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State v. Johnson4/7/1995
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C.G.S. § 8C-1, Rule 801(c) (1992). Under N.C.G.S. § 8C-1, Rule 801(a), " 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion." We conclude that defendant's statement that April was the one who brought up the Discussions about killing the Barbers constitutes hearsay under N.C.G.S. § 8C-1, Rule 801(a), (c). We also conclude, however, that this statement was admissible under N.C.G.S. § 8C-1, Rule 801(d) as a party admission. Defendant's assignment of error is overruled.
IV.
Next, defendant contends that the trial court erred by not allowing defendant to ask Agent Cabe and Deputy Walsh about a statement defendant gave to Deputy Benfield at approximately 7:30 a.m. on 5 September 1991. Because the evidence shows that neither Agent Cabe nor Deputy Walsh had personal knowledge of the statement made by defendant to Deputy Benfield, we find no error.
It is well settled that " witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." N.C.G.S. § 8C-1, Rule 602 (1992); see State v. Hester, 330 N.C. 547, 552, 411 S.E.2d 610, 613 (1992); State v. Hunt, 324 N.C. 343, 352, 378 S.E.2d 754, 759 (1989).
In the present case, it is undisputed that neither Agent Cabe nor Deputy Walsh was present when defendant was interviewed by Deputy Benfield. Further, on cross-examination when defendant attempted to question Agent Cabe and Deputy Walsh about the written statement given by defendant to Deputy Benfield, Agent Cabe testified that he had not seen the written statement previously, and Deputy Walsh testified that he could not identify the written statement. Accordingly, we conclude that the trial court properly excluded testimony by Agent Cabe and Deputy Walsh concerning defendant's statement to Deputy Benfield of which Agent Cabe and Deputy Walsh had no personal knowledge. Instead, we note that Deputy Benfield would have been the proper witness to testify concerning the statement defendant gave to him; defendant did not, however, call Deputy Benfield as a witness.
Defendant additionally argues that he should have been allowed to ask Agent Cabe if he were aware that the statement existed or if he knew that defendant had spoken to Deputy Benfield and to ask Deputy Walsh if he were present when Deputy Benfield testified at the suppression hearing and whether Deputy Benfield told Deputy Walsh defendant had given him a statement. Our review of the transcript shows, however, that defendant was in fact permitted to ask Agent Cabe if he "later became aware of the fact that before [defendant] talked to [Agent Cabe] he talked to [Deputy] Benfield" and whether before defendant started talking to Agent Cabe, defendant told Agent Cabe that he had already given Deputy Benfield his statement. Further, on re-cross, defendant was permitted to ask Deputy Walsh if he were present at pretrial motions when Deputy Benfield testified concerning the statement in question.
Thus, defendant was allowed to ask Agent Cabe and Deputy Walsh essentially the same questions of which he now complains. In light of this fact and in light of our holding that Agent Cabe and Deputy Walsh could not testify to the substance of the statement given to Deputy Benfield, defendant has failed to show the relevance of these particular questi
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