State v. Hocutt, COA22-851, ___ N.C. App. ___ (Jul. 5, 2023)

In this Wayne County case, defendant appealed his conviction for felony cruelty to an animal, arguing plain error in admitting a written hearsay statement under Rule of Evidence 803(5). The Court of Appeals agreed, ordering a new trial. 

In March of 2021, a Wayne County Sheriff’s Office deputy responded to the report of a dog being shot with a small caliber rifle. The primary witness to the shooting was a witness who “had memory issues, was legally blind, and was drunk at the time of the shooting.” Slip Op. at 7. This witness was unable to read or write, so he dictated a statement to his son in the presence of the deputy; after the witness’s son transcribed the statement, the witness signed it. No one read the statement back to the witness to confirm its accuracy. At trial, the prosecution published the witness’s written statement to the jury under Rule 803(5) after he testified he could not remember the events in question. The witness also testified that he was legally blind, drunk at the time he allegedly saw defendant shoot the dog, drunk at the time he was giving the statement to his son for transcription, and suffered from short-term memory issues. No other direct evidence was admitted tying defendant to the dog’s shooting.  

The Court of Appeals first explained that under the third prong of Rule 803(5), a recorded recollection like the transcribed statement here must be adopted by the witness while “the facts were fresh in his memory.” Id. at 10. The court then applied the analysis from State v. Spinks, 136 N.C. App. 153 (1999), explaining “[the witness’s] signature on the statement is inadequate to satisfy the third prong of Rule 803(5) when: (1) it was never read back to him for adoption; (2) his in-court testimony contradicted the statements contained therein; and (3) he could not recall the events described.” Slip Op. at 12. The court then established this error was prejudicial, as “[w]hen [the witness’s] hearsay statements are excised from consideration, we can identify no remaining direct evidence that tends to show or identifies [defendant] as [the dog’s] killer.” Id. at 14. This represented a probable impact on the jury’s verdict and justified a new trial.