State v. Dahlquist , 231 N.C. App. 575 ( 2014 )

NO. COA13-437
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 08 CRS 85092,
10 CRS 0651
ALLEGRA ROSE DAHLQUIST
Appeal by defendant from judgments entered 15 November 2010
by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in
the Court of Appeals 24 September 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Teresa M. Postell, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
defendant-appellant.
McCULLOUGH, Judge.
Defendant Allegra Rose Dahlquist appeals from judgments
entered upon pleading guilty to second-degree murder, two counts
of conspiracy to commit murder, and attempted murder. Defendant
seeks a new sentencing hearing arguing that the trial court failed
to find two mitigating factors and that the trial court erroneously
relied on evidence obtained from the trial and sentencing hearing
of her co-defendants. After careful review, we find no error.
I. Background
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On 16 December 2008, defendant Allegra Rose Dahlquist was
indicted for murder and conspiracy to commit murder for events
that occurred on 30 November 2008. On 9 February 2010, defendant
was indicted for attempted first-degree murder and conspiracy to
commit first-degree murder for events that occurred on 25 November
2008.
On 13 August 2010, defendant pled guilty to the following:
second-degree murder, two counts of conspiracy to commit murder,
and attempted murder. As part of defendant’s plea agreement, the
State agreed to reduce the first-degree murder charge to second-
degree murder. Defendant agreed “to cooperate with Wake County
investigators and to testify truthfully and consistently with any
statement made to investigators if called upon to do so.”1
At her 13 August 2010 plea hearing, the State proffered the
following as a factual basis for the guilty plea: Defendant, Aadil
Kahn (“Kahn”)2, Ryan Hare (“Hare”) and Drew Shaw (“Shaw”) all
attended Apex High School and were friends. Defendant and Hare
1 Defendant testified at co-defendant Ryan Patrick Hare’s trial.
See State v. Hare, __ N.C. App. __, 722 S.E.2d 14 (2012)
(unpublished).
2 Khan pled guilty to second-degree murder, conspiracy to commit
murder, attempted first-degree murder, and conspiracy to commit
first-degree murder for the events that occurred on 25 and 30
November 2008. See State v. Khan, 366 N.C. 448, 449-50, 738 S.E.2d
167, 168-69 (2013).
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became involved in a romantic relationship. At some point, their
relationship ended, and defendant began a romantic relationship
with Matthew Silliman (“Silliman”), the victim. Hare was jealous
of the relationship between Silliman and defendant. Eventually,
defendant and Hare resumed their relationship in November 2008.
Hare began to form a plan to kill Silliman. Sometime in mid-
November, Kahn was brought into the conspiracy to kill Silliman.
Defendant was brought into the conspiracy one or two weeks prior
to 25 November 2008.
On the night of 25 November 2008, defendant and Silliman were
riding around Apex in defendant’s vehicle. They picked up Hare
and Kahn in her vehicle. Once they reached a rural road in Wake
County, Hare put a zip tie around Silliman’s throat in an
unsuccessful attempt to strangle him. Kahn had also planned to
taser Silliman, but the taser failed to work.
Thereafter, Silliman was taken to an abandoned house owned by
defendant’s family. Silliman stayed at this house from 25 November
2008 until his death on 30 November 2008.
Silliman remained at the abandoned house during this time
period because defendant, Kahn, and Hare had devised a plan and
told Silliman that an individual by the name of Roger was “after
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him and that [Silliman] needed to get out of town, and they were
proposing train departure times for him to leave during that week.”
On 29 November 2008, defendant participated in digging a grave
for Silliman. On 30 November 2008, defendant picked up Shaw from
his residence. Kahn and Hare were already with Silliman. Shaw’s
role involved waiting outside the abandoned house, holding a
baseball bat, in the event that Silliman attempted to escape.
Defendant read Silliman tarot cards and an e-mail in an effort
to distract him. While Silliman was distracted, Hare came up
behind Silliman and hit him with a hammer but the hammer did not
faze Silliman.
At this point, Shaw left the abandoned house and defendant
took Shaw back to his residence. Defendant then returned to the
house, at which time Silliman had been drinking wine mixed with
horse tranquilizers. Silliman became “groggy” and started to fall
asleep. Silliman’s hands were zip tied in front of him and his
feet were zip tied together. Duct tape was put over Silliman’s
mouth and a plastic bag was placed over his head. Defendant placed
a zip tie over the plastic bag around Silliman’s neck and Hare
tightened the zip tie. Silliman’s cause of death was suffocation
and asphyxiation.
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On 2 December 2008, Shaw confessed to his grandmother that
he had been involved in this incident and named defendant, Kahn,
and Hare as fellow participants.
On 15 November 2010, defendant was sentenced in the aggravated
range to two consecutive terms of 180 to 225 months.
The trial court found and defendant admitted to the existence
of the aggravating factor that “defendant took advantage of a
position of trust or confidence, including a domestic
relationship, to commit the offense.” The trial court found as
mitigating factors that defendant “aided in the apprehension of
another felon,” “defendant voluntarily acknowledged wrongdoing in
connection with the offense to a law enforcement officer at an
early stage of the criminal process,” and “defendant has accepted
responsibility for the defendant’s criminal conduct.” The trial
court then determined that the aggravating factors outweighed the
mitigating factors and that the aggravated sentence was justified.
Defendant did not give notice of appeal at that time. On 17
December 2012, defendant filed a petition for writ of certiorari
to this Court. This petition was granted by order entered on 28
December 2012.
II. Discussion
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Defendant advances the following issues on appeal: whether
the trial court erred by (A) failing to find two statutory
mitigating factors and (B) relying on evidence from Hare’s trial
and Khan’s sentencing hearing to impose an aggravated sentence.
A. Mitigating Factors
Defendant argues that the trial court failed to find two
statutory mitigating factors: (1) that defendant’s “age, or
immaturity, at the time of the commission of the offense
significantly reduced defendant’s culpability for the offense”
pursuant to N.C. Gen. Stat. § 15A-1340.16(e)(4) and (2) that
“defendant has a support system in the community” pursuant to N.C.
Gen. Stat. § 15A-1340.16(e)(18).
(i). Standard of Review
A “[f]inding that a mitigating factor exists is within the
trial judge’s discretion[.]” State v. Kinney, 92 N.C. App. 671,
678, 375 S.E.2d 692, 696 (1989). “[T]he trial judge has wide
latitude in determining the existence of aggravating and
mitigating factors, for it is he who observes the demeanor of the
witnesses and hears the testimony.” State v. Canty, 321 N.C. 520,
524, 364 S.E.2d 410, 413 (1988) (citation and quotations omitted).
It is well established that “[t]he defendant bears the burden
of proof to establish the existence of mitigating factors.” State
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v. Thompson, 314 N.C. 618, 625, 336 S.E.2d 78, 82 (1985) (citation
omitted).
[A] trial court must find a statutory
mitigating factor if that factor is supported
by uncontradicted, substantial, and credible
evidence. To show that the trial court erred
in failing to find a mitigating factor, the
evidence must show conclusively that this
mitigating factor exists, i.e., no other
reasonable inferences can be drawn from the
evidence. Even uncontradicted,
quantitatively substantial and credible
evidence may simply fail to establish, by a
preponderance of the evidence, any given
factor in aggravation or mitigation. While
evidence may not be ignored, it can be
properly rejected if it fails to prove, as a
matter of law, the existence of the mitigating
factor.
State v. Richardson, 341 N.C. 658, 674-75, 462 S.E.2d 492, 503
(1995) (citations and quotations omitted).
1. N.C. Gen. Stat. § 15A-1340.16(e)(4)
First, defendant argues that the trial court erred by failing
to find a mitigating factor when evidence supporting N.C.G.S. §
15A-1340.16(e)(4), that defendant’s “age, immaturity, or limited
capacity at the time of the commission of the offense significantly
reduced the defendant’s culpability for the offense[,]” was
supported by uncontradicted and substantial evidence.
Specifically, defendant argues that she was only seventeen (17)
years old at the time of the crimes and that she presented expert
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testimony as to “her immaturity, coupled with her depression and
susceptibility to control by her peers, especially Ryan Hare.”
The mitigating factor listed under N.C.G.S. § 15A-
1340.16(e)(4) “includes two inquiries – one as to immaturity (or
mental capacity) and one as to the effect of such immaturity upon
culpability.” State v. Moore, 317 N.C. 275, 280, 345 S.E.2d 217,
221 (1986) (citation omitted). “[A]ge alone is insufficient to
support this factor. By its use of the term ‘immaturity,’ the
General Assembly contemplated an inquiry which is ‘broader than
mere chronological age’ and which is ‘concerned with all facts,
features, and traits that indicate a defendant’s immaturity and
the effect of that immaturity on culpability.’” State v. Barton,
335 N.C. 741, 751, 441 S.E.2d 306, 312 (1994) (citations and
quotation marks omitted). We emphasize that “[i]t is within the
trial judge’s discretion to assess the conditions and
circumstances of the case in determining whether the defendant’s
immaturity or limited mental capacity significantly reduced
culpability.” State v. Holden, 321 N.C. 689, 696, 365 S.E.2d 626,
630 (1988).
We find State v. Holden, 321 N.C. 689, 365 S.E.2d 626 (1988),
to be instructive. In Holden, a seventeen (17) year old defendant
pled guilty to the second-degree murder of her infant daughter.
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The defendant argued that the trial court erred by failing to find
the statutory mitigating factor that her immaturity or limited
mental capacity at the time of the murder significantly reduced
her culpability for the offense. Id. at 696, 365 S.E.2d at 630.
The Supreme Court held that although there was uncontradicted
evidence that the defendant had the emotional maturity of a twelve
or thirteen year old and that she had a diminished intellectual
capacity and an IQ of 70, evidence of “planning, weighing of
options, and covering her own tracks tended to negate defendant’s
claim that she was unable to appreciate her situation or the nature
of her conduct.” Id. at 696-97, 365 S.E.2d at 630. The Holden
Court held that the trial court did not abuse its discretion in
failing to find that the defendant’s culpability was reduced by
her immaturity or limited mental capacity. Id.In the present case, defendant was seventeen years old at the
time of the crimes. Defendant’s expert witness Dr. Moira Artigues,
an expert in forensic psychiatry, testified that defendant’s
emotional maturity level was that of an eleven (11) or twelve (12)
year old. Dr. Artigues also testified that defendant had trouble
academically and socially, was suffering from depression and
anxiety, was “smashed down by life,” and was “easy prey” for
manipulation by Hare. However, similar to Holden, the State’s
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summary of the facts conflicted with defendant’s contention that
her youth and immaturity reduced her culpability for the crime.
The State’s summary of the facts tended to show that defendant
participated in the planning of the events that occurred on 25
November and throughout 30 November 2008. Defendant actively
participated in carrying out the murder of Silliman by such actions
as distracting him, placing the zip tie around his neck, and
assisting in digging a grave for him. Further, after the murder
of Silliman, she attempted to cover her tracks by disposing of his
belongings and telling Silliman’s family that she did not know
Silliman’s whereabouts. Evidence of planning, actively
participating in the crimes on at least two separate dates, and
covering her own tracks all “tend[] to negate defendant’s claim
that she was unable to appreciate her situation or the nature of
her conduct.” Holden, 321 N.C. at 696-97, 365 S.E.2d at 630.
Based on the foregoing, we hold that defendant has failed to
meet her “burden of showing that the evidence compels the finding
and that no contrary inference can reasonably be drawn.” State v.
Colvin, 92 N.C. App. 152, 160, 374 S.E.2d 126, 132 (1988).
Accordingly, we are unable to hold that the trial court abused its
discretion in failing to find the mitigating factor pursuant to
N.C.G.S. § 15A-1340.16(e)(4). Defendant’s argument is overruled.
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2. N.C. Gen. Stat. § 15A-1340.16(e)(18)
Next, defendant argues that the trial court erred by failing
to find a mitigating factor where there was uncontradicted and
substantial evidence presented as to whether defendant had a
“support system in the community” pursuant to N.C. Gen. Stat. §
15A-1340.16(e)(18). We disagree.
Defendant directs us to the following testimony of Dr.
Artigues in support of her argument:
[Defendant] has repaired her relationship with
her mother and grandmother. Her mother and
grandmother have stood by her through all of
this and I think that has demonstrated to
[defendant] that they love her. She was able
to say to me that she was grateful for them
one of the last times I visited her, and that
was very different from how she had been
speaking about her relationship with them
before.
Defendant also argues that Dr. Artigues testified that defendant
had received psychiatric treatment after her arrest.
While the foregoing evidence supports the conclusion that
defendant has restored her relationship with her family –
specifically her mother and grandmother – and that defendant has
received some psychiatric treatment, the evidence does not speak
to the existence of “a support system in the community.” In State
v. Kemp, 153 N.C. App. 231, 569 S.E.2d 717 (2002), our Court held
that “[t]estimony demonstrating the existence of a large family in
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the community and support of that family alone is insufficient to
demonstrate the separate mitigating factor of a community support
system.” Id. at 241-42, 569 S.E.2d at 723. Here, the testimony
defendant relies on simply fails to establish, by a preponderance
of the evidence, the existence of a community support system as a
statutory mitigating factor. Thus, we hold that the trial court
did not abuse its discretion and defendant’s argument is overruled.
B. Evidence Considered during Sentencing Hearing
Next, defendant argues that during her sentencing hearing,
the State failed to present any evidence of her role in the
offenses and that the trial court erroneously relied on evidence
obtained from the trial of her co-defendant Hare and from the
sentencing hearing of her co-defendant Khan to impose an aggravated
sentence. Defendant contends that because of this error, she is
entitled to a new sentencing hearing. We disagree.
Defendant relies on State v. Benbow, 309 N.C. 538, 308 S.E.2d
647 (1983), for the contention that a trial court cannot rely on
evidence from another proceeding in fashioning a defendant’s
sentence. In Benbow, the defendant and three other co-defendants
robbed and murdered an owner of a warehouse on 28 December 1981.
The defendant agreed to testify for the State in the trial of his
co-defendants in return for acceptance of a plea to second-degree
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murder. Id. at 540, 308 S.E.2d at 648-49. At the defendant’s
sentencing hearing, the defendant and the State stipulated to a
particular set of facts as an accurate narration of the events
leading up to the victim’s death. Id. at 540, 308 S.E.2d at 649.
Defendant’s evidence in mitigation consisted of the testimony of
several witnesses. The State presented no rebuttal evidence and
relied on the evidence presented during the trials of the
defendant’s co-defendants to support the aggravating factors. Id.
at 543, 308 S.E.2d at 650. The Supreme Court stated the following:
We emphasize that a defendant’s liability for
a crime . . . is determined at the guilt phase
of a trial or, as in the case sub judice, by
a plea. At sentencing the focus must be on
the offender’s individual culpability. It is
therefore proper at sentencing to consider the
defendant’s actual role in the offense as
opposed to his legal liability for the acts of
others.
. . .
[A]t any sentencing hearing held pursuant to
a plea of guilty, reliance on evidence from
the trials of others connected with the same
offense is improper absent a stipulation.
Even with such a stipulation reliance
exclusively on such record evidence from other
trials (in which the defendant being sentenced
had no opportunity to examine the witnesses)
as a basis for a finding of an aggravating
circumstance may constitute prejudicial
error. In such other trials the focus is
necessarily upon the culpability of others and
not on the culpability of the defendant being
sentenced. Thus, by proper stipulation and in
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the interests of judicial economy, the
sentencing judge may consider the evidence
from such other trials, but only as incidental
to his present determination of defendant’s
individual culpability as a factor in
sentencing.
Id. at 546-49, 308 S.E.2d at 652-54.
In the present case, however, defendant repeatedly relied on
evidence gained from her testimony at Hare’s trial and evidence
obtained from Khan’s sentencing hearing in support of her arguments
that the trial court should find the existence of mitigating
factors:
[Defendant’s Counsel:] I was in the
courtroom, just like the Court was, when I
heard her testify to it. . . . and while I was
sitting there listening to her testify the
lawyer part of me was saying, “Oh, my gosh,
Allegra, you don’t have to be so graphic about
yourself,” but she was, because she was
absolutely, purely honest to this court and to
the jury about her responsibility and about
what happened, and the truth is she was the
only one that was, and the purity of that
exists somewhere in the evil of what happened.
. . . .
[Defendant’s Counsel:] I have an exhibit.
It’s Defendant’s Exhibit Number 1. . . . This,
Your Honor, is a document that was testified
to at trial, or at least maybe at the hearing
of Mr. Khan[.]
. . . .
[Dr. Moira Artigues (defendant’s witness):]
To complete my evaluation [of defendant] I
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looked at selected discovery materials. This
case was unique in that I was able to watch
much of Ryan Hare’s trial on the WRAL
archives[.]
. . . .
[Dr. Moira Artigues:] I was able to watch
[the prosecutor in Hare’s trial’s] closing,
and in that he summarized the evidence very
well, and what [the prosecutor] concluded was
that [defendant] had been manipulated by Ryan
Hare[.]
. . . .
[Defendant’s Counsel:] You heard her testify
at the [Hare] trial they were doing the things
that they were doing at the end to [Silliman.]
[SIC]
. . . .
[Defendant’s Counsel:] But Your Honor, I
think if you listen to Dr. Artigues, and if
you watched her – which I know you did – when
she testified, I know you saw the raw emotion
and reality and honesty that came out of this
young woman – I know you saw it.
Based on the foregoing instances, we hold that defendant is
precluded from arguing that the trial court’s consideration of
such evidence in imposing an aggravated sentence amounted to error.
Section 15A-1443(c) of the North Carolina General Statutes
provides that “[a] defendant is not prejudiced by the granting of
relief which he has sought or by error resulting from his own
conduct.” N.C. Gen. Stat. § 15A-1443(c) (2011). “Thus, a
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defendant who invites error has waived his right to all appellate
review concerning the invited error, including plain error
review.” State v. Hope, __ N.C. App. __, __, 737 S.E.2d 108, 111
(2012) (citation omitted). Accordingly, defendant has waived his
right to appellate review of this issue.
Affirm.
Judges McGEE and DILLON concur.