Opinion
No. 8315SC1236
Filed 18 December 1984
1. Criminal Law 138 — strong provocation as mitigating factor — finding not required Strong provocation as a mitigating factor is a conclusion which a court may or may not reach from uncontradicted evidence, and the trial court was not required to find strong provocation as a mitigating factor for a felonious assault and a second degree murder where there was evidence that defendant's wife told him that she had moved out of their home because of an adulterous relationship which she had maintained for six months and that she had her lover confirm the liaison by telephone.
2. Criminal Law 138 — prevention of jailbreak as mitigating factor — finding not required Defendant's prevention of a jailbreak by other prisoners by telling the jailer of certain developments in the jail was not a mitigating factor which the trial court was required to find even if the evidence as to it was uncontradicted and credible.
APPEAL by defendant from Preston Judge. Judgment entered 21 April 1983 in Superior Court, ALAMANCE County. Heard in the Court of Appeals 23 August 1984.
Attorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.
Ross and Dodge, by Harold T. Dodge, for defendant appellant.
Judge PHILLIPS dissenting.
The defendant pled guilty to assault with intent to kill inflicting serious injury and second degree murder. The Court found one factor in aggravation, that the defendant acted with premeditation and deliberation. It found three factors in mitigation which were (1) that defendant had no prior record of criminal convictions, (2) that defendant voluntarily acknowledged his wrongdoing to a law enforcement officer at an early stage of the criminal process, and (3) that the defendant had a good reputation in the community in which he lived. The Court found that the aggravating factor outweighed the mitigating factors and imposed a 45-year sentence in the murder case for which the presumptive term is fifteen years and a ten-year sentence in the assault case, for which the presumptive term is six years.
The defendant appealed.
The defendant concedes the aggravating factor was properly found. See State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983). He also concedes that determining the relative weight of the one aggravating and the three mitigating factors was within the discretion of the Court. See State v. Goforth, 59 N.C. App. 504, 297 S.E.2d 128 (1982). The defendant contends there was evidence which was uncontradicted and manifestly credible which required findings of two additional mitigating factors. See State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983).
There was evidence that the defendant's wife told him that she had moved out of their home because of an adulterous relationship that she had maintained for six months, and when the defendant expressed disbelief and urged her to return home, she had her lover confirm the liaison by telephone. The defendant contends the Court should have found from this evidence that the defendant acted under strong provocation. See G.S. 15A-1340.4 (a)(2)i. We believe that "strong provocation" as a mitigating factor is a conclusion which a court may or may not reach from uncontradicted evidence. We hold it is not a fact which the court must find under the rule of State v. Jones, supra.
There was testimony by an Alamance County law enforcement officer that while defendant was incarcerated awaiting trial he helped prevent a jailbreak by other prisoners by telling the jailer of certain developments in the jail. As a consequence the authorities discovered that several jail window bars had been sawed through and confiscated eighteen hacksaw blades. The defendant argues that although aiding in the prevention of a jailbreak is not a statutory mitigating factor it is related to the purposes of the sentencing and should have been found by the Court. We do not believe we should hold this is a mitigating factor which the Court must find if the evidence as to it is uncontradicted and credible. We do not believe we should make a rule that a sentencing judge has to anticipate mitigating factors not listed in G.S. 15A-1340.4 which we might think are related to the purposes of sentencing.
Affirmed.
Judge JOHNSON concurs.
Judge PHILLIPS dissents.