STATE of North Carolina
v.
Ronald Lee STILLS.
No. 462A83.
Supreme Court of North Carolina.
March 6, 1984.*445 Rufus L. Edmisten, Atty. Gen. by Harry H. Harkins, Jr., Asst. Atty. Gen., Raleigh, for the state.
Adam Stein, Appellate Defender by Ann B. Petersen, Asst. Appellate Defender, Raleigh, for defendant.
MARTIN, Justice.
Defendant first claims that certain testimony designated as "corroborative" by the state far exceeded the proper bounds of corroboration and should never have been permitted by the trial court. We agree and remand this case for a new trial.
Toby Crandall and Glenda Cook were the only persons to testify as to matters they claimed to have observed firsthand. In addition, the state called six corroborative witnesses: family members Altha Joyce Crandall and Tammy Jones; Officer Marshall Gravley of the Buncombe County Sheriff's Department; Jane Olmsted of the Forsyth County Department of Social Services; Ralph Mason and Evelyn Harless, investigators for the Forsyth County Sheriff's Department.
Portions of the secondhand testimony of these six witnesses went to facts and information told to them by one or both of the substantive witnesses, Toby and Glenda.
Over defendant's objections, however, the trial court also permitted certain of these corroborative witnesses to testify as to prior out-of-court statements of other corroborative witnesses"to corroborate the corroboration."
Here the court was faced with testimony thrice-removed from the original declarant. Furthermore, portions of these so-called "corroborative" statements were in direct conflict with the substantive trial testimony of Glenda Cook or Toby Crandall. Mrs. Altha Joyce Crandall, for example, testifying solely as a corroborative witness at trial, was interviewed by Forsyth County Deputy Sheriff Evelyn Harless on 6 January 1983. The interviewing officer was permitted to read to the jury the entire transcript of the interview. Defense counsel objected "that she has testified and it's hearsay and this is not sufficient value."
The trial judge responded:
Objection overruled. Members of the jury, the transcript of this interview that this officer made with the grandmother will be received into evidence only for the purpose of corroborating what the grandmother said on the stand, if it does and for no other reason. If there are parts that do not corroborate what the grandmother said on the stand in previous testimony, you will disregard it.
*446 A portion of the transcript read to the jury follows:
A. Can you remember what the conversation was between you and Glenda?
....
"JOYCE: And I asked her to tell meI says, `What is this I hear about Toby and Ronnie?'
"And she proceeds to tell me that she had caught Toby and Ronnie in bed and that Toby was sucking Ronnie.
"HARLESS: Okay. Now were these the words she used?
"JOYCE: Yes, these were the words that she used.
....
"And I says, `Well, how long has this been going on?'
"And she says, `Well, I don't know.' She says, `I think it has been going on for a while.'
A review of the record reveals that this "corroborative" testimony is in direct and substantial conflict with the trial testimony of Glenda Cook, Toby Crandall, and Tammy Jones herself, each of whom had testified that Toby had been discovered "fondling" the defendant.
Elsewhere the record shows numerous examples of hearsay testimony such as the following:
Q. And do you remember what she told you on that occasion?
A. Yes. [Altha Crandall is testifying as to what she had been told by Tammy Jones.]
Q. And what did she tell you?
A. She told me that Glenda had come over on Friday evening to talk to her and told her that she had caught Ronnie and Toby having oral sex.
The trial judge, in his charge to the jury, later summarized this portion of the evidence as follows:
Altha Joyce Crandall indicated that she lives in Chandler, North Carolina, and she is the grandmother of Toby; that she was told about what happened sometime early in December. Said that Tammy had told her that Glenda had told her that she caught Ronnie and Toby with Toby performing some oral sex. She indicated when she saw Glenda, she asked Glenda what was going on and she said that Glenda had caught Ronnie and Toby and told her that Toby was sucking on Ronnie.
The evidence against defendant in this case thus consists of (1) confused and inconsistent trial testimony of the state's primary witnesses, Toby and Glenda; (2) testimony of the family and investigating officials as to prior statements of Toby and Glenda, corroborative in varying degrees and accompanied by limiting instructions from the trial court; (3) thirdhand hearsay statements offered by the state to "corroborate" other secondhand testimony which in fact directly conflict with the substantive trial testimony of Toby and Glenda; and (4) other impermissible hearsay statements admitted with no objection and reiterated by the trial court in his charge to the jury.
The trial court did not instruct the jury that prior statements of a corroborative witness had been introduced solely for the purpose of corroborating that witness's testimony and were not substantive evidence of the truth of any facts in those prior statements.
Defendant argues, and we agree, that it is the third and fourth categories of evidence as summarized above which were improperly heard by the jury and were sufficiently prejudicial to warrant a new trial.
The main task of the jury in most cases is to identify the substantive evidence which is credible. To this end, trial judges in this state generally have wide discretion in admitting evidence which they determine to be helpful to a jury appraisal of credibility. 1 Brandis on North Carolina Evidence § 52 (1982). However, as Professor Brandis has noted:
The liberality of the rule has occasionally led counsel or a trial judge to assume that virtually any evidence is admissible if only it is labeled "corroboration." There are, nevertheless, some limitations, disregard of which may be reversible error, *447 though such limitations are concerned more with what is corroborative than with when corroborative evidence is admissible.
Id. at 193.
By definition, a prior statement is admitted only as corroboration of the substantive witness and is not itself to be received as substantive evidence. See State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980). Furthermore, "prior consistent statements" are admissible only when they are in fact consistent with the witness's trial testimony. 1 Brandis, supra, § 52; State v. Moore, 300 N.C. 694, 268 S.E.2d 196 (1980); State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976); State v. Bagley, 229 N.C. 723, 51 S.E.2d 298 (1949).
We hold that the trial court committed prejudicial error in admitting the challenged "corroborative" testimony. Much of it did not corroborate the other witnesses, and in part it contradicted the substantive testimony. With respect to the primary witness whose testimony is thereby contradicted, the statements are improper as impeachment. As "new" evidence they may not be introduced by the state under a claim of "corroboration." State v. Moore, supra. Moreover, the statements failed to corroborate the witness.
The potential of such statements to confuse the jury as to what is substantive evidence in the case far outweighs any probative value. To justify the admission into evidence of hearsay statements three or four times removed from the original declarant under the guise of corroborating the corroborative witnesses is unacceptable. This is not to say, however, that a corroborating witness may not be corroborated. This Court still favors the liberality of the rule as expressed in State v. Henley, 296 N.C. 547, 251 S.E.2d 463 (1979). If there is a question as to whether evidence offered for corroborative purposes is corroborative and admissible, the trial court should conduct a voir dire hearing in the absence of the jury for this determination.
The state has argued that any error in admitting this unlawful evidence was harmless, there remaining "plenary competent evidence ... from which the jury could have determined defendant's guilt of the crime charged." Be that as it may, viewing the extent of the incompetent evidence admitted and the likelihood of its effect on the jury, we hold that defendant has carried his burden of showing prejudicial error. N.C.Gen.Stat. § 15A-1443(a) (1983).
Defendant has also challenged the validity of the indictment for first degree sexual offense in that it does not specify the sexual act which defendant is alleged to have committed with Toby Crandall.
The indictment reads as follows:
THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 30th day of November, 1982, in Forsyth County Ronald Lee Stills unlawfully and wilfully did feloniously with force and arms commit and engage in a sexual act with another person, to wit; Tobias John Crandall, a child of the age of twelve years of age or less and the defendant was four or more years older than the said Tobias John Crandall, in violation of North Carolina General Statute 14-27.4(a)(2).
Defendant argues that his conviction in this case is in violation of his constitutional right to indictment as guaranteed by article I, section 22 of the North Carolina Constitution.
In State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983), this Court dealt with this precise issue. In that case, as here, defendant was arguing that he "can be convicted of a crime only when the grand jury has charged in the indictment that he committed those acts which are the elements of the offense." Id. at 747, 309 S.E.2d at 206.
We do not find the argument persuasive and deem it adequate to repeat the following from Effler:
We are satisfied that the indictment charging the defendant with first degree sexual offense was proper in every respect. In so holding, we merely emphasize *448 that the purpose of Article I, § 23 of the North Carolina Constitution, which states that every person charged with a crime has the right to be informed of the accusation, is threefold: to enable a defendant to have a fair and reasonable opportunity to prepare his defense; to avail himself of his conviction or acquittal as a bar to subsequent prosecution for the same offense; and to enable the court to proceed to judgment according to the law in the case of a conviction. See State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998 [98 S. Ct. 638, 54 L. Ed. 2d 493] (1977); State v. Jenkins, 238 N.C. 396, 77 S.E.2d 796 (1953); State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952). The indictment in the present case meets these constitutional requirements.
309 N.C. at 747, 309 S.E.2d at 206.
NEW TRIAL.