State v. Westbrooks

• Decision Date: 06 December 1996
• Docket Number: No. 428A94,428A94
• Citation: 478 S.E.2d 483,345 N.C. 43
• Parties: STATE of North Carolina v. Donna Sue WESTBROOKS.
• Court: North Carolina Supreme Court

Page 483

478 S.E.2d 483

345 N.C. 43

STATE of North Carolina v. Donna Sue WESTBROOKS.

No. 428A94.

Supreme Court of North Carolina.

Dec. 6, 1996.

Michael F. Easley, Attorney General by David F. Hoke, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Assistant Appellate Defender, Durham, for defendant-appellant.

PARKER, Justice.

Defendant, Donna Sue Westbrooks, was tried capitally for first-degree murder, conspiracy to commit murder, solicitation to commit murder, two counts of forgery of an endorsement, and two counts of uttering an instrument containing a forged endorsement. During the trial the State dismissed the forgery and uttering charges. The jury found defendant guilty of first-degree murder, conspiracy to commit murder, and solicitation to commit murder. Defendant was sentenced to life imprisonment for the first-degree murder conviction, thirty years' imprisonment for conspiracy to commit murder, and thirty years' imprisonment for solicitation to commit murder, all sentences to be served consecutively.

At trial the State's evidence tended to show that in June 1991 defendant bought a Greensboro bar named the Bench Tavern. Defendant was married to the victim, James Alvin Westbrooks. Defendant purchased the bar by obtaining a home equity loan on the victim's home. At the time defendant purchased the bar, the victim was employed as a salesman for a Greensboro beer distributor. In November 1991 the victim injured his back in a work-related accident and was disabled. The victim remained at home and began receiving workers' compensation benefits.

Zachary Neal Davis, Jr. was in the floor-covering business in Greensboro. Davis became acquainted with defendant and installed a vinyl floor in the Westbrookses' home. When the Bench Tavern was doing poorly in July 1991, Davis loaned defendant $3,000. In September 1991 Davis loaned defendant an additional $3,500. In early 1992 Davis and Betty W. Cashwell purchased a bar in Greensboro named the Winner's Circle.

Defendant approached Davis and told him that she wanted to have her husband killed. She asked if he thought it could be done for $10,000. According to Carita Jones, a bartender at the Bench Tavern, Davis told her that defendant had offered him $10,000 to kill her husband. Sometime after this initial conversation, defendant confronted Davis again and said that she "wanted to do away with Jimmy" because "he had just gotten out of the hospital and his health was bad, and she didn't like seeing him suffer." Davis agreed to arrange the killing for $15,000, which was to come out of the victim's life insurance proceeds.

Davis asked his friend James Copeland if he knew anyone who could carry out the killing, but he did not. Davis then talked to his brother, Johnny Davis. Johnny testified that his brother approached him at the Winner's Circle bar and asked if he "knew anybody that would get rid of another person." Davis then told Johnny defendant was paying $15,000 to get rid of her husband because she wanted to collect his life insurance proceeds. Johnny would have nothing to do with his brother's plan. Finally, Davis approached his business partner, Betty Cashwell, and elicited her help in the murder.

In January 1992 the victim had back surgery related to his work injury; he was still out of work with his injury in March 1992. Prior to the murder defendant told the victim that Davis was going to come to the house on 13 March 1992 to repair a portion of the flooring Davis had previously installed. Davis and Cashwell drove to the victim's home at approximately 2:00 p.m. on the thirteenth; after the victim let them in, Davis began inspecting the flooring. Cashwell then went into the bedroom and got a knife from a location previously disclosed to her by defendant. Cashwell attacked the victim with a knife, and a struggle ensued. Davis and Cashwell testified that the victim put up a "hell of a fight." Davis testified that Cashwell stabbed the victim repeatedly and that Davis then stabbed the victim "once or twice" more. Cashwell gave a similar account of the murder except that in her testimony Davis did the stabbing. By the end of the struggle, defendant was dead on his carport floor.

After determining that the victim was dead, Davis and Cashwell left the victim's home, threw the knife out the window, changed clothes, washed blood off the front of Cashwell's car, and hid the bloodied clothes. They then removed the license tags from Cashwell's car, threw them in a pond, and went to a bar in the country to abandon the automobile. Davis flattened the right rear tire and then kicked dust on the car to make it look like it had been left for some time. The two then rode back to the Winner's Circle bar in another car.

Dr. Deborah L. Radisch, associate chief medical examiner of the State of North Carolina, performed an autopsy on the victim. According to Dr. Radisch the victim had numerous abrasions and twenty-three stab wounds. The victim bled to death from these wounds.

Defendant testified on her own behalf and contended that she had no part in the murder of her husband. Defendant's testimony tended to show that in December 1991 Davis said he needed money to purchase a bar and demanded several times that the loans be repaid. Davis asked whether defendant could borrow from either her or her husband's insurance policies, and she told him she could not. In January 1992 defendant's financial condition was poor. Defendant testified that she was losing money at the bar, but then "started making a little money," and "it wasn't so bad that [she] couldn't take care of everything." On 13 May 1992, Davis told defendant that Cashwell had killed the victim and that he had been present. According to defendant Davis indicated that Cashwell killed the victim because she needed money to pay off a debt and she believed there was money at the Westbrookses' home.

Angle Maberson testified that she and Cashwell were in the Guilford County jail together in early September 1993, that Cashwell was upset, and that Cashwell said then that "she was looking at a lot of time" and was going to have to tell a story that was not true because she "had to tell what the DA wanted to hear." Maberson testified that she saw Cashwell again after Cashwell testified in court. Cashwell was hysterical and said, "[I] did it, and [I] know that the lady didn't do it, but [I] had to, because [I] was looking at a lot of time" and "the DA wasn't going to give [me] the kind of plea bargain that [I] wanted."

Defendant also introduced into evidence portions of the victim's medical records from a July 1991 hospitalization for depression. The records disclosed that the victim reported his marriage as good, that he was very close with his wife, that he denied any marital problems, and that he felt his marriage was "very positive."

On rebuttal Sheila Hanes, the records clerk supervisor at the Guilford County jail, testified that Betty Cashwell and Angle Maberson were never housed together or adjacent to one another in such a way that they could carry on a conversation while in the jail.

Zachary Davis and Betty Cashwell pled guilty to conspiracy to commit murder and second-degree murder pursuant to a plea arrangement. Johnny Davis and James Copeland testified under a grant of immunity.

In her first two assignments of error, defendant contends that the trial court used the same item of evidence to prove more than one aggravating factor in both the conspiracy and solicitation cases. In the conspiracy case the court marked box number 14 on the "Felony Judgment Findings of Factors in Aggravation and Mitigation of Punishment" form (herein sentencing form), which provides: "The defendant took advantage of a position of trust or confidence to commit the offense." Box number 16 on the sentencing form represents "[a]dditional written findings of factors in aggravation." The trial court marked this box as well, and the following statement was typewritten:

The defendant took advantage of a position of trust in the husband/wife relationship with the information obtained about insurance coverage and where he would be on a certain date when the attack occurred and provided this to the victim's assailant.

Defendant argues that two separate factors in aggravation were found based on the same evidence.

The Fair Sentencing Act prohibits the use of the same item of evidence to prove more than one factor in aggravation. N.C.G.S. § 15A-1340.4(a)(1) (1988) ¹. After a review of the record, we find that the trial court found only one aggravating factor and based its ruling on this single factor. The trial court made the following finding for the conspiracy conviction:

The Court would find as an aggravating factor that the defendant took advantage of a position of trust in the husband and wife relationship, and with information obtained about the insurance coverage and where he would be on a certain date that the attack occurred was provided to his assailants.

(Emphasis added.) The trial court then set out the mitigating factors and finally concluded that "the factor in aggravation outweighs the mitigating factors, the reason for the deviation from the presumptive." (Emphasis added.) We conclude that the trial judge marked an additional box on the sentencing form in order to explain the single statutory finding. The language inserted on the form in finding number 16 is explanatory of finding number 14 and was not treated as a separate factor in aggravation. The court thus did not find two factors in aggravation based on the same evidence. See State v. Laney, 74 N.C.App. 571, 328 S.E.2d 586 (1985).

We are mindful of our recent decision in State v. Morston, 336 N.C. 381, 445 S.E.2d 1 (1994), in which we held that a discrepancy between the sentencing form and the transcript entitled defendant to a new sentencing hearing. In Morston the sentencing form indicated that the...