State v. Hocutt

890 S.E.2d 730

STATE of North Carolina v. Calvin Ray HOCUTT, Defendant.

No. COA22-851

Court of Appeals of North Carolina.

Filed July 5, 2023

Attorney General Joshua H. Stein, by Special Deputy Attorney General Brenda Menard, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for Defendant-Appellant.

RIGGS, Judge.

Defendant Calvin Ray Hocutt appeals from a judgment entered after a jury found him guilty of felony cruelty to an animal. Mr. Hocutt contends, among other arguments, that the trial court committed plain error in admitting written hearsay as substantive evidence when: (1) the eyewitness who gave the written statement testified at trial that he was unable to remember the most incriminating portions of that statement; (2) that same witness testified he was drunk, legally blind, and suffered from short-term memory issues at the time the statement was made; and (3) the admission of the statement as substantive evidence and subsequent publication to the jury was contrary to the North Carolina Rules of Evidence and so prejudicial as to warrant a new trial. The State disagrees, countering that the written statement was admissible under the hearsay exception found in Rule 803(5), which allows for the admission of recorded hearsay "concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately ...." N.C. R. Evid. 803(5) (2021). Because we hold that the State failed to establish the necessary foundation to admit the disputed hearsay evidence under Rule 803(5), and because said hearsay was the only evidence introduced tending to show Mr. Hocutt as the perpetrator of the crime, we agree with Defendant that the trial court plainly erred and order a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

On 21 March 2022, Michael Lozier and his father, Thomas "Tommy" Lozier, each lived in adjacent single-wide motorhomes that they rented from their neighbor, Jean "Rambo" Gelin, in Dudley, North Carolina. Michael was in his room that afternoon when he received a phone call from his stepmother asking him to come outside because she had heard a gunshot in the neighborhood. He met his father, who was drunk, in their shared driveway; the two did not think much of the event, as gunshots were common in the neighborhood.

Rambo returned home that evening after dark. One of his dogs, Campbell, was not in his usual place by Rambo's backdoor and, on the following morning, Rambo received a text message from Tommy's wife that Campbell had been shot the day before. Rambo met with Tommy and Michael in Rambo's front yard, and Tommy told Rambo that Mr. Hocutt had shot Campbell. Rambo called the Wayne County Sheriff's Department at Tommy's urging, and Deputy Brandon Elrod responded to the shooting.

When Deputy Elrod arrived, he met Michael, Tommy, and Rambo inside Rambo's fenced front yard. Campbell's body was also in the front yard, and Deputy Elrod observed a small entry wound in the dog's chest. A search of the area for other evidence, such as shell casings, proved unsuccessful. Tommy did offer to give a statement; however, that statement was dictated to his son because Tommy could not read or write. Michael transcribed the following statement, as signed by Tommy:

Yesterday about 5:00 pm I was in the nabors [sic] yard an [sic] I herd [sic] a gun shot at Rambo's house (121/Brookterrace) an [sic] seen [Mr. Hocutt] runing [sic] away from Rambo's front gate with a rifle (22) back to his house[.] [Mr. Hocutt] then told me he shot the dog in the chest an [sic] killed him[.] I herd [sic] a real loud wine [sic] an [sic] then it stoped [sic] all together [sic].

At the time Tommy signed the document, no one read it back to him to confirm its accuracy. The document also did not disclose that Tommy was both legally blind and drunk at the time he saw Mr. Hocutt running from Rambo's house.

Detective Milburn Powers interviewed Rambo, Tommy, and Michael later that week. Detective Powers also obtained and executed a search warrant for Mr. Hocutt's home in an attempt to locate a small-caliber rifle, but no evidence was obtained as a result. Detective Powers subsequently learned that Mr. Hocutt did own such a rifle, but that it had been reported stolen on 4 April 2020.

Mr. Hocutt was indicted for felony cruelty to animals on 1 March 2021. Trial began on 15 February 2022 and, after jury selection, the trial court held a voir dire hearing regarding Tommy's recorded out-of-court statement. Michael testified first, telling the trial court that he transcribed his father's statement because his father could not read or write. He further testified that, while the trial court was on break after jury selection, he had spoken with Tommy, Mr. Hocutt, and Mr. Hocutt's father, Joshua Smith, ¹ about Tommy's anticipated testimony. In that conversation:

[Tommy] was saying to [Mr. Smith], ... it weren't fair, you know ....

....

[T]hat Rambo was kind of like, ah—you know, pushing him towards, you know ... making it that, you know, the event ..., whatever, you know, the statement that he wrote right there, he said he felt that he, you know, he was kind of pushed into making that statement by the deputy and Rambo and whoever, you know[.]

Michael then confirmed for the trial court that he was going to testify truthfully and without pressure from anyone else.

Tommy's voir dire testimony followed, during which he stated that his written statement was "pretty much [accurate] or close to it." He acknowledged that he signed it; when asked if his son wrote down what he had said, Tommy testified "I guess. I guess he did because he's sitting in the front seat and I'm in the back seat." He also testified that he was drunk when he saw Mr. Hocutt the day before, drunk at the time he gave the statement, and that he and Mr. Smith wanted to bring that to the prosecutor's attention. On cross-examination, Tommy testified that the written statement was never read back to him because "I had trust in my son that he was ... filling it out as he was listening to it, I guess." Like Michael, he assured the trial court that he would testify truthfully, to the best of his recollection, and without influence.

Once the jury returned to the courtroom, the State called Michael as its first witness. Michael testified consistent with the above recitation of the facts, and Tommy's written statement was admitted into evidence without objection during this testimony. He further testified that Tommy was drunk on a daily basis, including on the dates in question, due to several tragic deaths in the family.

Tommy testified next. When asked if he saw Mr. Hocutt carrying anything on the day of the shooting, Tommy testified:

And I'm, I'm not really sure that I remember, because I were drinking that day, I was drinking that day, but I, I was saying that—and I have short-term memory, and it's hard for me to remember my, my own birthday, and, um ... as long as it's been since this happened ....

On follow-up questioning, he further testified:

I heard a gunshot and I'd seen Calvin coming back from where his dog ... [,] [m]e and [Mr. Smith ² ] was out there talking and when [Mr. Hocutt] come back, I mean ... I can't—it's hard for me to remember, I know, I know he come across, back across the road, he told [Mr. Smith] too the dog was dead or something, I don't know, I, I heard a gunshot, the dog is dead, and so I put two and two together.

[THE STATE]: Did you see [Mr. Hocutt] with a gun?

[TOMMY]: I seen him with something in his hand, I'm not going to say it was a gun, because I was impaired and, and, and—I still can't remember.

When presented with his written statement by the State, Tommy testified that he could not read or write and was legally blind, though he did confirm that he and his son had signed the statement. The prosecutor read the statement aloud for the jury and asked if that was "the statement as you recall on March 22?" Tommy replied as follows:

I'm, I'm—I may have, yeah, I may have.

....

I may have, I, I ain't going to be as for sure about it because I'm not going to jeopardize myself when I can't remember, you know, I don't know.

[THE STATE]: Today you do not remember what you saw on March 22.

[TOMMY]: Like I said, I seen him coming back, I don't—I couldn't have told you if it could have been a stick or it could have been a—now I couldn't tell you, but then that's what it looked like.

[THE STATE]: And that's the statement [Mr. Hocutt] made to you then?

....

[TOMMY]: I can't say about that now; I can't remember that.

The State then published the written statement to the jury without objection.

On cross-examination, Tommy confirmed to the jury that he was unable to read the statement and that he did not remember whether it had ever been read back to him. He also testified that he had memory issues, was legally blind, and was drunk at the time of the shooting. As for whether Mr. Hocutt had fired weapons in the neighborhood in the past, Tommy testified on redirect that law enforcement "had been over there two or three times about them—they practice—target practice behind the house." Finally, on re-cross, Tommy gave the following testimony concerning what he witnessed Mr. Hocutt carrying:

I didn't know what it was, I know—I know that they run the dog away from there, they run the dog away and the dog come back, this is what—that I saw, and then he kept over there and [Mr. Hocutt] went running and I don't know, I'm not going to say if he had a gun, if he had a stick, because [Mr. Smith] was the one that had a stick, he went over there and killed—killed his dog—because then I'd be mad too, and I don't, I don't ... I don't know what to say.

....

I can't say it weren't a gun, I can't—I don't know what it was. I don't want to say that it was a stick and it was a gun or if it was a gun it was a stick. Do you understand?

After the Loziers testified,...