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      {
        "text": "SHARP, Chief Justice.\nPrior to trial defendant moved to exclude testimony by Officers Wallace and Sharpe with reference to any statements which Belk made to them in the hospital. The grounds assigned were: (1) that the statements failed to meet the requirements of N.C. G.S. 8-51.1 (Cum. Supp. 1977) and our case law for the admission of dying declarations; and (2) that the admission of a decedent\u2019s dying declaration denied defendant the right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. After conducting a voir dire the court ruled that the challenged statements met the requirements for dying declaration and denied the motions to suppress. Assignment of error No. 3 challenges this ruling.\n\u201cDying declarations\u201d by the person whose death is an issue in the case have long been admissible in North Carolina provided (1) At the time they were made the declarant was in actual danger of death; (2) he had full apprehension of the danger; (3) death did in fact ensue; and (4) declarant, if living, would be a competent witness to testify to the matter. See, e.g., State v. Poll, 8 N.C. 442, 9 Am. Dec. 655 (1821); State v. Thomason, 46 N.C. 274 (1854); State v. Jordan, 216 N.C. 356, 5 S.E. 2d 156 (1939); State v. Crump, 277 N.C. 573, 178 S.E. 2d 366 (1971). In 1973, the General Assembly codified the essentials of those requirements in G.S. 8-51.1 which made the \u201cdying declarations of a deceased person regarding the cause or circumstances of his death\u201d admissible in all tribunals \u201csubject to proof that: (1) At the time of the making of such declaration the deceased was conscious of approaching death and believed there was no hope of recovery; (2) Such declaration was voluntarily made.\u201d\nDefendant does not contend that Belk\u2019s statements were involuntary. Rather, his contention is that the evidence was insufficient to support the trial judge\u2019s finding that when Belk spoke with Officer Wallace and Detective Sharpe he was \u201cconscious of approaching death and believed there was no hope of recovery.\u201d The admissibility of these declarations was a decision for the trial judge, and our review is limited to the narrow question of whether there was any evidence tending to show the factual prerequisites to admissibility. State v. Bowden, 290 N.C. 702, 712, 228 S.E. 2d 414, 421 (1976); State v. Gordon, 241 N.C. 356, 362, 85 S.E. 2d 322, 326 (1955); State v. Stewart, 210 N.C. 362, 370, 186 S.E. 488, 492 (1936); 1 Stansbury\u2019s North Carolina Evidence \u00a7 146 (Brandis rev. 1973).\nIn State v. Bowden, supra, and in State v. Cousin, 291 N.C. 413, 230 S.E. 2d 518 (1976), we noted, without deciding, that the words \u201cno hope of recovery\u201d in the statute might make the statutory exception to the hearsay rule more restrictive than existing case law. We have now concluded that the statutory prerequisites that the deceased must have been \u201cconscious of approaching death and believed that there was no hope of recovery\u201d do not change our case-law requirements that in order to be admissible the declarations of a decedent must have been \u201cin present anticipation of death.\u201d State v. Brown, 263 N.C. 327, 139 S.E. 2d 609 (1965). See State v. Bowden, 290 N.C. 702, 712, 228 S.E. 2d 414, 421 (1976). See also 1 Stansbury\u2019s North Carolina Evidence \u00a7 146 at 488, n. 17 (Brandis rev. Supp. 1976) where Professor Brandis expressed this view. As the rule is commonly stated in the opinions of the Court, declarant must have been \u201cin actual danger of death\u201d and have had \u201cfull apprehension of his danger.\u201d State v. Jordan, 216 N.C. 356, 362, 5 S.E. 2d 156, 159 (1939). Further, \u201c[i]t is not necessary that the declarant should be in the very act of dying; it is enough if he be under the apprehension of impending dissolution.\u201d State v. Dalton, 206 N.C. 507, 513, 174 S.E. 422, 426 (1934). Stated in simpler terms, it is enough if he \u201cbelieved he was going to die.\u201d State v. Tate, 161 N.C. 280, 282, 76 S.E. 713, 714 (1912). Accord, State v. Bright, 215 N.C. 537, 2 S.E. 2d 541 (1939); State v. Boggan, 133 N.C. 761, 763, 46 S.E. 111, 114 (1903). Obviously, if one believes he is going to die he believes there is \u201cno hope of recovery.\u201d This common law and statutory requirement rests upon the tenent that when an individual believes death to be imminent, the ordinary motives for falsehood are absent and most powerful considerations impel him to speak the truth. The solemnity of approaching death \u201cis considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.\u201d State v. Jordan, supra at 363, 5 S.E. 2d at 160. Plenary evidence in the record supports the court\u2019s finding that Belk was conscious of approaching death and believed there was no hope of recovery. \u201cThis [consciousness] may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the communications, if any, made to him by his medical advisers, if assented to or understandingly acquiesced in by him.\u201d Mattox v. United States, 146 U.S. 140, 151, 36 L.Ed. 917, 921, 13 S.Ct. 50, 54 (1892). See State v. Stewart, 210 N.C. 362, 369, 186 S.E. 488, 492 (1936). Accord, State v. Bowden, 290 N.C. 702, 228 S.E. 2d 414 (1976); State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322 (1955); State v. Rick, 231 N.C. 696, 58 S.E. 2d 717 (1950). Belk had burns over 99 percent of his body and most were third-degree burns. His attending physician had told him explicitly that while he might live three weeks, he would not live to leave the hospital.\nThe circumstances attending Belk\u2019s declarations were such that he must have known death was impending. Although the tubes in his nose and throat necessitated by his injuries prevented him from speaking, Belk clearly and unequivocally communicated to Detective Sharpe his knowledge that he was so badly burned he was going to die. Defendant, however, insists that Belk\u2019s declarations should have been excluded because they were made in response to leading questions. Ceratinly the questions which the detective propounded were leading. However, it is pertinent to note that could all the circumstances accompanying Belk\u2019s interrogation by the detective have been repeated at the trial below, the judge undoubtedly would have permitted the district attorney to examine Belk similarly. See State v. Greene, 285 N.C. 482, 492, 206 S.E. 2d 229, 235-36 (1974). Further, the qualifying questions were not perfunctory to be used \u201cin the event the injured man perchance took a turn for the worse.\u201d They were clearly appropriate in light of Belk\u2019s severe injuries and inability to speak. They were \u201cas nearly spontaneous as declarations by one under the circumstances could be.\u201d See State v. Gordon, 241 N.C. at 362, 85 S.E. 2d at 326.\nNor does the fact that Belk survived one week longer than Dr. Stevens had told him he might live affect the admissibility of his dying declarations. \u201cThe test is the declarant\u2019s belief in the nearness of death when he made the statement, not the actual swiftness with which death ensued.\u201d C. McCormick, Evidence \u00a7 281, at 681 (2d Ed. 1972); State v. Jordan, 216 N.C. 356, 363-64, 5 S.E. 2d 156, 160 (1939).\nDefendant next contends that the admission of dying declarations violated that portion of U.S. Const, amend. VI which guarantees an accused \u201cthe right ... to be confronted with the witnesses against him\u201d and N.C. Const, art. I, \u00a7 23 (1971) (formerly \u00a7 7 of the Bill of Rights, N.C. Const, of 1776), which provides that \u201cevery person charged with crime has the right ... to confront the accusers and witnesses with other testimony. . . .\u201d Albeit a dying declaration is indubitably hearsay and the declarant is, of course, not available for cross-examination, this contention has long since been decided against defendant.\nIn 1850, in the case of State v. Tilghman, 33 N.C. 513, the defendant contended that the confrontation clause of section 7 of the Bill of Rights excluded the admission of dying declarations in evidence. In rejecting this argument Justice Pearson, later Chief Justice, said: \u201cThis section of the Bill of Rights was aimed at the old practice, by which prisoners were not allowed to have witnesses sworn on their behalf, and the testimony came altogether on the part of the crown. Our ancestors did not intend to deny the rule of evidence as to dying declarations, but to assert that in criminal prosecutions prisoners ought to be allowed to have witnesses in their behalf, sworn and examined.\u201d Id. at 554.\nDefendant argues that the rationale of this 128-year-old decision is no longer \u201cviable precedent given the treatment of the right to confrontation/cross-examination by the United States Supreme Court\u201d in its more recent decisions interpreting the sixth amendment. E.g., Pointer v. Texas, 380 U.S. 400, 13 L.Ed. 2d 923, 85 S.Ct. 1065 (1965); Douglas v. Alabama, 380 U.S. 415, 13 L.Ed. 2d 934, 85 S.Ct. 1074 (1965); California v. Green, 399 U.S. 149, 26 L.Ed. 2d 489, 90 S.Ct. 1930 (1970). We need not, however, compare these cases with Tilghman, supra, or discuss its rationale, for it is the federal constitution which controls the decision in this case.\nThe Confrontation Clause of the sixth amendment was made applicable to the states in Douglas v. Alabama, supra. However, we find no conflict in our decisions and those of the United States Supreme Court with reference to the admission of dying declarations in evidence. The opinions of the Supreme Court, before and since Douglas v. Alabama, have made it clear that the constitutional guaranty of confrontation is not coextensive with the hearsay rule. See California v. Green, 399 U.S. 149, 154-56, 26 L.Ed. 2d 489, 495-96, 90 S.Ct. 1930, 1933-34 (1970); Dutton v. Evans, 400 U.S. 74, 80, 27 L.Ed. 2d 213, 222, 91 S.Ct. 210, 215 (1970). Further, the public necessity of preventing secret homicides from going unpunished requires the preservation of this uniquely valuable evidence notwithstanding the inability of the defendant to cross-examine his accuser.\nIn Mattox v. United States, 156 U.S. 237, 243-244, 39 L.Ed. 409, 411, 15 S.Ct. 337, 340 (1894), Mr. Justice Brown, speaking for the Court, said that many of the constitutional provisions \u201cin the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected.\u201d As one such exception he specifically mentioned the admission of dying declarations. \u201cThey are admitted,\u201d he said, \u201cnot in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. . . . [T]he sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath.\u201d\nIn Kirby v. United States, 174 U.S. 47, 61, 43 L.Ed. 890, 896, 19 S.Ct. 574, 579 (1899) (a case in which the thief\u2019s record of conviction was held inadmissible under the Confrontation Clause in the defendant\u2019s trial for receiving stolen property) the Court said: \u201cIt is scarcely necesary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case. This exception was well established before the adoption of the Constitution, and was not intended to be abrogated. The ground upon which such exception rests is that from the circumstances under which dying declarations are made they are equivalent to the evidence of a living witness upon oath. . . .\u201d\nIn writing the opinion in Pointer v. Texas, supra, a case which reached a result similar to Kirby v. United States, Mr. Justice Black was also careful to say: \u201cThis Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States. . . . Nothing we hold here is to the contrary.\u201d 380 U.S. at 407, 13 L.Ed. 2d at 928, 85 S.Ct. at 1069. This statement was repeated in the Court\u2019s decision in Dutton v. Evans, 400 U.S. at 80, 27 L.Ed. 2d at 222, 91 S.Ct. at 215 (1970).\nThe rationale of Mattox and Kirby was reiterated by this Court in State v. Debnam, 222 N.C. 266, 22 S.E. 2d 562 (1942) as follows:\n\u201cThe theory on which dying declarations are excepted from the hearsay rule and admitted in evidence is that the declaration is made under the realization of approaching death, when there is no longer any motive for making a false statement, thus creating a sanction for truth equal to that of an oath. [Citations omitted.] Perhaps a more potent reason, one strong enough to supersede the right of confrontation, so strongly entrenched in our law, is the necessity of preserving important evidence, which often could come from no other source, of the identity of the killer and such circumstances of the killing as come within the range of the exception.\u201d Id. at 268-69, 22 S.E. 2d at 564.\nDefendant\u2019s assignments of error Nos. 4 and 5 are overruled.\nFor the purpose of impeaching Belk\u2019s dying declaration, defendant attempted to introduce Belk\u2019s record of convictions \u2014 one of store breaking and larceny, one of assault with a deadly weapon, and numerous convictions of public drunkness. Defendant also attempted to prove by the testimony of the acting director of the Public Inebriate Program, a treatment center for alcoholics, that Belk was a frequent patient at the center. The court sustained the State\u2019s objection to this evidence and defendant\u2019s assignments 4 and 5 challenge this ruling.\nOnce admitted into evidence, a dying declaration is no different from other testimony. The extent of its credibility is a matter for the jury and it is subject to impeachment or corroboration upon the same grounds and in the same manner as the testimony of a sworn witness. State v. Debnam, 222 N.C. 266, 22 S.E. 2d 562 (1942); State v. Thomason, 46 N.C. 274 (1854); State v. Tilghman, 33 N.C. 513 (1850). See also 1 Stansbury\u2019s North Carolina Evidence \u00a7 146 (Brandis rev. 1973) (hereinafter cited as Stansbury). Thus, evidence of the general character or reputation of a decedent is relevant on the issue of his dying declaration and is admissible to impeach or to sustain the declaration. Stansbury \u00a7\u00a7 107, 114. This is an exception to the usual rule that \u201cevidence as to the general moral character of the deceased is not admissible in a prosecution for homicide.\u201d State v. Vestal, 278 N.C. 561, 580, 180 S.E. 2d 755, 768 (1971), cert. denied, 414 U.S. 874, 38 L.Ed. 2d 114, 94 S.Ct. 157 (1973). See Stansbury \u00a7 106.\nNevertheless, the impeachment of a dying declaration must proceed under the ordinary rules of evidence. Under these rules, for the purpose of impeachment, a party is entitled to introduce evidence only of the general reputation or character of the witness. \u201cTherefore, our courts do not permit the witness to be impeached by independent evidence of particular misconduct.\u201d Specifically, this means that a witness may not \u201cbe impeached by record evidence of his conviction of crime, introduced either in contradiction of his denial thereof, or independently as evidence going to his credibility.\u201d State v. King, 224 N.C. 329, 331, 30 S.E. 2d 230, 231 (1944). See State v. Adams, 193 N.C. 581, 137 S.E. 657 (1927); State v. Cathey, 170 N.C. 794, 87 S.E. 532 (1916); Edwards v. Price, 162 N.C. 243, 78 S.E. 145 (1913); Stansbury \u00a7 111. Under the circumstances of this case, this same rule applies to Belk\u2019s records at the treatment center for alcoholics.\nDefendant argues, however, that had Belk himself been able to testify he could have been cross-examined with reference to his convictions of crime (See State v. Foster, 293 N.C. 674, 239 S.E. 2d 449 (1977); Stansbury \u00a7 112); and that, since such cross-examination is impossible in the case of dying declarations, Belk\u2019s criminal record should have been admitted in lieu of cross-examination. We do not agree. The same considerations which engendered the rule that the character of a witness testifying at the trial cannot be proven by specific acts apply to the character of a deceased declarant; another rule \u201cwould raise innumerable collateral issues.\u201d State v. Canup, 180 N.C. 739, 741, 105 S.E. 322, 324 (1920). See Stansbury \u00a7 111. It was, of course, open to defendant to offer evidence of Belk\u2019s general character and reputation just as he offered evidence of his own, but he did not do so. Assignments of error Nos. 4 and 5 are overruled.\nDefendant\u2019s assignment of error No. 13 is that the trial judge erred in allowing the State to elicit as rebuttal evidence the testimony of Officers Hayes and Richardson as to oral statements which each said defendant had made to him on the night of the fire. These statements, as indicated in the preliminary resume of the facts, were inconsistent with defendant\u2019s testimony. When Officers Hayes and Richardson were called, and the import of their testimony ascertained, defendant objected on the grounds that (1) upon defendant\u2019s motion N.C. Gen. Stats. 15A-902 and 15A-903(a)(2) (1975) required the district attorney, before trial, to disclose to defendant the substance of these oral statements; (2) the district attorney had failed to make the disclosure; and (3) this failure required the exclusion of the statements. Upon this objection, in the absence of the jury, the judge conducted a voir dire during which both the district attorney and defense counsel made statements. Together they disclosed the following sequence of events:\nPrior to the trial, pursuant to G.S. 15A-902, defense counsel requested the district attorney to make certain disclosures which, upon defendant\u2019s motion, would be required under G.S. 15A-903. Specifically, counsel requested \u201cthat the State make available: A, Statements made by the defendant under 15A-903(a)(l),\u201d (i.e., written or recorded statements made by defendant which are under the control of the State); B, Defendant\u2019s prior criminal record; and C, Certain documents and other tangible objects. Counsel did not request disclosure under G.S. 15A-903(a)(2) of \u201cthe substance of any oral statement made by defendant which the State intends to offer in evidence at the trial.\u201d In his reponse to counsel\u2019s request, on 9 August 1976 the district attorney wrote him that defendant had made no written or recorded statement and had made no oral statement which he intended to offer in evidence at the trial.\nThe district attorney made the following explanation to the court: He interpreted G.S. 15A-903(a)(2) as requiring him to divulge only those statements which he intended, before trial, to introduce during the presentation of his case in chief. Since defendant\u2019s statements were all exculpatory he could not use them in making out the State\u2019s case. Therefore, \u201cbecause in preparation of the case [he] did not intend to offer those in the trial\u201d he had decided not to disclose the statements to counsel. Further, as late as the preceding afternoon, defense counsel had told him that defendant had not decided whether to testify in his own defense.\nIn answer to the court\u2019s specific inquiries, counsel admitted that he had asked defendant whether he had made any statements to the police; that defendant had told him he had talked to the police and he had taken his client at his word; that he had not moved the court to order the solicitor to divulge the substance of any oral statements made by defendant because he interpreted the solicitor\u2019s statement as meaning \u201cthere weren\u2019t any such statements, that he had given [him] everything.\u201d\nAt this point in the voir dire the district attorney produced the statements for counsel\u2019s inspection. The court then entered an order in which he found facts consistent with the foregoing summary and overruled defendant\u2019s objection to the rebuttal testimony of Officers Richardson and Hayes. The judge also found, inter alia: (1) that in developing its case the State did not offer any oral statements made by defendant; (2) that, only after defendant had decided to take the stand and had testified, did the State decide to offer defendant\u2019s oral statements; and (3) that the State \u201chas not acted in bad faith in this matter and that at the time the State responded to the voluntary request, the State did not intend to offer into evidence any oral statements allegedly made by defendant.\u201d\nThe judge then recessed court to give defendant\u2019s counsel time to examine the statements and the officers\u2019 original notes. Counsel was also informed that after the recess he would be allowed to cross-examine the officers before they testified before the jury.\nIt is implicit in the district attorney\u2019s statement to the court that his intention not to offer the questioned evidence was conditional. Obviously, he did intend to use the statements on rebuttal if defendant took the stand and gave testimony inconsistent with them. It is equally obvious that the district attorney could not know whether defendant would take the stand until defendant either did so or rested his case without having testified. This uncertainty, however, differs little from that which surrounds many decisions the prosecutor must make with reference to the introduction of available evidence. To adopt the district attorney\u2019s analysis of G.S. 15A-903(a)(2) would mean that a judge could rarely hold that a district attorney had intended to use a withheld statement at trial.\nIn view of the obvious intent of the legislature to permit broad pretrial discovery \u2014 as evidenced by the statute\u2019s sweeping language, \u201cany oral statement made by the defendant which the State intends to offer in evidence at the trial\u201d \u2014 prudent prosecutors will avoid the possibility of having their intent judicially second guessed by turning over all doubtful material to the defense upon request. Likewise, defense counsel would be well advised to specifically request the defendant\u2019s oral statements when, as here, the client informs him he has talked to the officers.\nIn this case, however, we need not attempt to stake out the limits of G.S. 15A-903(a)(2) or decide whether the district attorney\u2019s reply to counsel\u2019s request obviated the necessity of a motion under that statute. A district attorney\u2019s refusal to comply with a discovery order under G.S. 15A-903 does not automatically require the exclusion of the undisclosed evidence. A variety of sanctions is authorized by G.S. 15A-910, and the choice of which to apply \u2014 if any \u2014 rests entirely within the discretion of the trial judge. His decision will not be reversed except for abuse of that discretion. State v. Thomas, 291 N.C. 687, 692, 231 S.E. 2d 585, 588 (1977). Clearly, this record shows no abuse of judicial discretion.\nDefendant concedes that the State\u2019s use of his oral statements to the officers did not violate any of his Miranda related rights. See Harris v. New York, 401 U.S. 222, 28 L.Ed. 2d 1, 91 S.Ct. 643 (1971); State v. Biggs, 292 N.C. 328, 233 S.E. 2d 512 (1977). In his brief, however, counsel does assert that defendant was irreparably prejudiced by the admission in evidence of his prior contradictory statements because, \u201c[i]f counsel had known of these two statements, he would have advised the defendant to refrain from testifying.\u201d No doubt counsel would have so advised defendant. Notwithstanding, the purpose of the discovery procedure authorized by N.C. Gen. Stats., Ch. 15A, Art. 48 (1975) was not to protect a defendant from the consequences of perjury. It was intended only to protect him from the consequences of unfair surprise and to enable him to have available at the trial any evidence which he could legitimately offer in his defense. Analogous here is the statement of Chief Justice Burger in Harris v. New York, supra at 225, 28 L.Ed 2d at 4-5, 91 S.Ct. at 645-46, a case in which the officers\u2019 failure to give the defendant the Miranda warning prevented the State from offering his statement in evidence on the question of his guilt:\n\u201cEvery criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations omitted.] Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. . . . The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner\u2019s credibility was appropriately impeached by use of his earlier conflicting statements.\u201d\nThe trial court\u2019s order granting a recess to allow defendant an opportunity to inspect defendant\u2019s statements and to interview the officers, fully protected defendant\u2019s legitimate rights to know the full extent of the case against him and to be protected from the use of \u201csurprise evidence.\u201d Defendant cannot complain that the order did not also protect him from the folly and crime of false testimony. Assignments of error Nos. 7 and 13 are overruled.\nWe have carefully examined defendant\u2019s remaining assignments of error. They are without merit and require no discussion. The record manifests that defendant received a fair trial, free from prejudicial error.\nNo error.",
        "type": "majority",
        "author": "SHARP, Chief Justice."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten and Associate Attorney Donald W. Grimes for the State.",
      "Shelly Blum and Michael A. Sheely for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BYRON JAMES STEVENS\nNo. 74\n(Filed 8 May 1978)\n1. Homicide \u00a7 16\u2014 dying declarations \u2014 effect of G.S. 8-51.1\nThe requirements of G.S. 8-51.1 for the admission of a dying declaration that the deceased must have been \u201cconscious of approaching death and believed that there was no hope of recovery\u201d do not change our case-law requirements that in order to be admissible the declarations of a decedent must have been \u201cin present anticipation of death,\u201d that is, the declarant must have been \u201cin actual danger of death\u201d and have had \u201cfull apprehension of his danger.\u201d\n2. Homicide \u00a7 16\u2014 dying declarations \u2014 consciousness of approaching death-belief of no hope of recovery\nThe evidence supported the court\u2019s finding that decedent was conscious of approaching death and believed there was no hope of recovery where it showed that decedent had burns over 99% of his body and most were third-degree burns; his attending physician had told him explicitly that while he might live three weeks, he would not live to leave the hospital; and decedent unequivocally communicated to a detective his knowledge that he was so badly burned he was going to die by nodding his head in answer to questions asked him by the detective.\n3. Homicide \u00a7 16\u2014 dying declarations \u2014 leading questions by officer\nDying declarations were not inadmissible because they were made in response to an officer\u2019s leading questions where the decedent was unable to speak because of tubes in his nose and throat necessitated by his injuries; the declarations were made by decedent\u2019s nodding of his head in response to the officer\u2019s questions; and the qualifying questions were appropriate in light of decedent\u2019s severe injuries and inability to speak.\n4. Homicide \u00a7 16\u2014 dying declarations \u2014 survival longer than anticipated\nThe fact that decedent survived one week longer than his physician told him he might live did not affect the admissibility of his dying declarations.\n5. Homicide \u00a7 16\u2014 dying declarations \u2014 right of confrontation\nThe admission of dying declarations did not deny defendant the right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and by Art. I, \u00a7 23 of the N.C. Constitution.\n6. Homicide \u00a7 16.2\u2014 dying declarations \u2014 impeachment or corroboration \u2014 general reputation of decedent\nA dying declaration is subject to impeachment or corroboration upon the same grounds and in the same manner as the testimony of a sworn witness; thus, evidence of the general character or reputation of the decedent is relevant to impeach or sustain the declaration.\n7. Homicide \u00a7 16.2\u2014 impeachment of dying declarations \u2014 decedent\u2019s criminal and alcoholic treatment records\nA dying declaration was not subject to impeachment by evidence of decedent\u2019s criminal record or his record as a patient at a treatment center for alcoholics.\n8. Bills of Discovery \u00a7 6; Constitutional Law \u00a7 30\u2014 prosecutor\u2019s failure to comply with discovery order \u2014 sanctions\nA district attorney\u2019s refusal to comply with a discovery order under G.S. 16A-903 does not automatically require the exclusion of undisclosed evidence, since a variety of sanctions is authorized by G.S. 15A-910, and the choice of which to apply, if any, rests entirely within the discretion of the trial judge.\n9. Bills of Discovery \u00a7 6; Constitutional Law \u00a7 30\u2014 use of in-custody statements on rebuttal \u2014 failure to disclose \u2014 recess for inspection of statements \u00bf\nThe trial court in a homicide case did not err in permitting the State to present on rebuttal defendant\u2019s oral statements to officers which were inconsistent with his trial testimony, but which had not been disclosed by the district attorney to defense counsel, where the court granted a recess to allow defense counsel an opportunity to inspect defendant\u2019s statements and to interview the officers and thus fully protected defendant\u2019s legitimate rights to know the full extent of the case against him and be protected from the use of surprise evidence. Defendant\u2019s assertion that defense counsel would have advised defendant not to testify if he had known of the prior contradictory statements did not render admission of the statements prejudicial error since the purpose of the statutory discovery procedure was not to protect a defendant from the consequences of perjury.\nAPPEAL by defendant from his conviction of first degree murder before Barbee, S. J., at the 8 November 1976 Session of MECKLENBURG Superior Court, docketed and argued as Case No. 115 at the Spring Term 1977.\nAt the trial the State\u2019s evidence tended to show:\nAround 10:30 p.m. on 6 June 1976 Mabel Kirkpatrick was sitting in the front yard of her Charlotte apartment when she heard an explosion, the sound of breaking glass and screams coming from behind the building. She ran toward the sound and saw a black male, identified as the deceased, Amos Belk, walk out of the house at 325 East Tremont Street. He was on fire; \u201cit was dripping from his legs.\u201d She called the police; firemen and an ambulance were also summoned.\nUpon their arrival firemen found \u201cseveral fires in the apartment at different places.\u201d The main fire was located in the first bedroom on the left and extended up the hallway into the bathroom. The worst involvement of fire and smoke was in the bedroom, concentrated on the mattress only three or four feet from the hall door. As soon as the firemen entered the house they immediately noticed the odor of a \u201cpetroleum product,\u201d and observed a \u201cfive gallon can of gasoline sittin\u2019 in the hallway.\u201d Fireman Maurice Williams immediately took the can outdoors because of the dangerous fumes it was emitting. The carpet around the can was scorched but the circle it occupied was clean. In the bathroom the firemen discovered the bathtub three-fourths full and the water still running. A man\u2019s shoes, shirt and pants were on the floor \u201clike he\u2019d stepped out of them.\u201d They were on fire.\nWhen Fireman McAnulty arrived at the scene he saw a thin man, completely nude except for a band of elastic from his underwear, leaning against a car in the driveway. This man was severely burned, and McAnulty motioned to the ambulance, which took him away.\nJames 0. Davis, a fire investigator for the Charlotte Fire Department and an expert in determining the cause and point of origin of a fire, testified as follows: When he entered the house on 325 Tremont on 6 June 1976, he too smelled a petroleum product in the bedroom. \u201cThe extent of damage was more or less in the bed area and the paint was scorched and the heat marks all on the wall. ... In the bathroom area, there was a pair of trousers still smoldering slightly, a pair of shoes and another particle of clothing there. . . . and also, a rolled up torch piece of paper, half burned. I smelled a petroleum product in the bathroom. ... I looked back up the hall. There was a scorched area on the carpet up the hall toward the bedroom. . . . The scorched area was darker looking up the hall than it was looking down the hall toward the bathroom area. The dark scorched area indicates to me as a fire investigator that . . . the point of origin . . . was in-the bathroom igniting the vapors leading back to the bedroom. The fire started in the bathroom. . . . The carpet I\u2019ve talked about in this case was singed across the top, as if it were a vapor fire rather than a liquid gasoline fire in that carpet.\u201d\nDavis explained that gasoline \u201cputs off a vapor, ... a gas that floats . . . and by this igniting, it goes back to the riches. In other words, where the gas is originally deposited, poured or whatever ... no matter how long a trail is, the fire will go right straight back up this vapor trail to the richest part and ignite. So, if gasoline had been poured on a bed in the front bedroom and there was a vapor trail leading from that bed to the bathroom and there was an ignition in the bathroom, then the fire could travel back up the hallway to the bed.\u201d\nChemical analysis of the partially burned \u201ctorch piece of paper,\u201d and the trousers and the shoes found in the bathroom revealed that all contained gasoline. An analysis of a sample of liquid taken from the can found in the hall revealed it also to be gasoline.\nDr. James C. Stevens of the surgical staff at Charlotte Memorial Hospital testified that Amos Belk, who had just been severely burned, was admitted to the hospital \u201cin the late evening hours\u201d of 6 June 1976. Ninety-nine percent of his body was burned \u2014 \u201call but the soles of his feet.\u201d The burns were third-degree burns. Dr. Stevens treated Belk for six to eight consecutive hours that night. \u201cIf we had not performed those procedures, he would have lived probably no more than two hours.\u201d Within the first 45 to 60 minutes from the time Belk came into the emergency room Stevens told Belk that \u201che was quite critical, quite critically ill. That he would almost certainly not survive to leave the hospital, that his chances of living two or three weeks were fairly good, but his chances of surviving any more than that were practically nil.\u201d Thereafter Dr. Stevens told Belk the same thing several more times \u2014 at least two or three, the last time being around 8:00 a.m. on 7 June 1976. Dr. Stevens said he felt quite sure that Belk understood him for he gave intelligent answers to all his questions.\nCharlotte Police Officer S. T. Wallace, who went to the emergency room of Charlotte Memorial Hospital around midnight on 6 June 1976 to interview Belk, testified as follows: \u201cI asked him what happened. He told me that Byron poured gas on [him] and set [him] on fire. I asked him, Byron who. He said, \u2018Byron Stevens.\u2019 I asked him why. He told me that because he would not play around with Byron. I asked him what did he mean by playing around. He said, \u2018Sexually. He\u2019s a punk.\u2019 He then said, \u2018Get him. He\u2019s mean.\u2019 \u201d (The court struck the remark \u201cGet him. He\u2019s mean,\u201d and instructed the jury not to consider it.)\nDetective D. L. Sharpe also spoke with Belk that night in the emergency room. Belk repeated in essential detail the accusations against defendant, his roommate, which he had made to Officer Wallace.\nSharpe returned to speak with Belk again the next morning about 9:45 o\u2019clock. By this time Belk was so encumbered with nasal tubes that he could not speak. Nonetheless, he was able to answer Sharpe\u2019s questions either by nodding his head to indicate assent, or by shaking it to indicate a negative answer. Sharpe, testifying from notes, gave a verbatim account of the interview. The session began with the following questions and answers:\n\u201cSHARPE: Did you get burned last night?\nNod of head affirmative.\n\u201cSHARPE: Did you get burned at your house?\nNod of head affirmative.\n\u201cSHARPE: Do you know how bad you are burned?\nNod of head affirmative.\n\u201cSHARPE: Do you think that you\u2019re going to die?\nNod of head affirmative.\n\u201cSHARPE: Did he, the doctor, tell you that you were burned real bad? Nod of head affirmative.\n\u201cSHARPE: Did the doctor tell you you were going to die?\nNod of head affirmative.\nSharpe then proceeded to ask Belk leading questions as to how and why he had come to be burned. The following story emerged: Belk and Stevens were roommates in the house on East Tremont. Earlier in the evening, about 8:00 a.m., he and Stevens had had an argument over $60 that Stevens allegedly owed Belk. No blows were passed. Both had been drinking wine and beer. Stevens and Belk had another argument over sex. Belk and defendant had had sex before, and defendant \u201cgot mad this time\u201d because Belk would not. Belk went to bed between 9:00 and 10:00 p.m. with his clothes on and awoke to find Stevens pouring gasoline over him. Belk went into the bathroom, took off his clothes and began to draw a bath to wash off the gasoline. While Belk was in the bathroom, Stevens reappeared and threw a flaming torch into the bathroom. The room exploded and Belk ran out of the house. Defendant never came back into the house before Belk ran out. Defendant had never gotten mad at him like this before; nor had he ever poured gasoline on him before.\nOn 3 July 1976, four weeks after he was admitted to the hospital, Amos Belk died from severe body burns.\nDefendant Stevens testified in his own behalf. He said that earlier in the day of the fire a friend of his had cut the grass around the house on Tremont. During that time, \u201cBelk was out there with a stick, gas and paper, putting paper in the hole and pouring gasoline and lighting a match saying he was killing snakes. The lawn mowing lasted until we ran out of gas.\u201d Stevens then got more gasoline that he had stored in a five gallon container in his car.\nLater Belk and the friend began to drink. Stevens said that he did not drink at all. Around 9:00 p.m. Belk began to draw a bath. At his request, Stevens left to buy some beer and wine. When he returned, Belk asked him to bring the gasoline can into the house. Belk was standing in his bedroom door, smoking a cigarette. When Stevens approached with the gasoline can, Belk moved toward him and grabbed the can, which had no lid. Stevens dropped the can, and it caught fire and exploded. Stevens immediately ran out of the house. He was burned on the hand, arm and leg. When he turned around he saw Belk was \u201cwallowing in the floor on fire. ... I ran back inside. I grabbed a spread that was on the door drying. I ran through the fire. ... I grabbed him, throwed the spread around him and I brought him out.\u201d Defendant was about to carry Belk to the hospital in his car when the ambulance arrived and took them both to the hospital. Defendant, however, took a taxi back home because he was concerned about the fire and he needed to change his clothes. His pants and shirt were torn, soiled and bloody. At his home he found firemen, newsmen and police. After defendant changed clothes one of them there told him he had better go back to the hospital or \u201cthat burn\u201d would get infected. He then drove back to the hospital where he was treated.\nStevens, on cross-examination, specifically denied pouring gasoline on Belk and throwing a lighted torch into the bathroom. He also denied that he had wanted to have sexual relations with Belk. He denied speaking with Officer H. W. Richardson immediately after the fire and telling him that Belk had set the house on fire through smoking in bed. He denied telling Officer Hayes at the house that Belk had left the gas can in the house, gotten drunk and knocked it over and had then lit a cigarette and started the fire.\nFour witnesses for defendant said his reputation in the community was good.\nOn rebuttal, over defendant\u2019s objection, the State introduced the testimony of Officers Richardson and Hayes. Richardson testified that he was the first officer on the scene at 326 East Tremont that evening. He said, \u201cI saw Byron Stevens. He was standing behind an automobile in the driveway. He came out to the car when I pulled up requesting help for Mr. Belk. When I went up, I asked what had happened; mainly directed my question to Mr. Belk to try to determine his physical condition and I could get no answer from him.\u201d Stevens told him that Belk had taken a bath and then gone to bed; that Belk had caught himself on fire while smoking. Richardson said that Stevens also said that \u201che helped Mr. Belk get out of the house.\u201d\nOfficer Hayes then testified that while he was in the house that evening, Stevens came in about midnight. \u201cHe told me that his roommate had cut grass earlier and that the roommate had left gas cans in the house. He said that his roommate had gotten drunk, knocked over a gas can and lit a cigarette. He said a fire started, both of them were burned and they ran out of the house knocking out the front door glass in the process.\u201d\nThe jury returned a verdict of first-degree murder and from the sentence of life imprisonment defendant appealed.\nAttorney General Rufus L. Edmisten and Associate Attorney Donald W. Grimes for the State.\nShelly Blum and Michael A. Sheely for defendant."
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