State v. Hargrove

Court of Appeals of North Carolina

State v. Hargrove

237 S.E.2d 285, 34 N.C. App. 48, 1977 N.C. App. LEXIS 1575

CourtCourt of Appeals of North Carolina

DecidedSeptember 7, 1977

DocketNo. 7711SC269

StatusPublished

This text of 237 S.E.2d 285 (State v. Hargrove) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hargrove, 237 S.E.2d 285, 34 N.C. App. 48, 1977 N.C. App. LEXIS 1575 (N.C. Ct. App. 1977).

Pincite

Opinion

MARTIN, Judge.

In his first assignment of error, the defendant contends that the trial court erred in overruling his objection to testimony by Agent Sturgill concerning the information obtained from reliable sources. Sturgill was allowed to testify, over defendant’s objection, to a conversation with Agent Brewington in which Sturgill related that someone else told him that defendant “was dealing in narcotics out of his vehicle and out of his residence in Erwin,” and that “it was possible for an undercover agent to possibly go in and make a buy from [defendant].” Defendant contends that this evidence constituted hearsay and that its introduction at trial was prejudicial. We agree.

An extrajudicial statement offered to prove the truth of the matter asserted therein constitutes hearsay. The probative force of such evidence, in whole or in part, depends upon the credibility and competence of the declarant — a person other than the witness from whom the information is sought — who is neither under oath nor sub[50]*50ject to cross-examination; consequently, such evidence, with certain recognized exceptions not presently applicable, is incompetent. State v. Kluttz, 206 N.C. 726, 175 S.E. 81 (1934); State v. Humphrey, 13 N.C. App. 138, 184 S.E. 2d 902 (1971); 1 Stansbury’s N.C. Evidence § 138 (Brandis Rev. 1973). In the case at bar, introduction of Agent Sturgill’s statements to Agent Brewington relating to “information from different reliable sources of information” was tantamount to the introduction of the extrajudicial statements of the original informers and therefore inadmissible hearsay.

The Court recognizes the well established rule in North Carolina that prejudice created by the admission of incompetent evidence over objection is “cured” by the subsequent admission without objection of evidence of similar import. See State v. Wright, 270 N.C. 158, 153 S.E. 2d 883 (1967). However, we hold that the facts of the instant case do not warrant the application of this rule. In his subsequent testimony, defendant merely stated that he had heard Agent Brewington testify at the preliminary hearing to a conversation with an unidentified black male who indicated that marijuana could be purchased “probably over to Norman Hargrove’s.” This evidence is clearly not of the same import as Agent Sturgill’s testimony. Agent Sturgill’s testimony related to information from “different reliable sources” and concerned defendant’s “dealing in narcotics out of his vehicle and his residence.” Moreover, defendant was not. testifying to these facts so as to put them into evidence; rather, he simply repeated what Agent Brewington had testified to at the preliminary hearing.

We hold that the trial court’s admission of prejudicial hearsay entitles defendant to a new trial.

As defendant’s other assignments of error may not arise on a retrial, we refrain from any discussion thereof.

New trial.

Judges Parker and Arnold concur.

Free access — add to your briefcase to read the full text and ask questions with AI

MARTIN, Judge.

In his first assignment of error, the defendant contends that the trial court erred in overruling his objection to testimony by Agent Sturgill concerning the information obtained from reliable sources. Sturgill was allowed to testify, over defendant’s objection, to a conversation with Agent Brewington in which Sturgill related that someone else told him that defendant “was dealing in narcotics out of his vehicle and out of his residence in Erwin,” and that “it was possible for an undercover agent to possibly go in and make a buy from [defendant].” Defendant contends that this evidence constituted hearsay and that its introduction at trial was prejudicial. We agree.

An extrajudicial statement offered to prove the truth of the matter asserted therein constitutes hearsay. The probative force of such evidence, in whole or in part, depends upon the credibility and competence of the declarant — a person other than the witness from whom the information is sought — who is neither under oath nor sub[50]*50ject to cross-examination; consequently, such evidence, with certain recognized exceptions not presently applicable, is incompetent. State v. Kluttz, 206 N.C. 726, 175 S.E. 81 (1934); State v. Humphrey, 13 N.C. App. 138, 184 S.E. 2d 902 (1971); 1 Stansbury’s N.C. Evidence § 138 (Brandis Rev. 1973). In the case at bar, introduction of Agent Sturgill’s statements to Agent Brewington relating to “information from different reliable sources of information” was tantamount to the introduction of the extrajudicial statements of the original informers and therefore inadmissible hearsay.

The Court recognizes the well established rule in North Carolina that prejudice created by the admission of incompetent evidence over objection is “cured” by the subsequent admission without objection of evidence of similar import. See State v. Wright, 270 N.C. 158, 153 S.E. 2d 883 (1967). However, we hold that the facts of the instant case do not warrant the application of this rule. In his subsequent testimony, defendant merely stated that he had heard Agent Brewington testify at the preliminary hearing to a conversation with an unidentified black male who indicated that marijuana could be purchased “probably over to Norman Hargrove’s.” This evidence is clearly not of the same import as Agent Sturgill’s testimony. Agent Sturgill’s testimony related to information from “different reliable sources” and concerned defendant’s “dealing in narcotics out of his vehicle and his residence.” Moreover, defendant was not. testifying to these facts so as to put them into evidence; rather, he simply repeated what Agent Brewington had testified to at the preliminary hearing.

We hold that the trial court’s admission of prejudicial hearsay entitles defendant to a new trial.

As defendant’s other assignments of error may not arise on a retrial, we refrain from any discussion thereof.

New trial.

Judges Parker and Arnold concur.

Cite This Page — Counsel Stack

Bluebook (online)

237 S.E.2d 285, 34 N.C. App. 48, 1977 N.C. App. LEXIS 1575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hargrove-ncctapp-1977.

Opinion

Related

Cite This Page — Counsel Stack