State v. Hoffman

• Decision Date: 31 August 1972
• Docket Number: No. 93,93
• Citation: 190 S.E.2d 842,281 N.C. 727
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Ray HOFFMAN.

Page 842

190 S.E.2d 842

281 N.C. 727

STATE of North Carolina v. James Ray HOFFMAN.

No. 93.

Supreme Court of North Carolina.

Aug. 31, 1972.

Robert Morgan, Atty. Gen., Charles A. Lloyd, Associate Atty., Raleigh, for the State.

Hodges & Rochelle by James A. Hodges, Jr., Kinston, for defendant appellant.

SHARP, Justice:

Defendant brings forward four assignments of error. The first is to the court's refusal to grant his motion for nonsuit made at the conclusion of the State's evidence. The rule, succinctly stated by Justice Higgins in State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956), is as follows:

'Taking the evidence in the light most favorable to the State, if the record here discloses substantial evidence of all material elements constituting the offense for which the accused was tried, then this court must affirm the trial court's ruling on the motion. The rule for this and for the trial court is the same whether the evidence is circumstantial or direct, or a combination of both.'

The record here contains plenary evidence that defendant, after threatening to do so, and procuring a rifle for the purpose, on 21 October 1970 shot and killed Stocks with malice, premeditation, and deliberation. His motion for nonsuit was, therefore, properly overruled. State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969).

The second assignment which defendant argues is that the judge erred in denying defendant's motion to suppress the testimony of Mrs. Gene Autry Stocks, Mrs. Thelma Barfield, Mrs. Bertie Croombs, and Mrs. Rebecca Moore. Defendant based his motion on the following facts:

On or about 15 March 1971 counsel for defendant moved in writing before Judge Cohoon that the solicitor be directed to furnish defendant's attorney a list of all witnesses whom the State intended to produce at defendant's trial. Judge Cohoon, after ascertaining that the solicitor had no objection to furnishing the names of the persons the State them proposed to call as witnesses, orally directed that he give defendant the requested information. Deputy Sheriff Garris immediately prepared and delivered to defendant's attorney a handwritten list which omitted the names of Mrs. Stocks, Mrs. Barfield, Mrs. Moore, and Mrs. Croombs.

At the beginning of the trial the State called Mrs. Stocks as its first witness. Defendant moved to suppress her testimony and that of any other person called whose name had not been on the list. After hearing the motion, Judge Godwin entered an order in which he found, in addition to the facts set out in the preceding paragraph, that the State now proposed to call, Inter alia, Mesdames Stocks, Barfield, Moore and Groombs; that defendant's motion before Judge Cohoon was not made under G.S. § 8--74; that the State's failure to furnish defendant with the name of every person sworn as a witness when the case was called for trial, and whose testimony it then proposed to use, had not prevented defendant from making full and proper preparation for his trial. Whereupon he denied defendant's motion to suppress, and thereafter the four women above named testified. Defendant excepted but did not move to continue the case.

'The common law recognized no right of discovery in criminal cases.' State v. Goldberg, 261 N.C. 181, 191, 134 S.E.2d 334, 340 (1964). In the absence of a statute requiring the State to furnish it, the defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. McDaniel v. State, 191 Miss. 854, 4 So.2d 355 (1941); Padgett v. State, 64 Fla. 389, 59 So. 946 (1912); State v. Matejousky, 22 S.D. 30, 115 N.W. 96 (1908); 21 Am,.jur.2d Criminal Law § 328 (1965); 16 C.J.S. Criminal Law § 2030 (1938). There is no such statute in this State.

Defendant, however, claims that G.S. § 8--74 gives him the right to a list of the State's witnesses. This statute, however, provides for taking the deposition of an incapacitated defense witness, 'whose name must be given' to the court. Patently this section has no application to defendant's motion.

Although defendant was not entitled to the list as a matter of right, Judge Godwin found that an order to furnish it had been made and that the State had purported to comply with it. Thus, the question presented is whether the omission of the names of Mrs. Stocks, Mrs. Barfield, Mrs. Moore, and Mrs. Croombs prejudiced defendant's defense and deprived him of a fair trial.

Defendant contends that he was prejudiced because the testimony of these four witnesses supplied the sole evidence of motive, premeditation and deliberation. Certainly these witnesses gave material evidence tending to show essential elements of the crime with which defendant was charged. Notwithstanding, a defendant is not legally prejudiced merely because the State proves its case against him.

As stated by the Kentucky Court of Appeals in Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929), prejudicial surprise results from events 'not reasonably to be anticipated, or perhaps testimony contrary to a prior understanding between the parties or something resulting from fraud or deception.' Id. at 415--416, 19 S.W.2d at 1093. Neither the presence nor testimony of these four women--the wife of deceased, his mother, his sister-in-law, and a family friend of both defendant and deceased--could have taken defendant by surprise.

Defendant suggests, however, that had he known the ladies were to testify, he might have found 'possible rebuttal witnesses or searched for ground upon which to impeach their credibility. Had there been a reasonable probability of finding such witnesses or grounds, a motion for a continuance would have been appropriate. Defendant's motion, however, was to suppress the testimony of the witnesses, whatever it might be, and not to continue the trial so that he would have an opportunity to disprove it.

The record fails to show that defendant's defense was prejudiced by the omission of the four names from the list furnished him. Permitting these witnesses to testify was a matter in the discretion of the trial judge, not reviewable on appeal in the absence of a showing of abuse. State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). No abuse of discretion appears.

The third question raised by defendant's assignments of error is the legality of the officers' entrance into his residence during the late afternoon of 21 October 1970 and the seizure of the .22-caliber rifle found therein. He contends that both the entry and seizure were unlawful and, in consequence, neither the rifle nor the ballistic tests made with it were admissible in evidence. Upon defendant's objection to any testimony involving the rifle, Judge Godwin held a Voir dire in which he heard the evidence summarized within the brackets and also a substantial portion of the applicable testimony which was later given in the presence of the jury. He then found facts in accordance with the evidence and concluded that the officers had reasonable grounds to believe defendant was concealed in the house. He held that their entry and subsequent seizure of 'plain-view' items were legal and overruled defendant's objection in the evidence. In this ruling we find no error.

G.S. § 15--44 (1965) provides: 'If a felony . . . has been committed, or a dangerous wound has been given and there is reasonable ground to believe that the guilty person is concealed in a house, it shall be lawful for any sheriff . . . or police officer, admittance having been demanded and denied, to break open the door and enter the house and arrest the person against whom there shall be such ground of belief.'

Indubitably Stocks had been murdered and the officers had reasonable grounds to believe that defendant had committed the murder. About s:15 p.m. on the day of the murder, officers had gone to defendant's home, but when he did not answer their calls, they had left without entering. The thrust of defendant's argument is that Judge Godwin should not have believed Whaley's testimony that between 3:30 and 4:00 p.m. he saw the kitchen curtains move. This testimony was not inherently incredible and was sufficient to support the court's findings. They are, therefore, binding on appeal. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). Reasonable grounds for belief can be based upon information given to an officer by another, 'the source of such information being reasonably reliable.' State v. Roberts, 276 N.C. 98, 107, 171 S.E.2d 440, 445 (1969). Further, the fact that silence greeted the officers' demands for entrance and that defendant was not found in the house did not make their entry illegal.

Being lawfully in defendant's residence, the officers could examine and, without a warrant, seize 'suspicious objects in plain sight' . . .. If the officers' presence was lawful, the observation and seizure of what was then and there apparent could not in itself be unlawful.' State v. Howard, 274 N.C. 186, 202, 162 S.E.2d 495, 505--506 (1968); Accord, State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). The rifle, the bullet which was remove from Stocks's body, and the testimony of ballistics expert Pierce that in his opinion the bullet was fired from the rifle were, therefore, properly admitted...