State v. Smith

• Citation: 231 S.E.2d 663,291 N.C. 505
• Decision Date: 31 January 1977
• Docket Number: No. 157,157
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. David Benjamin SMITH, alias David Benjamin McCullough and Bobby Orlando Foster.

Page 663

231 S.E.2d 663

291 N.C. 505

STATE of North Carolina v. David Benjamin SMITH, alias David Benjamin McCullough and Bobby Orlando Foster.

No. 157.

Supreme Court of North Carolina.

Jan. 31, 1977.

Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State of North Carolina.

Bart William Shuster, Charlotte, for defendant appellant Foster, and Shelley Blum, Charlotte, for defendant appellant Smith.

HUSKINS, Justice:

Denial of their motion for judgment of nonsuit constitutes defendants' first assignment of error.

A motion for nonsuit in a criminal case requires the court to consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference fairly deducible therefrom. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). All the evidence actually admitted, whether competent or incompetent, which is favorable to the State must be considered when ruling on the motion. State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966); State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964). Contradictions and discrepancies are matters for the jury and do not warrant nonsuit. State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971). If there is any evidence tending to prove the fact of guilt or which reasonably leads to that conclusion as a logical and legitimate deduction, it is for the jury to say whether it is convinced beyond a reasonable doubt of the guilt of the accused. So, upon motion for nonsuit the question is whether there is substantial evidence--direct, circumstantial, or both--to support a finding that the offense charged has been committed and that the accused committed it. State v. McKinney, supra; State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968).

When measured by these rules, the State's evidence would permit a jury to find the following facts:

1. In August 1973 Arthur William Hawkins was employed by the Days Inn Motel on Tuckaseegee Road in Charlotte as a security guard and Norman Bruce Wagstaff was employed as a manager-trainee.

2. On Friday evening, 10 August 1973, and in the early morning hours of the following day, Hawkins and Wagstaff were working at the motel in the performance of their duties and were last seen alive at about 1 a.m. on the morning of 11 August 1973. There was $200 in cash in the cash register that night. At about 2:45 a.m. that morning Hawkins and Wagstaff were found on the floor in the office. Each had been shot several times. Hawkins was dead and Wagstaff died shortly thereafter. Hawkins had no wallet on his person and his .32 caliber 7-shot Burgo pistol was missing from his holster. The office had been ransacked and all of the cash was missing from the cash register.

3. Belinda Harris was a good friend of defendants Foster and Smith. On 7 August 1973, between 9 and 10 p.m., she and defendant Foster went to the Days Inn Motel on Tuckaseegee Road to take some clothing to her brother Henry Harris (also known as Henry Harris Peterson) who was staying at the motel with one Edna Felder. While there she changed into a bathing suit and went to the swimming pool but discovered it was closed. She was there long enough to observe the surroundings and the location of the motel.

4. At about 12:30 a.m. on 11 August 1973, Belinda Harris met defendants Smith and Foster at the 'Right On Lounge' and rode around with them in Foster's car. They later split up for a short period of time, during which Smith obtained a 'rather raggely car.' Defendants and Belinda then drove in the old car to the Days Inn Motel where she remained in the car while defendants entered the motel, ostensibly to pick up a girl. While they were gone, she heard two or more sounds like a blowout or a car backfiring. Defendants then returned to the old car, drove it to a point on the highway where they left it, reentered the original black car belonging to Foster and then drove to the house where Belinda's mother lived, picked up Belinda's brother Henry Harris and went to a restaurant to eat, after which they returned to the Belinda Harris home about 4 or 5 a.m.

5. On the evening of 12 August 1973, Delton Harris met defendants at a party in Charlotte. They told him they were going to New York City and agreed to take Delton Harris with them. While the car was being loaded that evening, Delton Harris saw a .32 caliber pistol in the possession of defendant Smith and later saw the same pistol in the pocket of the car on the way to New York. It was the same pistol offered in evidence and identified as the property of Arthur William Hawkins. Defendants, with several other people, left that night, arriving in New York City on Monday evening, 13 August 1973.

6. On 30 August 1973 a New Jersey State Trooper stopped the car occupied by defendants and seized a gun, partially hidden in the front seat, which was subsequently identified as the weapon belonging to Hawkins and as the weapon which fired at least one shot into Wagstaff's body.

This evidence is sufficient to support a finding that the offense of murder in the first degree was committed; that defendants were familiar with the operation and layout of the motel; that they planned and carried out a robbery there on the night of 11 August 1973 and in the course of the robbery Hawkins and Wagstaff were shot and killed; and that defendants fled the State to avoid apprehension. We hold there is ample evidence to carry the case to the jury and to support a verdict of guilty. The motion for nonsuit was properly denied. See, e.g., State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. McKnight, 279 N.C. 148, 181 S.E.2d 415 (1971); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).

Our conclusion with respect to the sufficiency of the evidence is unaffected by defendants' contention that some of the State's evidence is contradictory and casts doubt on the credibility of the witnesses. Such contradictions and discrepancies are matters for the jury and do not warrant nonsuit. This assignment of error is overruled.

By their second assignment of error defendants contend the trial judge erred in not striking the entire testimony of Belinda Harris. The motion to strike is grounded upon certain answers given by her on cross-examination which suggest that part of her testimony was based on her reading, prior to trial, of the transcript of her testimony at a previous trial rather than on her present recollection of events relevant to defendants' guilt or innocence. For the reasons which follow, we hold this assignment to be without merit.

The ability to recall is subject to obvious limitations. Where, as here, defendants are being tried for the second or third time, there is danger that the memories of key witnesses will fade. For this reason certain doctrines have evolved whereby the witness may be aided in his recollections. It is generally accepted that two types of aid are available for a witness: Past recollection recorded and Present recollection refreshed. 1 Greenleaf on Evidence § 439(a) (1899). See Trust Co. v. Benbow, 131 N.C. 413, 42 S.E. 896 (1902), Rev'd on other grounds, 135 N.C. 303, 47 S.E. 435 (1904); State v. Staton, 114 N.C. 813, 19 S.E. 96 (1894). It is the latter type with which we are presently concerned.

Under this method the witness has a sufficiently clear recollection so that if allowed merely to refresh or stimulate it, he will be able to testify accurately to the controverted facts. Thus the witness finally testifies from his own recollection, Jones on Evidence § 27:4 (1972), and he uses writings, memoranda and other aids for the sole purpose of 'jogging' his memory. Because of the independent origin of the testimony actually elicited, the stimulation of an actual present recollection is not strictly bounded by fixed rules but, rather, is approached on a case-by-case basis looking to the peculiar facts and circumstances present. 3 Wigmore, Evidence § 758 (Chadbourn rev. 1970); Accord, 1 Greenleaf on Evidence § 439(c) (1899). We thus turn to the particular situation as disclosed by the record on appeal in this case.

At trial, the direct testimony of Belinda Harris was received without objection. On cross-examination, however, it was revealed that she had 'refreshed' her memory by looking at a transcript of her testimony at a previous trial which was prepared and given to her by the State. This conduct on the part of the State was entirely proper. It is not required that the memory aid be prepared by the witness himself. Lord Ellenborough early stated this in Henry v. Lee, 2 Chitty 124 (1810), where he said: 'If upon looking at Any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum is not written by himself, For it is not the memorandum that is the evidence but the recollection of the witness.' (emphasis added.) 3 Wigmore, Evidence § 759 (Chadbourn rev. 1970).

Although some jurisdictions have suggested that the memorandum must be made contemporaneously, or nearly so, with the event, See Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L.Ed. 1118 (1896) (since distinguished on this point by United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)); Palatini v. Sarian, 15 N.J.Super. 34, 83 A.2d 24 (1951); Braden Winch Co. v. Surface Equipment Co., 196 Okl. 444, 165 P.2d 640 (1945), there is no clear mandate for such a restriction. Moreover, where the stimulus is prior testimony or depositions, the overwhelming majority permit the recollection of the witness to be refreshed. See, e.g., United States v. Barrow, 363 F.2d 62 (3d Cir. 1966), Cert. denied 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967); People v. Seiterle, 65 Cal.2d 333, 54 Cal.Rptr. 745, 420 P.2d 217 (1966), Cert. denied 387 U.S. 912, 87 S.Ct. 1699, 18 L.Ed.2d 633 (1967)...