Case Law on the inadmissibility of a State’s witness’s alleged prior statements not testified to by the witness at trial.

State v. Hunt, 324 N.C. 343,  378 S.E.2d 754 (1989)

Improper to impeach a witness with alleged prior inconsistent statements merely to get the statements into evidence.

The same principles govern the admissibility of Marie Crawford's prior statements for purposes of impeachment in this case.   Once the trial court determined that Marie was a hostile or unwilling witness, it properly permitted the state to subject her to cross_examination.   However, the trial court erred in permitting Officer Daulton to testify as to the substance of the prior statements denied by Marie.   Officer Daulton could properly have been *349 called to contradict the fact, denied by Marie, that she had made the statement to him on the specified date.   But, as this Court made clear in Williams, "it was improper to impeach [her concerning what she had or had not told Officer Daulton] by offering the testimony of [Officer Daulton]." 322 N.C. at 456, 368 S.E.2d at 626.


The trial court applied Rule 403 to balance the impeachment value of the statements against their tendency to prejudice defendant unfairly or to confuse the jury.   Although unsworn prior statements are not hearsay when not offered for their truth, the difficulty with which a jury distinguishes between impeachment and substantive evidence and the danger of confusion that results has been widely recognized.   E.g., United States v. Webster, 734 F.2d 1191 (7th Cir.1984)United States v. Morlang, 531 F.2d 183 (4th Cir.1975). See also 3 D. Louisell & C. Mueller, Federal Evidence § 299 (1979).   For this reason, the "overwhelming weight of [federal] authority" with regard to the use of the identical Fed.R.Evid. 607 has long been "that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible." United States v. Morlang, 531 F.2d 183, 190.   See also United States v. Hogan, 763 F.2d 697, withdrawn in part on other grounds, 771 F.2d 82 (5th Cir.1985) (a party may not introduce prior inconsistent statements "under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible."  763 F.2d at 702 (quoting **758 United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982)).   As Judge Posner noted in Webster, it is taking advantage of the jury's likely confusion regarding the limited purpose of impeachment evidence that has moved federal appellate courts to scrutinize the use of hearsay evidence for the impeachment of a party's own witness.

[I]t would be an abuse of [Rule 607], in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss *350 the subtle distinction between impeachment and substantive evidence__or, if it didn't miss it, would ignore it.

  United States v. Webster, 734 F.2d 1191, 1192, quoted in United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 783, 102 L.Ed.2d 774 (1989).

It is the rare case in which a federal court has found that the introduction of hearsay statements by the state to impeach its own witness was not motivated primarily (or solely) by a desire to put the substance of that statement before the jury.   Circumstances indicating good faith and the absence of subterfuge in these exceptional cases have included the facts that the witness's testimony was extensive and vital to the government's case, United States v. DeLillo, 620 F.2d 939 (2d Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 107, 66 L.Ed.2d 41 (1980);  that the party calling the witness was genuinely surprised by his reversal, United States v. Webster, 734 F.2d 1191;  or that the trial court followed the introduction of the statement with an effective limiting instruction, DeLillo, 620 F.2d 939;  United States v. Long Soldier, 562 F.2d 601 (8th Cir.1977).

State v. Spinks, 136 N.C.App. 153,  523 S.E.2d 129 (1999)

It is improper for the State to attempt to impeach its own witness by alleged prior inconsistent statements where in reality this is a mere subterfuge to get the prior statements into evidence.

Regarding the issue of impeachment, the State argues that Yancey's testimony was inconsistent with some of the statements she made to the police at the time of the shooting, and therefore the recorded statement was admissible for impeachment purposes.

North Carolina Rule of Evidence 607 allows a party to impeach its own witness, and Rule 611 allows the use of leading questions on direct examination of a hostile witness.   N.C. Gen.Stat. § 8C_1, Rules 607 & 611 (1994). Furthermore, the State may attempt to impeach a hostile witness by asking him whether he previously made certain prior inconsistent statements.   N.C. Gen.Stat. § 8C_1, Rule 607 (1994)State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757 (1989).   However, impeachment by a prior inconsistent statement may not be permitted where it is used as a mere subterfuge to get evidence before the jury which is otherwise inadmissible.  Hunt, 324 N.C. at 349, 378 S.E.2d at 757 (citations omitted) (State improperly attempted to impeach its own witness by calling the detective to whom the witness had made a prior inconsistent statement and having him read the entire statement into the record).

  *161 State v. Price, 118 N.C.App. 212, 216, 454 S.E.2d 820, 822_23, disc. review denied, 341 N.C. 423, 461 S.E.2d 766 (1995)Demery is distinguishable on its facts from the case before us.   In Demery, we reasoned that "[i]t is permissible to use a prior statement to impeach a witness where there is proof that on another occasion he has made statements inconsistent with his testimony.   At trial, Brooks acknowledged having made the prior statement."  Demery, 113 N.C.App. at 67, 437 S.E.2d at 710 (emphasis added) (citations omitted).   Here, although Yancey admitted to signing the recorded statement, she denied making some of the prior statements.   Yancey specifically denied that she heard the defendant state that, "if Big Daddy came down there that he was going to shoot him."   There is no competent evidence of record to suggest that Yancey made the statements as summarized in the police investigator's notes.

Case Law on the elements and requirements for admission of statements as excited utterances.

State v. Nicholson, 355 N.C. 1, 558 S.E.2d 109 (2002)

The excited utterance hearsay exception allows admission of out_of_court statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."   Id.  To qualify as an excited utterance, the statement must relate " '(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.' " State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988) (quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)).

State v. Wright, ___ N.C. App. ____, 566 S.E.2d 151 (July 21, 2002)

The "excited utterance" exception permits the admission of statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."  N.C. Gen.Stat. § 8C_1, Rule 803(2).  For a statement to be considered an "excited utterance" there must be:  " '(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.' "  State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988)(quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985));  see also State v. Anthony, 354 N.C. 372, 403, 555 S.E.2d 557, 579 (2001), cert. denied, ___ U.S. ____, 122 S.Ct. 2605, ___ L.Ed.2d ____ (2002).

"statements or comments made in response to questions do not necessarily rob the statements of spontaneity." State v. Boczkowski, 130 N.C.App. 702, 710, 504 S.E.2d 796, 801 (1998)see also State v. Murphy, 321 N.C. 72, 77, 361 S.E.2d 745, 747 (1987)State v. Hamlette, 302 N.C. 490, 495, 276 S.E.2d 338, 342 (1981);  and State v. Thomas, 119 N.C.App. 708, 714, 460 S.E.2d 349, 353, disc. rev. denied, 342 N.C. 196, 463 S.E.2d 248 (1995).  The critical determination is whether the statement was made under conditions which demonstrate that the declarant lacked the "opportunity to fabricate or contrive" the statement.  1 Henry Brandis, Jr., Brandis on North Carolina Evidence § 164 (3d ed.1988).

Excited Utterance does not save a statement from being unconstitutional and Forrester is distinguishable from almost all other domestic violence “excited utterances”.

See State v. Allen, COA02-1624-2, decided June 21, 2005.

    Our Court has held that evaluating whether a defendant's right to confrontation has been violated is a three-step process. State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217, disc. review denied, 358 N.C. 734, 601 S.E.2d 866 (2004). We must determine: "(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant." Clark, 165 N.C. App. at 283, 598 S.E.2d at 217. It is undisputed, however, that both Santos and Dominguez were unavailable and that defendant did not have an opportunity to cross-examine either declarant. Therefore, the issue before us is whether the statements made by Santos and Dominguez, as conveyed through Officer Barros, were testimonial.
Although the United States Supreme Court chose to "leave for another day any effort to spell out a comprehensive definition of 'testimonial[,]'" it provided examples of statements that would be testimonial. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. Testimonial statements referred to included ex parte statements made in court, affidavits, depositions, confessions, and "pretrial statements that declarants would reasonably expect to be used prosecutorially." The Court specifically identified "[s]tatements taken by police officers in the course of interrogations" as being testimonial. Id. at 52, 158 L. Ed. 2d at 193. While the Supreme Court held that a tape-recorded statement made to police by Crawford's wife, "knowingly given in response to structured police questioning, [qualified] under any conceivable definition [ofinterrogation,]" the Court refrained from defining "interrogation" with any greater particularity. Id. at 53 n.4, 158 L. Ed. 2d at 194 n.4. The Court did specify, however, that it was using "interrogation" in its colloquial, not its technical legal sense. Id.
In the case before us, the State argues that "'interrogation' does not encompass preliminary investigatory questions asked by the police at the scene of the crime shortly after its occurrence." Indeed, the Supreme Court narrowed the application of Crawford by using the word "interrogation" rather than "questioning," suggesting that police questioning is not the same as police interrogation. See Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004) (concluding that the Supreme Court's "choice of words clearly indicates that police 'interrogation' is not the same as, and is much narrower than, police 'questioning'") . However, our Courts have previously determined that a witness's statements to a police officer "made during [the officer's] initial investigation" may be testimonial. Clark, 165 N.C. App. at 284, 598 S.E.2d at 217; State v. Lewis, 166 N.C. App. ___, ___, 603 S.E.2d 559, 562, disc. review granted, 359 N.C. 195, 608 S.E.2d 60 (2004); see also State v. Morgan, 359 N.C. 131, 155-56, 604 S.E.2d 886, 901 (2004). By contrast, in State v. Forrest, our Court held that statements to a police officer made during the initial investigation were not testimonial when the witness "was not providing a formal statement, deposition, or affidavit, was not aware that she was bearing witness, and was not aware that her utterances might impact furtherlegal proceedings." State v. Forrest, 164 N.C. App. 272, 280, 596 S.E.2d 22, 27 (2004), aff'd, ___ N.C. ___, ___ S.E.2d ___ (No. 270A04) (May 5, 2005). Thus, whether "interrogation" encompasses a statement made in response to police questioning at the scene of a crime is a factual question that must be determined on a case-by- case basis. See State v. Sutton, ___ N.C. App. ___, ___, 609 S.E.2d 270, 275 (2005) (determining whether the police questioning of a victim at the crime scene constituted an "interrogation").
The State argues that the present case can be analogized to Forrest because Santos and Dominguez made their statements while under the stress of the shootings and without being aware that their "utterances might impact further legal proceedings." In Forrest, the declarant made statements to the police immediately upon being rescued by them, after she was kidnapped and assaulted. Forrest, 164 N.C. App. at 280, 596 S.E.2d at 27. While the declarant was making her statement, she was "nervous, shaking, and crying" and "[h]er demeanor never changed during the conversation with [the police officer]." Id. We compared the declarant's statement in Forrest to a 911 call, stating that "a spontaneous statement made to police immediately after a rescue can be considered 'part of the criminal incident itself, rather than as part of the prosecution that follows.'" Id. (quoting People v. Moscat, 777 N.Y.S.2d 875 (NY 2004)). We further stated that "Crawford protects defendants from an absent witness's statements introduced after formal police interrogations in which the police are gathering additional information to further the prosecution ofa defendant. Crawford does not prohibit spontaneous statements from an unavailable witness like those at bar." Forrest, 164 N.C. App. at 280, 596 S.E.2d at 27.
However, as defendant points out, the statements in Forrest were spontaneously made to the police when the police responded to a 911 call and were initiated by the victim/declarant, unlike the statements in this case. See Forrest, 164 N.C. App. at 280, 596 S.E.2d at 27. In light of our Court's recent Sutton opinion, we agree with defendant's argument. See Sutton, ___ N.C. App. at ___, 609 S.E.2d at 275. In Sutton, we found a statement made at the crime scene by the victim of the crime to be testimonial when the victim's statement was "neither spontaneous nor unsolicited." Id. As in the present case, the challenged statement in Sutton was originally admitted into evidence at trial under the excited utterance exception to hearsay   (See footnote 2)  because it was found that the victim "was still operating under the shock of the horrible events of the night." Id. The police questioning in Sutton was found to constitute an "interrogation" not only because the police approached and questioned the victim, but also because thechallenged statement was the second statement the victim gave to the police that night, and thus "an objective witness would reasonably believe . . . that the statement would be available for use at trial." Id.
Though the facts of the present case indicate that Santos and Dominguez were still operating under the stress of the shootings, neither Santos nor Dominguez spontaneously initiated their statements to Officer Barros. Rather, the statements were elicited by the police twenty minutes after the shootings occurred. Unlike in Sutton where the challenged statement was the witness's second statement to the police, Officer Barros's "arrival at the scene offered [Santos and Dominguez] their first opportunity to convey the events of the shootings." Allen, 162 N.C. App. at 593, 592 S.E.2d at 37. However, the twenty minutes between the shootings and Officer Barros's arrival provided enough time for Santos and Dominguez to reflect on the shootings before they conversed with Officer Barros. Having more time to reflect makes it more probable that an objective witness, when subsequently questioned by the police, "would reasonably believe . . . that the statement would be available for use at trial." See Sutton, ___ N.C. App. at ___, 609 S.E.2d at 275.
Furthermore, unlike the situation in Forrest, the witnesses in the present case were not "rescued" by Officer Barros. In Forrest, the police arrived while the defendant was in a house with the victim; they observed the defendant hold a knife to the victim's throat and were initially concerned with securing the peace andprotecting the victim, rather than collecting evidence to solve a crime. Forrest, 164 N.C. App. at 273-74, 596 S.E.2d at 23-24. As mentioned above, the victim's statements in Forrest were made to the police immediately upon being rescued, and the statements were thereby considered "part of the criminal incident itself[.]" Id. at 280, 596 S.E.2d at 27. In the present case, the challenged statements were not given during the "criminal incident itself," but rather after the apartment had been secured and the threat of danger to Santos and Dominguez was no longer immediate. Officer Barros arrived twenty minutes after the shootings, and ten minutes after the first police officer arrived on the scene. Officer Barros's primary focus would have been to investigate the crime and he would have had "an eye toward trial" when he questioned Santos and Dominguez. See Sutton, ___ N.C. App. at ___, 609 S.E.2d at 275.
Under these facts, Officer Barros's questioning of Santos and Dominguez amounted to interrogation, and Santos and Dominguez reasonably believed that their statements would be used prosecutorially. Thus, the challenged statements were testimonial. Since it is undisputed that both Santos and Dominguez were unavailable and that defendant did not have an opportunity to cross-examine either declarant, defendant's Sixth Amendment right to confrontation was violated by the admission of their statements through Officer Barros's testimony at trial.