STATE v. BENSON No. 420A91.
417 S.E.2d 756 (1992)
331 N.C. 537
STATE of North Carolina v. Davey Lynn BENSON.
Supreme Court of North Carolina.
June 25, 1992.
Lacy H. Thornburg, Atty. Gen. by Clarence J. DelForge, III, Asst. Atty. Gen., for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, for defendant-appellant.
On 11 December 1989, defendant, Davey Lynn Benson, was indicted for the first-degree murder of Joe F. Horne. On 14 January 1991, a second indictment was issued charging defendant with the robbery with a dangerous weapon of the same victim. Defendant was tried noncapitally for the murder.
The facts pertinent to our decision in this case are as follows. At approximately 8:30 a.m. on the morning of 19 July 1989, Donnie Lee Boykin sat with defendant in an outdoor meeting area in the community of Moore Schoolhouse. Defendant told Boykin that he had recently broken up with his girlfriend, Michelle Hiatt, and that Hiatt and the couple's daughter, Brandy, were living with Hiatt's mother in Kenly. Defendant expressed a desire to visit the two in Kenly but said he lacked money, having only fourteen cents in his pocket. Defendant asked Boykin for gas money for his moped, and Boykin replied that he did not have any money.
Christy Deans Pearce, Mr. Horne's granddaughter, gave Mr. Horne a ride to Atkinson Mill that morning. As he stepped out of the car at approximately 9:30 a.m. at the Mill, Mr. Horne had three fishing poles and a white, five-gallon bucket that he sat on while fishing. Ms. Pearce noticed the usual bulge in Mr. Horne's pocket caused by the money he carried. While on her way home from work that same day, Ms. Pearce stopped by Atkinson Mill to pick up her grandfather. Calling for him but receiving no reply, she thought he had obtained a ride from a friend or other family member, which was not uncommon. She returned with her boyfriend a number of hours later to search for him again. As they approached the area, the two saw on the ground a number of fish with torn mouths, as if they had been stripped off a fish stringer. As they continued, they saw a dirty, torn cloth on the trail, which was later identified as Mr. Horne's shirt. Upon arriving at the river, they saw Mr. Horne lying in the water without his shirt, and the white bucket and fishing poles were floating nearby. Vertical scars and abrasions were visible on Mr. Horne's back, indicating that he had been dragged on the ground. Mr. Horne was also missing his right boot. His pants were pulled down below his knees, but the belt was still buckled.
When the authorities arrived, Mr. Horne was pronounced dead; the body's condition indicated that he had been deceased for some time, but no exact time of death was determined. No money was found on Mr. Horne's person, and his body showed indicia of a severe beating about the head and face with a flat, blunt object. An autopsy revealed additional trauma to the throat consistent with strangulation and several bruises on the back of the hand that were likely defensive wounds. The cause of death was brain trauma due to a blow or blows of a blunt instrument to the head.
At the murder scene, there was a three or four foot wide "drag trail," where leaves had been disturbed, leading to the river. The point of origin of the trail was a wooded area where there were several fish with torn mouths lying on the ground and a felled pine tree that was splattered with blood. There was also blood on the ground around the fish. Six or eight feet from the fish, a slate rock about the size of a man's hand was found; the rock appeared to have blood on it. Five or six steps down the drag trail, Mr. Horne's right boot was found lying on the ground. Nearby, there was a pool of blood. About six feet away, there was another pool of blood measuring the size of a man's hand, with an indentation in the blood. At various locations throughout the murder scene there were Budweiser beer cans.
Testimony was also presented by eight persons who stated that defendant had stated on numerous occasions how easy it would be to strike Mr. Horne on the head and take his money. Other testimony placed defendant and his moped, which was silver and black, at the murder scene itself. Carl Smith testified that he was in the Atkinson Mill area on the day of the murder between twelve noon and three in the afternoon and saw a young white male in his twenties working on a disabled moped. On his return trip, Mr. Smith considered stopping to render assistance but decided not to do so because he was taken aback by the behavior of the young man who at that time was rolling around in the grass with his hands and feet in the air appearing very happy and laughing about something.
Donald Pearce, then the boyfriend of Christy Deans Pearce, testified that he saw defendant on three separate occasions on the day of the murder. He saw defendant on a black and gray moped between 9:30 and 10:00 a.m. Defendant was neatly dressed, as was customarily the case. Some time between 3:30 and 4:30 p.m., Pearce saw defendant tinkering with his moped near the roadside. At this time, defendant appeared disheveled; his shirttail was half pulled out, his tennis shoes were dirty, and he did not look as neat as he typically appeared. In addition to witnesses Pearce and Smith, several other persons testified that they saw defendant or someone that looked like him at Atkinson Mill on the day of the murder.
Defendant did not present any evidence on his own behalf. After deliberating for fifty-five minutes, the jury found defendant guilty of robbery with a dangerous weapon and of first-degree murder on the theory of felony murder. The court imposed a life sentence on the basis of the first-degree murder conviction and arrested judgment on defendant's robbery with a dangerous weapon conviction.
Additional facts will be discussed as necessary for the proper disposition of the issues raised by defendant.
Defendant first argues that the trial court erred in denying defendant's motion to dismiss the charge of first-degree murder based on the felony murder theory because the evidence was insufficient to convince a rational trier of fact of defendant's guilt beyond a reasonable doubt. According to defendant, the evidence that he perpetrated the felony murder against the victim in the instant case was speculative at best.
Defendant offers several arguments in support of his position. First, the State's evidence failed to establish the time of the victim's death with any accuracy. This inability was of critical importance because of the inconsistent evidence pertaining to when defendant was at Atkinson Mill on 19 July, if he was there at all. Second, no
Defendant also argues that the evidence was insufficient to show that defendant robbed the victim. The State's case rested on the mere fact that defendant possessed money in the weeks subsequent to the murder and that defendant knew that the victim carried large amounts of money. Defendant's expenditure of money for dinner and the trailer rental were made possible by defendant's legitimate employment and his involvement in the drug trade. Further, defendant's purported willingness to buy Michelle Hiatt a car and house in exchange for reconciling with defendant was based on suspect testimony, and such extravagance was patently incredible. No evidence showed that the victim had nearly that amount of money in his wallet. As to defendant's awareness of the fact that the victim customarily kept large amounts of cash on his person, defendant reiterates that other persons were aware of this fact as well.
Defendant argues that, taken altogether, the evidence supported a compelling inference that someone other than defendant perpetrated the killing or, at least, robbed the victim. By way of support for his position, defendant notes that the trial court, before denying the motion to dismiss, acknowledged that "this is a close case." In sum, defendant argues, the evidence here, taken in a light most favorable to the State, was "sufficient only to raise a suspicion or conjecture as to whether the offense charged was committed" by defendant. State v. Evans, 279 N.C. 447, 453, 183 S.E.2d 540, 544 (1971). Therefore, defendant argues that the State failed to present the "substantial evidence" required to avoid dismissal. Id.
The State contends that substantial evidence was presented tending to show that defendant killed the victim while perpetrating a felony in the instant case. As a threshold matter, defendant had a strong motive to rob the victim because he wanted to use the money to facilitate a reconciliation with his girlfriend and daughter. Michelle Hiatt's mother testified that she had told defendant that one reason his relationship with her daughter would not work was because they had no home of their own. Not coincidentally, the State argues, one of the first things defendant did after the robbery-murder was rent a mobile home. In addition, numerous witnesses testified that defendant on various occasions stated how easy it would be to hit the victim on the head and rob him. The State also labels as spurious defendant's argument that the large amount of cash defendant possessed in the wake of the murder was derived from drug deals and legitimate employment. The testimony regarding drug-related money was provided by the defendant's brother, Danny Benson, and was uncorroborated and likely self-serving and exculpatory in design. No substantive evidence suggests that defendant was involved in the drug trade, and he certainly did not lead the life-style of a drug dealer. Also, the $160.00 defendant earned as a farm laborer does not account for his extravagance in the wake of the murder. Finally, there was substantial evidence
Id. at 98, 261 S.E.2d at 117 (citations omitted). In conducting our analysis, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 417 (1991). Finally, "contradictions and discrepancies do not warrant dismissal of the case—they are for the jury to resolve." State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).
We agree with the State that there exists substantial evidence that defendant killed the victim while engaged in a robbery of the victim. The evidence of defendant's presence at the murder scene around the time of the victim's death, while not unequivocal, is strong. There also exists strong evidence that defendant had a motive for committing the robbery-murder of the victim; he had a great desire to reconcile with his girlfriend and child and felt that obtaining a large amount of cash in a quick fashion was the only means to that end. Defendant was aware that the victim carried a large amount of money on his person and that because of the victim's advanced age, it would be easy to forcibly obtain the money. Indeed, defendant himself had often spoken of the ease with which the crime could be accomplished, stating that the victim could easily be hit on the head and have his money taken—the very modus operandi employed in the victim's actual murder. In sum, viewed in the light most favorable to the State, there exists substantial evidence to support defendant's first-degree murder conviction under the felony murder theory. See N.C.G.S. § 14-17 (Supp.1991).
In his remaining assignment of error, defendant argues that the trial court committed reversible error in admitting into evidence corroborative testimony provided by a witness for the State when the testimony included critical facts not previously testified to by the principal witnesses. The first basis for defendant's assignment of error involves testimony provided by Kenneth Eatmon, an investigator with the Johnston County Sheriff's Department, who testified to statements made to him by Randy Bryan, who shared a jail cell with defendant prior to trial. On direct examination by the State, Bryan testified as follows:
Shortly after Bryan's testimony, the State called Eatmon to the witness stand. Eatmon testified on direct examination as follows:
Defendant argues that the admission of Eatmon's testimony, ostensibly for corroborative purposes, was erroneous; Bryan made no reference during his trial testimony either to the fact that defendant lacked a conscience or to the fact that defendant would not confess because the State lacked sufficient evidence. Defendant argues that the error and attendant prejudice stemming from the admission of the testimony were borne out by the court's statement to counsel, made out of the presence of the jury, which was as follows:
According to defendant, because this error was prejudicial, he is entitled to a new trial.
The State first contends that defendant's assignment of error is not reviewable by this Court by reason of the fact that defendant waived any potential assignment of error because it was not properly preserved. The defendant lodged only a general objection to Eatmon's challenged statement and later lodged another objection alleging that the testimony was repetitious, the latter objection being irrelevant to this assignment of error. Thus, argues the State, waiver occurred. N.C.G.S. § 8C-1, Rule 103(a)(1) (1988); N.C.R.App. P. 10(b).
Further, the State urges that portions of Bryan's statement such as the reference to defendant's dreams about seeing an old man floating in the water are clearly competent to support Bryan's in-court testimony. Therefore, it was incumbent upon defendant to lodge specific objections to the other parts of Bryan's statement that he now contends are incompetent, that is, that defendant must not have a conscience and that he would not confess because the State lacked sufficient evidence.
Furthermore, the State contends that Eatmon's testimony referring to defendant's lack of conscience and refusal to confess due to insufficient evidence implicating him in the crime was substantially similar to Bryan's in-court testimony and was therefore properly admitted. State v. Rogers, 299 N.C. 597, 264 S.E.2d 89 (1980).
Further, the State argues, even if error, the admission of the testimony was harmless. Given the strong circumstantial evidence against defendant, the State argues, there is no reasonable possibility that, absent the alleged error, the jury would have reached a different result. N.C.G.S.§ 15A-1443(a) (1988); State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988).
Finally, the State contends that the error here, if any, was cured when the trial court, subsequent to defense counsel's cross-examination of Eatmon, specifically instructed the jury as follows:
As a threshold matter, we disagree with the State that defendant waived this assignment of error because he failed to specify the nature of his objection. The patent nature of the basis of defendant's objection is borne out by the fact that the trial court responded to the objection in terms of the very basis sought by defendant: that the testimony about to be provided by Eatmon was not corroborative of Bryan's testimony. Therefore, we conclude that defendant successfully preserved this assignment of error for appellate review. See N.C.G.S. § 8C-1, Rule 103(a)(1) ("No particular form is required in
However, we agree with the State that, because defendant, in this noncapital trial, made only a broadside objection to the allegedly incompetent corroborative testimony, this assignment of error is waived. Harrison, 328 N.C. at 682, 403 S.E.2d at 304. Assuming, arguendo, that defendant properly preserved this assignment, we conclude that the error here, if any, was cured by the trial court's instruction in the wake of Eatmon's testimony. State v. Batts, 303 N.C. 155, 160, 277 S.E.2d 385, 388-89 (1981); see also Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344, 360 n. 9 (1985) ("The Court presumes that jurors ... attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them."). Moreover, given the substantial evidence against defendant, there is no reasonable possibility that, absent the alleged error, the jury would have reached a different result. N.C.G.S. § 15A-1443(a); State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988).
Defendant also objects to another portion of Eatmon's testimony, this time pertaining to a statement provided to Eatmon by Elton Mitchell. Mitchell testified as follows:
During the State's direct examination of Eatmon, the following exchange occurred:
Defendant argues that the trial court committed prejudicial error when it admitted the Eatmon testimony over defense objection. In particular, defendant argues that Eatmon provided a more detailed, divergent account of the incident Mitchell testified to, specifically expanding on the timing and tenor of Mitchell's statement. In support of his position, defendant cites a number of cases where we have ordered
The State argues, once again, that defendant waived any objection in this regard because he lodged only a general objection, and hence the matter is not properly preserved for appellate review. Also, because defendant did not specifically object to the allegedly incompetent portions of Eatmon's testimony, he has waived appellate review. Additionally, the Eatmon testimony regarding the Mitchell statement was not so different as to warrant a new trial. Finally, even if erroneously admitted, the testimony was harmless.
Once again, we disagree with the State's assertion that defendant waived his right to appeal this issue because he did not specify the nature of his objection. However, once again, we conclude that waiver did occur by virtue of defendant's failure to lodge objections to the allegedly incompetent portions of the Eatmon testimony. Harrison, 328 N.C. at 682, 403 S.E.2d at 304. Assuming, arguendo, that the assignment of error was preserved, we conclude that the testimony was properly admitted. "Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness." State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980). Prior consistent statements are admissible even though they contain new or additional information so long as the narration of events is substantially similar to the principal witness' in-court testimony. Harrison, 328 N.C. at 682, 403 S.E.2d at 304. "When the statements are generally consistent with the witness' testimony, slight variations will not render them inadmissible. Such variations affect only the weight of the evidence which is for the jury to determine." State v. Moore, 300 N.C. 694, 697, 268 S.E.2d 196, 199 (1980) (citation omitted).
Here, the variation between Mitchell's testimony and Eatmon's recapitulation of Mitchell's prior statement is modest. Mitchell testified that he heard defendant say something to the effect of "let's go knock [Mr. Horne] in the head and—." Eatmon's depiction of the Mitchell statement was as follows: "let's go knock [Mr. Horne] in the head and take his money." Also, Eatmon stated that the pertinent conversation between Mitchell and defendant took place some three to four weeks prior to the murder, a fact not stated by Mitchell during his testimony. We conclude that the testimonies provided by Mitchell and Eatmon were substantially similar; Eatmon's reference to the timing of the conversation is properly considered a "slight variation[ ]" and therefore went only to the weight of the testimony. Mitchell's prior statement to Eatmon, "although including additional facts not referred to in his testimony, tended to strengthen and add credibility to his trial testimony. [It was], therefore, admissible as corroborative evidence." State v. Ramey, 318 N.C. 457, 470, 349 S.E.2d 566, 574 (1986).
For the foregoing reasons, we conclude that defendant received a fair trial, free of prejudicial error.
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