[1] We first consider whether the trial judge should have excluded the testimony of Detective Jimmy Smith as to what Carlton West testified at the preliminary hearing of this case. Mr. West, defendant’s husband, testified against his wife at the preliminary hearing, but avoided testifying against her at trial by claiming the privilege of not testifying against his spouse. The trial judge found defendant’s husband to be an unavailable witness, and allowed his prior testimony to be admitted under the former testimony exception to the hearsay rule. The defendant does not challenge the finding that defendant’s husband was an unavailable witness, but contends that the court committed prejudicial error by allowing Detective Smith, who was an investigating officer, assisting the prosecution, to give his recollection of Carlton West’s testimony at the preliminary hearing.
We agree that Detective Smith, who served as an investigating officer in the case, may not have been the best source of Carlton West’s former testimony. Yet, we find no authority for ruling that because Detective Smith was otherwise providing evidence for the State his testimony was incompetent as a matter of law. In general, any first-hand observer of the giving of former testimony is qualified to testify to its purport from his unaided memory. See McCormick on Evidence § 260 (3rd ed. 1984). Any potential bias or tendency to confuse the testimony with other accounts of the crime can be exposed by cross-examination, and goes to credibility, which is the jury’s province to determine.
The giving of former testimony does not infringe the defendant’s constitutional rights to confrontation and cross-examination if the defendant is present and represented by counsel, and if he has an adequate opportunity to cross-examine the witness. See Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597, 100 S.Ct. 2531 (1980). Our review of North Carolina’s preliminary hearing statute and case law convinces us that it assures an opportunity for cross-examination adequate to fulfill the requirements of our state and federal confrontation clauses. The record indicates the defendant and her attorney were present at the preliminary hearing.
We conclude that the trial court did not err by admitting Carlton West’s former testimony as recalled by Detective Smith.
*464 [2] The next, and most crucial, question in this case is whether, given the admissibility of Carlton West’s former testimony, there was sufficient evidence to convict defendant of second degree murder. In deciding this question, we must consider the evidence in the light most favorable to the State, and determine whether it substantially supports a finding that the offense charged has been committed and that defendant has committed it. “[I]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator,” then the motion to dismiss for insufficiency of the evidence should have been granted. State v. Bates, 309 N.C. 528, 533, 308 S.E. 2d 258, 262 (1983).
Here, as to whether the defendant committed the crime charged, the State’s evidence is entirely circumstantial. Two persons had the opportunity and motive to have covered the child’s mouth and suffocated it: defendant, who out of rage with Ingenue, the child’s mother, may have killed the child after Ingenue ran from the house, and Ingenue, who was hiding in the bedroom and was alone with the child in the bedroom after it came screaming in to her, and out of fright may have covered its mouth to quiet it, and accidentally suffocated it. Carlton West’s former testimony, that he saw the defendant in the TV room with a black object over the child’s head and later that defendant grabbed the child’s neck, supports a finding that defendant had malice towards the child and intent to harm and possibly to kill the child, but it does not tell us whether or not defendant in fact did kill the child. We can only speculate as to that crucial fact. Given this gap in the record, we cannot in conscience say that there is substantial evidence to support the finding that the defendant suffocated the child. The motion to dismiss for insufficiency of the evidence should have been granted.
We see no need to reach defendant’s other contentions.
Reversed.
Chief Judge HEDRICK and Judge COZORT concur.