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State v. Shuford, 337 N.C. 641 (1994)


North Carolina Reports
STATE v. SHUFORD, 337 N.C. 641 (1994)
447 S.E.2d 742

Page 647

[2] In his second assignment of error, defendant contends that the trial court erred in denying the admission into evidence of defendant's exculpatory statements to police officers. Officer Pettus testified on direct examination that defendant made certain voluntary statements to him at the police department several hours after the shooting. On cross-examination, defendant attempted to question Pettus regarding prior statements defendant had made at his home. The State objected on the basis of hearsay, and the objection was sustained. Defendant contends that he was attempting to elicit from Pettus that defendant had told him that "he had to shoot Hill, he had no other choice." Defendant argues that the statement was included in notes and reports used by Officer Pettus while he was testifying. Defendant contends that under Rule 612 of the North Carolina Rules of Evidence, he should have been able to introduce parts of the notes and reports into evidence. We disagree.

Rule 612 provides:

(a) while testifying. If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.

N.C.G.S. 8C-1, Rule 612 (1992). Rule 612 does not provide for the admission into evidence of writings used to refresh a witness' memory. Under Rule 612, defendant was only entitled to have such writings produced at trial. The admissibility of these writings is subject to the same rules of admissibility that apply to any evidence. Here, the trial court excluded the evidence as inadmissible hearsay. Defendant does not contest the trial court's ruling based on the hearsay objection and poses no arguments in support of admissibility under any exception to the hearsay rule. In fact, defendant makes no argument in his brief for the admissibility of the statement other than the argument based on Rule 612. Since the statement was not admissible under Rule 612, we cannot conclude that the trial court erred by excluding it. This assignment of error is therefore rejected.

Page 648

Date Printed: July 6, 1999





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