Summary
holding that a statute criminalizing "derogatory charges against candidates" "clearly does" cover "even truthful statements"
Summary of this case from Grimmett v. FreemanOpinion
No. 43PA92
Filed 30 July 1993
1. Appeal and Error 48, 362 (NCI4th); Criminal Law 67 (NCI4th) — misdemeanors — original trial in superior court — failure of record to show jurisdiction — prosecutor's statement insufficient to show presentment — vacation of judgment The Court of Appeals did not err by vacating the superior court's judgment in a prosecution for publishing unsigned materials about a candidate for public office in violation of N.C.G.S. 163-274(7) on the ground that the record on appeal showed that the superior court lacked subject matter jurisdiction where all the offenses charged were misdemeanors; the only charging documents in the record on appeal are grand jury indictments; and the superior court has no jurisdiction to try by indictment a defendant charged with a misdemeanor unless the charges which are the subject of an indictment are initiated by a presentment. A statement in the trial transcript by the district attorney informing the court that the misdemeanor charges originated by presentment was insufficient to comply with the requirement of Appellate Rule 9(a)(3)(e) that the record shall contain "copies of all warrants, informations, presentments, and indictments upon which the case has been tried in any court," since the rule contemplates that all charging documents must be copied and presented verbatim in the record on appeal, and mere references to such documents in the trial transcript cannot suffice for verbatim copies of the documents themselves or substitute for such copies when the copies are missing from the record.
Am Jur 2d, Criminal Law 352; Justices of the Peace 108.
2. Appeal and Error 48, 367 (NCI4th) — motion to amend record — addition of presentment — denial by Court of Appeals not error — election by Supreme Court to allow amendment The Court of Appeals did not err when it denied the State's motion to amend the record on appeal by adding copies of the presentment upon which misdemeanor charges were initiated against defendant to show that the superior court had jurisdiction over the case. However, the Supreme Court elects to allow the amendment to reflect subject matter jurisdiction so that it may reach the substantive issues of the appeal.
Am Jur 2d, Appeal and Error 482, 484; Justices of the Peace 108.
3. Elections 13 (NCI4th) — unsigned publication of charge against election candidate — statute prohibiting — not unconstitutionally vague As used in the statute making it unlawful for anyone in the context of an election (1) to publish (2) any charge (3) derogatory to a candidate or calculated to affect the candidate's electoral chances (4) without signing the publication, N.C.G.S. 163-274(7), the verb "to publish" is to be given its ordinary meaning, and the term "charge" is interpreted to mean an accusation of wrongdoing. When so interpreted, the statute defines the proscribed conduct with sufficient definiteness so that it is not unconstitutionally vague.
Am Jur 2d, Elections 379, 380.
4. Elections 13 (NCI4th); Constitutional Law 117 (NCI4th) — unsigned publication of charge against election candidate — statute prohibiting — no violation of free speech The statute making it unlawful for anyone to publish any charge derogatory to an election candidate or calculated to affect the candidate's electoral chances without signing the publication, N.C.G.S. 163-274(7), is not constitutionally overbroad so as to violate free speech guarantees in the federal and state constitutions. The statute serves the compelling interest of the State of promoting fair and honest elections and is drawn no more broadly than is necessary to serve that interest. U.S. Const. amend. I; N.C. Const. art. I, 14.
Am Jur 2d, Constitutional Law 496, 497; Elections 379, 380.
5. Elections 13 (NCI4th) — publishing unsigned materials about candidates — alternate theories — erroneous intent instruction on one theory — prejudice In a prosecution for publishing unsigned materials about two candidates for public office in violation of N.C.G.S. 163-274(7), the trial court erred by instructing the jury that, in order to convict defendant, it must find that defendant published "a charge he intended to be derogatory to a candidate for election to the Boone Town Council, or which he calculated would affect such candidate's chances of election," since the statute permits a conviction if the jury finds either (1) that the published material was a derogatory charge or (2) that the charge was "calculated" by defendant to affect a candidate's chances for nomination or election; the jury's determination of whether the material was a derogatory charge is not based on defendant's intention but on its objective interpretation of the publication; and the trial court's instruction permitted the jury to convict defendant upon a finding that defendant only intended the materials to be derogatory even if, objectively, the jury did not consider them to be so. Because the trial court incorrectly instructed the jury regarding one of two possible theories upon which defendant could be convicted and it is unclear upon which theory or theories the jury relied in arriving at its guilty verdict, it is assumed that the jury based its verdict on the theory for which it received an improper instruction.
Am Jur 2d, Elections 379, 380.
6. Evidence and Witnesses 906, 2047 (NCI4th) — unsigned materials about candidates — opinions of others as to whether derogatory or hurtful — inadmissible hearsay In a prosecution for publishing unsigned materials about two candidates for public office, testimony by the candidates as to the actual opinions expressed by certain local residents out of court concerning whether the materials were derogatory or hurtful to the candidates' chances of being elected was admitted for the truth of what was said and was inadmissible hearsay. The statements were not admissible as lay witness opinion testimony under N.C.G.S. 8C-1, Rule 701 because neither witness was testifying as to his or her own opinion.
Am Jur 2d, Evidence 497; Expert and Opinion Evidence 26, 53, 54.
On discretionary review pursuant to N.C.G.S. 7A-31 of the decision of the Court of Appeals, 105 N.C. App. 233, 414 S.E.2d 41 (1992), vacating a judgment entered by Lamm, J., at the 19 October 1990 Criminal Session of Superior Court, Watauga County. Heard in the Supreme Court 11 September 1992.
Lacy H. Thornburg, Attorney General, by Charles M. Hensey, Special Deputy Attorney General, for the State.
Chester E. Whittle, Jr., for defendant-appellee.
Justice MITCHELL dissenting.
Justice PARKER did not participate in the consideration or decision of this case.
The substantive issue before us is whether N.C.G.S. 163-274(7), prohibiting anonymous, derogatory charges against candidates for primary or general elections, violates the free speech guarantees of the First Amendment of the United States Constitution or Article I, 14 of the North Carolina Constitution, or both. Before reaching this constitutional issue, however, we must first dispose of a procedural question: whether the Court of Appeals erred by vacating the judgment of the trial court on the ground of lack of subject matter jurisdiction. We conclude the Court of Appeals did not err on the record before it when it vacated the judgment of the trial court; but, for reasons of judicial economy and to reach the important constitutional question raised, we elect to allow the State's motion to amend the record on appeal, which amendment demonstrates that the trial court had jurisdiction over the case. As for the constitutional issue, we conclude the statute does not violate defendant's free speech rights under either the federal or state constitution. We do find, however, that the trial court committed reversible error by incorrectly stating the law in its jury instructions; and defendant therefore is entitled to a new trial. We also conclude that the trial court erred in admitting certain out-of-court opinion evidence.
I.
Defendant was convicted of eleven counts of publishing unsigned materials about a candidate for public office — all misdemeanors in violation of N.C.G.S. 163-274(7). Judgment was entered imposing a sentence of two years' imprisonment which was suspended for three years upon the condition defendant serve six weekends in the county jail. The only charging documents contained in the record on appeal are grand jury indictments. The Court of Appeals vacated the trial court judgment for lack of subject matter jurisdiction in the superior court. We allowed the State's petition for further review.
Evidence at defendant's trial tended to show as follows: Defendant owned a land development company, Property Services and Investments (PSI), in Boone, North Carolina, which was primarily engaged in the management of rental properties. Defendant was also among ten candidates running for three seats on the Boone Town Council in the 10 October 1989 election. Only one candidate, Ben Suttle, received a clear majority. A run-off election was required, but defendant did not receive enough votes to qualify for the run-off. Four other candidates did qualify for the run-off election, two of whom were Saul Chase and Louise Miller.
On 1 or 2 November 1989, defendant obtained a copy of a letter addressed to his mother with which was enclosed a copy of a Washington Post article written by Nan Chase, candidate Chase's wife. The article expressed Mrs. Chase's opinion about prayer in school. The accompanying letter stated:
Chase wants to take away aggressive Christian influence from public buildings and gathering places, such as our schools.
In an article published in the Washington Post, Mrs. Saul Chase ridiculed the people of Boone for their support of Christianity stating that here "Christianity is . . . intimidating and self-perpetuating."
Calling herself an "unbeliever (in Christianity) in the midst of the pious", Mrs. Saul Chase states that she is unable to openly criticize "religious paraphernalia displayed in public offices and on state owned vehicles" and she also says that if(anyone) speak(s) out forcefully against what may be an unconstitutional mixing of church and state, they will be unable to enter the political mainstream that has the power to separate the two spheres". — This thought has not been spoken to the people of Boone by Mrs. Chase, only to the Washington Post. Why keep it from us? Because her husband is on our Town Council, and was just put in the run off for re-election. If he wins, he will have the power to take away any Christian influence from the town employees, buildings, etc. It can be assumed that Chase allegedly has a goal to wipe out Christian influence from our town, take it away form the very God-fearing Christian people who helped put him in office. Candidates should be open about all of their feelings of all issues and it appears that Saul Chase has been deceptive to us by not supporting the good, wholesome beliefs of our people. A deception that is allegedly a deliberate attempt to gain power to take our Christian atmosphere from us. We, the town, should stop him, keep him out of our town government and hold fast to our Christian freedoms. Vote against Saul Chase!
With the help of various members of his staff at PSI, defendant reproduced and mailed approximately thirty to seventy copies of the letter to persons who voted in the 10 October 1989 election. Defendant personally addressed several of the envelopes. He did not sign his name to the mailing or otherwise indicate that the mailing came from him.
On 3 or 4 November 1989 defendant received a copy of a flyer concerning candidates Miller and Chase. The flyer stated:
VOTE LIQUOR BY THE DRINK FOR BOONE.
FOUR YEARS AGO, WITH THE HELP OF SAUL CHASE, THE A.S.U. STUDENTS BROUGHT BEER TO BOONE. NOW IS THE TIME TO COMPLETE THE PARTY!
SUTTLE, DUGGER MARSH REFUSE TO ENDORSE THIS ISSUE AND WOULD WORK TO DEFEAT THE REFERENDUM.
VOTE SAUL CHASE AND LOUISE MILLER NOV. 7TH THE "PRO-LIQUOR" CANDIDATES
Defendant copied and mailed out twenty to twenty-five unsigned copies of the flyer. Again, defendant did not sign his name to the mailing or otherwise identify himself as the person who sent it.
On 15 November 1989 Special Agent Steve Wilson of the North Carolina State Bureau of Investigation began investigating the mailings. Wilson spoke with defendant on 27 November 1989 at defendant's PSI office. When Wilson informed defendant that he had compared the handwriting on defendant's notice of candidacy to handwriting appearing on the flyers and anonymously mailed envelopes, defendant admitted addressing some of the anonymous letters. He said he was unaware that sending the anonymous material was a criminal violation.
The opinion of the Court of Appeals was filed 21 January 1992. Concluding that the record on appeal demonstrated a lack of jurisdiction in the superior court, the Court of Appeals vacated the superior court's judgment. On 22 January 1992 the State moved in the Court of Appeals to amend the record on appeal by adding certified copies of the presentment upon which charges were initiated against defendant. The Court of Appeals denied this motion on 23 January 1992.
II.
The State contends the Court of Appeals erred by vacating the superior court proceedings for lack of jurisdiction. We conclude the Court of Appeals acted properly on the record before it.
Like the majority of states, North Carolina requires the State to prove jurisdiction beyond a reasonable doubt in a criminal case. State v. Batdorf, 293 N.C. 486, 493, 238 S.E.2d 497, 502 (1977). Exclusive, original jurisdiction of all misdemeanors lies in the District Court Division of the General Court of Justice. N.C.G.S. 7A-272 (1989). The superior court has jurisdiction to try a misdemeanor charge:
(1) Which is a lesser included offense of a felony on which an indictment has been returned, or a felony information as to which an indictment has been properly waived; or
(2) When the charge is initiated by presentment; or
(3) Which may be properly consolidated for trial with a felony under G.S. 15A-926;
(4) To which a plea of guilty or nolo contendere is tendered in lieu of a felony charge; or
(5) When a misdemeanor conviction is appealed to the superior court for trial de novo, to accept a guilty plea to a lesser included or related charge.
N.C.G.S. 7A-271(a) (1989).
"When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority." State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981). See also State v. Hardy, 298 N.C. 191, 257 S.E.2d 426 (1979) (Record on appeal shows lack of jurisdiction when a defendant is convicted in superior court of committing a crime for which he is not charged; judgment arrested.); State v. Guffey 283 N.C. 94, 194 S.E.2d 827 (1973) (Record on appeal shows lack of jurisdiction when the superior court convicts a defendant of a misdemeanor for which there is no conviction in district court; judgment arrested.); State v. Evans, 262 N.C. 492, 137 S.E.2d 811 (1964) (Record on appeal shows lack of jurisdiction when a defendant who is never tried in district court is tried in superior court upon a warrant; judgment arrested and vacated.).
Contrarily, "when the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed." Felmet, 302 N.C. at 176, 273 S.E.2d at 711. See also State v. Hunter, 245 N.C. 607, 96 S.E.2d 840 (1957) (No copy of the bill of indictment contained in the record on appeal; appeal dismissed.); State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955) (Where Record failed to disclose jurisdiction in the court below; appeal dismissed.). In Felmet, we concluded the record was silent as to jurisdiction when the defendant was tried in superior court upon a warrant charging misdemeanor trespass because the record did not indicate whether the defendant had been tried in district court. We, therefore, held the Court of Appeals properly dismissed the appeal.
As did the Court of Appeals, we conclude this is a case in which the record affirmatively shows a lack of jurisdiction. According to the record, the only charging documents are indictments. All the offenses charged are misdemeanors. Under N.C.G.S. 7A-271, the superior court has no jurisdiction to try by indictment a defendant charged with a misdemeanor unless the charges which are the subject of the indictment were initiated by a presentment.
The State contends the trial transcript shows that the charges against defendant were initiated by a presentment pursuant to N.C.G.S. 7A-271(a)(2). The transcript does include a statement by the district attorney informing the court that the misdemeanor charges originated by presentment. Rule 9(a)(3)(e) of the North Carolina Rules of Appellate Procedure requires the record on appeal in criminal actions to include:
so much of the evidence, set out in the form provided in Rule 9(c)(1), as is necessary for an understanding of the errors assigned, or a statement that the entire verbatim transcript of the proceedings is being filed with the record pursuant to Rule 9(c)(2), or designating portions of the transcript to be so filed . . . .
N.C. R. App. P. 9(a)(3)(e). Relying on this requirement, the State asserts that reference to the presentment contained in the trial transcript is a part of the record and, as such, is sufficient to confer jurisdiction.
We are not persuaded by this argument. Appellate Rule 9(a)(3) sets forth the requisite contents of the record on appeal in criminal actions. Subsection (e), relied on by the State, is directed only to the presentation of the evidence. Subsection (c) governs how charging documents must be presented, and it provides that the record shall contain "copies of all warrants, informations, presentments, and indictments upon which the case has been tried in any court." N.C. R. App. P. 9(a)(3) (emphasis added). It is clear that this rule contemplates that all charging documents must be copied and presented verbatim in the record on appeal. Mere references to such documents in the trial transcript cannot suffice for verbatim copies of the documents themselves, nor may such references substitute for such copies when the copies are missing from the record.
III.
Having concluded that the Court of Appeals acted properly on the record before it in vacating the judgment in the trial court, we also conclude the Court of Appeals did not err when it denied the State's motion to amend the record.
In Felmet, the defendant moved for leave to amend the record to include "the judgment of the district court which reflected defendant's appeal therefrom to the superior court" to show how the superior court obtained subject matter jurisdiction over his case. Felmet, 302 N.C. at 174, 273 S.E.2d at 710. The Court of Appeals denied the motion. Id. We concluded that the denial was a decision within the discretion of the Court of Appeals and that we could find no abuse of that discretion. Id. at 176, 273 S.E.2d at 711. Nevertheless, we held the record should be amended to reflect subject matter jurisdiction so that we could reach the substantive issue of the appeal. In so holding, we stated, "[this] is the better reasoned approach and avoids undue emphasis on procedural niceties." Id.
While we find no abuse of discretion on the part of the Court of Appeals in denying the State's motion to amend, we elect as we did in Felmet to allow the State leave to amend.
When the record is amended to add the presentment, it is clear the superior court had jurisdiction over these misdemeanors under N.C.G.S. 7A-272(2). Section 15A-641(c) of the North Carolina General Statutes provides:
A presentment is a written accusation by a grand jury, made on its own motion and filed with a superior court, charging a person, or two or more persons jointly, with the commission of one or more criminal offenses. A presentment does not institute criminal proceedings against any person, but the district attorney is obligated to investigate the factual background of every presentment returned in his district and to submit bills of indictment to the grand jury dealing with the subject matter of any presentments when it is appropriate to do so.
N.C.G.S. 15A-641(c) (1988). Section 15A-628(a)(4) of the North Carolina General Statutes states that a grand jury
may investigate any offense as to which no bill of indictment has been submitted to it by the prosecutor and issue a presentment accusing a named person or named persons with one or more criminal offenses if it has found probable cause for the charges made. An investigation may be initiated upon the concurrence of 12 members of the grand jury itself or upon the request of the presiding or convening judge or the prosecutor.
N.C.G.S. 15A-628(a)(4) (1988) (emphasis added).
The amendment to the record shows that on 2 January 1990, the district attorney asked the Watauga County Grand Jury, pursuant to N.C.G.S. 15A-628(a)(4), to investigate the charges against defendant. The grand jury did so and, pursuant to 15A-641(c), filed with the superior court on 2 January 1992 a presentment against defendant charging him with violating N.C.G.S. 163-274(7). Thereafter, the district attorney, pursuant to 15A-641(c), submitted two bills of indictment to the grand jury dealing with the subject matter of the presentment; and the grand jury returned true bills of indictment on 19 February 1990 upon which defendant was tried and convicted.
The judgment of the superior court should not, on the record as amended, be vacated for lack of subject matter jurisdiction.
IV.
We now address the important constitutional questions raised in this case. Defendant raised the constitutional issues by moving before trial to dismiss the indictments on the ground of the unconstitutionality of the statute on which the indictments were based. He renewed the motion at the close of the state's evidence and at the close of all the evidence. All motions to dismiss were denied by the trial court, and defendant has assigned these denials as error.
Defendant contends that N.C.G.S. 163-274(7) is unconstitutionally vague and overbroad so as to violate the free speech guarantees in both the federal and state constitutions. We conclude that N.C.G.S. 163-274(7), properly interpreted, is not unconstitutionally vague; and we think the statute serves a legitimate compelling interest of the State and is drawn no more broadly than is necessary for that purpose.
The statute at issue provides as follows:
163-274. Certain Acts declared misdemeanors.
Any person who shall, in connection with any primary or election in this State, do any of the acts and things declared in this section to be unlawful, shall be guilty of a misdemeanor. It shall be unlawful:
. . . .
(7) For any person to publish in a newspaper or pamphlet or otherwise, any charge derogatory to any candidate or calculated to affect the candidate's chances of nomination or election, unless such publication be signed by the party giving publicity to and being responsible for such charge.
N.C.G.S. 163-274(7)(1991).
This statute is part of Subchapter VIII, titled "Regulation of Election Campaigns," and of Article 22, titled "Corrupt Practices and Other Offenses against the Elective Franchise," of our General Statutes. First enacted in 1931 (see Chapter 348, section 9(10) of the 1931 Session Laws), it is in the general category of election reform statutes, which take many forms and which are designed to prohibit various kinds of practices thought to be inimical to fair elections. Developments in the Law — Elections, 88 Harv. L. Rev. 1111, 1286-87 (1975); see also Burson v. Freeman, 504 U.S. ___, 119 L.Ed.2d 5 (1992) for the Court's historical account of these reforms. Forty-three states have enacted legislation similar to N.C.G.S. 163-274(7) with the clear intent of "promot[ing] honesty and fairness in the conduct of an election campaign." Tennessee v. Acey, 633 S.W.2d 306, 307 (Tenn. 1982). Additionally, the United States Congress has enacted a statute making it a criminal offense to make an expenditure to publish and distribute statements expressly advocating the election or defeat of a clearly identified candidate without stating the name of the person or persons responsible for its publication and distribution. 2 U.S.C. § 441d (1988); United States v. Scott, 195 F. Supp. 440 (D.N.D. 1961).
A.
Defendant first contends that certain terms in the statute are so vague that it fails to provide persons clear notice of the prohibited conduct.
The test for determining whether a statute is unconstitutionally vague has been stated as follows:
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Connally v. General Construction Co., 269 U.S. 385, 391, 70 L.Ed. 322, 328 (1926); accord Coates v. Cincinnati, 402 U.S. 611, 29 L.Ed.2d 214 (1971); In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969). While vagueness and uncertainty may invalidate a statute, In re Burrus, 275 N.C. at 531, 169 S.E.2d at 888, the Court will strive to interpret a statute to avoid serious doubts about its constitutionality. Delconte v. State, 313 N.C. 384, 402, 329 S.E.2d 636, 647 (1985). Thus if two reasonable constructions of the statute are possible, this Court will adopt the construction which renders the statute constitutional. In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978); Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966).
The statute, properly interpreted, is not unconstitutionally vague. It prohibits anyone in the context of an election from (1) publishing (2) any charge (3) derogatory to a candidate or calculated to affect the candidate's electoral chances (4) without signing the publication. Contrary to defendant's position, we see nothing vague about the statute's use of the verb, "to publish." To publish means simply "1 a. to declare publicly: make generally known: DISCLOSE, CIRCULATE . . . b. to proclaim officially . . . c. to make public announcement of . . . d. PUBLICIZE . . . to give publication to . . . ." Webster's Third New International Dictionary 1837 (1976). Clearly defendant's mailing the materials in question constituted their publication under the ordinary meaning of the term.
We find "charge" to be the only term in the statute whose meaning may not be commonly understood and which requires judicial interpretation. See State v. Crawford, 329 N.C. 466, 485, 406 S.E.2d 579, 590 (1991). We find the following definitions to be instructive: The American Heritage Dictionary 260 (2d college ed. 1985) ("6. An accusation or indictment: a charge of conspiracy to defraud"); Webster's Ninth New Collegiate Dictionary 227 (1988) ("6 . . . b : a statement of complaint or hostile criticism denied the charges of nepotism that were leveled against him"); Webster's Third New International Dictionary 377 (1966) ("6 a : an accusation of a wrong or offense: ALLEGATION, INDICTMENT arrested on charge of bribery b : a statement of complaint or hostile criticism the charge that earned incomes are based upon no principle of equity"); see also Black's Law Dictionary 233 (6th ed. 1990) ("an accusation"); Legal Thesaurus 71 (1980) ("Accusation . . . allegation, arraignment, attack, blame, castigation, censure, citation, complaint, condemnation, count, countercharge"). The common thread in these definitions is that "charge" means an "accusation." An "accusation" is defined as "a charge of wrongdoing; imputation of guilt or blame." Random House Webster's College Dictionary 10.
A Kentucky statute provided: "Any person [could] prefer charges against a member of the police or fire department by filing them with the city manager" for purposes of having the accused "reprimanded, dismissed or demoted." Mason v. Seaton, 303 Ky. 528, 529, 198 S.W.2d 205, 206 (1946) (emphasis added). The Court of Appeals of Kentucky held that "'charges' signify an accusation . . . of illegal conduct, either of omission or commission, by the person charged." Id. at 531, 198 S.W.2d at 207. In Rosales v. City of Elroy, 122 Ariz. 134, 593 P.2d 688 (1979), a former police officer who had been discharged for misconduct sued the city and the police chief, alleging libel and slander because the mayor and police chief had informed a newspaper that "charges" had been placed against him. Both defendants contended that the officer could not prevail against them because no formal criminal charges had been filed against the officer. The Arizona court interpreted the word "charges" as follows: "The basic premise of appellees' argument is that the word 'charges' means 'the filing of criminal charges' . . . . We do not agree with this premise. The word 'charges' also denotes 'accusations' or 'allegations' and does not necessarily mean the filing of criminal charges." Id. at 136, 593 P.2d at 690.
Using the above definitions and analyses, we conclude the legislature intended the word "charge" to mean an accusation of wrongdoing.
As interpreted, the statute defines the proscribed conduct with sufficient definiteness so as to avoid arbitrary and discriminatory enforcement. See Village of Hoffman Estates v. Flipside, 455 U.S. 489, 71 L.Ed.2d 362 (1982). We therefore conclude the statute is not unconstitutionally vague.
B.
Defendant next argues that the statute is not drawn narrowly enough and is constitutionally overbroad. Defendant agrees that the statute's goal of prohibiting anonymous pejorative campaign material is legitimate and concedes that "with more specificity in legislative drafting, that aim may be constitutionally sustainable." Defendant-Appellee's New Brief, p. 22. He contends that, as drawn, the statute "embraces protected speech which the government may not restrict." Id. at 21. The State contends to the contrary, arguing the statute is narrowly drawn so as to encompass only "anonymous, derogatory material that is directed toward specific candidates." Brief for the State, p. 31. The State's position is that the statute could not be drawn more narrowly and still serve the State's compelling interest in insuring as far as possible fair elections. For the reasons which follow we find ourselves in agreement with the State.
The parties agree the State's interest in promoting fair and honest elections is legitimate and compelling. They disagree on whether the statute, as drafted, is necessary to serve that interest. This is the ultimate question for decision under the doctrines developed by the United States Supreme Court in interpreting the Free Speech Clause of the United States Constitution and which we adopt here for purposes of applying the Free Speech Clause of the North Carolina Constitution.
Defendant states in his brief at p. 30: "The Defendant agrees with the State that '[i]t is well settled that a state has a compelling interest in preserving the integrity and orderliness of the election process.'"
The First Amendment to the Federal Constitution provides:
Congress shall make no law . . . abridging the freedom of speech, or of the press[.]
U.S. Const. amend. I. Similarly, Article I, 14 of the North Carolina Constitution states:
Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
N.C. Const. art. I, 14.
Under the Federal Constitution, "freedom of speech . . . which [is] secured by the First Amendment against abridgement by the United States, [is] among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgement by a state." Thornhill v. Alabama, 310 U.S. 88, 95, 84 L.Ed. 1093, 1098 (1940). Where a statute regulating the time, place and manner of expressive activity is content-neutral in that it does not forbid communication of a specific idea, it will be upheld if the restriction is "narrowly tailored to serve a significant governmental interest," and it "leaves open ample alternatives for communication." Burson v. Freeman, 504 U.S. ___, ___, 119 L.Ed.2d 5, 13 (1992); United States v. Grace, 461 U.S. 171, 177, 75 L.Ed.2d 736, 743-44 (1983). A statute, however, which on its face regulates the content of protected speech in that it restricts communication of a specific idea "must be subjected to exacting scrutiny: the State must show that the 'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'" Burson, 504 U.S. at ___, 119 L.Ed.2d at 13-14, quoting Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 74 L.Ed.2d 794, 804 (1983). A content-based regulation of speech occurs where restrictions are placed on the espousal of a particular viewpoint, or when there is a prohibition of public discussion on an entire topic. Burson, 504 U.S. at ___, 119 L.Ed.2d at 13. In such a case, "a state must do more than assert a compelling state interest — it must demonstrate that its law is necessary to serve the asserted interest." Id. at ___, 119 L. Ed 2d at 15.
Because the statute expressly regulates political speech, it is content-based. E.g., id. at ___, 119 L.Ed.2d at 13. We must give it exacting scrutiny; and we must be satisfied that it is necessary to serve the State's compelling interest in having fair, honest elections.
Our State Constitution offers similar free speech protection in Article I, Section 14. This provision is self-executing, and we have recognized a cause of action against state officials for its violation. Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289, cert. denied, Durham v. Corum, ___ U.S. ___, 121 L.Ed.2d 431 (1992). In some of our cases, the Court has found the guarantees in the state and federal constitutions to be parallel and has addressed them as if their protections were equivalent. Felmet, 302 N.C. 173, 273 S.E.2d 708; Andrews v. Chateau X, 296 N.C. 251, 250 S.E.2d 603 (1979), vacated on other grounds, 445 U.S. 947, 63 L.Ed.2d 782 (1980). We have also recognized that "in construing provisions of the Constitution of North Carolina, this Court is not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States." State v. Hicks, 333 N.C. 467, 483, 428 S.E.2d 167, 176 (1993); State v. Arrington, 311 N.C. 633, 642, 319 S.E.2d 254, 260 (1984). "We do, however, give great weight to decisions of the Supreme Court of the United States interpreting provisions of the Constitution of the United States which are parallel to provisions of the State Constitution to be construed." Id. at 484, 428 S.E.2d at 176. In this case, for the purpose of applying our State Constitution's Free Speech Clause we adopt the United State's Supreme Court's First Amendment jurisprudence.
The United States Supreme Court has long permitted certain regulations of protected speech for appropriate reasons. Elrod v. Burns, 427 U.S. 347, 49 L.Ed.2d 547 (1976). Thus, a paid lobbyist, a member of a specialized occupation, can be required to register and disclose his or her contributors. United States v. Harriss, 347 U.S. 612, 98 L.Ed. 989 (1954). A candidate for election can be required to disclose the sources of contributions so as to prevent corruption. Buckley v. Valeo, 424 U.S. 1, 46 L.Ed.2d 659 (1976). A publisher of a newspaper can be required to make disclosures to obtain second-class mailing privileges. Lewis Publishing Co. v. Morgan, 229 U.S. 288, 57 L.Ed. 1190 (1913). A grand jury can require disclosure of newspaper sources to aid in the prosecution of criminal activity. Branzburg v. Hayes, 408 U.S. 665, 33 L.Ed.2d 626 (1972).
Even in the area of political speech, the United States Supreme Court has recognized that a State "indisputably has a compelling state interest in preserving the integrity and reliability of its election process." Eu v. San Francisco County Democratic Comm., 489 U.S. 214, 231, 103 L.Ed.2d 271, 287 (1989); e.g., Schuster v. Imperial County Airport, 109 Cal.App.3d 887, 896, 167 Cal.Rptr. 447, 451 (1980), cert. denied, 450 U.S. 1042, 68 L.Ed.2d 239 (1981). While "there is practically universal agreement that a major purpose of the [First] Amendment [is] to protect the free discussion of governmental affairs . . . includ[ing] discussion of candidates," Buckley v. Valeo, 424 U.S. at 14, 46 L.Ed.2d at 685, there is also agreement as to the compelling government interest in ensuring honest and fair elections. Burson, 504 U.S. at ___, 119 L.Ed.2d at 14-15. Therefore, the Supreme Court has "upheld generally-applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 75 L. Ed 2d 547, 557 n. 9 (1983); Burson, 504 U.S. at ___, 119 L.Ed.2d at 15.
We believe the statute before us is an example of such a evenhanded restriction. In arriving at this decision two cases decided by the United States Supreme Court have been our polar stars: Burson, 504 U.S. ___, 119 L.Ed.2d 5, and Talley v. California, 362 U.S. 60, 4 L. Ed 2d 559 (1960). Burson is the latest of several decisions of the Court sustaining the constitutionality of various election law reform statutes against free speech challenges. Burson holds that a state statute prohibiting the display and distribution of campaign materials and the solicitation of votes for or against a candidate or party within 100 feet from the entrance of the polling place did not violate the Free Speech Clause. A plurality of justices concluded the statute survived strict scrutiny and was necessary to serve the state's compelling interest in preventing voter intimidation and fraud and "in protecting the right to vote." Burson, 504 U.S. at ___, 119 L. Ed 2d at 20. Burson relied heavily on the history of campaign abuses which election reform statutes like the one before it were designed to curb in concluding the statute was a necessary infringement on free speech.
Talley holds that a municipal ordinance banning the distribution of anonymous "handbill[s] in any place under any circumstances" violates the Free Speech Clause. 362 U.S. at 61, 65, 4 L.Ed.2d at 561, 563. Relying on history demonstrating the need for certain persecuted groups at certain times "to criticize oppressive practices and laws either anonymously or not at all," id. at 64, 4 L.Ed.2d at 563, the Court concluded the statute must fail because it prohibited too much. The municipality had argued that the ordinance was necessary to "identify those responsible for fraud, false advertising and libel." 362 U.S. at 64, 4 L. Ed 2d at 562. The Supreme Court concluded there was no such necessity, saying:
Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose. Therefore we do not pass upon the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.
364 U.S. at 64, 4 L.Ed.2d at 562. Talley thus expressly left open the question whether a more narrowly drawn ordinance would be upheld. Tennessee v. Acey, 633 S.W.2d 306 (Tenn. 1982). Interestingly, the dissenters in Talley (Associate Justices Clark, Frankfurter and Whittaker) cited electoral reform statutes prohibiting the distribution of anonymous campaign material directed toward political candidates as an example of valid restrictions on speech, saying
the several States have corrupt practices acts outlawing, inter alia, the distribution of anonymous publications with reference to political candidates. While these statutes are leveled at political campaign and election practices, the underlying ground sustaining their validity applies with equal force here.
362 U.S. at 70, 4 L.Ed.2d at 566 (Clark, Frankfurter, Whittaker, JJ., dissenting).
The statute before us falls in between the ones considered, respectively, by Burson and Talley. Like the statute in Burson it is directed at serving the state's compelling interest in protecting the integrity of the electoral process. Like the statute in Talley it proscribes anonymity. Burson, however, involved a prohibition on all speech within certain geographic boundaries. Talley involved a prohibition of all anonymous handbills. Our statute, on the other hand, proscribes only anonymous speech only if that speech involves an accusation of wrongdoing against an electoral candidate which is derogatory or which is calculated to affect the candidate's chances for election. We conclude our statute, being more akin to the statute in Burson, survives strict scrutiny in that it is a necessary enactment which could not be drawn more narrowly in order to serve the state's compelling interest in protecting electoral integrity.
Defendant and the dissenters complain that the statute covers even truthful statements, and it clearly does. Burson teaches that this alone is no ground for striking the statute, for the restrictions on speech upheld in Burson also applied to truthful campaign materials. In the context of a campaign it is necessary for accusers of candidates to identify themselves, even if they speak the truth, in order for the electorate to be able to assess the accusers' bias and interest. Why is it that the accuser comes forward with the accusation, even if it is true? What motivates the accuser? This kind of information is required in order for the electorate to determine what weight, if any, should be given the accusation, even if it is true. The source of the charge is as much at issue as the charge itself. Our statute, then, serves the compelling state interest of "providing voters with information to aid them in assessing the weight to be given a particular statement. "There does not appear to be a less restrictive means of furthering this interest, and therefore, unlike the ordinance in Talley, campaign disclosure laws cannot be said to be overly broad." Developments — Election Law, 88 Harv. L. Rev. 1111, 1290 (1975) (emphasis supplied).
The statute, consequently, is necessary to serve a compelling state interest. Albeit a restraint on speech, it comports with the free speech guarantees in both the United States Constitution and the Constitution of North Carolina.
We are bolstered in our conclusion by decisions from other jurisdictions sustaining similar statutes against the contention that they violate free speech guaranties; the courts conclude the statutes are necessary to serve a state's compelling interest in protecting the integrity of the electoral process. See, e.g., Tennessee v. Acey, 633 S.W.2d at 307; United States v. Scott, 195 F. Supp. at 443; Canon v. Justice Ct., 61 Cal.2d 446, 452, 458-59, 393 P.2d 428, 431, 416, 39 Cal.Rptr. 228, 231, 235 (1964).
In Canon v. Justice Court, the Supreme Court of California held that a statute which, like our own, prohibited publication of anonymous literature designed to injure or defeat any candidate for public office by reflecting on his personal character or political action, was a constitutional restraint on free speech. 61 Cal.2d at 451, 393 P.2d at 430, 39 Cal.Rptr. at 229. Although the Canon Court did find the statute unconstitutionally discriminatory against all individuals other than California voters, the court held that the statute in no way was flawed by overbreadth. In so holding, the Canon Court stated:
[The statute] requires identification so that (1) the electorate may be better able to evaluate campaign material by examination of the competence and credibility of its source, (2) irresponsible attacks will be deterred, (3) candidates may be better able to refute or rebut charges — so that elections will be the expression of the will of an undeceived, well-informed public. It is clear that the integrity of elections, essential to the very preservation of a free society, is a matter 'in which the State may have a compelling regulatory concern.' . . . [The statute] was intended to deter the scurrilous hit and run smear attacks which are all too common in the course of political campaigns. The primary concern is not for the candidate, however, although it is clearly in the public interest to create conditions conducive to the encouragement of good citizens to seek public office. The chief harm is that suffered by all people when, as a result of the public having been misinformed and misled, the election is not the expression of the true public will.
. . . .
"[A]nonymity all too often lends itself, in the context of attacks upon candidates in the preelection period, to smears, as a result of which the electorate is deceived. Identification permits confrontation and often makes refutation easier and more effective. It tends to reduce irresponsibility. It enables the public to appraise the source."
Id. at 452-53, 459, 393 P.2d at 431-32, 435, 39 Cal.Rptr. at 231-32, 235.
In United States v. Scott, the United States District Court upheld Section 612 of Title 18 of the United States Code which reads:
Whoever willfully publishes or distributes . . . any card, pamphlet, circular, poster, dodger, advertisement, writing, or other statement relating to or concerning a person who has publicly declared his intention to do so to be publicly declared, which does not contain the names of the persons, associations, committees, and corporations responsible for the publication or distribution of the same, and the names of the officers of each such association, committee, or corporation, shall be fined not more than $1,000 or imprisoned not more than one year or both.
195 F. Supp at 441. While 18 U.S.C.A. 612 considered by Scott was repealed in 1976, it has been replaced by a substantially similar statute. See 2 U.S.C.A. 441d. The Scott Court held the statute was a constitutional enactment by the United States Congress that ensured "the electorate would be informed and [would] make its own appraisal of the reason or reasons why a particular candidate was being supported or opposed by an individual or group." Id. at 443. Although the statute in Scott was limited to candidates for the Executive Branch of the federal government and to candidates for United States Congress, the scope of its prohibition was not as narrow as section 163-274(7) in that it was not limited to "charges" against candidates.
In Tennessee v. Acey, the Supreme Court of Tennessee upheld a statute imposing criminal sanctions upon persons anonymously disseminating written statements about candidates for public office. 633 S.W.2d at 306. Recognizing the state's compelling interest in preserving the integrity of the electoral process and ensuring the existence of an informed electorate, the Acey Court concluded that the campaign literature disclosure law was the least restrictive means of furthering these interests. Id. at 307.
Defendant relies on Talley v. California, 362 U.S. 60, 4 L.Ed.2d 559 (1960), and Schuster v. Imperial County Municipal Court, 109 Cal.App.3d 887, 167 Cal.Rptr. 447 (1980), both of which we find distinguishable. We have already considered Talley and elaborated our reasons for believing that it does not control. Schuster, a California Court of Appeals case, dealt with a statute that prohibited "all anonymous political campaign literature" by all persons. 109 Cal.App.3d at 890-91, 167 Cal.Rptr. at 448. Neither the Talley ordinance nor the Schuster statute was limited, as is our statute, to a far narrower spectrum of prohibited activity.
We recognize that other jurisdictions have found statutes proscribing anonymous publications to be unconstitutionally overbroad. We find these cases unpersuasive because, unlike our own, the statutes in question are considerably broader than ours. Swickler v. Koota, 290 F. Supp. 244 (E.D.N.Y. 1968) (statute makes it a crime to distribute any handbill containing any statement concerning any candidate in connection with any election of public officers unless signed — not limited to charges), rev'd on other grounds, 394 U.S. 103, 22 L.Ed.2d 113 (1969); California v. Bongiorni, 205 Cal.App.2d Supp. 856, 23 Cal.Rptr. 565 (1962) (statute requires signature of person responsible on circulars or handbills that seek to influence the result of elections — not limited to a particular candidate); Illinois v. White, 116 Ill.2d 171, 506 N.E.2d 1284 (1987) (statute requires signature of any person who publishes or distributes any political literature soliciting votes for or against any candidate or for or against any public questions to be submitted for the ballot at an election — affects more than the chances of a particular candidate); Louisiana v. Fulton, 337 So.2d 866 (1976) (statute proscribing any person from publishing any statement concerning any candidate for election unless it is signed — not restricted to charges); Massachusetts v. Dennis, 368 Mass. 92, 329 N.E.2d 706 (1975) (statute making it a crime to write or distribute any circular designed to aid or defeat any candidate or any question submitted to voters without name of officer of organization or name of voter responsible — not limited to charges against candidates); New York v. Duryea, 76 Misc.2d 948, 351 N.Y.S.2d 978 (statute makes anonymity a crime when anyone prints or distributes any literature in quantity containing any statement concerning any candidate or issue on the ballot in connection with any party or governmental action — not limited to charges or candidates), order aff'd, 44 A.D.2d 663, 354 N.Y.S.2d 129 (1974); North Dakota v. Education Association, 262 N.W.2d 731 (1978) (statute requires all political advertisements to disclose name of sponsor — not limited to charges or candidates); Pennsylvania v. Wadzinski, 492 Pa. 35, 422 A.2d 124 (1980) (statute proscribes any person from publishing any statement concerning any candidate for election without signature of person responsible — not limited to charges). Significantly we have found no case, state or federal, holding unconstitutional a statute with a prohibition drawn as narrowly as ours.
Finally, although the North Carolina Constitution holds freedom of speech and the press to be "great bulwarks of liberty" never to be restrained, it also provides that "every person shall be held responsible for their abuse." N.C. Const. art. I, 14. We believe the General Assembly has enacted section 163-274(7) in an effort to effect, by the narrowest possible means, the latter prong of this constitutional guarantee.
VII.
Defendant next contends the trial court committed reversible error by incorrectly defining the essential elements of the statute in its instructions to the jury. We agree.
Section 163-274(7) requires that the jury find beyond a reasonable doubt that defendant published "a charge derogatory to a candidate or calculated to affect the candidate's chances of nomination or election." For all eleven counts against defendant the trial court instructed the jury that it must find beyond a reasonable doubt that defendant published:
a charge he intended to be derogatory to a candidate for election to the Boone Town Council, or which he calculated would affect such candidate's chances of election and that such publication was not signed by the party giving publicity to and being responsible for such charge it would be your duty to return a verdict of guilty of this count. . . .
(Emphasis supplied.)
Prior to delivery of the verdict sheets to the jury, defendant timely objected to the trial court's instructions on the ground that the trial court had "switched over from an objective standard set forth in the statute to a subjective standard. . . ." See N.C. R. App. P. 10(b)(2) (party may not assign as error any portion of jury charge unless objection is made before jury retires to consider its verdict). The trial court overruled the objection, stating that it understood the statute to require a finding that defendant intended the charge to be derogatory to a candidate or intended the material to affect the candidate's chances for election.
Defendant argues that the trial court's charge erroneously included a scienter requirement while no such requirement is present in the statute. Conversely, the State contends that the trial court's instruction required the jury to find more than the statute required and therefore placed a heavier burden on the State to prove defendant's guilt. We agree with defendant and conclude the trial court erroneously instructed the jury to defendant's prejudice, thus entitling him to a new trial.
"When [the trial court] undertakes to define the law, [it] must state it correctly." State v. Earnhardt, 307 N.C. 62, 70, 296 S.E.2d 649, 654 (1982). Failure to do so may be prejudicial error sufficient to warrant a new trial. Id. In Earnhardt defendant was convicted of being an accessory after the fact of voluntary manslaughter. Id. at 65, 296 S.E.2d at 651. One item of proof necessary for a conviction as accessory after the fact is that the defendant knew the felony had been committed by the person assisted. Id. at 69, 296 S.E.2d at 654. In instructing the jury, "the trial court stated that if defendant, 'knowing Horne and Lagree or Horne and Lagree could have committed the crime of voluntary manslaughter, assisted Horne or Lagree in escaping or attempting to escape detection, arrest or punishment by concocting a story which was not true . . .,' then he should be found guilty." Upon review, this Court held that the trial court's instruction was reversible error. Id. at 70, 296 S.E.2d at 654. Even though this was the only error found in defendant's trial, the Court held that the instructions incorrectly defined a crucial element of the crime with which the defendant was charged and allowed for the possibility of confusion among the jurors. Id.
Here, as in Earnhardt, we believe the incorrect instruction was "too prejudicial to be hidden by the familiar rule that the charge must be considered contextually as a whole." Id. Section 163-274(7) is framed both objectively and subjectively. Objectively, it requires conviction if the jury determines beyond a reasonable doubt that the material published by defendant was a charge and that such charge was derogatory to a candidate. Whether a defendant believed or intended such material to be a charge derogatory is irrelevant. The jury's determination is not based on the state of mind of defendant, but on its objective interpretation of the publication. The statute also includes a subjective inquiry. It requires conviction if the jury finds beyond a reasonable doubt that the publication was "calculated to affect the candidate's chances of nomination or election."
We do not agree with the trial court's conclusion that defendant's state of mind is relevant to both inquiries. Rather, we conclude the legislature drafted this statute giving the jury two distinct grounds upon which to convict. The jury could find that the published material was a derogatory charge, and it could find that the charge was "calculated" by defendant to affect a candidate's chances for nomination or election. Were the jury to find that defendant did not intend the published material to affect the candidate's electoral chances, it could only find defendant guilty of violating the statute if it were to find that the published materials contained a derogatory charge.
In the instant case defendant testified that at the time he mailed the offending materials he did not think candidates Chase or Miller would win the election in any event. Based on this testimony, the jury could have found that the published materials were not calculated by defendant to affect either candidate's chances for election. If such were the case, defendant only could have been convicted if the jury determined beyond a reasonable doubt that the charge was objectively derogatory. Because, however, of the trial court's erroneous instructions, the jury would have been required to convict defendant upon a finding beyond a reasonable doubt that defendant only intended the materials to be derogatory even if, objectively, the jury did not consider them to be so.
Because the trial court incorrectly instructed the jury regarding one of two possible theories upon which defendant could be convicted and it is unclear upon which theory or theories the jury relied in arriving at its verdict, we must assume the jury based its verdict on the theory for which it received an improper instruction. State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990) (submitting case to jury on alternative theories, including one not supported by evidence, was reversible error requiring new trial); State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (possibility that felony murder conviction was based on predicate felony improperly submitted to jury warranted new trial); State v. Belton, 318 N.C. 141, 162-63, 347 S.E.2d 755, 768-69 (1986) (possibility that jury relied on unsupported theory to convict defendant required new trial); Williams v. North Carolina, 317 U.S. 287, 87 L.Ed. 279 (1942) (conviction cannot stand merely because it could have been supported by one theory submitted to jury if another invalid theory was also submitted and general verdict does not specify theory upon which verdict is based).
VIII.
Defendant next contends the trial court's failure to exclude the testimony of candidates Chase and Miller relating out-of-court declarations of others on the effect of the publications constituted prejudicial error. We conclude that the witnesses' testimony constituted inadmissible hearsay and should have been excluded. Because defendant is entitled to a new trial on other grounds, we express no opinion as to whether the admission of this testimony was reversible error.
During the presentation of the State's case, candidate Miller was directly examined as follows:
Q. Ma'am, the people who contacted you — you said a moment ago that there were several people who called you about the flyer?
A. Yes.
Q. The people who contacted you about the flyer, did they indicate it was helpful or hurtful to your election chances?
MR. WHITTLE: Your Honor, I OBJECT to that as calling for hearsay and it's opinion hearsay.
THE COURT: Well, you don't offer it for the truth of what was stated —
MR. WILSON: No, sir —
THE COURT: — but for what they said?
MR. WILSON: For what they said.
THE COURT: OVERRULED.
Q. Yes, ma'am, go ahead.
A. Ahh people asked if I had sent that out, and I said no I didn't. Ahh they were surprised, they thought maybe I had sent it out.
Q. But my question was, ma'am, did they indicate to you whether it was helpful or hurtful to your election chances?
MR. WHITTLE: OBJECTION to that.
A. Oh, they didn't think it was helpful —
THE COURT: OVERRULED.
A. They did not think it was helpful at all and they were quite surprised.
Q. How many people did you talk to concerning the flyer?
A. I think about eight people that evening.
MR. WHITTLE: MOVE TO STRIKE.
THE COURT: DENIED.
Candidate Chase was examined similarly:
Q. Did you discuss, sir, with your supporters and with the voting public in Boone generally [the flyer concerning liquor by the drink]?
A. Not to as great an extent because it came later compared to the date of the election.
Q. Those that you did discuss it with, sir, did you find it helpful or derogatory to your candidacy?
MR. WHITTLE: OBJECTION, Your Honor.
THE COURT: OVERRULED.
A. That evening I only discussed it with one member of the public and he, and he found, he was, he was — the best that I can recall he said —
Q. Well, don't tell us what he said, but just whether or not he felt it was derogatory, whether or not you found it to be derogatory or helpful to your candidacy.
A. He found it to be derogatory.
MR. WHITTLE: OBJECTION.
THE COURT: OVERRULED.
MR. WHITTLE: MOVE TO STRIKE.
THE COURT: DENIED.
Under our Rules of Evidence, "[h]earsay is not admissible except as provided by statute or by these rules." N.C.G.S. 8C-1, Rule 802 (1988); State v. Patterson, 332 N.C. 409, 420 S.E.2d 98 (1992). Hearsay is "a statement, other than one 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) (1988). 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." N.C.G.S. 8C-1, Rule 801(a) (1992). Here, candidates Miller and Chase testified as to the actual opinions expressed by certain local residents out of court concerning whether the materials were derogatory and hurtful to the candidate's chances of being elected. We conclude these statements were admitted for the truth of what was said; therefore, they were inadmissible hearsay.
We further conclude the evidence does not fall within any recognized exception to the hearsay rule. The State contends the statements were admissible as lay witness opinion testimony under N.C.G.S. 8C-1, Rule 701. We conclude these statements do not fall within the scope of Rule 701. Rule 701 allows a lay witness to testify as to his or her opinion if it is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C.G.S. 8C-1, Rule 701 (1992). Here, Miller and Chase were not testifying as to their own opinions. Rather, both witnesses were repeating the out-of-court opinions expressed by non-testifying declarants. These opinions should have been subject to cross-examination by defendant. Because neither witness was testifying as to their own opinion, Rule 701 is inapplicable.
For the foregoing reasons the decision of the Court of Appeals vacating the judgment of the superior court is reversed. The case is remanded to the Court of Appeals for further remand to the superior court in order that defendant may be given a new trial.
REVERSED; REMANDED; NEW TRIAL.
Justice Parker did not participate in the consideration or decision of this case.