The victim in this Davie County murder case was a “neighborhood runner,” running errands for people in general, and allegedly running drugs for the defendant. One afternoon, a friend of the victim was walking home and discovered the victim laying near railroad tracks. The victim told his friend, “Red beat me up.” The defendant was known as “Red.” Around an hour and a half passed before law enforcement was alerted. The first responding officer asked the victim what happened, and the defendant named “Carlos Lowery” and “Red” as the person responsible. The victim again repeated this information to a detective. An additional officer and an EMT on the scene overheard the victim name the defendant as the perpetrator, and the victim named the defendant once more to a detective in the ambulance. The victim did not survive, and the defendant was charged with first-degree murder and common law robbery.

The defendant filed a motion in limine to exclude the victim’s statements to law enforcement and overheard by the EMT as hearsay and in violation of the defendant’s confrontation and due process rights. The trial court denied the motion. It found that the statements fell within the excited utterance exception or were offered in corroboration and did not address the motion’s constitutional grounds. At trial, the defendant made only general objections to the testimony regarding the victim’s statements. The State also presented evidence of a recorded jail call between the defendant and a woman through a detective. The detective testified to her familiarity with the defendant’s voice, as well as the jail phone system, and identified the voice on the call as the defendant’s. The phone call was played for the jury, but the audio was of low quality. The detective was permitted to testify that the defendant stated on the call that he “got the cigarettes and the change, but not the phone.” Lowery Slip op. at 6. Those specific items were among those listed as missing from the victim. The defendant was convicted of second-degree murder and appealed, arguing evidentiary and confrontation errors at trial.

(1) The defendant argued evidence of the victim’s statements to police and EMT identifying the defendant as his attacker was improperly admitted under the excited utterance exception. The exception provides that “statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” are admissible. G.S. 8C-1, Rule 803(2) (2019). The defendant maintained that, because the time of the attack was unknown, it was error to conclude the defendant was still under the influence of the event at the time. Rejecting this argument, the court noted that the unknown time frame cut against the defendant’s argument. In its words:

Defendant’s argument, however, rests on a speculative assessment of the facts precisely because the Record does not disclose how much time elapsed from the assault until the statements were made. Put another way, the assault may have occurred just minutes before [the friend] found [the victim] but no more than approximately 75-90 minutes before. Lowery Slip op. at 9.

 Further, there is not a firm rule regarding how soon after the startling event a statement may be made to be considered an excited utterance; the question turns on whether the declarant was still under the stress of the event at the time. The defendant pointed to evidence that the defendant’s friend initially perceived the victim to be “calm” but “in pain” when the victim was first discovered. This too was rejected. Given the severity of the victim’s injuries—internal injuries causing breathing difficulty and eventually death—the court declined to conclude that the victim’s statements were not made while under the stress of the event. The trial court therefore did not err in admitting the statements as excited utterances.

(2) The defendant argued that admission of the victim’s statements identifying him to police and the EMT violated his Confrontation Clause and Due Process rights under Sixth Amendment. This constitutional argument was raised in the defendant’s pretrial motion, but the court did not rule on that issue when admitting the statements. The defendant made no constitutional objections at trial, and the issue was consequently unpreserved for appellate review. See N.C.R. App. P. 10(a)(1) (2021). The defendant did not seek plain error review or suspension of the Rules of Appellate Procedure to allow review of the unpreserved claim, and the court declined to review it.

(3) The defendant argued that admission of the jail phone call testimony violated Rule 701 of the North Carolina Rules of Evidence as improper lay opinion. He pointed out that the call was played for the jury and argued that the detective’s testimony was not helpful to the jury. As a preliminary matter, the court observed that the defendant again only made a general objection at trial and possibly failed to preserve the issue for appellate review. Assuming the issue was preserved, the admission of this testimony was not an abuse of discretion. Under State v. Belk, 201 N.C. App. 412 (2009), a lay witness may identify a defendant when the testimony is helpful to the jury and does not improperly invade the jury’s role as finder of fact. Distinguishing the video identification at issue in Belk, as well as the strength of the evidence in the respective cases, the court rejected this argument:

Given [the detective’s] familiarity with both the telephone system and with Defendant . . . , we cannot say then that there was ‘no basis for the trial court to conclude that the officer was more likely than the jury to correctly identify’ the contents of the recording of the telephone call . . . Lowery Slip op. at 18.

Finally, the court concluded that even if this testimony was admitted in error, the defendant could not demonstrate prejudice on the facts. The trial court was therefore affirmed in all respects. Judge Dietz and Zachary concurred.