STATE of North Carolina
v.
Phillip STUTTS.
No. 9119SC312.
Court of Appeals of North Carolina.
March 3, 1992.*63 Atty. Gen., Lacy H. Thornburg Asst. Atty. Gen., Mary Jill Ledford, Raleigh, for the State.
Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Mark D. Montgomery, Raleigh, for defendant-appellant.
WELLS, Judge.
Defendant presents seventeen assignments of error to this Court for review. He does not address his first seven assignments as well as his eleventh, twelfth, thirteenth, sixteenth and seventeenth assignments and they are therefore deemed abandoned. N.C.R.App.P., Rule 28. In his remaining assignments, defendant contends the trial court erred in ruling that the girl was unavailable to testify and that the State had given improper notice of its intention to use statements made by the girl to others at trial.
Defendant further contends the trial court erred in allowing three of the State's witnesses to testify concerning the statements made by the girl under Rule 804(b)(5) of the North Carolina Rules of Evidence. Finally, defendant contends that the trial court erred in denying his motion to dismiss the charges for insufficiency of the evidence. We hold that the trial court erred in admitting the girl's out-of-court statements pursuant to Rule 804(b)(5) of the Rules of Evidence and award a new trial.
Defendant first assigns error to the trial court's finding that the girl was unavailable to testify at trial and that the State had given adequate notice of its intent to introduce the girl's statements at trial. Defendant contends these findings violated his rights to present a defense and to due process which are guaranteed under the State and Federal Constitutions.
Defendant next assigns error to the trial court's allowing three of the State's witnesses to testify concerning statements the girl made to them. He contends these statements, which pertain to defendant's alleged acts of abuse, were erroneously admitted under the residual or "catch-all" exception to the hearsay rule as found in Rule 804(b)(5) of the North Carolina Rules of Evidence.
Hearsay is defined as "a statement, other than one made by the declarant while *64 testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C.Gen.Stat. § 8C-1, Rule 801(c) (1990). A hearsay statement is "not admissible except as provided by statute or by these rules." N.C.Gen.Stat. § 8C-1, Rule 802 (1990). In order for evidence to be admissible under the residual exception set out in Rule 803(24) or Rule 804(b)(5), it must possess circumstantial guarantees of trustworthiness equivalent to those required under the enumerated exceptions to the hearsay rule. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). Our Courts have held that the threshold determination of trustworthiness is the most significant requirement of admissibility under the residual hearsay exception. Smith, supra.
In State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), a sexual abuse (rape) case involving a five-year-old female victim who was declared unavailable as a witness, our Supreme Court analyzed and discussed at length the principles of law applying to the admissibility of hearsay in cases such as the one before us in this appeal. In Deanes, the Court stated the requirement in such cases dealing with the residual or "catch-all" exception to the hearsay rule, that the trial court must determine, in the following order:
(A) Has proper notice been given?
(B) Is the hearsay not specifically covered elsewhere?
(C) Is the statement trustworthy?
(D) Is the statement material?
(E) Is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts?
(F) Will the interests of justice be best served by admission?
The Court went on to state the rule that "the trial court is required to make both findings of fact and conclusions of law on the issues of trustworthiness and probativeness, because they embody the two-prong constitutional test for the admission of hearsay under the confrontation clause, i.e., necessity and trustworthiness" citing Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) and State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984). We center our discussion on the threshold question of trustworthiness.
The Court set out factors to be considered in determining whether hearsay statements admitted under Rule 804(b)(5) possess sufficient indicia of trustworthiness. The factors are:
(1) Assurances of the declarant's personal knowledge of the underlying event; (2) the declarant's motivation to speak the truth or otherwise; (3) whether the declarant recanted the statements; and (4) the practical availability of the declarant at trial for meaningful cross-examination.
State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985), and State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986). Significantly, in State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988), the fourth factor was reworded to clarify the purpose of this factor, as follows:
(4) the reason, within the meaning of Rule 804(a), for the declarant's unavailability.
See State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991).
In the present case, the trial court conducted a voir dire hearing to determine the girl's availability as a witness. The trial court found the girl unavailable to testify because she could not understand the difference between truth and falsehood and because of her inability to understand "what is reality and what is imagination." The trial court then found that the girl's earlier out-of-court statements possessed the required circumstantial guarantees of trustworthiness and were admissible at trial. These findings are simply inconsistent.
It is illogical that one be held unavailable to testify due to an inability to discern truth from falsehood or to understand the difference between reality and imagination and yet have their out-of-court statements ruled admissible because they possess guarantees of trustworthiness. The very fact that a potential witness cannot tell truth from fantasy casts sufficient doubt on the trustworthiness of their out-of-court statements to require excluding them. We *65 hold that finding a witness unavailable to testify because of an inability to tell truth from fantasy prevents that witness' out-of-court statements from possessing guarantees of trustworthiness to be admissible at trial under the residual exception set forth in Rule 804(b)(5).
We hold that the trial court erred in allowing the girl's statements to be admitted and that this error was obviously prejudicial to defendant. For these reasons, there must be a
New trial.
HEDRICK, C.J., and JOHNSON, J., concur.