State v. Blalock , 13 N.C. App. 711 ( 1972 )

187 S.E.2d 404 (1972) 13 N.C. App. 711

STATE of North Carolina
v.
James Jackson BLALOCK.

No. 7210SC225.

Court of Appeals of North Carolina.

March 29, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Howard P. Satisky, and Associate Atty. Gen. Ralf F. Haskell, for the State.

Garland B. Daniel, Raleigh, for defendant appellant.

MALLARD, Chief Judge.

The defendant's first assignment of error is that the judge committed error in allowing defendant's witness Beam to testify that defendant's witness Joe Ferrell, after the original trial, had told her that defendant and his co-defendant Andrews worked for the Mafia and because of her testimony at the trial, they would be after her; that she "wouldn't live"; and that she "would die." Defendant contends that this was hearsay evidence and should have been excluded. Beam had just repudiated, on cross-examination, what had been stated by her in defendant's Exhibit #1 and was explaining why she had repudiated her written recantation. This evidence was competent for the purpose of showing the witness's state of mind at the time she signed the recantation offered by the defendant as his Exhibit #1. The rule is stated in 2 Strong, N.C. Index 2d, Criminal Law, § 73, p. 573, as follows:

"While testimony of extrajudicial assertions of a third person is incompetent to prove the truth of the facts asserted by such person, the hearsay rule does not preclude testimony of such assertions for the purpose of showing the state of mind of the witness in consequence of such assertions and not for the purpose of proving the matters asserted."

See also, State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969) and State v. Black, 230 N.C. 448, 53 S.E.2d 443 (1949).

Defendant's second assignment of error is that the judge committed error in admitting testimony by Beam that after the original trial, she received numerous telephone calls and when she answered, heard only a noise as if someone were "breathing" into the telephone, and also her testimony that someone tried to break into her house. The witness again was testifying as to her state of mind at the time she signed the recantation, and it was competent for her to do so. This assignment of error is overruled.

The defendant's third and last assignment of error is that the judge abused his discretion in his findings of fact, his conclusions of law, in signing the judgment, and in denying the motion for a new trial.

G.S. § 15-174 reads as follows: "The courts may grant new trials in criminal cases when the defendant is found guilty, under the same rules and regulations as in civil cases." Motions for new trials for newly discovered evidence in civil cases are now controlled by the provisions of G. S. § 1A-1, Rule 60(b) (2).

The prerequisite that must be established by the moving party to obtain a new trial on the grounds of newly discovered evidence has not been changed and is set forth in State v. Casey, 201 N.C. 620, 161 S.E. 81 (1931). The facts found do not meet these requirements.

The granting of a new trial in this criminal case on the grounds of newly discovered evidence rested within the sound discretion of the trial court. 7 Strong, N. C. Index 2d, Trial, § 49. No abuse of discretion has been shown. Frye & Sons, Inc. v. Francis, 242 N.C. 107, 86 S.E.2d 790 (1955). The factual situation in the case of State v. Ellers, 234 N.C. 42, 65 S.E.2d 503 (1951), relied on by the defendant, is distinguishable. There, the State's witness repudiated his testimony before judgment. Here, the State's witness repudiated her recantation on the witness stand. In the testimony at this hearing the alleged victim, explaining the repudiation of her recantation, told of threats, coercion, intimidation and harassment. The testimony of another witness indicated attempted bribery. The trial judge aptly said, "(T)his is a disgusting matter. It is rotten to the core."

We have carefully examined the record and hold that the material facts found by Judge Braswell are supported by competent evidence, that the material conclusions of law are based upon the facts so found, and that the facts found and conclusions of law support the judgment.

In the denial of the motion for a new trial on the ground of newly discovered evidence, we find no error.

Affirmed.

MORRIS and PARKER, JJ., concur.