State v. Vestal

• Decision Date: 12 May 1971
• Docket Number: No. 3,3
• Citation: 180 S.E.2d 755,278 N.C. 561
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Gloyd A. VESTAL.

Page 755

180 S.E.2d 755

278 N.C. 561

STATE of North Carolina v. Gloyd A. VESTAL.

No. 3.

Supreme Court of North Carolina.

May 12, 1971.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Eugene A. Smith, and Staff Atty. Howard P. Satisky, Raleigh, for the State.

Cahoon & Swisher, by Robert S. Cahoon and James L. Swisher, Greensboro, for defendant.

LAKE, Justice.

Denial of Motion for Judgment of Nonsuit

Upon the defendant's motion for judgment of nonsuit in a criminal action, the question for the court is whether there is substantial evidence of each essential element of the offense charged, or of a lesser offense included therein, and of the defendant's being the perpetrator of such offense. If so, the motion is properly denied. State v. Rowland, 263 N.C. 353, 139 S.E.2d 661; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777; State v. Goins and State v. Martin, 261 N.C. 707, 136 S.E.2d 97. In making this determination, the evidence must be considered in the light most favorable to the State and the State is entitled to the benefit of every reasonable inference to be drawn from it. State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679. Contradictions and discrepancies in the testimony of the State's witnesses are to be resolved by the jury and, for the purposes of this motion, they are to be deemed by the court as if resolved in favor of the State. State v. Church, 265 N.C. 534, 144 S.E.2d 624; State v. Simpson, 244 N.C. 325, 93 S.E.2d 425. In determining such motion, incompetent evidence which has been admitted must be considered as if it were competent. State v. Cutler, supra; State v. Virgil, supra.

The test of the sufficiency of the evidence to withstand the motion for judgment of nonsuit is the same whether the evidence is circumstantial, direct or both. State v. Cutler, supra; State v. Rowland, supra; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. There is substantial evidence of each element of the offense charged, or of a lesser offense included therein, and of the identity of the defendant as the perpetrator of it if, but only if, interpreting the evidence in accordance with the foregoing rule, the jury could draw a reasonable inference of each such fact from the evidence. State v. Rowland, supra. If, on the other hand, the evidence so considered, together with all reasonable inferences to be drawn therefrom, raises no more than a suspicion or a conjecture, either that the offense charged in the indictment, or a lesser offense included therein, has been committed or that the defendant committed it, the evidence is not sufficient and the motion for judgment of nonsuit should be allowed. State v. Cutler, supra; State v. Chavis, 270 N.C. 306, 154 S.E.2d 340. The evidence in the present record, so considered, is sufficient to support, though not necessarily to require, findings as follows:

1. On 21 June 1969, the dead body of Angelo Pennisi was found floating in Lake Gaston between the bridges on which Highway 85 and U.S. Highway No. 1 cross the lake, having been submerged in the waters of the lake for a substantial period of time.

2. Wrapped around the body was a length of gold colored window drape and substantial lengths of heavy, metal, log chains, weighing approximately 70 pounds.

3. His pockets were empty except for a folded handkerchief and $32 in bills.

4. On the left side and the back of the head there were several lacerations (i.e., burstings or tearings of the skin as distinguished from cuttings), beneath which there were four or five separate, depressed fractures of the skull. These wounds were caused by blows from an instrument such as a hammer or a length of pipe. There had been four or five such blows upon the head, any one of which would have been sufficient to cause death.

5. The date of death was between four and eight days prior to 21 June.

6. The hour of death was from four to eight hours after Pennisi had a meal consisting in part of kernels of corn.

7. At approximately 1:30 p.m. on 15 June, Pennisi ate a lunch consisting in part of two servings of corn.

8. At 6:55 p.m. on 15 June, he left his home in Greensboro pursuant to his plan to travel by airplane that evening to Wilmington, Delaware, on business in the company of the defendant. He was then wearing the clothing found upon the body in the lake.

9. On 15 June, for approximately ten minutes, ending about 7:20 p.m., Pennisi was seen sitting in his automobile parked at the Summit Shopping Center conversing with a man in another car parked in the adjoining parking space. Between 7 p.m. and 7:30 p.m. he telephoned the defendant and at 7:30 p.m. drove to the defendant's home, parking in front of it. The defendant came out, got in the car, and they talked there until Pennisi left shortly before 8 p.m. In that conversation Pennisi was 'upset' over the title to a Lincoln automobile and 'wanted' $6,000 which the defendant owed him. Immediately prior to 8 p.m. Pennisi was observed walking, in a very determined walk, up to the door of the defendant's flower shop, where he stopped abruptly, the flower shop being in the Summit Shopping Center. He was alone. No witness saw him alive thereafter.

10. After the discovery of Pennisi's body in the lake, a belt, similar in size and appearance to the one worn by Pennisi when he left his home on 15 June, broken near the buckle, was found in some tall weeds at a corner of the defendant's warehouse. No belt was found on the body.

11. Inside the warehouse, two blocks from the defendant's flower shop, the investigating officers found, on 26 or 28 June, some gold colored window drapes, which had been left there for storage by a friend of the defendant when she moved to another city. These drapes matched, in color, material, lining, design and stitching the drape found wrapped around Pennisi's body when it was taken from the lake. Among the drapes, so stored by the owner, was one of the size of the drape found wrapped around the body. A drape of that size was not found in the warehouse and one of those stored had been returned to the owner. Those found in the warehouse and the one found upon the body were equipped with the same type of hooks and weights, all the hooks having the same machine markings, indicating that they were all made by the same fabricating machine.

12. On 18 July, the investigating officiers also found upon the ceiling and upon the north and west walls of the warehouse numerous spatters of blood, some of these containing hair. The blood was human blood. The several hairs found upon the walls of the warehouse matched, microscopically, hairs taken from Pennisi's body after its removal from the lake. The hairs so taken from the walls of the warehouse were of a Caucasian and, by their condition, showed they had been forcibly removed from the scalp.

13. On 15 June, the defendant owned a Cadillac Eldorado automobile, solid white both interior and exterior. In the trunk of this automobile investigating officers detected on 28 July 1969 a strong odor. From the carpet of the trunk they removed a human hair which, upon expert examination, was found to match, microscopically, the hairs taken from Pennisi's head after the removal of the body from the lake. The investigating officers also found in the trunk of the white Cadillac a piece of sponge-like material containing a stain and other stains upon the rear trunk panel, which panel, made of cardboard, they removed for examination. They also removed from the trunk of the automobile the jack, several sections of the carpet and of the mat under the carpet. Upon expert examination, the piece of sponge-like material, the cardboard panel, the jack, the sections of carpet and the sections of the mat were each found to have human blood upon it.

14. The defendant's white Cadillac automobile was purchased for him, new on 9 June, the purchase being made by a woman friend in her name at his request. The defendant picked it up from her on 12 June. There was then no peculiar odor about it and she was not aware of any blood or hair in or about it. The mechanic of the dealer who sold it to her observed no unusual odor about it and no blood or hair as he serviced it for delivery. He installed the floor mats which he then removed from the trunk of the car. On 13 June, the defendant took it to a State inspector in order to get a State inspection sticker for it. The inspector did not observe any unusual odor then about the car. On that day the manufacturer's warranty for the car was transferred from the name of the woman, to whom it had been issued, to the defendant's name.

15. On 28 June, a friend of the defendant drove the white Cadillac to Mississippi on a trip which lasted nine days. At that time, the car had a strong odor in the trunk. This user of the car had nothing to do with putting any blood or hair in the trunk. On 18 July, the day the blood and hair were found and removed from the warehouse, the defendant sold the automobile to another friend, who resold it ten days thereafter to a Mr. Shropshire in whose possession the officers found it some two hours later. Shropshire noticed a bad odor about the car, such as cleaning fluid. He had nothing to do with putting any blood or hair in the trunk. He gave the officers permission to take the car into their custody and to search it, including the trunk.

16. On 15 June, the day Pennisi disappeared, another woman friend of the defendant saw the white Cadillac parked in front of the defendant's residence about 7 p.m. When she rode past the house again, as it was getting dark, the Cadillac was gone. At a time after 8 p.m., a solid white, Cadillac Eldorado automobile, with a white vinyl top and white interior, as observed parked in the Summit Shopping Center near the defendant's florist shop. At 7:15 a.m. the next day, a neighbor observed the defendant driving his white Cadillac Eldorado along the street between their houses.

17. The defendant and Pennisi had...