{
  "id": 8358157,
  "name": "STATE OF NORTH CAROLINA v. CLIFFORD DEAN KERLEY",
  "name_abbreviation": "State v. Kerley",
  "decision_date": "1987-10-06",
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    "judges": [
      "Chief Judge Hedrick and Judge Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CLIFFORD DEAN KERLEY"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nOn 2 January 1986 while on patrol, Trooper Tom Brooks of the North Carolina State Highway Patrol, was dispatched at 5:47 p.m. to the scene of a fire on East Main Avenue in Taylorsville. He arrived on the scene minutes later to find the house fire extinguished and a smouldering mattress laying in the front yard.\nBrooks was familiar with the house and described it in his testimony as a residence frequently occupied by street people. After a brief conversation with the fire chief in the front yard, Brooks proceeded toward the front steps of the house.\nAt that moment Howard Warren ran up to Brooks. According to the trooper:\nHoward [who Brooks knew frequently occupied the house] was extremely excited. ... He told me that Clifford Kerley [defendant] had tried to burn him while he was inside asleep. ... He said that he had been inside the residence; that he had gone to sleep; and that Clifford Kerley had poured some fuel oil . . . and set it on fire and had left.\nAlthough the State did not produce the declarant Howard Warren at trial, it sought to admit Brooks\u2019 testimony about what Warren had told him, in order to establish the origin of the fire.\nDefendant claims the trial court erred by admitting Warren\u2019s out-of-court statement to Trooper Brooks without presenting Warren at trial for cross-examination. The statement, according to defendant, constituted prejudicial hearsay and should have been excluded under N.C.G.S. \u00a7 8C-1, Rule 802. Moreover, defendant claims the trial court denied his right to confront the witness against him guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 23 of the North Carolina Constitution.\nWe now address defendant\u2019s argument that Howard Warren\u2019s out-of-court statement should have been excluded as inadmissible hearsay.\nThe statement complained of by defendant clearly qualifies as hearsay. It was made by someone other than the declarant while testifying at trial and offered in evidence to prove defendant intentionally started the fire. Thus, it is inadmissible unless encompassed by an exception to the hearsay rule. N.C.G.S. \u00a7 8C-1, Rules 801(c), 803, 804 (1986).\nWhen the trial court admitted Warren\u2019s out-of-court statement it did not specify which exception applied. The State now contends both the present sense impression and the excited utterance exceptions apply. We hold that Warren\u2019s statement falls within the excited utterance exception. This exception provides:\nExcited Utterance. \u2014A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\nN.C.G.S. \u00a7 8C-1, Rule 803(2) (1986).\nWarren\u2019s statement satisfies the first requirement for admission as an excited utterance; it was a statement relating to a startling event or condition, in this case, escaping from a burning building. We conclude the second requirement was also met; it was made under the stress of excitement caused by the event.\nDefendant argues that the second requirement was not satisfied. He states that more than fifteen minutes transpired between the time the fire started and Warren\u2019s statement to Trooper Brooks. (The State maintains only eight minutes passed.) This fifteen minute delay, according to defendant, precluded the possibility that the statement was made spontaneously under the stress of excitement caused by the event. Defendant contends Warren calmed down during this delay, thus making the statement a narrative that was not so spontaneous as to preclude the likelihood of reflection and fabrication.\nWe acknowledge the critical importance of the time factor in determining whether a statement was made under the stress of excitement caused by an event or condition. The Official Commentary to N.C.G.S. \u00a7 8C-1, Rule 803(2) states:\nWith respect to the time element . . . the standard measurement is the duration of the state of excitement. \u2018How long can excitement prevail? Obviously there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor.\u2019\nIn this case we cannot conclude that Warren no longer acted under the stress of excitement caused by the fire, when he made the statement to Brooks.\nWarren was apparently asleep in the house when defendant allegedly poured fuel oil or kerosene throughout the residence, including the mattress where Warren slept, and ignited the oil. Moreover, Trooper Brooks\u2019 uncontradicted testimony showed Warren continued to be very upset and excited for a considerable time after telling Brooks how the fire started.\nThe entire time until I got him in my patrol car, he was very excited. I had to tell him to calm down and take a minute; that I wanted to get a statement from him, \u2018and write it exactly down the way you give it to me.\u2019 At that time I told him to just sit there. I got out of my patrol car and came back; and, at that point, he was calm enough for me to get a written statement from him.\nUnder these circumstances, Warren\u2019s out-of-court statement to Brooks falls squarely within the excited utterance exception to the hearsay rule regardless of whether it was made fifteen or eight minutes after the fire started.\nIn his final argument defendant contends the trial court denied his Sixth Amendment right of confrontation by admitting Warren\u2019s out-of-court statement without presenting Warren as a witness at trial. We agree.\nThe Confrontation Clause of the Sixth Amendment of the United States Constitution provides that \u201c[i]n all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .\u201d The United States Supreme Court has, however, recognized an exception to this rule. Hearsay is admissible against a criminal defendant provided the declarant is unavailable to testify and the statement is attended by adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 65 L.Ed. 2d 597, 608 (1980).\n\u201c[A] witness is not \u2018unavailable\u2019 for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial. Barber v. Page, 390 U.S. at 724-25, 20 L.Ed. 2d at 260 (emphasis added).\u201d State v. Grier, 314 N.C. 59, 65, 331 S.E. 2d 669, 673 (1985). Whether the prosecutor has made a good-faith effort to produce the witness is a question of reasonableness. California v. Green, 399 U.S. 149, 189, n. 22, 26 L.Ed. 2d 489, 514, n. 22 (1970) (Harlan, J., concurring); State v. Grier, 314 N.C. at 65, 331 S.E. 2d at 674.\nAfter thoroughly examining the transcript and record, we find no evidence of a good-faith effort to produce Howard Warren at trial. The only reference to Warren\u2019s whereabouts during the trial was made by State\u2019s witness Detective Ray Warren during direct examination.\nQ. Do you know, of your own knowledge, where Howard Warren is today?\nA. In the Broughton State Hospital.\nQ. Do you know why he is there?\nMR. Parker [defense counsel]: Objection.\nCOURT: Overruled.\nA. He suffered an injury to his head and was taken first to Baptist Hospital and then was transferred to Broughton Hospital.\nQ. And do you know, of your own knowledge, what his condition is?\nMr. PARKER: Objection.\nCOURT: Overruled.\nA. Only what I have been told by the medical staff there.\nCOURT: Objection sustained.\nThis testimony does not show what steps were taken, if any, to produce Howard Warren at trial. Nor does it show that he was unable to testify. It shows only that Howard Warren was in Broughton Hospital with a head injury. We do not know how critical an injury he suffered, how long he was hospitalized, and whether he was physically or mentally capable of testifying.\nThe State maintains that evidence of Howard Warren\u2019s physical and mental condition was kept out of evidence as a result of defendant\u2019s objections to certain questions intended to provide an explanation. This is not a sufficient basis. The testimony Detective Warren was prepared to offer concerning what he had been told by doctors treating Warren was properly excluded.\nIn order to use Brooks\u2019 testimony about Warren\u2019s statements, the State has the burden of showing it took reasonable measures in a good-faith effort to produce Warren at trial. State v. Grier, 314 N.C. at 65, 331 S.E. 2d at 673-674. It must do so with competent evidence. Testimony from Warren\u2019s treating physician or other health care provider with adequate personal knowledge of Warren\u2019s condition could have satisfied the State\u2019s burden, if in fact Warren was unable to testify.\nThe admission of this testimony into evidence was clearly prejudicial to defendant\u2019s case. Although there was some additional evidence from which a jury could have convicted defendant, the incriminating testimony of an eyewitness as retold by a highway patrolman could have substantially affected the outcome of this trial. Defendant is entitled to the right to cross-examine the witness against him unless the State clearly shows an unsuccessful good-faith effort to produce the witness.\nBecause no evidence was presented to show that the State made such a good-faith effort to produce Howard Warren at trial, we are compelled to hold that portion of Trooper Brooks\u2019 testimony as inadmissible. The judgment of the trial court is hereby vacated and the cause is remanded for a new trial.\nRemanded for a new trial.\nChief Judge Hedrick and Judge Arnold concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General James E. Magner, Jr., for the State.",
      "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CLIFFORD DEAN KERLEY\nNo. 8722SC196\n(Filed 6 October 1987)\n1. Criminal Law \u00a7 73.4\u2014 arson \u2014statement of occupant of building \u2014 hearsay \u2014excited utterance\nThe trial court did not err in an arson prosecution by admitting a statement made at the scene to a highway patrolman where the statement fell within the excited utterance exception to the hearsay rule in that it related to a startling event or conclusion, and, even though defendant alleged that the statement was made fifteen minutes after the fire started, the trooper\u2019s uncon-tradicted testimony showed that the declarant continued to be upset and excited for a considerable time after telling him how the fire started. N.C.G.S. \u00a7 8C-1, Rule 803(2).\n2. Constitutional Law \u00a7 65\u2014 admission of out-of-court statement \u2014 no showing of good faith effort to produce witness\nThe trial court violated defendant\u2019s Sixth Amendment right to confrontation in an arson prosecution by admitting an out-of-court statement where the witness was not present at trial and the State produced only a statement by a detective that he had been told that the witness was in Broughton Hospital with a head injury. The testimony did not show what steps were taken to produce the witness at trial, and did not show that he was unable to testify.\nAPPEAL by defendant from Freeman, Judge. Judgment entered 15 October 1986 in Superior Court, ALEXANDER County. Heard in the Court of Appeals 2 September 1987.\nDefendant was charged in a proper bill of indictment with first-degree arson. He was convicted of that offense, and sentenced to thirty years imprisonment, from which he appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General James E. Magner, Jr., for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant appellant."
  },
  "file_name": "0240-01",
  "first_page_order": 268,
  "last_page_order": 273
}
