order": 338, "last_page_order": 352 }