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IN THE SUPREME COURT OF NORTH CAROLINA No. 355A10 FILED: 11 MARCH 2011 STATE OF NORTH CAROLINA v. NEIL MATTHEW SARGEANT Appeal pursuant to N.C.G.S. ' 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 696 S.E.2d 786 (2010), ordering a new trial following a judgment imposing a sentence of life imprisonment without parole upon a jury verdict finding defendant guilty of first-degree murder and judgments imposing additional terms of imprisonment for other convictions, all entered by Judge Ronald K. Payne on 24 April 2008 in Superior Court, Watauga County. Heard in the Supreme Court 16 November 2010.

Roy Cooper, Attorney General, by John G. Barnwell, Assistant Attorney General, for the State-appellant. Staples S. Hughes, Appellate Defender, by Benjamin Dowling-Sendor, Assistant Appellate Defender, for defendant-appellee. EDMUNDS, Justice. In this case, we consider whether the trial court correctly excluded the hearsay statement made by one of the participants in a murder. The excluded statement implicated the State=s only

-2eyewitness, not defendant, as the instigator of the crime. Because

we find that the trial court=s findings of fact are not based upon competent evidence and that the record in its entirety does not support its conclusions of law, we determine that the trial court erred. We further conclude that defendant Neil Matthew Sargeant was Accordingly, we modify and affirm the Court

prejudiced by the error.

of Appeals opinion reversing defendant=s convictions and remanding for a new trial. On the morning of 8 November 2005, two people walking near a covered bridge on Sleepy Hollow Lane in a rural part of Watauga County noticed a Subaru automobile parked nearby. Seeing smoke

issuing from the car, they went to a friend=s house and asked him to call 911. Deputy Kelly Redmond of the Watauga County Sheriff=s

Department responded and observed smoke rising through the vehicle=s partially opened sunroof. No one was near the car or in its passenger

area, but when Deputy Redmond opened the trunk, he found that it was filled with smoke and contained the body of the victim, Stephen Harrington. The victim=s hands were bound with duct tape and his head

was Acompletely covered@ with duct tape Asimilar to the way that a mummy=s head would [be] wrapped up.@ Although the body was partially

burned, Deborah Radisch, M.D., Associate Chief Medical Examiner for North Carolina, testified that she performed the autopsy and determined the cause of death was asphyxia from smothering. She

added that because the duct tape covered the victim=s mouth and nose,

-3he probably would have lost consciousness in Asixty to ninety seconds@ and died within Afive to ten minutes.@ The absence of carbon monoxide

in the victim=s blood indicated that he was not breathing when the fire reached him. During the investigation of the crime, Watauga County Sheriff=s Detective Dee Dee Rominger took a statement from Matthew Brandon Dalrymple (Dalrymple) on 10 September 2007. In his

statement, Dalrymple related that he and defendant Neil Matthew Sargeant (defendant) were at defendant=s house in Boone on the evening of 7 November 2005, where they smoked marijuana and snorted cocaine while playing video games. Dalrymple stated that he fell asleep on

a couch about 7:00 p.m. but awoke around 11:00 p.m. and went into the kitchen, where he saw Kyle Triplett (Triplett) choking Aa guy.@ As Dalrymple watched, Triplett hit the victim in the temple with the butt of a pistol, knocking him down. After kicking the victim in

the side and stomping on the back of his head, Triplett used duct tape first to secure the victim=s hands behind his back and then to tape the victim=s head Afrom chin to his for[e]head.@ Dalrymple continued that Triplett pointed the pistol at Dalrymple and ordered him to drive. As Dalrymple prepared to follow

Triplett=s instructions, he passed defendant in the hallway. Defendant asked what was going on, but Dalrymple did not respond. Dalrymple said he heard defendant repeat, AWhat the f[---] is going on,@ then add, AGet this s[---] out of my house.@ Dalrymple dressed

-4and went outside, where he observed drag marks on the ground and saw Triplett putting the victim into the trunk of the victim=s car and closing the lid. Dalrymple stated that he saw the victim=s leg move.

As Triplett drove away in the victim=s car, Dalrymple entered the car belonging to defendant=s girlfriend and asked defendant to come with him. Dalrymple drove defendant as they followed Triplett to a

covered bridge where Dalrymple saw Triplett moving around inside the victim=s car, which subsequently began to burn. Triplett then walked Triplett left

to the trunk of that car, which also began to burn.

the trunk open and joined Dalrymple and defendant in the other car, after which they left at high speed. At the time Dalrymple=s statement was taken, the State was preparing to try Triplett for Harrington=s murder. Accordingly, on

13 September 2007, the State entered into an agreement with Dalrymple, under which Dalrymple would give Atruthful testimony concerning the events surrounding the death of Stephen Harrington if called upon by the [S]tate to do so.@ The truthfulness of

Dalrymple=s trial testimony would be measured against his 10 September 2007 statement to investigators. The agreement also granted

Dalrymple use immunity by providing that Athe State will not use the statement against [Dalrymple] in any state criminal proceedings, and will not use any evidence derived from such statement against him in any state judicial proceeding.@ testified against Triplett. However, Dalrymple never

During his trial, Triplett pleaded

-5guilty on 20 September 2007 to second-degree murder, first-degree kidnapping, robbery with a dangerous weapon, burning personal property, and conspiracy to sell cocaine. The State then proceeded to try defendant capitally for the murder of Harrington. Defendant was charged with first-degree

murder, in violation of N.C.G.S. ' 14-17; robbery with a dangerous weapon, in violation of N.C.G.S. ' 14-87; first-degree kidnapping, in violation of N.C.G.S. ' 14-39; and burning of personal property, in violation of N.C.G.S. ' 14-66. At defendant=s trial, the State presented Triplett as a witness. Triplett had made two prior statements to investigators.

In the first, a rather disjointed narration taken the day after the murder, Triplett told investigators he was awakened by sounds of a struggle and heard someone yell, AWhy me,@ but did not immediately come out of his room. When he emerged from his room a short time

later to use the bathroom, he had his back turned to the commotion and covered his ears. Triplett told the investigators he did not

see the victim=s face, which had been covered with gray tape. Triplett related that he Ahad to pick [the victim] up@ and, when doing so, noticed that the hands had been bound and had turned blue and that the body was lifeless. According to Triplett, defendant and Defendant had

Dalrymple said to him that it Acould have been you.@

a pistol and made Triplett drive to a covered bridge while Dalrymple followed in another car. Triplett added that he lit the tape on the

-6victim=s arms. At defendant=s trial, this statement was read to the

jury by State Bureau of Investigation Special Agent Wade Colvard. Triplett made a second, more detailed statement the day before he testified against defendant. In his second statement,

Triplett reported that defendant called him and told him to come to defendant=s house, put on gloves, grab the victim when the victim came through the door, and put a gun to his head. Triplett stated that

he complied with defendant=s instructions when the victim arrived and that defendant afterwards wrapped the victim=s head with duct tape. Triplett added that, once the victim was felled, Dalrymple kicked him in the face and took between four and six ounces of cocaine from the victim=s pocket. Triplett said that he and defendant dragged the

victim=s body to the car and put it in the trunk and that they drove to the covered bridge, followed by Dalrymple, who was driving another car. Defendant sprayed lighter fluid on the body and Triplett At defendant=s trial, Triplett provided detailed

ignited it.

testimony on behalf of the State that was consistent with his second statement. Under cross-examination, Triplett testified that he did

not remember saying some of the things contained in his 8 November 2005 statement and that other things he had said then were not true. Although the State presented additional evidence of defendant=s guilt, it did not call Dalrymple as a witness against defendant. After the State rested its case-in-chief, defendant presented evidence that portrayed Triplett as the principal

-7assailant in the attack upon the victim. However, when defendant

called Dalrymple as a witness, Dalrymple refused to testify, invoking his rights under the Fifth Amendment to the Constitution of the United States. Because Dalrymple=s refusal rendered him unavailable to

defendant, defendant moved to introduce Dalrymple=s 10 September 2007 statement as a hearsay exception pursuant to N.C.G.S. ' 8C-1, Rule 804(b)(5). The State objected, arguing that the statement lacked

indicia of reliability and was inadmissable because it was not trustworthy. After considering the arguments of counsel and

conducting additional research, the trial court made oral findings of fact and conclusions of law on the record, then sustained the State=s objection. At the conclusion of all the evidence, the jury convicted defendant of first-degree murder, first-degree kidnapping, robbery with a dangerous weapon, and burning personal property. Although

the jury had been death-qualified, the State elected not to offer evidence of aggravating circumstances. Accordingly, the trial

court sentenced defendant to a term of life imprisonment without parole for the murder. In addition, the court sentenced defendant

to a consecutive term of 100 to 129 months for first-degree kidnapping, then consolidated the remaining charges and imposed an additional consecutive sentence of 60 to 81 months. Defendant appealed. In a divided decision, the Court of

Appeals reversed defendant=s convictions and remanded the case for

-8a new trial. State v. Sargeant, ___ N.C. App. ___, ___, 696 S.E.2d The majority held that Dalrymple=s statement was

786, 800 (2010).

admissible under the residual hearsay exception found in Rule 804(b)(5) of the Rules of Evidence. Id. at ___, 696 S.E.2d at 799.

The dissenting judge disagreed, concluding that the statement was inadmissible. Id. at ___, 696 S.E.2d at 809 (Ervin, J., dissenting).

In its opinion, the Court of Appeals also considered the procedure used by the trial court to take the verdicts in this case. Briefly

stated, the trial court on different days took verdicts on the various theories of first-degree murder that were submitted to the jury, a process fully described in the opinion of the Court of Appeals. at ___, 696 S.E.2d at 789-92 (majority). Id.

Although we agree with the

Court of Appeals majority that the procedure was erroneous, our resolution of the hearsay issue obviates the need to analyze whether the error, which is unlikely to recur upon retrial, was prejudicial. Accordingly, we consider whether the trial court abused its discretion in sustaining the State=s objection when defendant proffered Dalrymple=s hearsay statement pursuant to the residual hearsay exception found in Rule 804(b)(5). State v. Smith, 315 N.C.

76, 97, 337 S.E.2d 833, 847 (1985) (A[A]missibility of hearsay statements pursuant to the Rule 803(24) residual hearsay exception is within the sound discretion of the trial court.@). AHearsay is not admissible except as provided by statute or by these rules.@ N.C.G.S. ' 8C-1, Rule 802 (2009). Although

-9Dalrymple=s statement was unquestionably hearsay in that it was being offered by defendant for the truth of its contents, id., Rule 801(a), (c) (2009), defendant contended that it was admissible under the residual hearsay exception codified at N.C.G.S. ' 8C-1, Rule 804(b)(5). That rule states:

The following [is] not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . . (5) . . . . A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement. We gave guidance to the trial courts

Id., Rule 804(b)(5) (2009).

for applying this exception when we stated that:

-10Once a trial court establishes that a declarant is unavailable pursuant to Rule 804(a) of the North Carolina Rules of Evidence, there is a six-part inquiry to determine the admissibility of the hearsay evidence proffered under Rule 804(b)(5). State v. Fowler, 353 N.C. 599, 608-09, 548 S.E.2d 684, 696 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002); State v. Triplett, 316 N.C. 1, 8-9, 340 S.E.2d 736, 741 (1986). Rule 803(24) of the North Carolina Rules of Evidence is essentially identical to Rule 804(b)(5), but it does not require that the declarant be unavailable. Triplett, 316 N.C. at 7, 340 S.E.2d at 740. Under either of the two residual exceptions to the hearsay rule, the trial court must determine the following: (1) whether proper notice has been given, (2) whether the hearsay is not specifically covered elsewhere, (3) whether the statement is trustworthy, (4) whether the statement is material, (5) whether the statement is more probative on the issue than any other evidence which the proponent can procure through reasonable efforts, and (6) whether the interests of justice will be best served by admission. State v. Smith, 315 N.C. 76, 91-98, 337 S.E.2d 833, 844-48 (1985); accord N.C.G.S. ' 8C-1, Rule 804(b)(5) (2001); see also Triplett, 316 N.C. at 8-10, 340 S.E.2d at 740-41. State v. Valentine, 357 N.C. 512, 517-18, 591 S.E.2d 846, 852 (2003). We agree with the parties that five of these factors have been satisfied and the only question presented here is whether the statement is trustworthy. ATo be admissible under the residual

exception to the hearsay rule, the hearsay statement must possess >guarantees of trustworthiness= that are equivalent to the other exceptions contained in Rule 804(b).@ State v. McLaughlin, 316 N.C.

-11175, 179, 340 S.E.2d 102, 104 (1986) (quoting United States v. Bailey, 581 F.2d 341, 348 (3d Cir. 1978)). When determining the trustworthiness, the following considerations are at issue: (1) whether the declarant had personal knowledge of the underlying events, (2) whether the declarant is motivated to speak the truth or otherwise, (3) whether the declarant has ever recanted the statement, and (4) whether the declarant is available at trial for meaningful cross-examination. Valentine, 357 N.C. at 518, 591 S.E.2d at 852-53 (citations omitted); see also Triplett, 316 N.C. at 10-11, 340 S.E.2d at 742. Although

this list of factors is not exhaustive, see Triplett, 316 N.C. at 10-11, 340 S.E.2d at 742, the trial court cited Triplett and limited its analysis to these four considerations. The record establishes

that Dalrymple had personal knowledge and never recanted his statement. Accordingly, we consider whether competent evidence in

the record indicates that he was motivated to speak the truth and was available for meaningful cross-examination. When ruling on an issue involving the trustworthiness of a hearsay statement, a trial court must make findings of fact and conclusions of law on the record. S.E.2d at 853. Valentine, 357 N.C. at 518, 591

We have held that admitting evidence under the

catchall hearsay exception set out in Rule 803(24) (Hearsay exceptions; availability of declarant immaterial) is error when the trial court fails to make adequate findings of fact and conclusions of law sufficient to allow a reviewing court to determine whether

-12the trial court abused its discretion in making its ruling. v. Smith, 315 N.C. at 97, 337 S.E.2d at 847. State

If the trial court either

fails to make findings or makes erroneous findings, we review the record in its entirety to determine whether that record supports the trial court=s conclusion concerning the admissibility of a statement under a residual hearsay exception. See State v. Daughtry, 340 N.C.

488, 514, 459 S.E.2d 747, 760 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996); see also Valentine, 357 N.C. at 518-19, 591 S.E.2d at 853. If we conclude that the trial court erred in

excluding Dalrymple=s hearsay statement, we consider whether defendant was prejudiced. N.C.G.S. '' 15A-1442(4)(c), -1443 (2009).

The trial court made oral findings of fact that were commingled with its conclusions of law. and conclusions included several errors. These intertwined findings For instance, in assessing

Dalrymple=s motivation to speak the truth, the trial court stated that Dalrymple=s refusal to testify Akept the death penalty in play in his own criminal case and therefore [Dalrymple] has acted against his own self interests by refusing to testify when called by the defense in this matter.@ Although this analysis supports admitting the First, the agreement

statement, it is incorrect in two respects.

between Dalrymple and the State required only that he testify for the State and put him under no obligation to testify on behalf of defendant. Second, the trial court=s analysis addressed only

Dalrymple=s decision not to testify, not his motivation to be truthful

-13at the time he made his statement. Accordingly, this finding by the

trial court is not supported by competent evidence in the record. Next, this Court has stated that a factor to be considered when determining the admissibility of hearsay evidence under Rule 803(24) is Athe practical availability of the declarant at trial for meaningful cross-examination. [This factor] also must be

considered in weighing the >circumstantial guarantees of trustworthiness= under Rule 804(b)(5).@ Triplett, 316 N.C. at 11, The trial court found

340 S.E.2d at 742 (internal citation omitted).

that admitting Dalrymple=s statement Awould put the Court in position in every case where a co-defendant makes an out of Court statement that could be under some circumstances considered exculpatory as to that co-defendant against another co-defendant admissible into evidence even though it=s an unsworn statement by the co-defendant simply taking the Fifth Amendment and refusing to testify and not being subject to cross-examination.@ This analysis is so broad as

to effectively nullify Rule 804(b)(5), which permits admission of a hearsay statement when the conditions set out in the rules of evidence are satisfied. In addition, this finding also assumes that Dalrymple would be completely unavailable for cross-examination. However,

the record reveals that while Dalrymple=s invocation of his rights under the Fifth Amendment to the Constitution of the United States unquestionably rendered him Aunavailable@ to defendant as a witness

-14for purposes of Rule 804(b)(5), the terms of the agreement did not preclude his testimony under all circumstances. Under the

agreement, the State provided Dalrymple use immunity so that his testimony and his statement could not be used against him if he were called as a witness by the State. Because Dalrymple=s agreement

contained no provision for immunity if he were called by defendant, his invocation of his Fifth Amendment rights was predictable. However, if the trial court had admitted Dalrymple=s hearsay statement during defendant=s presentation of evidence, the State could have responded by calling Dalrymple as an adverse witness and cross-examining him to undermine his testimony and reinforce its theory that defendant was the most culpable of the lot. ' 8C-1, Rule 607 (2009). N.C.G.S.

In that scenario, since the State called

him to testify, Dalrymple=s agreement providing him use immunity would trump his Fifth Amendment rights, subjecting him to meaningful cross-examination, as set out in Triplett, 316 N.C. at 11, 340 S.E.2d at 742. In addition, the trial court made no findings on the effect of the agreement on Dalrymple=s motivation to speak truthfully. We

emphasize again that the issue is not whether Dalrymple=s statement is objectively accurate; the determinative question is whether Dalrymple was motivated to speak truthfully when he made it. The

agreement between Dalrymple and the State, reached when Dalrymple provided his statement, appears designed to ensure his truthfulness.

-15According to the terms of the agreement, Dalrymple=s statement was not taken in the anticipation that it would be admitted at trial. Instead, it was taken for the secondary purposes of establishing what Dalrymple=s trial testimony would be and to provide a gauge by which his testimony would be measured in determining whether he kept his end of the bargain. Believing that he would be called upon to testify

and that his statement would be made available to the defendant on trial (at that time, presumably Triplett), Dalrymple knew he would be subject to cross-examination by the State if he deviated from his statement and by the defendant on trial if he did not. Accordingly,

he knew that any falsehoods could be exposed, possibly depriving him of the benefit of his bargain and thereby giving him a motivation to speak truthfully. Thus, our review of the record indicates that, of the four considerations identified in Valentine and Triplett as being useful in determining the trustworthiness of a hearsay statement, all the evidence indicated that Dalrymple had personal knowledge and never recanted. As to the other two considerations, Dalrymple=s motivation

to speak the truth and his availability for meaningful cross-examination, the court=s conclusions that these considerations had not been satisfied were made on the basis of inaccurate and incomplete findings of fact used to reach unsupported conclusions of law. Accordingly, the trial court erred in excluding Dalrymple=s

hearsay statement.

-16Having determined that the trial court=s exclusion of Dalrymple=s statement was error, we must consider whether defendant was prejudiced by its exclusion. Although trials are mechanisms for

ferreting out the truth, in this case it is apparent that the objective facts of what happened the night the victim was killed are elusive. Both Dalrymple and Triplett gave initial statements in the As detailed above, Dalrymple=s

immediate aftermath of the murder.

statement implicated Triplett and, to a lesser extent, defendant, while Triplett=s statement implicated defendant and Dalrymple. Faced with these fundamentally inconsistent and incompatible statements, the State negotiated first with Dalrymple, providing use immunity in the apparent expectation of calling him as a witness against Triplett. However, when Triplett entered a negotiated plea

to reduced charges mid-trial and the State turned its attention to the task of proceeding against defendant, the prosecutor elected to present Triplett, not Dalrymple, as its eyewitness. When defendant

offered Dalrymple=s statement to the jury as part of his defense, the State successfully resisted. Although we are cognizant that

circumstances may change as a case progresses, the reason for the State=s decision to jettison Dalrymple in favor of Triplett is not in the record. Nevertheless, with that decision Dalrymple became

an albatross to the prosecution but a potential lifeline for defendant. As a matter of fundamental fairness, the exclusion of

-17Dalrymple=s statement deprived the jury of evidence that was relevant and material to its role as finder of fact. The impact of the exclusion of this evidence is apparent from the record. witnesses. This case hinged upon the credibility of the

The jurors asked several questions of the court during AAre there

their deliberations, including one relating to perjury:

any possible consequences/punishments/repercussions to a witness for lying under oath? Specifically a witness who made a plea Since Triplett was the only cooperating

agreement with the State?@

codefendant who testified, this skeptical question surely referred to him. In addition, defendant was on trial for his life when he As to the murder charge, the

tendered Dalrymple=s hearsay statement.

jury was instructed on first-degree murder on three different theories (premeditation and deliberation, lying in wait, and felony murder), second-degree murder, and not guilty. As to the robbery

charge, the jury was instructed on robbery with a dangerous weapon, common law robbery, and not guilty. Consequently, as to these

offenses, the jury was required to decide not only defendant=s guilt vel non but also, if he were found guilty, the degree of his guilt and the basis or bases of a first-degree murder conviction. The

jury=s verdicts as to all these matters were based upon incomplete information. Defendant has shown a reasonable possibility that the admission of Dalrymple=s statement implicating Triplett would have

-18led to a different verdict against him. N.C.G.S. ' 15A-1443(a)

(2009); see, e.g., State v. Augustine, 359 N.C. 709, 731, 616 S.E.2d 515, 531 (2005) (citing N.C.G.S. ' 15A-1443 and noting that to Aestablish prejudice,@ a defendant must show Aa reasonable possibility that a different result would have been reached@ had an evidentiary ruling not been made), cert. denied, 548 U.S. 925, 165 L. Ed. 2d 988 (2006). Accordingly, the trial court=s exclusion of Dalrymple=s We affirm the decision of the Court

statement was prejudicial error.

of Appeals to remand for a new trial.

MODIFIED AND AFFIRMED.

Justice Jackson did not participate in the consideration or decision of this case.



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