State v. Alston

• Citation: 298 S.E.2d 631,307 N.C. 321
• Decision Date: 11 January 1983
• Docket Number: No. 176A81,176A81
• Parties: STATE of North Carolina v. Howard Lee ALSTON.
• Court: United States State Supreme Court of North Carolina

Page 631

298 S.E.2d 631

307 N.C. 321

STATE of North Carolina v. Howard Lee ALSTON.

No. 176A81.

Supreme Court of North Carolina.

Jan. 11, 1983.

Rufus L. Edmisten, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., Raleigh, for the State.

J. Henry Banks, Henderson, and Willie S. Darby, Oxford, for defendant-appellant.

MITCHELL, Justice.

The principal issue in this case is whether the trial court erred in allowing testimony that one of the victims told Sheriff Dement that he and the defendant had engaged in an argument two days before the shooting. For the reasons stated herein, we find no reversible error.

The evidence presented by the State tended to show that Robert Warren Foster operated a store known as R.W. Foster's Grocery in the Kearney Community in Franklin County. On 9 February 1981, Robert Foster and Jack Franklin Stainback were in Foster's store. They were last seen alive at approximately 8:35 p.m. Sometime between 8:45 and 8:55 p.m. law enforcement officials received a call that two people had been shot at R.W. Foster's Grocery. Upon arriving at the scene, Deputy Astor Bowen and Deputy Leroy Terrell discovered the bodies of Foster and Stainback. An autopsy disclosed that both victims had died from gunshot wounds inflicted from a distance of two to four feet.

The State's principal witness was Mrs. Florence Hicks, who testified as follows: On 9 February 1981 she was looking at a trailer parked directly across Highway 401 from R.W. Foster's Grocery. She had known the defendant for nine or ten years. On that night, she heard some shots and ran outside toward the store. She stopped at the post on the path to the store. She heard noises from a person named Mann coming across the highway. He was calling Faye. He yelled to Faye that the defendant, Howard Alston, had shot Mr. Bobby (referring to Robert Foster) and Jack (referring to Jack Stainback). The defendant was following Mann down the path and the defendant said that he had killed Mr. Bobby and Jack. He said he was getting Bobby out of the way but that he did not want to do anything to Jack. He said that he had to do it to Jack so he would keep his mouth shut. The defendant said that he did not take any money because he did not want any money. He had a gun in his hand at the time of these statements. The defendant told Mrs. Hicks to keep her mouth shut. The defendant also stated that he had made sure that the victims were dead before he left the store.

Sheriff Dement was also a witness for the State. He testified over objection that he spoke to Foster two days before the killing. At that time Foster told Sheriff Dement that he and Alston had had an argument and that he was afraid that he would have serious trouble with the defendant.

The defendant testified in his own behalf and presented witnesses who supported his testimony. The defendant's evidence tended to show that on 9 February 1981 he went to Foster's store at approximately 1:00 p.m. to buy some beer. After he made his purchases, he left the store and went from there to Bernard Hawkins' house. He stayed at Hawkins' house until approximately 4:30 or 5:00 when he went to a pool room. He rode with his sister to his uncle's house which is about one and one-half miles from Foster's store. He arrived at his uncle's house at 7:20 or 7:25 p.m. His uncle, George Macon, was in the house when he arrived. He remained at his uncle's house until his uncle drove him home at approximately 9:00 p.m. The defendant's mother and sister were present when the defendant arrived home. The defendant took a shower and went to bed around 9:30 p.m. and did not wake up until 11:00 p.m. when the telephone rang.

The defense also offered the testimony of Clementine Alston, the daughter of Florence Hicks and the wife of the defendant's third cousin. Clementine Alston testified that she was in the room with the State's witness Florence Hicks between the hours of 8:00 and 9:00 p.m. on 9 February 1981 and did not see her mother go outside the trailer. She also testified that she did not hear any shots and that her mother never told her that she saw the defendant on that night. John Henry Hicks, the husband of Florence Hicks, testified that his wife never told him of having seen Howard Alston on the night of 9 February 1981, nor did she say that the defendant had admitted that he had killed the two victims. The defendant also offered the testimony of other residents of the trailer park who were home on the night of 9 February 1981 but did not hear any shots or yelling.

The defendant first assigns as error the admission of testimony by Sheriff Dement concerning statements made by one of the victims shortly before his death. The sheriff testified over objection that Foster spoke to him about the defendant at approximately 3:00 p.m. on 7 February, 1981, two days before Foster was killed. Foster described to the sheriff trouble he was having because the defendant was selling drugs in the parking lot of Foster's store. He told the sheriff that he had confronted the defendant on that day and told him to stop selling drugs and that he and the defendant had a serious argument at that time. Foster further told the sheriff that he was afraid that he would have serious trouble with the defendant Alston. The trial court admitted this testimony for limited purposes over the objection of the defendant. The State tendered similar testimony by the sheriff concerning a statement made to him by Foster approximately thirty days before Foster's death in which Foster described a previous confrontation with the defendant. The tendered testimony by the sheriff with regard to the statement purportedly made to him by the victim thirty days prior to the killing was excluded by the trial court. For the reasons set forth below, we find no error in the admission of testimony by the sheriff concerning the statement made to him by the victim/declarant, Foster, two days prior to the killing.

The testimony of the sheriff as to the contents of the statement made by Foster two days prior to the killing was introduced to prove the truth of some of the matters asserted in Foster's statement. It was introduced to show that the defendant and the victim, Foster, had a serious argument two days before Foster was killed. The sheriff's testimony in this regard was hearsay evidence and as such was not admissible unless within the parameters of an exception to the hearsay rule. In State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), we held that hearsay testimony is admissible when two factors are shown to exist: (1) necessity, and (2) a reasonable probability of truthfulness. As in Vestal, the death of the victim/declarant in the present case meets the necessity requirement. Thus, we turn to a consideration of the reasonable probability of truthfulness of the victim's statement which is the second factor to be considered under the authority of Vestal.

In considering the factor of the reasonable probability of truthfulness in Vestal, we held that the victim's statements to his wife concerning the destination of his business trip and his traveling companion were part of the everyday routine and orderly arrangement of one's domestic and business affairs. Because of the nature of these statements by the victim in Vestal, this Court held that the statements presented a sufficient probability of truthfulness to be admissible in evidence. In the present case, the statement by the victim Foster was in the form of a report by a store owner of alleged criminal activity and resulting ill will by the defendant toward the store owner two days before the store owner was shot dead. The statement also indicated that the argument between the defendant and the victim occurred at the same store at which the murders were committed. Such facts standing alone do not, of course, guarantee that the statements made to Sheriff Dement by Foster shortly before his death were true. They do, however, indicate a reasonable probability of truthfulness by the victim/declarant, with the ultimate issue of truthfulness to be determined by the jury.

In Vestal, we recognized that statements made by one spouse to another as to the destination of and traveling companions on a business trip may not always be true. Having recognized the possibility of falsity of such statements, however, this Court found a reasonable probability of truthfulness of such statements. State v. Vestal, 278 N.C. 561, 588, 180 S.E.2d 755, 773 (1971). Similarly, we recognize the possibility of falsity but find a reasonable probability of truthfulness of statements made by a victim/declarant to a law enforcement officer shortly before the victim's death which described ill will between the defendant and the victim and the victim's fear of the defendant. For the foregoing reasons, we have determined that the testimony of Sheriff Dement was within a recognized exception to the hearsay rule.

Having determined that the testimony of Sheriff Dement was not excluded by the hearsay rule, we must turn our attention to the question of whether this testimony was otherwise inadmissible. Evidence which does not violate the hearsay rule will nevertheless be excluded unless it is shown that it is relevant to an issue arising in the case in question. Some courts have indicated that all expressions of fear of the defendant by murder victims are relevant and admissible against the defendant when in human experience they are sufficiently reliable. State v. Gause, 107 Ariz. 491, 489 P.2d 830 (1971), vacated on other grounds, 409 U.S. 815, 93 S.Ct. 192, 34 L.Ed.2d 71 (1972). Other courts allow the admission of such evidence only if a limiting instruction is given and only after a careful weighing of the probative value and the prejudicial effect of the statements of the victim. United States v. Brown, 490 F.2d 758 (D.C.Cir., 1973) (statements improperly admitted). Evidence of a victim's fear of the defendant is subject to...