Appeal by defendant from judgment entered 28 March 1997 by Judge Loto G. Caviness in Avery County Superior Court. Heard in the Court of Appeals 21 August 1997.
The opinion of the court was delivered by: Wynn, Judge.
During Carey Lee Clark's trial for first-degree murder, the trial judge allowed Ivalee Clark to testify about statements made by Carey's deceased mother but excluded testimony from Mary Hodges that tended to show that the prosecuting witnesses were biased against him. Because the testimony of Ivalee Clark came within the meaning of the present sense impression exception to the hearsay rule, we affirm the admission of her testimony. However, because our Supreme Court held in State v. Wilson that a defendant is entitled to offer evidence of the bias of the prosecuting witnesses, we reverse the trial court's decision to exclude the testimony of Mary Hodges.
In 1981, someone killed Kenneth George Davis. Before Carey Clark's arrest some 15 years later, no suspect had been arrested for the murder.
The record reveals that Davis had earned his living by driving residents of rural Avery County to their jobs. On the morning of 18 June 1981, Davis did not show up on his regularly scheduled route. When Sheriff's deputies arrived at his apartment at approximately 6:30 a.m., he was found shot to death in front of his apartment doorway. An autopsy determined that he had died from multiple shotgun wounds, and evidence at the scene indicated that he was murdered while exiting his apartment.
In 1995, an anonymous tip to the Avery County Sheriff's Department lead Detective Jeff Clark to interview several witnesses, including some of Carey's relatives. That investigation lead to Carey's arrest.
At trial, the State's case included testimony by several of Carey's relatives about inculpatory acts and statements made by him. Those witnesses testified that at the time of Davis' death, Carey and his wife were having financial difficulties; Carey became upset because Davis had threatened to stop driving his wife to work because they had not paid him; the day before Davis' body was found, Carey was overheard saying that he was going to kill Davis; and he did not come home the night before the body was discovered. The witnesses further stated that on the morning that the body was found, they overheard Carey saying that he had been lying in wait for someone and had shot and killed someone; after the body was discovered, Carey made other inculpatory statements, namely that he was going to kill various other people like he had killed Davis, and that he had destroyed the murder weapon in a stove.
Carey denied involvement with Davis' death and said that he was being set up by his sister, Patricia Allen. His evidence tended to show that he was being framed by his family; when his mother died at some time after the shooting, she left land to his sister, Patricia "Margie" Allen and his brother, Howard Clark with a condition that Carey could live on the land for as long as he behaved to the satisfaction of Patricia Allen; shortly before the anonymous tip to the Sheriff's Department, Carey had a dispute with Patricia and Howard, and Patricia had an ejectment action taken out against him.
Following conviction by a jury, the trial court sentenced Carey to life in prison. He now appeals to this Court.
Carey Lee Clark first argues that the trial court erred by allowing his sister-in-law, Ivalee, to testify about statements made by his now deceased mother, Lona Clark. Because the hearsay testimony came within the meaning of the present sense impression exception to the hearsay rule, we hold that there was no error in admitting the statements.
Ivalee testified that Lona Clark came to her home the day before Davis's body was found; Lona's face was red and she was picking her teeth, a nervous habit that she had when upset; Lona indicated she was not sick and that:
had been the worst day of her life. That Carey Lee had been there and he had been fussing all day and that he called the light company and he had really cussed them out. They had cut his power off. Then she said he had started on Ken Davis because he had put Laura off the van. He had quit letting her ride the van and said he was going to kill Ken.
The trial court ruled that this testimony was admissible under three different hearsay exceptions: (1) present sense impression, (2) excited utterance, and (3) then existing mental, emotional, or physical condition.
Under Rule 803(1), the present sense impression exception to the hearsay rule, a witness may testify to " statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." N.C. Gen. Stat. § 8C-1, Rule 803(1) (1991). There is no rigid rule about how long is too long to ...