STATE of North Carolina
v.
Richard Dale JOHNSON.
No. 8512SC726.
Court of Appeals of North Carolina.
January 21, 1986.*586 Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Steve Nimocks and Associate Atty. Gen. Randy Meares, Raleigh, for the State.
Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant, appellant.
HEDRICK, Chief Judge.
We consider only the question of whether the trial court erred in denying defendant's motion for judgment as of nonsuit. In ruling on this question we assume that all the evidence challenged by defendant on appeal was properly admitted.
The State's approach to this case on appeal is summed up and illustrated by the unusual statement in its brief that "... the State, in the case at bar, produced substantial evidence raising more than a reasonable inference that defendant did with, malice and without premeditation or deliberation, murder Luther Bailey. Defendant has not presented any evidence to rebut this strong inference that he committed the murder." In response to this assertion, defendant contends that "[a]ll of the State's evidence does no more than create a suspicion that defendant killed Luther Bailey...."
After considering all of the evidence in the light most favorable to the State, and giving to the State the benefit of every inference reasonably deducible from the evidence, we hold that the evidence, when so considered, is hardly sufficient to raise even a suspicion that defendant killed Luther *587 Bailey. The evidence in the record before us is insufficient to support the jury's verdict of guilty, and thus the trial court erred in denying defendant's motion to dismiss.
There are several examples of the lack of substantial evidence against defendant in this case. There is no evidence that defendant and the victim knew each other, were ever seen together, or had any association or relationship whatsoever. There is no evidence that defendant was ever in the motel room where the victim's body was found, nor is there any evidence that defendant was ever in or about the victim's automobile. The evidence falls far short of raising an inference that defendant made the phone call to the police on 16 April 1983, and even if such an inference may be reasonably deducible from the evidence, it does nothing more than show that somebody was killing people in Fayetteville. It does not disclose that defendant killed Bailey.
Furthermore, there is absolutely nothing to be gleaned from defendant's statements to the officers that would in any way connect defendant to the murder in the motel room. Defendant's statements that he had a dream regarding a fight in a "small room," and that he would likely react violently if approached by a homosexual do nothing whatsoever to strengthen the State's case. And finally, defendant's statement to the officers that "I'm not going to deny it. I'm not going to admit killing anyone. I just don't remember," does not supply the critical bit of evidence necessary to support a finding that defendant committed the crime with which he is charged.
We note further that evidence of microscopic hair analysis is insufficient to take a case to the jury absent some other substantial evidence of guilt. State v. Stallings, 77 N.C.App. 189, 334 S.E.2d 485 (1985). This is so because "comparative microscopy... serves to exclude classes of individuals from consideration and is conclusive, if at all, only to negative identity." Id. at 191, 334 S.E.2d 485.
From the record we determine that the theory of the investigating officers and the prosecution appears to be that the victim was homosexual, and that defendant killed him as a result of sexual advances made by the victim toward defendant. The only evidence in the record tending to show that the victim was homosexual is that the victim had engaged in some sexual activity at or about the time of his death, but this evidence falls far short of establishing as a fact that the victim was indeed homosexual. The same evidence would support a finding that the victim was homosexually raped and killed. There is nothing in the record to indicate that the investigating officers made any effort to determine whether the victim was homosexual. Indeed, the record before us is remarkable for what it fails to show rather than what it discloses.
For example, although the victim's brother stated that Bailey left Rocky Mount at approximately 4:00 p.m. to go to Chapel Hill and then to Fayetteville, there is nothing in the evidence to indicate that the investigators made any effort whatsoever to trace the victim's activities between the time he left Rocky Mount and his arrival at the motel at 10:15 p.m. on 10 February 1983. Although much is said about the fact that the victim's automobile was observed parked at Fort Bragg between 11:00 and 12 midnight on 10 February, the evidence does not disclose the distance between the motel and the place where the automobile was parked. Although the police apparently received the telephone call described in the evidence on 16 April 1983, there is no explanation in the record as to why such vital evidence was ignored for ten days. If defendant and the victim engaged in a fight such as that described in the evidence, and if the victim, as described, was so much larger than defendant, it would seem to follow that defendant would have at least suffered some injuries in the fight; yet there is nothing in the evidence to indicate that the investigators made any effort to determine whether defendant actually bore any evidence of physical *588 injuries as a result of such a fight. Such evidence could possibly have been obtained from defendant's associates at Fort Bragg, yet there is no showing that anyone was ever asked if defendant bore any physical injuries around 11 February 1983.
We have carefully examined the evidence in the record before us and conclude that it is insufficient to raise an inference that defendant killed Luther Bailey. The record is devoid of substantial evidence of defendant's guilt. The trial court erred in denying defendant's motion for judgment as of nonsuit.
Reversed.
JOHNSON, J., concurs in the result.
PHILLIPS, J., concurs.