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North
Carolina Reports
APPEAL by
defendant pursuant to G.S. 7A-27 (a) and G.S. 7A-31 (a) from Judge
Perry Martin, 14 October 1974 Criminal Session of PITT Superior
Court. Each
defendant was indicted and convicted upon separate bills for
accessory before the fact to the murder of Linwood Branch on 29
March 1974 and for conspiracy to commit murder. The State
offered evidence which tended to show the facts summarized below. Matthew Jack
Whealton, the principal witness against the defendants, admitted
shooting a man whom he thought was the victim, Linwood Branch.
Defendant Connie Hardee Branch was the wife of the deceased and she
was apparently having an affair with defendant Roy Lee Sullivan.
Whealton testified that in exchange for his turning State's
evidence, the prosecution agreed not to seek the death penalty for
his part in the death of Mr. Branch. Whealton's
further testimony was substantially as follows. His first contact
with Sullivan was by telephone in December, 1973. Later they
arranged to meet at an airport terminal in Norfolk, Virginia, in
February, 1974. They met as planned and drove to a motel at Virginia
Beach where Sullivan offered Whealton $4,000 to find someone to kill
Mr. Branch. Whealton replied that he might be able to find such a
person. Subsequently he told Sullivan by telephone that he had found
someone, but the price would be $5,000. Around 1 March 1974 Whealton met a woman who introduced herself as Connie Branch at the Fass Seafood House in Washington, North Carolina. She sat in the front seat of his car in the restaurant parking lot and told him that she wanted her husband killed because they would lose the child they were trying
Page 521 to adopt if
she got a divorce. She indicated that she would not mind if an
innocent man were convicted if Whealton killed her husband. Sullivan
soon joined them. He kissed Mrs. Branch Date Printed: September 20, 1999
North Carolina Reports
At a meeting in
mid-March Sullivan gave Whealton $5,000 in cash. Whealton returned
to his home in Chesapeake, Virginia, and called one Harold Wiseman
who agreed to help him with the planned killing. Whealton bought a
.38 caliber pistol and a .32 caliber pistol, giving the .32 caliber
pistol to Wiseman along with $2,500. On 19 March 1974
Whealton and Wiseman came to North Carolina to kill Branch. When he
was located, they were unable to kill him because someone was with
him, whereupon they went back to Virginia. They returned to North
Carolina on 21 March 1974, but were too intoxicated to do anything
and drove back to Virginia. On 27 March 1974
Sullivan and Mrs. Branch contacted Whealton by telephone at Earl's
Market in Chesapeake, Virginia, and inquired as to when he would
kill Branch. On Friday, 29 March 1974, Whealton and Wiseman returned
to North Carolina. Sullivan advised them that Branch had a different
car, a 1968 Buick Skylark, and told them Branch was expected to
arrive at his home around 10:00 that evening. Whealton drove Wiseman
to the Branch home around 8:30 or 9:00 p.m., and
Page 522 .38 caliber pistol
he had used into the Albemarle Sound. The next day, Saturday,
Sullivan called Whealton to say Branch had not died and then on
Monday called to say he was dead. Whealton
identified Sullivan in the courtroom without hesitation. However, he
twice was unable to identify Mrs. Branch during the first part of
his testimony. After the two-hour noon recess of the first day of
court, during which Whealton saw five pictures of Mrs. Branch taken
at different times, he was able to make an in-court identification
of her as the woman he had met at the Fass Seafood Restaurant about
1 March 1974. Mrs. Branch had changed the style and color of her
hair and put on glasses since her meeting with Whealton. He said
that he was able to recognize her after she turned and he saw her
profile. He also stated that he first made a positive identification
of her some time after the first two requests for an identification
in court and before he saw the five pictures during the noon recess.
A subsequent examination of Deputy Sheriff Dalton Date Printed: September 20, 1999
North Carolina Reports
Further evidence
of the State tended to show: that deceased died as a result of a
pistol wound to the head; that Whealton, in the company of Gloria
Allsbraok and Wiseman, was at the Lemon Tree Inn in Chocowinity
(about twenty miles from Greenville) on at least three occasions,
including 29 March 1974; that Sullivan borrowed $6,526.61 from a
loan company on 11 March 1974 to buy a crop dusting plane, but no
plane was bought; that within one day of the loan the check was
cashed and $1,025.00 of it was deposited; that Sullivan in the
presence of Mrs. Branch said he was going to marry her and exhibited
wedding rings; that Sullivan and Mrs. Branch were frequently seen
together in the first three months of /974 and particularly were
seen alone together at the Kinston Stock Yard for thirty minutes on
24 larch 1974; that Sullivan had telephone conversations with two
men in South Carolina and asked them if they could find a killer,
telling one of them that the intended victim was the husband of his
girl friend. Page 523 Additionally, the
State introduced into evidence numerous telephone records. These
records showed the following telephone calls: (1) a call on 8 March
1974 between the Cline Chevrolet dealerhip in Virginia where
Whealton and Wiseman worked, and Sullivan's telephone in Kinston;
(2) a call on 9 March 74 from another Cline Chevrolet location in
Virginia and Sullivan's telephone in Kinston; (3) numerous calls
(one in April, eighteen in March, seventeen in February, and six in
January) from the telephone of Better Homes Realty Company,
Greenville, which listed defendant Connie Branch as the owner, to
Sullivan's telephone in Kinston; (4) numerous calls (twenty-five
March, six in February, and one in January) from the telephone for
Branch's General store in Greenville listed in the name of L. N.
Branch (the deceased) to the telephone of Sullivan; three calls on
19 March 1974 from the Lemon Tree Inn, Chocowinity, where other
records indicated Whealton registered 19, 20 and 29 of March 1974,
to Sullivan's telephone; (6) four-minute call at 8:07 a.m. on 30
March .1974 from a Pitt Memorial Hospital pay telephone (the name
"Connie" was noted on the record) to Sullivan's telephone; and (7)
numerous other calls noted in the body of the opinion. Many of these
telephone Date Printed: September 20, 1999
North Carolina Reports
Attorney General
Rufus L. Edmisten by Special Deputy Attorney General Sidney S.
Eagles, Jr., for the State. Paul, Keenan,
Rowan & Galloway by James V. Rowan for Roy Lee Sullivan and James,
Hite, Cavendish & Blount by Dallas Clark, Jr., for Connie Hardee
Branch, for defendant appellants. Date Printed: September 20, 1999
North Carolina Reports
Page 531 [11) Mrs. Branch assigns as error the admission of the testimony of Bennett concerning Sullivan's telephone call to him in April immediately following the killing to find out whether or not "the heat was on" Whealton. "[T]he declaration or act of one is not admissible in evidence as against other members of the conspiracy if it was made after the termination of the conspiracy . . . . This is true whether the conspiracy is terminated by the achievement of its purpose or by the failure to achieve
Page 532 it." 16 Am. Jur.
2d, Conspiracy, 40, at 148; State v. Littlejohn, 264 N.C. 571, 142
S.E.2d 132 (1965). "[D]eclarations of one of the conspirators, made
after the offense has been committed and in the absence of the
others, are not competent against the others, because not uttered in
furtherance of the common design. S. v. Dean, 35 N.C. 63." State v.
Ritter, 197 N.C. 113, 116, 147 S.E. 733, 734 (1929). Thus, it was
error to admit this testimony as to Sullivan's conversations after
Branch had been killed and the objective of the conspiracy had been
achieved. However, the error committed was harmless beyond a
reasonable doubt since this evidence standing alone in no way
implicated Mrs. Branch and since there was plenary other evidence
showing that Mrs. Branch and Sullivan conspired to kill Branch.
Chapman v. California, supra; State v. Brinson, 277 N.C. 286, 177
S.E.2d 398 (1970). The assignment of error is overruled. [12] Next, Mrs. Branch assigns as error the admission of the testimony of Bennett concerning a subsequent telephone call in April from Bennett to Sullivan to find out more information about the killing. In this subsequent call, Sullivan related that Whealton killed Branch for $5,000 and that he (Sullivan) and Mrs. Branch were in love and to be married as soon as possible. Since this testimony involved declarations made outside the presence of Mrs. Branch and after the conspiracy to kill Mr. Branch had been terminated by the achievement of its purpose, it was error to admit this testimony against Mrs. Branch. State v. Ritter, supra. However, an examination of the record shows that Mrs. Branch was not prejudiced by the admission of this testimony. Although reference was made to Mrs. Branch in this conversation, the very facts related about her were established by plenary other evidence. In brief. Sullivan and Mrs. Branch had been seen alone together on several occasions for extended periods. They were frequently in contact with each other and had been seen kissing each other. Also, Sullivan, in the presence of Mrs. Branch, had stated that they were to be married and had displayed wedding rings. Furthermore, the fact that Sullivan and Mrs. Branch were in love and to be married did not directly implicate her in the crimes charged. Moreover, there was overwhelming evidence, especially considering Whealton's testimony and identification of Mrs. Branch, showing her involvement in the crime charged. Thus, the error committed was harmless beyond a reasonable doubt. Chapman v. California,
North Carolina Reports
supra; State v. Brinson, supra. The assignment of error is overruled.
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