{
  "id": 8523579,
  "name": "STATE OF NORTH CAROLINA v. EARNEST LEE MARKHAM",
  "name_abbreviation": "State v. Markham",
  "decision_date": "1986-04-15",
  "docket_number": "No. 851SC1035",
  "first_page": "322",
  "last_page": "324",
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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  "cites_to": [
    {
      "cite": "337 S.E. 2d 833",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
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    {
      "cite": "315 N.C. 76",
      "category": "reporters:state",
      "reporter": "N.C.",
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        4715827
      ],
      "year": 1985,
      "opinion_index": 0,
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        "/nc/315/0076-01"
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  "last_updated": "2023-07-14T15:01:08.586003+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Hedrick and Judge MARTIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. EARNEST LEE MARKHAM"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nIn his sole assignment of error, defendant contends that the trial court erred in allowing Delores White to give hearsay testimony. During direct examination, White related her pursuit of the thief. In doing so, she was allowed to testify, over defendant\u2019s objection, that when she lost sight of the man she was pursuing, a nearby woman yelled at her and asked what she (White) was doing. When White explained that she was looking for a man with some suits that he had taken from the store \u201cshe said that he had gone in the lot. She pointed towards the lot behind Perry Apartments.\u201d Defendant contends that such testimony was hearsay, should not have been allowed and was sufficiently prejudicial to require a new trial. We disagree and find no error.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803 of the Rules of Evidence provides, in pertinent part:\nRule 803. Hearsay exceptions; availability of declarant immaterial.\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n(1) Present Sense Impression. \u2014 A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.\n(2) Excited Utterance. \u2014 A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\nAssuming that the statement objected to was arguably hearsay, we nevertheless hold that this statement was admissible under either of the above two exceptions. As Professor Brandis has observed, the trustworthiness of such an utterance \u201clies in its spontaneity \u2014 the unlikelihood of fabrication because the statement is made in immediate response to the stimulus of the occurrence and without opportunity to reflect . ...\u201d 1 Brandis, N.C. Evidence \u00a7 164 (2d rev. ed. 1982). The official commentary to the Rules of Evidence is in the same vein:\nThe present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant at the trial even though he may be available.\nThe underlying theory of Exception (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation .... The theory of Exception (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication .... Spontaneity is the key factor in each instance . . . .\nFor the reasons stated, defendant\u2019s assignment of error is overruled and we find no error in the trial.\nNo error.\nChief Judge Hedrick and Judge MARTIN concur.\n. With respect to- Exception (2), our Supreme Court has used the McCormick on Evidence standard, i.e., that for such utterance to qualify under Exception (2) there must be (11 a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication. See State v. Smith, 315 N.C. 76, 337 S.E. 2d 833 (1985).",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General David E. Broome, Jr., for the State.",
      "Acting Appellate Defender Malcolm Ray Hunter, Jr., by David W. Dorey, Assistant Appellate Defender, for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. EARNEST LEE MARKHAM\nNo. 851SC1035\n(Filed 15 April 1986)\nCriminal Law \u00a7 73.4\u2014 whereabouts of thief during pursuit \u2014 excited utterance exception to hearsay rule\nIn a prosecution of defendant for felonious larceny, the trial court did not err in allowing a witness, who related her pursuit of the thief, to testify as to what a bystander told her with regard to the thiefs whereabouts, since the testimony was admissible under the present sense impression and excited utterance exceptions to the hearsay rule. N.C.G.S. 8C-1, Rule 803(1) and (2).\nAPPEAL by defendant from Watts, Judge. Judgment entered 15 May 1985 in PASQUOTANK County Superior Court. Heard in the Court of Appeals 10 March 1986.\nDefendant was convicted of felonious larceny. At trial, the State\u2019s evidence tended to show that on 14 January 1985, Delores White was employed at an Elizabeth City clothing store. At about 3:00 p.m., White observed a man leaving the store with clothing over his arm. She had not previously observed the man in the store nor had she sold him any clothing. White asked another employee to call the police, then pursued the man into the street. During the pursuit, the man dropped some of the clothing. When White stopped to pick up the dropped clothing, the man disappeared. White subsequently returned to the store where she talked with Officer Cutrell, telling him what had happened. At trial, White identified defendant as the thief.\nTyrone Sutton observed defendant running down a street near the clothing store near the time of the theft. Defendant was carrying an armful of suits. Sutton observed defendant run into a parking lot and place the suits under a car. Sutton saw White and told her defendant was the person she wanted. Sutton later identified defendant as the thief to Officer Cutrell.\nOfficer Cutrell went to the clothing store in response to a call. There, he interviewed White and Sutton. White gave a description of the thief and Sutton told Cutrell of seeing defendant running with the suits and placing them under a car in a nearby parking lot. Cutrell went to the lot and recovered the suits.\nDefendant did not offer evidence.\nFrom judgment entered on the jury\u2019s verdict of guilty, defendant has appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General David E. Broome, Jr., for the State.\nActing Appellate Defender Malcolm Ray Hunter, Jr., by David W. Dorey, Assistant Appellate Defender, for the defendant-appellant."
  },
  "file_name": "0322-01",
  "first_page_order": 350,
  "last_page_order": 352
}
