Grover Lee Smith appeals his conviction for the murder of Mary Zou Pressley. The issues on appeal relate to Smith’s right to a speedy trial, the sufficiency of the evidence to support Smith’s conviction, the State’s failure to prove motive beyond a reasonable doubt, the admission of certain evidence, and the trial judge’s failure to grant a mistrial. We affirm.
I.
We reject Smith’s contention that the State denied him his constitutional right to a speedy trial.
The police arrested Smith for Pressley’s murder on May 7, 1987. Four months later, the police also arrested Smith for the murder of Ricky Burdette. The grand jury simultaneously indicted Smith for both murders.
The State elected to try Smith for the Burdette murder first. Smith was convicted following a jury trial and the judge sentenced him to life imprisonment.
On February 8,1988, two weeks after the Burdette conviction, the State nol prossed the Pressley indictment with leave to reindict.
About three months after the Supreme Court reversed Smith’s conviction for Burdette’s murder in
State v. Smith,
Smith claims the delay of his trial for the Pressley murder for nearly three years after his arrest “denied [him] his constitutional right to a speedy trial.” We disagree.
In
Barker v. Wingo,
A.
Because the trial judge did not state whether the delay he considered was nearly three years, as claimed by Smith, or only ten months, as claimed by the State, we will assume for the purpose of this appeal that the delay was nearly three years.
While length of delay alone is not dispositive, the delay here is sufficient to trigger our review of the other three factors.
See Barker,
B.
The burden was on Smith to show “the delay was due to the neglect and willfulness of the State’s prosecution.”
State v. Dukes,
The delay in prosecuting Smith for the Pressley murder became material after the Supreme Court vacated Smith’s conviction for the Burdette murder. The State thereafter promptly secured a new indictment charging Smith with the Pressley murder and prosecuted Smith therefor.
*381 C.
The State concedes Smith asserted his right to a speedy trial in this case. He first asserted his right to a speedy trial eight months after his arrest when he learned the case involving the Burdette murder would be tried before this one. He reasserted his right to a speedy trial a week after the Grand Jury reindicted him for the Pressley murder.
D.
Smith failed to demonstrate any prejudice caused him by the delay.
His argument that he was prejudiced by the delay because the State was able to use the Burdette case as a discovery tool for this trial lacks merit in that Smith received a similar discovery advantage. Cf. Rule 5(b)(1), SCRCrimP (rule providing for reciprocal disclosure of evidence by a defendant who has requested disclosure of documents, tangible objects, and reports of examinations and tests from the State).
His argument that he was prejudiced because his witnesses’ memories faded also lacks merit because the same disadvantage hampered the State.
Chapman,
Regarding Smith’s claim of prejudice because one of the witnesses who testified for him in the Burdette case had died before trial of the instant case, we note that this witness’ testimony was nonetheless available to Smith because the witness had testified under oath in the former case.
See Gaines v. Thomas,
Smith’s other arguments concerning prejudice are not addressed because they are made for the first time on appeal.
See State v. Bailey,
E.
Based on our review and balancing of the four factors discussed above, we agree with the trial judge that Smith was not denied his constitutional right to a speedy trial. Although there was a delay of nearly three years and Smith asserted his right to a speedy trial, the delay did not involve willful neglect and Smith suffered no actual prejudice because of the delay.
II.
We find no merit in Smith’s contention that “the trial judge erred in failing to grant [Smith’s] motions for a directed verdict of not guilty and [Smith’s] motion for a new trial [on the ground] there was insufficient circumstantial evidence to establish ... [his guilt] beyond a reasonable doubt... [or] from which his guilt could be fairly and logically deducted.”
“It is a well-established rule in criminal cases that unless there is a total failure of evidence tending to establish the charge laid in the indictment, the trial judge’s ruling on a motion for a directed verdict of acquittal must stand absent an error of law.”
State v. Nix,
In addressing Smith’s contention, we view the evidence and its reasonable inferences, as we must, in the light most favorable to the State.
Nix,
[T]he judge is concerned with the existence or non-existence of evidence, not its weight; and although he should not refuse to grant the motion where the evidence merely raises a suspicion that the accused is guilty, it his his duty to submit the case to the jury if there be any substantial evidence which reasonably tends to prove the guilt of the *383 accused, or from which his guilt may be fairly and logically deduced.
State v. Edwards,
We therefore examine the evidence in accordance with these principles, realizing the State is entitled to all favorable inferences where the evidence is conflicting.
The victim, Mary Zou Pressley, was Smith’s wife’s grandmother. About a month before the murder, Smith’s wife left him to live with her paramour, Howard Kirkland. Smith had custody of the Smith’s three children.
Pressley was murdered at her trailer on May 3, 1987. The pathologist estimated that the time of death was between 12:00 noon and 12:00 midnight. An autopsy revealed she died from two “blows” to the head. The pathologist’s opinion was “a death by an ax.”
Between 9:40 and 9:45 p.m. on May 3, 1987, Smith left his work area. Before leaving, however, he asked a co-employee to clock him out at his normal quitting time of 10:30 p.m.
Smith’s workplace was fifteen miles from Pressley’s trailer and around twenty-five minutes away. Smith’s defense was alibi.
The next morning around 8:30 a.m., while at a local bar, Smith told Victor Latham, “Me and my wife are separated [and] the bad part about it[ ] is those kids’ grandmother is laying over there dead, and I can’t take them to the funeral home.”
Later that morning, Smith was the first lunch customer at a local restaurant near Pressley’s trailer. Upon arrival, he filled his plate at the buffet.
Although he did not usually do so, Smith sat at a booth with a direct view out the window. His view included the road where Pressley’s trailer was located. He stared out the window for about an hour while eating very little.
Between 11:00 and 11:30 a.m., a delivery person first discovered Pressley’s dead body at her trailer. This was approximately three hours after Smith told Latham that Pressley was dead.
Around noon, the rescue squad passed by the restaurant. At this point, a waitress noticed Smith was no longer there.
*384 Shortly thereafter, Smith showed up at Pressley’s trailer, where the rescue squad had gone. He stated, “I just happened to pass here on my way... to get something to eat.”
The next morning, a neighbor of Kirkland saw a faded blue, older-model car that she said “may have been a Nova” parked by Kirkland’s car. She also saw a man reaching into Kirkland’s car from the driver’s side window. As the man was doing so, the neighbor heard a “thumping” noise. Smith drove a faded blue, older-model Nova.
About noon that same day, the lieutenant learned of the pathologist’s opinion that the murder weapon was an ax. He shared this knowledge with the other investigating officers. It was not, however, revealed to anyone outside the sheriffs office.
Around 2:20 p.m., the sheriff’s dispatcher received an anonymous phone call. The caller stated he knew who killed Pressley and gave the address and license tag number of Kirkland. The caller also stated he had seen the murder weapon earlier that day on the front seat of Kirkland’s car. He identified the weapon as an ax with blood on the handle.
Just ten minutes later, Smith arrived at work and told a coworker that somebody had called the sheriffs department and said Smith’s wife and her boyfriend killed Pressley.
Later that afternoon, somewhere between 4:15 and 5:00 p.m., Smith told another co-worker he was going to phone his kids. Smith then went into the office where the phone was located.
During this same time period, between 4:30 and 5:30 p.m., an anonymous caller phoned another sheriffs dispatcher and implicated Kirkland in Pressley”s murder.
Later that night, Kirkland consented to a search of his car. The police found an ax in a plastic bag under the driver’s side seat of the car. The car apparently had not been moved for some time.
The ax had blood on it, as well as hairs that were consistent with Pressley’s.
The next morning, Smith went to the sheriffs office at the request of the investigating officers to answer questions. He spoke with the dispatcher who received the first anonymous call. She immediately recognized his voice as that of the anonymous caller.
*385 Finally, around May 25 or May 26, 1987, while Smith was out on bond for the Pressley murder, he went to visit the coworker who clocked him out at 10:30 p.m. on the day Pressley was murdered. He said he came to congratulate the co-worker on his baby girl. The co-worker explained he had a baby boy.
Smith then asked the co-worker if the police had talked to him. When the co-worker said “yeah,” Smith asked what he told them. The co-worker responded that he told the truth.
We therefore hold there is substantial evidence from which it can be fairly and logically deduced that Smith killed Pressley with malice aforethought, either express or implied.
See
S.C. Code Ann. § 16-3-10 (1976) (defining murder as “the killing of any person with malice aforethought, either express or implied”);
cf. State v. Landin,
III.
We reject Smith’s argument that “the trial court erred in failing to grant [his] motions for a directed verdict of not guilty and his motion for a new trial [on the ground] the State, having undertaken to prove that [he] had a motive to kill... Pressley, failed to prove such motive beyond a reasonable doubt.”
In this state, it is well settled that motive is not an element of murder and, therefore, the State need not prove motive.
State v. Hartley,
— S.C. —, —,
For support, Smith relies on a portion of
State v. Takis,
[W]here . . . the State undertakes] to prove motive as a part of its chain of circumstantial evidence against the ac *386 cused, and imthout which there would [be] no “corroboration of the primary fact of guilt,” then motive be[comes] most material, and [must be brought to the test of strict proof]____
Id.
at 143,
Even assuming that this portion of Takis has not been overruled by State v. Edwards, there was, as the recital of the evidence above reflects, substantial corroboration of Smith’s guilt aside from motive.
IV.
We also reject Smith’s argument that “the trial court erred in permitting [the sheriffs dispatcher] to identify the voice of a May 5, 1987 [anonymous] telephone caller as that of . . . Smith [because the dispatcher] had no training in voice identiflcation[,] she had never heard [Smith’s] voice prior to the alleged voice identification^] and she could not state with certainty that the voice on the telephone was that of [Smith].”
For some time, a witness’ testimony of identification of a person by having heard his voice has been regarded as legitimate and competent evidence to establish identity in criminal cases.
State v. Plyler,
We hold there was sufficient testimony here as to the recognition of Smith’s voice. The dispatcher heard the anonymous caller’s voice on the afternoon of May 5, 1987. She described the caller as a white male, around forty years old with a “very country and rugged, scratchy like voice.” The voice particularly stuck out in her mind because it “was so country [and] kind of had a ring to it.”
Less than twenty-four hours later, Smith came to the sheriffs office and told the dispatcher he was there to talk to two of the detectives. The dispatcher immediately recognized *387 Smith’s voice as that of the anonymous caller. She turned around and told her partner. She then went and told the detectives Smith was there to see them and he sounded like the man she talked to the day before.
The dispatcher did not know that Smith was supposed to come in that morning. She testified she was ninety percent sure that he was the anonymous caller.
We find no merit to Smith’s assertion that the identification was error because the dispatcher had never heard Smith’s voice prior to the alleged telephone conversation.
See State v. Porter,
Despite the briefness of the dispatcher’s later conversation with Smith, and due to its closeness in time to the anonymous call as well as the distinctiveness of Smith’s voice, we find no error in the voice identification.
See State v. Stewart,
We also find no error in the dispatcher describing the caller as a white male, approximately forty years old, with a “very country and rugged, scratchy like voice” even though she was not an expert in identifying voices.
See State v. Cofer,
Finally, we discern no error because the dispatcher was not absolutely certain Smith was the anonymous caller. Her mere uncertainty did not affect the admissibility of her identification of Smith’s voice.
See State v. Steadman,
We do not address Smith’s other arguments concerning the voice identification because they are raised for the first time on appeal.
Bailey,
V.
We find no basis for reversal because of the trial judge’s admission in evidence of Smith’s purported statements that are reflected in a typewritten document and handwritten notes. Smith complains the documents are not verbatim accounts of his interrogation by investigating officers and were therefore inadmissible.
When Smith went to the sheriff’s office to answer questions, the officers did not record the interrogation because Smith said he did not want to make a written statement. Instead, one of the officers took notes.
Several hours after the interrogation, the three investigating officers met. Based on their memories and the notes taken, they reconstructed part of the interrogation in question and answer form. The document that they prepared is four and one-half typewritten pages and contains more details than the page and one-half of hand-written notes.
The officers admitted the typewritten document and the handwritten notes are not verbatim accounts of everything said, but they testified what is in each document is accurate.
Smith’s argument regarding the documents not being verbatim accounts of his interrogation goes to the weight rather than to the admissibility of the documents.
See State v. Sullivan,
Moreover, even if the judge erred in admitting the typewritten document and the handwritten notes in evidence because they are not verbatim accounts of what Smith said during interrogation, the error was harmless since other evidence established the same facts.
See State v. Blackburn,
Here, the investigating officers testified without objection *390 as to what Smith told them during the interrogation. They even referred to the typewritten document and the handwritten notes when responding to questions. The information contained in these documents was cumulative to other evidence presented at trial.
Finally, when Smith himself testified, he went over the alleged inaccuracies between what is in the documents and what he actually said. Our review of these alleged inaccuracies reveal that they are insignificant and bore little, if any, relation to the primary evidence of Smith’s guilt.
See State v. Jolly,
VI.
The trial judge committed no abuse of discretion in admitting the ax and a photograph thereof in evidence.
See State v. Moultrie,
(1984) (the admission of evidence in a criminal prosecution is within the discretion of the trial judge and will not be disturbed on appeal unless an abuse of discretion is shown). Smith alleges error because “there was no competent evidence [that] established that the ax was the murder weapon.”
The State, however, introduced the following testimony regarding the ax: the police found the ax where the anonymous caller said it would be; the ax had blood on it as well as hairs consistent with the victim’s; the victim’s wounds were consistent with the ax; and the dispatcher identified Smith as the anonymous caller who said the ax was the murder weapon and who told the dispatcher where it could be found.
We hold the testimony concerning the ax was sufficient to afford a basis for forming a reasonable inference that Smith used the ax to murder Pressley.
See State v. Quillien,
*391 VII.
The trial judge also committed no abuse of discretion in denying Smith’s motions for a mistrial.
See State v. Wasson,
A.
During direct examination, the State asked Smith’s co-employee, “Was there anything wrong with one employee punching out for another employee?” The co-employee responded, “Yes sir[,] came to find out it was a federal offense.”
At this point, Smith’s attorney objected because the witness was accusing Smith of a federal offense with which he had not been charged. Smith’s attorney also moved for a mistrial on the ground that the statement impermissibly attacked Smith’s character. He claimed a curative instruction would not cure the resulting prejudice.
The trial judge sustained the objection but denied the motion for a mistrial. He then gave the jury the following instruction:
I sustained the objection to the last line of questioning. I’m going to ask you to disregard any reference to the witness’ characterization of his conduct being a “federal offense” in clocking another employee in or out. That whole line of questioning, I have determined, is to be stricken from the record. You will totally disregard it, not give it any weight whatsoever. It is no longer a part of the record, therefore, you should disregard it in it’s [sic] entirety. Treat it as if you have never heard it. This has no value. It is not properly in evidence.
We deem this comprehensive instruction adequately cured any error in the co-employee’s statement.
See State v. Dawkins,
B.
Yvonne Shaw, another state witness, testified to Smith’s presence and conduct at a local restaurant on the day Pressley’s body was discovered. On cross-examination, Smith’s attorney asked, “Why do you remember so much of what went on on May the 4th, 1987?” The witness responded:
Because that was the day Mrs. Pressley’s body was found, and when we got the word that her body was found, and you are not going to want me to say this, but when I —.
At this point, Smith’s attorney objected, giving no grounds except, “I didn’t ask that.” The witness indicated that she had not finished her answer, and the trial judge instructed her to do so. She stated:
The reason I remember distinctly the day it was, was because when we got word that Mrs. Pressley had been murdered I said, Oh, Dear, Lord, that’s what was wrong with Grover. He killed her.
At this point, Smith’s attorney renewed his previous objection of “I didn’t ask that” by stating, “Note my objection.” He raised no other ground to exclude the witness’s testimony by way of objection, request to strike, request for curative instruction, or motion for mistrial.
At the end of the State’s case, Smith made a mistrial motion on the ground that Shaw’s answer was not responsive to his question. The trial judge denied the motion.
Smith renewed the mistrial motion at the end of all the evidence, making the additional argument that a curative instruction could not cure the prejudice resulting from the unsolicited “adlibbed remark,” a remark that he claimed was “calculated to prejudice” Smith. The trial judge denied this motion also.
*393 We first note that Shaw’s answer was responsive to the question. Her answer explained why she remembered the events of May 4, 1987, so well. The trial judge, therefore, properly overruled the objection, the only objection timely raised at trial.
On appeal, Smith argues Shaw’s testimony constituted speculation. We need not reach this issue, however, because Smith did not make this argument to the trial judge.
Bailey,
Smith also argues Shaw’s statement was so prejudicial that it could not be cured by an instruction. Assuming this is true, we find no error. There is no need to give a curative instruction until an objection to evidence is sustained and the objecting party timely requests a curative instruction. Here, the trial judge overruled the objection.
We note Smith claimed prejudice for the first time when he made a motion for a mistrial at the end of all the evidence. A mere assertion of prejudice, however, is too general to preserve any issue for appeal.
State v. Millings,
Assuming Smith’s mere assertion of prejudice was sufficient, his mistrial motion was improper. A mistrial motion is not a substitute for a timely and specific objection during a witness’s testimony.
State v. Lynn,
C.
Finally, in regard to the denial of the motions for a mistrial concerning the statements of both witnesses, even if there were error, we find no prejudice in light of the substantial other evidence supporting Smith’s guilt.
See Wasson,
Affirmed.