State v. Hurt , 235 N.C. App. 174 ( 2014 )

NO. COA09-442-2
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Caldwell County
No. 99 CRS 1677
DAVID FRANKLIN HURT
Appeal by defendant from judgment entered 4 April 2008 by
Judge Thomas D. Haigwood in Caldwell County Superior Court.
Originally heard in the Court of Appeals 1 October 2009, with
opinion filed 16 November 2010. An opinion reversing the
decision of the Court of Appeals and remanding for consideration
of issues not previously addressed by this Court was filed by
the Supreme Court of North Carolina on 27 June 2013.
Roy Cooper, Attorney General, by Daniel P. O’Brien,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Barbara S. Blackman,
Assistant Appellate Defender, for defendant-appellant.
DAVIS, Judge.
This case is before this Court on remand from the Supreme
Court of North Carolina. Our Supreme Court held that for the
reasons stated in State v. Ortiz-Zape, ___ N.C. ___, 743 S.E.2d
156 (2013), Defendant’s rights under the Confrontation Clause
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were not violated. State v. Hurt, ___ N.C. ___, 743 S.E.2d 173(2013). On remand, we address Defendant’s remaining arguments.
David Franklin Hurt (“Defendant”) appeals from a judgment
imposing a sentence in the aggravated range for second-degree
murder. Specifically, Defendant alleges the trial court erred
by (1) denying his motion to dismiss the aggravating factor due
to the State’s failure to establish that the offense was
especially heinous, atrocious, or cruel as to him; (2) quashing
the subpoena of a former prosecutor, thereby denying Defendant
the opportunity to elicit the State’s prior judicial admissions
and depriving him of his rights to due process, trial by jury,
presentation of a defense, and compulsory process; (3)
overruling Defendant’s objection and motion to strike
testimonial evidence from a State Bureau of Investigation
(“SBI”) agent; and (4) refusing to admit one of Defendant’s
exhibits at the mitigation phase of his sentencing hearing.
After careful review, we conclude that Defendant received a fair
trial free from prejudicial error.
Factual and Procedural Background
The State presented evidence tending to show the following
facts: On 26 February 1999, law enforcement officers found
Howard Nelson Cook (“Mr. Cook”) dead in his home in Caldwell
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County. Mr. Cook had sustained blunt force trauma, 12 major
stab wounds, and various other “cutting wounds” and abrasions.
Earlier that morning, Deputies Jason Beebee (“Deputy Beebee”)
and Joel Fish (“Deputy Fish”) of the Catawba County Sheriff’s
Office responded to a call from Nancy and Jody Hannah about a
white van that appeared to be stuck in their backyard. William
Parlier (“Mr. Parlier”) — Mr. Cook’s nephew — and Defendant had
been driving the van. As the deputies approached the scene,
they encountered Mr. Parlier, who appeared to be intoxicated,
walking in the road. The deputies also observed a white van
parked in front of a house they later learned belonged to Paula
Calloway (“Ms. Calloway”), Defendant’s girlfriend.
The deputies arrested Mr. Parlier on an outstanding warrant
and transported him to the Catawba County Jail. The deputies
discovered four one-dollar bills with reddish-brown stains on
Mr. Parlier’s person. Deputy Fish returned to the location of
the white van while other officers went to check on Mr. Cook at
his house based on Mr. Parlier’s statement that “[t]he man
inside that house killed my uncle.” Deputy David Bates of the
Caldwell County Sheriff’s Office found the door of Mr. Cook’s
house open and the body of Mr. Cook lying on the floor in a
large puddle of blood.
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Earlier that evening, Defendant and Mr. Parlier had arrived
at Ms. Calloway’s home in a white van. Ms. Calloway and
Defendant went to sleep and when they awoke, Mr. Parlier was
leaving in the van. Defendant and Ms. Calloway went looking for
the van and found it stuck in a yard. Defendant freed the van
and drove it back to Ms. Calloway’s house. Soon thereafter, law
enforcement officers came to Ms. Calloway’s house, and Deputy
Fish found Defendant in Ms. Calloway’s bed, under the covers,
wearing white pants with darkened reddish-brown stains.
Defendant’s sweatshirt and boots were also tarnished with
reddish-brown spots. The SBI later conducted a DNA analysis on
Defendant’s sweatshirt and boots and determined that both of
these items contained Mr. Cook’s blood.
On 15 March 1999, Defendant was indicted by a grand jury in
Caldwell County for first-degree murder, burglary, and robbery.
Mr. Parlier was also charged with the first-degree murder of Mr.
Cook. Pursuant to a plea bargain, Mr. Parlier pled guilty to
first-degree murder and received a sentence of life in prison.
After Mr. Parlier reneged on his promise to testify against
Defendant, the State agreed to negotiate a plea with Defendant,
and on 26 August 2002, Defendant pled guilty to second-degree
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murder in exchange for the dismissal of the remaining charges.1
The trial judge sentenced Defendant to the maximum aggravated
range of 276 to 341 months imprisonment.
Defendant appealed, and on 6 April 2004, this Court vacated
and remanded, concluding that the trial court erred in utilizing
the fact that Defendant joined with one other person in
committing the offense as an aggravating factor. State v. Hurt,
163 N.C. App. 429, 430, 594 S.E.2d 51, 52 (2004). We explained
that N.C. Gen. Stat. § 15A-1340.16(d)(2) provides grounds for
sentencing a defendant to the aggravated range in circumstances
where despite joining with more than one person to commit the
offense, the defendant was not charged with committing a
conspiracy. Id. at 434, 594 S.E.2d at 55. Because the evidence
indicated Defendant only conspired with one person — Mr. Parlier
— we held that N.C. Gen. Stat. § 15A-1340.16(d)(2) did not
apply. Id. We further concluded that Defendant’s participation
with Mr. Parlier was not a proper non-statutory aggravating
factor because the General Assembly “carefully crafted the
1
In the prosecutor’s submission to the trial court of the
factual basis for Defendant’s plea to second-degree murder, he
indicated that without Mr. Parlier’s testimony against
Defendant, the State’s evidence that Mr. Parlier was the one who
committed the stabbing was much stronger than the evidence
against Defendant and that was the basis for proceeding against
Defendant only on a charge of second-degree murder.
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statutory language to require that a defendant join with more
than one other person to support the finding of an aggravating
factor on these grounds.” Id. at 435, 594 S.E.2d at 55.
Our Supreme Court reversed the decision of this Court,
concluding that the fact that Defendant joined with one other
person in the commission of an offense yet was not charged with
conspiracy was reasonably related to the purposes of sentencing
and was thus a proper non-statutory aggravating factor under
N.C. Gen. Stat. § 15A-1340.16(d)(20). State v. Hurt, 359 N.C.
840, 844, 616 S.E.2d 910, 913 (2005). The Court remanded for
resentencing on different grounds in accordance with Blakely v.
Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), because
Defendant’s sentence exceeded the statutory maximum and the
upward durational departure from the presumptive range was based
solely on judicially-found facts. Id. at 845-46, 616 S.E.2d at
913-14. Upon reconsideration, our Supreme Court vacated its
earlier opinion in part and remanded the case with instructions
to remand to the trial court for a new sentencing hearing.
State v. Hurt, 361 N.C. 325, 332, 643 S.E.2d 915, 919 (2007).
The Supreme Court explained that “[i]f the State seeks an
aggravated sentence upon remand, the trial court can consider
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the evidence then presented to determine which aggravating
factors may be submitted to the jury.” Id.A jury was empaneled for the purpose of determining the
presence of aggravating factors on 2 December 2007 in Caldwell
County Superior Court. A mistrial was declared due to
misconduct by a juror. A new trial commenced on 31 March 2008.
At the outset of the trial, the trial judge informed the jury
that Defendant had previously entered a guilty plea for second-
degree murder and that the State was now seeking to establish
the existence of the aggravating factor that the offense to
which Defendant had pled guilty was especially heinous,
atrocious, or cruel.
The State presented evidence that Defendant had
participated with Mr. Parlier in the vicious beating and
stabbing of Mr. Cook. The State’s evidence tended to show that
(1) Defendant drove himself and Mr. Parlier to Mr. Cook’s house;
(2) Defendant’s clothing and boots tested positive for Mr.
Cook’s blood; (3) a cigarette butt found outside Mr. Cook’s door
tested positive for blood and Defendant’s DNA; and (4) Defendant
drove Mr. Parlier and himself away from the crime scene and to
his girlfriend’s house.
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Special Agent David Freeman (“Special Agent Freeman”) of
the DNA unit of the forensic biology section of the SBI
testified that the end of the cigarette butt containing saliva
found outside Mr. Cook’s house matched Defendant’s DNA and that
a pair of blue jeans found in the van had Mr. Cook’s blood on
them as did Defendant’s shirt and boots. The State also
presented evidence regarding the specific manner of Mr. Cook’s
death. Dr. Patrick Lantz, a forensic pathologist and a medical
examiner for Forsyth County, explained that six of the twelve
major stab wounds struck vital organs. He further testified
that each of these wounds would have been painful and would have
caused bleeding both inside and outside of Mr. Cook’s body. Dr.
Lantz noted, however, that none of the wounds would have caused
an immediate loss of consciousness, meaning that Mr. Cook likely
would have been awake for approximately five to ten minutes
before he lost consciousness due to blood loss. Dr. Lantz then
opined that an additional five to ten minutes probably passed
between the time Mr. Cook lost consciousness and the time he
died.
At the conclusion of the State’s evidence, Defendant made a
motion to dismiss the jury’s consideration of the aggravating
factor that this offense was especially heinous, atrocious, or
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cruel, arguing that the State had not presented sufficient
evidence that Defendant had participated in the actual killing
of Mr. Cook. Defendant contended that the State’s evidence may
have placed Defendant at the crime scene but that it did not
establish Defendant’s actual participation in the murder itself.
The trial court denied Defendant’s motion, and Defendant did not
present any evidence at this proceeding.
On 3 April 2008, the jury returned a verdict finding that
the offense was especially heinous, atrocious, or cruel. The
trial court then heard evidence regarding mitigating factors, at
which time Defendant argued that the State had offered evidence
showing only that he brought Mr. Parlier to Mr. Cook’s house,
was present at the front door, and had driven himself and Mr.
Parlier away from the scene of the crime. The trial court
rejected the argument that Defendant was a passive participant
in the murder and declined to find any non-statutory mitigating
factors. The court found three statutory mitigating factors:
(1) that Defendant supported his family; (2) that Defendant had
a support system in the community; and (3) that Defendant had a
positive employment history or was gainfully employed. The
trial court found that the aggravating factor outweighed the
factors in mitigation and that an aggravated sentence was
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therefore appropriate. The trial court imposed a sentence in
the maximum aggravated range of 276 to 341 months, and Defendant
appealed.
Defendant raised five arguments on appeal. In State v.
Hurt, 208 N.C. App 1, 702 S.E.2d 82 (2010), this Court held that
the introduction of certain forensic evidence violated
Defendant’s rights under the Confrontation Clause, and,
therefore, Defendant was entitled to a new sentencing hearing.
For this reason, we declined to address Defendant’s remaining
arguments on appeal. Id. at 6, 702 S.E.2d at 87. Discretionary
review was allowed, and our Supreme Court reversed, holding that
for the reasons stated in Ortiz-Zape no violation of the
Confrontation Clause had occurred. Therefore, we now consider
Defendant’s remaining four issues on appeal.
Analysis
I. Denial of Motion to Dismiss
Defendant first argues that the trial court erred in
denying his motion to dismiss due to the State’s failure to
introduce substantial evidence that the offense was especially
heinous, atrocious, or cruel. We disagree.
Questions of sufficiency of the evidence are reviewed under
the substantial evidence test. See State v. Brewington, 352
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N.C. 489, 525-26, 532 S.E.2d 496, 517-18 (2000), cert. denied,
531 U.S. 1165, 148 L.Ed.2d 992 (2001). In determining whether
sufficient evidence supported the trial court’s submission of
the especially heinous, atrocious, or cruel aggravator to the
jury, the reviewing court must view the evidence in the light
most favorable to the State, giving the State the benefit of all
reasonable inferences. State v. Flippen, 349 N.C. 264, 270, 506
S.E.2d 702, 706 (1998), cert. denied, 526 U.S. 1135, 143 L.Ed.2d
1015 (1999). “If the evidence supports a reasonable inference
of defendant’s guilt based on the circumstances, then it is for
the jurors to decide whether the facts, taken singly or in
combination, satisfy them beyond a reasonable doubt.” State v.
Campbell, 359 N.C. 644, 682, 617 S.E.2d 1, 24 (2005) (citations,
quotation marks, and brackets omitted), cert. denied, 547 U.S.
1073, 164 L.Ed.2d 523 (2006).
To be substantial, the evidence need not be
irrefutable or uncontroverted; it need only
be such as would satisfy a reasonable mind
as being adequate to support a conclusion.
For purposes of a motion to dismiss,
evidence is deemed less than substantial if
it raises no more than mere suspicion or
conjecture as to the defendant’s guilt.
State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139-40
(2002) (citation and internal quotation marks omitted). The
inquiry into whether substantial evidence has been presented
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examines “the sufficiency of the evidence presented but not its
weight.” State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271,
274 (2005) (citation omitted).
A defendant’s role or presence is simply one of the
circumstances of a murder to be considered when viewing the
evidence in the light most favorable to the State. Evidence
showing a less active role by a defendant or absence from the
scene does not preclude submission of the aggravating factor to
the jury as a matter of sufficiency of the evidence but rather
goes to the weight that the jury might put toward its
consideration of the aggravating factor. Brewington, 352 N.C.
at 525, 532 S.E.2d at 517 (holding that lack of participation
does not preclude submission to jury of especially heinous,
atrocious, or cruel aggravating factor).
Defendant contends that the State presented no evidence
establishing that he directly participated in the killing of Mr.
Cook as no evidence was presented regarding his role in the
actual perpetration of the homicide. Accordingly, Defendant
argues that the State’s failure to submit any evidence that
Defendant played an active role in the actual murder precludes a
finding by the jury beyond a reasonable doubt that the murder
was especially heinous, atrocious, or cruel as to Defendant.
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However, our Supreme Court has held that lack of presence
at or participation in a codefendant’s gruesome murder does not
preclude the submission to the jury of the especially heinous,
atrocious, or cruel aggravating factor. Rather, it is a matter
for the jury to consider in determining the weight to give the
aggravating factor. Id.In Brewington, the defendant was convicted of first-degree
murder, conspiracy to commit murder, and arson. Id. at 493, 532
S.E.2d at 499. On appeal, he argued that the jury had
impermissibly found the existence of the especially heinous,
atrocious, or cruel aggravating factor based on the actions of
his codefendants. He conceded that the murders for which he was
convicted were especially heinous, atrocious, or cruel. Id. at
523, 532 S.E.2d at 516. However, he maintained that although he
had planned the murders, the jury could not have found the
existence of the aggravating circumstance as to him because
there was no evidence that he was personally responsible for the
manner in which they were carried out or that he was actually
present at the time they were committed. Id. Our Supreme Court
rejected this argument, explaining that “[t]he fact that
defendant was not present when the murders occurred, and that a
codefendant actually committed the murders, is a matter that a
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jury would properly consider in determining the weight to give
an aggravating circumstance and in balancing the aggravating and
mitigating circumstances.” Id. at 525, 532 S.E.2d at 517.
Similarly, in the present case, Defendant does not dispute
the fact that the manner in which Mr. Cook was murdered was
sufficient to support the submission of the especially heinous,
atrocious, or cruel aggravating factor to the jury. Instead,
Defendant asserts that the aggravating factor was erroneously
submitted to the jury as to him.
Recognizing that a defendant need not be physically present
for the commission of the crime in order for this aggravating
factor to be submitted to the jury, we believe that in this
case, when viewing the evidence in the light most favorable to
the State, a reasonable inference can be drawn that Defendant
did actively participate in the murder of Mr. Cook. Unlike in
Brewington, where the evidence established that the defendant
was not physically present for the commission of the murders,
the circumstantial evidence presented here permits a reasonable
inference that Defendant had a personal role in the murder of
Mr. Cook in that (1) Defendant had Mr. Cook’s blood on him; (2)
Defendant drove Mr. Parlier and himself away from the scene of
the murder and to his girlfriend’s house; and (3) a cigarette
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butt with blood and Defendant’s saliva on it was found at Mr.
Cook’s home. See, e.g., State v. Demery, 113 N.C. App. 58, 61-
64, 437 S.E.2d 704, 707-08 (1993) (holding that circumstantial
evidence including blood typing and hair analysis was sufficient
to submit to jury question of whether defendant was perpetrator
of murder). Accordingly, we hold that the trial court did not
err in denying Defendant’s motion to dismiss.
II. Motion to Quash Subpoena
Defendant next contends that the trial court erred in
granting the State’s motion to quash the subpoena of Jason
Parker (“Mr. Parker”), one of the prosecutors at the 2002
hearing on Defendant’s guilty plea. A motion to quash a
subpoena is addressed to the sound discretion of the trial court
and is not subject to review absent a showing of an abuse of
discretion.2 State v. Newell, 82 N.C. App. 707, 709, 348 S.E.2d
158, 160 (1986). An abuse of discretion occurs only where a
trial court’s ruling was “manifestly unsupported by reason or
[was] so arbitrary that it could not have been the result of a
2
In his brief, Defendant argues that the trial court’s ruling on
this issue deprived him of his constitutional rights to due
process, trial by jury, presentation of a defense, and
compulsory process. However, Defendant did not raise these
constitutional claims in the trial court. Therefore, any such
constitutional issues have been waived. State v. Moses, 205
N.C. App. 629, 635, 698 S.E.2d 688, 693 (2010).
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reasoned decision.” State v. White, 349 N.C. 535, 552, 508
S.E.2d 253, 264 (1998) (citation and quotation marks omitted),
cert. denied, 527 U.S. 1026, 144 L.Ed.2d 779 (1999).
At the hearing, Defendant sought to have Mr. Parker testify
about the factual basis the State proffered at Defendant’s plea
hearing — that the State believed Mr. Parlier killed Mr. Cook
and that the State had no physical evidence placing Defendant
inside the house when the murder occurred. Defendant argues
that Mr. Parker’s statements regarding the State’s acceptance of
Defendant’s guilty plea to second-degree murder established his
guilt as merely an aider and abettor rather than an active
participant in the murder. However, Defendant mischaracterizes
Mr. Parker’s statements at his plea hearing as judicial
admissions. A recitation of the factual basis for a guilty plea
is not a judicial admission. Rather, a prosecutor’s summary of
the facts supporting the plea is merely one procedural mechanism
by which a judge may find that a factual basis exists for the
plea. See N.C. Gen. Stat. § 15A-1022(c) (2013) (prohibiting
trial judge from accepting guilty plea “without first
determining that there is a factual basis for the plea” which
may be based on “[a] statement of the facts by the prosecutor”).
A judicial admission, conversely, is “a formal concession
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made by a party . . . in the course of litigation for the
purpose of withdrawing a particular fact from the realm of
dispute. . . . Such an admission is not evidence, but rather
removes the admitted fact from the field of evidence by formally
conceding its existence.” Jones v. Durham Anesthesia Assocs.,
P.A., 185 N.C. App. 504, 509, 648 S.E.2d 531, 535 (2007)
(citation omitted). Mr. Parker’s statements were not
“concessions,” nor were they offered “for the purpose of
withdrawing a particular fact from the realm of dispute.”
Consequently, we are not persuaded by Defendant’s contention
that the trial court’s decision to quash the subpoena deprived
him of the opportunity to elicit binding admissions on the
State.
Defendant has failed to demonstrate that the trial court
abused its discretion in quashing the subpoena of Mr. Parker.
The trial court allowed the State’s motion to quash after the
State argued there was no compelling reason for Mr. Parker’s
live testimony and that requiring Mr. Parker to testify in
person was unduly burdensome and unreasonable. In quashing the
subpoena, the trial court expressly noted that there were other
ways for Defendant to show the absence of the especially
heinous, atrocious, or cruel aggravator without calling the
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original prosecutor for Defendant’s case to the stand.
Indeed, we note that during the mitigation phase, Defendant
was able to introduce the statements previously made by Mr.
Parker in his recitation during the plea hearing through the
admission of Defendant’s Exhibit 9, which contained Mr. Parker’s
statements as transcribed from the plea hearing. While
Defendant maintains that he nonetheless suffered prejudice
because Mr. Parker’s statements were never before the jury,
Defendant does not dispute the fact that he could have
introduced this exhibit during the aggravation phase of the
proceeding. As such, we cannot say that the trial court abused
its discretion in quashing the subpoena.
III. Denial of Motion to Strike Special Agent Freeman’s
Testimony
Defendant next argues that the trial court erred in
overruling his objection and motion to strike Special Agent
Freeman’s testimony regarding the general percentages of cases
in which the SBI laboratory is able to find a DNA match.
Defendant contends that this testimony was irrelevant and
undependable “as the jury could not have reliably determined
[Defendant’s] role from the fact that blood matching the victim
was found on his clothing” and that Special Agent Freeman
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“essentially told the jury that a DNA match establishes that a
person committed an offense, whereas the absence of a match
establishes that a person did not.”
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” N.C.R. Evid. 401. Although
a trial court’s relevancy determinations are not discretionary
and, therefore, are not reviewed for abuse of discretion, this
Court gives such determinations great deference on appeal.
State v. Grant, 178 N.C. App. 565, 573, 632 S.E.2d 258, 265
(2006), appeal dismissed and disc. review denied, 361 N.C. 223,
642 S.E.2d 712 (2007). Relevant evidence may be excluded under
Rule 403 “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” N.C.R. Evid. 403. A trial court has
discretion whether or not to exclude evidence under Rule 403,
and a trial court’s determination will only be disturbed upon a
showing of an abuse of that discretion. Campbell, 359 N.C. at
674, 617 S.E.2d at 20.
At Defendant’s sentencing hearing, Special Agent Freeman
was asked in what percentage of cases the SBI was able to find a
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DNA match, and he testified as follows:
Of the cases the [sic] we obtain
approximately seventy percent of them are
able to determine a match. In approximately
thirty percent then we’ll say that there
isn’t a match and that person couldn’t have
committed the crime.
Even assuming, without deciding, that this testimony lacked
relevance, Defendant has failed to show that any such error was
prejudicial. State v. Oliver, 210 N.C. App. 609, 615, 709
S.E.2d 503, 508 (“The admission of evidence which is technically
inadmissible will be treated as harmless unless prejudice is
shown such that a different result likely would have ensued had
the evidence been excluded. Further, it is the defendant’s
burden to show prejudice from the admission of evidence.”
(citations and quotation marks omitted)), disc. review denied,
365 N.C. 206, 710 S.E.2d 37 (2011).
This portion of Special Agent Freeman’s testimony was from
the preliminary stages of his direct examination, during which
he was asked about his qualifications, the nature of DNA, and
the process by which DNA matching is done in the laboratory.
Special Agent Freeman had not yet begun testifying about
Defendant’s case in particular; rather, he was speaking
generally about the nature of his work.
Moreover, Defendant misconstrues Special Agent Freeman’s
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testimony. Defendant asserts that, in essence, Special Agent
Freeman told the jury that a DNA match indicates the person
whose DNA was tested actually committed the offense. However,
that is not what Special Agent Freeman stated in his testimony.
Rather, he explained that where no match is found, the person in
question could not have committed the crime. He did not
affirmatively state that when a match is found, the subject
definitely committed the crime.
Defendant has failed to show prejudicial error by the trial
court in allowing this testimony. Accordingly, this argument is
overruled.
IV. Refusal to Admit Notebook Offered by Defendant
Defendant’s final argument on appeal is that the trial
court erred in excluding Defendant’s Exhibit 3 — a notebook
prepared for the 2002 sentencing proceedings that contained
recitations of Mr. Parlier’s multiple confessions, a forensic
blood spatter expert report, and medical reports regarding
Defendant’s alcohol consumption — during the mitigation phase of
sentencing.
N.C. Gen. Stat. § 15A-1340.16(a) requires a trial court to
consider evidence of aggravating and mitigating factors during
sentencing. The trial court is given wide latitude in
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conducting sentencing hearings, including the ability to weigh
the credibility of the evidence in determining the existence of
mitigating factors. State v. Mabry, 217 N.C. App. 465, 471, 720
S.E.2d 697, 702 (2011). A defendant who seeks a sentence in the
mitigated range bears the burden of persuading the court by a
preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.16(a)
(2013).
“Although the formal rules of evidence do not apply in
sentencing hearings, evidence offered at sentencing must be both
pertinent and dependable. While the court may base its
sentencing decision on reliable hearsay, [a] defendant is not
entitled to consideration of hearsay evidence that is of
doubtful credibility.” State v. Reed, 93 N.C. App. 119, 125,
377 S.E.2d 84, 88 (internal citations and quotation marks
omitted and emphasis added), disc. review denied, 324 N.C. 580,
381 S.E.2d 779 (1989). The trial court’s failure to find a
mitigating factor when evidence is offered in support of that
factor will not be overturned on appeal unless the supporting
evidence “is uncontradicted, substantial, and there is no reason
to doubt its credibility.” State v. Lane, 77 N.C. App. 741,
745, 336 S.E.2d 410, 412 (1985).
Defendant argues that the trial court committed reversible
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error when it refused to consider his “mitigation report”
because it deprived him of the opportunity to present mitigating
evidence. We disagree. The trial court declined to admit the
notebook marked as Defendant’s Exhibit 3 and instead asked that
Defendant call live witnesses from his witness list. In
reaching this decision, the trial judge expressed his concerns
about considering Defendant’s written documents over live in-
court testimony, stating as follows:
[J]ust simply handing something up, a piece
of paper writing, unsupported,
unauthenticated, over objection — when you
handed me a list of ten or fifteen witnesses
that you were going to call. . . who have
information set forth in this report on
mitigation, some of which were brought back
from prison units and are in facilities here
adjacent to the courtroom and courthouse
that could be produced. I’m going to
sustain the [State’s] objection. These
people are going to be produced in this
courtroom.
Thus, the trial court did not refuse to consider
Defendant’s mitigation evidence. Instead, the trial court was
simply informing Defendant of its preference for live testimony.
Furthermore, our review of the transcript reveals that Defendant
was, in fact, allowed to introduce certain portions of the
documents contained in Defendant’s Exhibit 3, including (1) the
affidavit of Mr. Parlier; and (2) parts of the plea hearing.
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Defendant also offered live testimony from Mr. Parlier and
testified on his own behalf during the mitigation phase.
Defendant has failed to show how the trial court’s refusal to
admit Exhibit 3 in its entirety deprived him of the opportunity
to present evidence of a mitigating factor. Therefore,
Defendant’s argument on this issue lacks merit.
Conclusion
For these reasons, we conclude that Defendant received a
fair trial free from prejudicial error and affirm the sentence
imposed by the trial court.
NO PREJUDICAL ERROR; AFFIRMED.
Judges STEPHENS and HUNTER, JR. concur.