State v. Patterson

Justice FRYE

concurring in result.

I respectfully disagree with the Court’s holding that the composite pictures in this case are not hearsay. I believe they are hearsay and, not falling within any recognized exception to the hearsay rule, should have been excluded as substantive evidence. I agree with the Court, however, that the admission of the composite pictures in this case did not prejudice defendant. I therefore concur in the result reached by the Court.

As a preliminary matter, I agree with the Court that the composite pictures were not properly authenticated, and therefore should not have been admitted into evidence for that reason. Having reached this conclusion, it seems unnecessary for the Court to even reach the issue of whether the composite pictures also should have been excluded as hearsay. Because the Court reached this issue, however, I must register my disagreement.

The Court errs, I believe, in its conclusion that the composite pictures are not “statements” or “assertions” within our Rules of Evidence. I cannot accept the Court’s adoption of the State’s argument that the composite pictures “are akin to a photograph, in that they are produced by mechanical procedures essentially re-creating a picture and not producing a ‘statement’ or an ‘assertion’ within the meaning of our Rules of Evidence.” State v. Patterson, 332 N.C. 409, 420 S.E.2d 98 (1992). Instead, I find persuasive the following analysis from the unanimous opinion of the Court of Appeals below:

The threshold question is whether the sketches are “statements” within the meaning of Rule [of Evidence] 801(a): “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.” The North Carolina Commentary to this definition of “statement” points out the seeming non-difficulty of interpretation of the first sub-part:

It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of ‘statement.’

The State quotes Moskowitz, for the proposition that “the sketch itself, as distinguished from [the victims’] statements about it, need not fit an exception to the rule against hearsay because it is not a ‘statement’ and therefore can no more be ‘hearsay’ than a photograph identified by a witness.” [United States v. Moskowitz, 581 F.2d 14, 21 (2d cir.), cert. denied, 439 U.S. 871, 58 L. Ed. 2d 184 (1978)]. Reasoning from the language in the State Commentary to Rule 801(a)(1), we view a sketch as but a silent depiction or replication of “an assertion made in words” about a suspect’s corporeal appearance and thus a statement for purposes of the application of exclusionary Rule 802.

In the present case, absent any State rule parallel to the Federal Rule 801(d)(1) “escape hatch” from the hearsay rule for prior statements and prior identifications, this Court cannot say that a sketch based on oral assertions, and on oral assertions alone, is not a “statement” and, therefore, not subject to the hearsay rules, as a preliminary matter. In that sense, the composites here are not analogous to photographs because the sketches are not necessarily an “accurate” representation of what they in fact purport to show.

Under either a relevance analysis or a hearsay analysis, the sketches in this case were inadmissible. The relevance of the sketches was not established because the witnesses who had seen the robbers did not testify at trial about the accuracy of the police composites. As “statements,” Rule 802 of the North Carolina Rules of Evidence requires their exclusion if offered as substantive evidence, because they do not come within a hearsay exception.

State v. Patterson, 103 N.C. App. 195, 203-205, 405 S.E.2d 200, 206-07 (1991); accord State v. Motta, 66 Haw. 254, 659 P.2d 745 (1983); Commonwealth v. Rothlisberger, 197 Pa. Super. 451, 178 A.2d 853 (1962).

Put simply, it seems clear that had the police artist repeated the statements made to him by the eyewitnesses, these statements would be classified as hearsay. How, then, can the product of these statements — the composite pictures —be somehow transformed into nonhearsay? I don’t believe it can and thus am unable to join the Court’s opinion. I therefore concur only in the result reached by the Court.

Justices Webb and WHICHARD join in this concurring opinion.