State v. Richards

• Decision Date: 17 April 1978
• Docket Number: No. 55,55
• Citation: 242 S.E.2d 844,294 N.C. 474
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Susan M. RICHARDS.

Page 844

242 S.E.2d 844

294 N.C. 474

STATE of North Carolina v. Susan M. RICHARDS.

No. 55.

Supreme Court of North Carolina.

April 17, 1978.

Rufus L. Edmisten, Atty. Gen., by Isham B. Hudson, Jr., Asst. Atty. Gen., Raleigh, for the State.

Percy L. Wall and Robert S. Cahoon, Greensboro, for defendant-appellant.

EXUM, Justice.

Upon separate bills of indictment defendant was tried and convicted of first degree murder of one John Charles Conaghan (76-CR-20163) and conspiracy with one James Wertheimer to commit this murder (76-CR-20298). She was sentenced, respectively, to life and ten years imprisonment, the ten-year sentence to run concurrently with the life sentence. Defendant's motion to bypass the Court of Appeals on the conspiracy conviction was allowed 3 May 1977.

Defendant's assignments of error are based on her contentions that (1) the trial court erred in admitting certain testimony by the widow of the deceased, on grounds of insufficient identification of a telephone caller, unfair surprise, hearsay and relevancy; (2) the trial court erroneously admitted into evidence certain weapons which were unlawfully seized; and (3) she was denied effective assistance of counsel at trial. After carefully examining each of these contentions, we find no error in the trial.

Although this murder occurred in Greensboro, North Carolina, the victim, defendant, and the state's principal witness, James Wertheimer, who according to his testimony was defendant's accomplice, were all residents of Georgia. Wertheimer testified, in essence, that during the summer of 1975 in Atlanta defendant prevailed upon him to help her murder Jack Conaghan. Defendant told Wertheimer that a friend of hers wanted Conaghan killed and would pay $2500 to have it done because Conaghan was a "con artist that had . . . ripped the (friend) off . . . for quite a bit of money." Wertheimer and defendant made elaborate plans for the murder which defendant's "friend" wanted accomplished somewhere other than Atlanta. Through information supplied by defendant, which she said came from "Bob," Wertheimer learned that Conaghan would be at the Hilton Inn, Greensboro, around 23 October attending a furniture market. During the preparations in Atlanta for the killing Wertheimer testified that the person he understood to have proposed the killing called the apartment where he and defendant lived and identified himself, when Wertheimer answered, as "Bob Glick." On 22 October 1975 Wertheimer and defendant traveled from Atlanta to Greensboro in two cars she in her Pinto and he in a 1961 Cadillac which he had purchased cheaply and which they planned to discard after the killing. They located Conaghan's room at the Hilton Inn in Greensboro. Shortly after midnight they both entered the room, robbed Conaghan of $40, and defendant killed Conaghan by shooting him in the back of the head four times at close range with a .25 caliber pistol. After Wertheimer and defendant returned to Atlanta on the morning of 23 October, they read newspaper accounts of the murder. Defendant then stated her intention to collect the money. She gave Wertheimer for the first time the name, address and telephone number of Bob Stem as being her friend who instigated the killing, saying she was afraid Stem would try to "double cross" her. Several days later by prearrangement Wertheimer followed defendant to the Cumberland Mall in Atlanta, where he observed her engage in a transaction with a balding man who appeared to be 40 or 45 years old. Wertheimer and defendant returned separately to the apartment where both were then living. Wertheimer arrived first. Ten or fifteen minutes later defendant returned with $2300 in cash remarking that she would get the balance due her in a few days.

Defendant testified as follows: She accompanied Wertheimer to Greensboro on 22 October because he had told her he needed to deliver a car and collect some money. When they stopped at a restaurant Wertheimer made a telephone call and on returning told her he had contacted the man he wanted to see. She followed him to a Zayre parking lot where he told her to wait and that he would be back in about an hour. She waited about two hours until he returned at approximately 2:00 a. m. They left the Cadillac in the parking lot where, Wertheimer explained, someone would pick it up. They drove back to Atlanta. Defendant admitted knowing Bob Stem. She had once been employed by him and had attended some "concept therapy" meetings conducted by him and his wife in their home. Defendant denied talking with Bob Stem about killing anybody, hearing the name Jack Conaghan prior to her arrest, being in the Greensboro Hilton, and ever shooting anyone.

I

Other evidence for the state tended to identify defendant's friend, the instigator of the crime, as Bob Stem. The testimony of Mrs. Peggy Conaghan, widow of the deceased, tended to establish the identity of Bob Stem, his relationship to Conaghan, and his reasons, or motive, for hiring defendant to kill Conaghan. The admission of this evidence forms the basis of several assignments of error, none of which are meritorious.

Mrs. Conaghan, over defendant's strenuous and continuing objections, was permitted to testify that a person who identified himself as "Bob Stem" telephoned the Conaghan apartment on a Sunday, 19 October, the day before her husband departed for Greensboro. She answered the phone, and the caller asked to speak to "Jack." She overheard her husband tell the caller that he was getting ready to go out of town, would be gone for a week and a half to two weeks, would be staying at the Hilton Inn in Greensboro, and would be driving a light blue Chevrolet. Her husband also told him what time he would be leaving Atlanta and approximately what time he would arrive at the Hilton. She further testified that around 6:00 p. m. on Monday, 20 October, the same person called again and asked if Jack were there. She replied that her husband had left that morning and should be in Greensboro. The caller asked her again concerning the type of car her husband had driven, and she told him the blue Chevrolet.

On cross-examination of Mrs. Conaghan the defendant brought out that a business, Jadon Industries, in which her husband was a principal, was a plaintiff seeking damages of $1,400,000 in a lawsuit pending in Charlotte, North Carolina. Her husband was going to stop off in Charlotte on his way to Greensboro to confer with attorneys about this case, and he mentioned this intention to Bob Stem in their telephone conversation on 19 October. She had heard her husband discuss this lawsuit with Bob Stem over the telephone on many prior occasions.

On redirect examination, again over defendant's strenuous objections, Mrs. Conaghan testified that on other occasions she and Bob Stem had discussed over the telephone a $150,000 note payable to the Trust Company Bank and co-signed by her husband and Bob Stem. She said this note was secured only by a credit life insurance policy for the full amount of the note on the life of her husband.

Defendant objected to Mrs. Conaghan's testimony on direct and redirect on the grounds (1) that the caller was insufficiently identified; (2) defendant was unfairly surprised by evidence tending to show that she and Bob Stem had conspired together; (3) testimony regarding what her husband had told Bob Stem over the telephone was inadmissible hearsay; and (4) the testimony regarding the business dealings between Conaghan and Stem was irrelevant.

"Before a witness may relate what he heard during a telephone conversation with another person, the identity of the person with whom the witness was speaking must be established." State v. Williams, 288 N.C. 680, 698, 220 S.E.2d 558, 571 (1975). "If the call was from the person whose identity is in question, the mere fact that he represented himself to be a certain person is not enough" to identify him as that person, 1 Stansbury's N.C.Evidence § 96, p. 310 (Brandis Rev.1973) (hereinafter "Stansbury"); accord, State v. Williams, supra. "Identity of the caller may be established by testimony that the witness recognized the caller's voice, or by circumstantial evidence." State v. Williams, supra, 288 N.C. at 698, 220 S.E.2d at 571. It is not always necessary to prove the identification before introducing evidence of the conversation, particularly in criminal prosecutions where secrecy, anonymity and concealed identity are generally resorted to. In such cases it is "only necessary that identity of the person be shown directly or by circumstances somewhere in the development of the case . . . ." State v. Strickland, 229 N.C. 201, 208, 49 S.E.2d 469, 474 (1948).

In light of these principles there was here sufficient circumstantial evidence to identify Mrs. Conaghan's caller as Bob Stem, notwithstanding the fact that she had never personally met Bob Stem. Most of these circumstances are revealed in the testimony of Mrs. Conaghan. She related that the telephone numbers at the Conaghan residence were unlisted. She had taken telephone calls numerous times over a period of six months from a caller who always identified himself as Bob Stem and who asked to speak to her husband. She then would overhear her husband talking to the caller concerning business dealings. She herself had talked to the caller concerning business dealings between him and her husband. She recognized the voice of the caller on the day before her husband left for Greensboro and the day of his leaving as being the same voice which had called the home several times a week for a period of six months. Defendant herself in cross-examining Mrs. Conaghan brought out the fact that Bob Stem was interested in the Charlotte lawsuit and had discussed it many times on the telephone with Mr. Conaghan. We find this evidence, the substance of the conversations on October 19 and 20, and the testimony of Wertheimer that defendant told him her friend "Bob Stem" had instigated...