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Home / Top Legal News / Criminal Practice – Hearsay Exception – Excited Utterance – Trustworthiness of Statement – Harmless Error

Criminal Practice – Hearsay Exception – Excited Utterance – Trustworthiness of Statement – Harmless Error

State v. Rice. (Lawyers Weekly No. 10-16-0406, 17 pp.) (Robert C. Hunter, J.) Appealed from Mecklenburg County Superior Court (Timothy L. Patti, J.). N.C. App. Unpub.

Holding: The trial court properly admitted a hearsay statement by the victim that the defendant had threatened to kill him under the “excited utterance” exception where the evidence showed the statement was made just after a confrontation with the defendant, the victim appeared to be in an agitated state and the victim was referring to the defendant as the one who made the threat.

Even assuming the admission of the statement was in error, there is no reasonable possibility that its exclusion would have produced a different result at trial.

Furthermore, the trial court did not err in failing to intervene after the prosecutor commented on the defendant’s failure to present exculpatory or contradictory evidence in closing arguments or in failing to give the jury an instruction on voluntary manslaughter.

Because there was no error, the defendant’s conviction for first-degree murder is upheld.


The defendant had a 10-year relationship with T.P. The couple had four children. After the relationship ended “for good” in the summer of 2007, T.P. began a relationship with the victim. T.P. and the victim worked at the same hospital.

On Oct. 18, 2007, the defendant and T.P. met at a gas station. Afterwards, the defendant followed T.P. to the hospital, where she was to pick up the victim. The defendant, his brother and nephew got out of the car and confronted T.P. and the victim.

The victim went back inside the hospital and saw a security dispatcher as he ran down a lobby escalator. The security dispatcher testified that the victim was sweating, looked upset and told her, “He told me it wasn’t so many people around he would kill me now.”

Later that night, the defendant drove past T.P.’s house three times, with his brother and nephew in the car. After the final time, T.P.’s car wasn’t in the driveway. T.P. had left to pick up the victim. They returned to the victim’s house and had sex in the victim’s car.

Afterwards, the defendant drove up behind T.P.’s car, got out, walked up to the victim, said, “Hey, Rich,” and shot him three times in the chest. The victim died shortly after paramedics arrived.


Here, after conducting a voir dire of the security dispatcher, the trial court ruled that the victim’s statement was admissible under the “excited utterance” exception to the hearsay rule.

Under N.C. R. Evid. 803(2), an “excited utterance” is 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.”

To fall within this exception, the proponent must establish that there was (1) a sufficiently startling experience suspending the declarant’s reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.

Here, the surveillance tape presented at trial showed that the confrontation between the defendant, his brother and nephew, and victim ended at approximately 4:14 p.m., and the security dispatcher testified that she saw the victim running down the escalator between 4:10 and 4:20 p.m.

Thus, the span of time between the threat – a startling event – and his statement to the security dispatcher was as short as a few seconds and as long as six minutes.

The security dispatcher testified that the victim “looked angry, had a frown on his face, he was sweating and he was running down the escalator, as opposed to riding down.”

She also stated that he did not “seem like his normal self,” talked loudly and used terms she had not known him to use in the 12 years she had known him.

This evidence supports the trial court’s determination that the victim’s statement was admissible as an excited utterance under Rule 803(2).

The defendant argues that the victim’s statement should not have been admitted because he was not trustworthy. However, the focus of admissibility is on the trustworthiness of the statement itself, not the declarant.

The defendant further argues that the victim’s statement was inadmissible because he did not identify who made the threat to him.

However, the trial court determined that there was sufficient evidence from which the jury might conclude that the statement was made by the defendant.

According to the dispatcher, the victim stated that “he” – the person making the threat – “needed to talk to his girl.”

The evidence at trial tended to show that only the defendant had been in a 10-year relationship with T.P., only the defendant had four children with her and only the defendant had, as recently as that evening, expressed a desire to get back together with T.P.

Even assuming the victim’s statement was inadmissible hearsay, the defendant has failed to show a different result would have been reached at the trial in light of the evidence tending to establish premeditation and deliberation.

Here, the evidence at trial tended to establish that the defendant wanted to get back together with T.P., they had fought, the defendant had confronted her and the victim, talking aggressively to them, he repeatedly drove past her house to see if she were there and drove with a gun to the residence where he knew the victim lived.

The defendant got out of his car, walked up to the victim, said “Hey, Rich,” and then shot him three times in the chest from “an arm’s length away.”

No error.

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