State v. Ruiz

PHILLIPS, Judge.

At trial, one of the arresting officers testified over defendant’s objection that defendant was driven back to his home to make arrangements for the care of his children. When he and two officers walked in, a woman in the room, presumed by the witness to be defendant’s girlfriend, became excited and said to defendant, “I told you not to go. I told you not to do it that you would get in trouble, you would get caught.” Defendant contends that it was error to receive this testimony because it was hearsay and the declarant was neither identified nor offered as a witness by the State. We disagree. Under the provisions of G.S. 8C-1, Rule 803, an “excited utterance,” defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” is not excluded by the hearsay rule. The evidence involved was clearly such an utterance, and the court did not err in receiving it. Such utterances were also admissible under court developed rules before the present rules of evidence were enacted. See, 1 Brandis N.C. Evidence Sec. 164 (1982).

On cross-examination by the State, defendant denied making certain statements in a telephone conversation with the informant Quershi in which the cocaine transaction involved was allegedly arranged, and the State offered to play a tape recording of the conversation. Before permitting the tape to be run the court held a voir dire to determine only whether the tape could be used to impeach defendant’s testimony, and no inquiry was made as to the tape’s authenticity. After hearing the tape, the court allowed it to be played twice in its entirety for the jury. Cross-examined about it defendant conceded that the voices on the tape sounded like his and Quershi’s, but denied taking part in any telephone conversation about a drug transaction. He was then required, over objection, to give a voice exemplar for the jury by reading from a transcript of the tape the lines spoken by the voice that sounded like his. He contends that permitting the tape and the transcript to be used in this manner was error because the tape had not been authenticated, as State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971) and State v. Shook, 55 N.C. App. 364, 285 S.E. 2d 328 (1982) require. These decisions stand for the proposition that before a recorded statement can be received as substantive evidence, it must be authenticated. But at the time complained of the tape and defendant’s reading were not used for substantive purposes. They were used for impeachment during cross-examination, and “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility,” G.S. 8C-1, Rule 611(b) (emphasis added). That a witness’s credibility can be affected by evidence of prior inconsistent statements has been recognized since the earliest days of our jurisprudence. Murphy v. McNeil, 19 N.C. 244 (1837). And the voice exemplar had the further purpose of identifying defendant as the person who made the prior inconsistent statement. See State v. Looney, 294 N.C. 1, 240 S.E. 2d 612 (1978); State v. Coleman, 270 N.C. 357, 154 S.E. 2d 485 (1967); 1 Brandis, supra Secs. 38, 46.

On rebuttal, the State elicited testimony from one of the investigating officers to the effect that: He was with Quershi when the taped conversation took place and recorded it; the tape played in court was a tape of that conversation and one of the voices recorded was Quershi’s; the tape had not been altered or tampered with since the conversation was recorded and he had had custody of the tape ever since. The officer was not allowed to identify the other voice on the tape since the jurors, who had heard the tape and heard defendant testify and give the voice exemplar, were as well qualified to make that determination as the officer was. The tape was then admitted into evidence over defendant’s objection that it had not been authenticated. The State’s argument that the tape and testimony were limited to impeachment purposes is without merit. No limiting instructions were either requested or given. Under the circumstances, therefore, it would have been appropriate for the court to conduct a voir dire to determine the tape’s authenticity. State v. Lynch, supra; see generally, 2 Brandis N.C. Evidence Sec. 195 (1982). But G.S. 8C-1, Rule 901, states that the requirement of authenticity “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims”; and in our opinion the testimony of the State’s rebuttal witness substantially completed the authentication of the tape, except for identifying the defendant’s voice, which was wisely left for the jury to determine, since they had heard the tape, the testimony of defendant and Quershi about it, and defendant’s voice exemplar. Under the peculiar circumstances that developed, if the failure to formally complete the authenticity process was error, it was harmless.

Though no aggravating factors were found the court sentenced defendant to two consecutive seven year prison terms. These sentences exceed the presumptive terms for Class G felonies, but they do not violate the Fair Sentencing Act, as defendant contends. This is because the presumptive terms set forth in G.S. 15A-1340.4(f) do not apply where the sentence for an offense is otherwise specified by statute; and G.S. 90-95(h)(3)a and G.S. 90-95U) provide that a person convicted of trafficking or conspiracy to traffic in cocaine in an amount between 28 and 200 grams, as happened here, “shall be sentenced to a term of at least seven years.” (Emphasis added.)

No error.

Judges WELLS and WHICHARD concur.