STATE of North Carolina,
v.
Clive HURST.
No. COA96-802.
Court of Appeals of North Carolina.
August 5, 1997.*850 Attorney General Michael F. Easley by Assistant Attorney General Marilyn R. Mudge, for the State.
Brian Michael Aus, Durham, for defendant-appellant.
EAGLES, Judge.
The defendant argues that the trial court erred in admitting the statement of Roneka Jackson. First, the defendant contends that the trial court erred in admitting the hearsay testimony of Roneka Jackson "pursuant to N.C.G.S. § 8C-1, Rule 804(b)5," which was in the form of an out-of-court recorded oral statement given to a police investigator. The defendant argues that the statement lacks the inherent trustworthiness necessary for admission under Rule 804(b)(5), and therefore admission of the statement violated defendant's constitutional right to confront a witness, based on the Sixth Amendment of the United States Constitution and Article I, § 23 of the North Carolina Constitution.
Rule 804(b)(5) provides:
(b) Hearsay Exceptions.The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(5) Other Exceptions.A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that, (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be *851 served by admission of the statement into evidence....
N.C.G.S. 8C-1, Rule 804(b)(5) (1992).
To admit hearsay testimony under Rule 804(b)(5), the trial court must first find that the declarant is unavailable. State v. Peterson, 337 N.C. 384, 391, 446 S.E.2d 43, 48 (1994). Roneka Jackson's unavailability was firmly established by Investigator Early's testimony that Roneka Jackson was deceased at the time of trial. After confirming the witness's unavailability, the trial court must undertake a six-step inquiry to determine the admissibility of the unavailable declarant's statement. Id. The trial court must determine:
(1) Whether the proponent of the hearsay provided proper notice to the adverse party of his intent to offer it and its particulars;
(2) That the statement is not covered by any of the exceptions listed in Rule 804(b)(1)-(4);
(3) That the statement possesses `equivalent circumstantial guarantees of trustworthiness';
(4) That the proffered statement is offered as evidence of a material fact;
(5) Whether the hearsay is `more probative on the point for which it is offered than any other evidence which the proponent can produce through reasonable means'; and
(6) Whether `the general purpose of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.'
State v. Peterson, 337 N.C. at 391-92, 446 S.E.2d at 48 (quoting State v. Triplett, 316 N.C. 1, 9, 340 S.E.2d 736, 741 (1986)). To satisfy the two-prong constitutional test of necessity and trustworthiness for the admission of hearsay under the confrontation clause, "the trial court is required to make both findings of fact and conclusions of law on the issues of trustworthiness and probativeness." State v. Peterson, 337 N.C. at 392, 446 S.E.2d at 48. The ruling of the trial judge will not be disturbed unless the findings of fact are not supported by competent evidence or the law is erroneously applied. Id.
Here, the defendant challenges the trial court's determination that Roneka Jackson's statement "is trustworthy" and admissible into evidence under Rule 804(b)(5). Because Rule 804(b)(5) is a residual hearsay exception, "it does not inherently possess indicia of reliability." Id.; Idaho v. Wright, 497 U.S. 805, 817, 110 S.Ct. 3139, 3147-48, 111 L.Ed.2d 638, 653-54 (1990). "However, a statement which falls under the residual hearsay exception can meet Confrontation Clause standards if it is supported by particularized guarantees of trustworthiness based on the totality of the circumstances surrounding the making of the statement." State v. Peterson, 337 N.C. at 392, 446 S.E.2d at 49. The trial court should consider four factors in determining whether a hearsay statement possesses the required guarantees of trustworthiness; "(1) assurances of the declarant's personal knowledge of the underlying events, (2) the declarant's motivation to speak the truth or otherwise, (3) whether the declarant has ever recanted the statement, and (4) the practical availability of the declarant at trial for meaningful cross examination." State v. Triplett, 316 N.C. 1, 10-11, 340 S.E.2d 736, 742 (1986).
Here, the trial court found that Roneka Jackson's recorded oral statement was trustworthy. The trial court's findings are well supported by the evidence. Roneka Jackson told Investigator Early about the particulars of a plan to rob and kill Beverly Drakeford and her boyfriend "Kool-Aid." According to Ms. Jackson, Loopo, Gillie, Jay and the defendant discussed this plan while at her apartment in early October. She was Loopo's former girlfriend and Loopo, Jay and the defendant lived in her apartment. The defendant admits to having been at Ms. Jackson's apartment prior to the murder and admits to planning to return to her apartment after the murder. Ms. Jackson had personal knowledge of the plan to rob and kill Beverly Drakeford. Furthermore, Ms. Jackson gave her statement to police while she was in custody on unrelated drug charges. It is reasonable for the court to infer that Ms. Jackson was motivated by her *852 predicament to speak the truth. Also, although Ms. Jackson remained in police custody for "several months" following her statement, she never recanted or altered her March 1995 statement.
In determining whether a statement is trustworthy, courts have also considered "the degree to which the proffered testimony has elements of enumerated exceptions to the hearsay rule." State v. Nichols, 321 N.C. 616, 625, 365 S.E.2d 561, 567 (1988). In her statement, Ms. Jackson admitted that she and Beverly Drakeford "use to go to New York to pick up drugs and bring them back to Durham for this Jamaican who was her boyfriend ... Kool-Aid." Ms. Jackson's admission to police that she participated in illegal drug trafficking provided the indicia of reliability underlying the declaration against penal interest exception of Rule 804(b)(3). "[W]hen a statement nearly fits an enumerated exception it has a degree of circumstantial trustworthiness which is relevant to the ultimate determination the trial court must make." Id.
The trial court should not rely on corroborating evidence to support a hearsay statement's particularized guarantee of trustworthiness. State v. Tyler, 346 N.C. 187, 485 S.E.2d 599 (1997). Findings of fact detailing corroborative evidence cannot be "relied upon in finding the circumstantial guarantees of trustworthiness required in order to protect the defendant's rights under the Confrontation Clause of the United States Constitution." Id. Here, as in Tyler, the trial court erred in detailing corroborating evidence in its findings of fact, but did not err in concluding that Ms. Jackson's statement was inherently trustworthy. This conclusion of law, which is fully reviewable on appeal, is supported by the evidence.
Furthermore, to obtain reversal based on any error in the trial court's ruling, the defendant must show prejudicial error. State v. Brown, 101 N.C.App. 71, 80, 398 S.E.2d 905, 910 (1990). The test for prejudicial error is "whether there is a reasonable possibility that a different result would have been reached at trial had the error not been committed." Id. The defendant has not shown any prejudice caused by the admission of Ms. Jackson's statement. The defendant's own statement to police established that he accompanied Loopo, Gillie, and Jay to Beverly Drakeford's home and waited for "several hours" until she returned. The defendant also told police that he was in the house when Beverly was shot and that he fled with Loopo, Gillie, and Jay in Beverly Drakeford's Toyota Cressida. Officer Irving testified that he apprehended the defendant as defendant and Loopo were climbing over a fence to escape police. The defendant's participation in the robbery and murder of Beverly Drakeford was established by other evidence. Defendant's assignment of error is overruled.
The defendant next contends that Ms. Jackson's statement contained the hearsay statements of two co-defendants which do not fall under any recognized exception to the hearsay rule. Ms. Jackson's statement contains several statements attributed to Loopo and Gillie; "he would have to kill whoever that was in the house because he (Loopo) said he didn't want to have no witnesses or none of that," and "Gillie was saying it `cause at first, they was trying to get her coming off the highway ... [t]hat's what was said ... [b]ut then they was saying they was going to get her coming off the highway...." Rule 805 provides that "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule...." N.C.R.Evid. Rule 805 (1992). Rule 805 precludes the admission of statements within admissible hearsay statements that do not qualify independently for admission into evidence. The Rule 805 exclusion requirement does not apply when the second layer of statements are not hearsay.
The State argues that the statements of Loopo and Gillie contained in Ms. Jackson's statement were not offered for a hearsay purpose. According to the State, these statements were offered to establish the existence of a conversation between Loopo, Gillie, Jay and the defendant planning the robbery and murder of Beverly Drakeford. "If a statement is offered for any purpose other than that of proving the truth of the *853 matter stated, it is not objectionable as hearsay." 1 Henry Brandis, Jr., Brandis on North Carolina Evidence § 141 (3d ed.1988). Statements made by co-defendants offered to establish the defendant's participation in the planning of a crime are not offered for the truth of the matter asserted. See e.g., State v. Allen, 57 N.C.App. 256, 259, 291 S.E.2d 341, 343 (1982). The trial court did not err in admitting into evidence Ms. Jackson's complete statement, including the admissions of Loopo and Gillie. This assignment of error is overruled.
The defendant next contends that the trial court erred in precluding admission of an exculpatory portion of Ms. Jackson's statement. The following portion of Ms. Jackson's statement was not presented to the jury:
[T]hese two, Click-Click (the defendant) and Jay, they were like scary. They ain't really wanted to do it but the only reason why they did it because Gillie, he like a bully and he was bigger than them. So he, like I don't know if he made them do it or not cause I wasn't there....
The trial court denied the defendant's request to admit this portion of Ms. Jackson's statement because "ultimately it is an opinion that she had (which) she didn't have any legal basis to give."
Rule 701 limits opinion testimony by lay witnesses to "those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C.R.Evid. Rule 701 (1992). Although a lay witness may be allowed to testify as to his opinion of "the emotions (a person) displayed on a given occasion," a lay witness "may not give his opinion of another person's intention on a particular occasion." 1 Henry Brandis, Jr., Brandis on North Carolina Evidence, § 129 (3d ed.1988). The omitted portion of Ms. Jackson's statement is not a description of the defendant's emotional response to the plan to kill Beverly Drakeford, but a statement of her opinion that the defendant may not have originally intended to participate in the plan. The trial court did not err in denying the defendant's request to admit this portion of Ms. Jackson's statement. Furthermore, other evidence admitted at the defendant's trial, including the defendant's own statement admitting his participation in the crime, establish the defendant's willing participation in the plan to rob and kill Beverly Drakeford.
After a careful review of the record, we conclude that the defendant received a trial free of any prejudicial error.
No error.
WALKER and MARK D. MARTIN, JJ., concur.