Opinion
No. COA02-1213
Filed 3 June 2003 This case not for publication.
Appeal by defendant from judgment entered 15 April 2002 by Judge Melzer A. Morgan, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 2 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State. Hall Hall Attorneys at Law, P.C., by Douglas L. Hall, for defendant-appellant.
Forsyth County Nos. 98 CRS 4425-26.
I. Background
On 2 November 1998, the Forsyth County grand jury indicted Marshall D. Gillespie ("defendant") on two counts of first degree murder. After a jury found defendant and a co-defendant guilty of two counts of first degree murder, the trial court on 5 August 1999 imposed one sentence of death and one sentence of life imprisonment upon both defendant and co-defendant. State v. Allen, 353 N.C. 504, 505, 546 S.E.2d 372, 373 (2001). Our Supreme Court found prejudicial error on appeal and awarded a new trial. Id. at 511, 546 S.E.2d at 376.
At the conclusion of jury selection for the second trial on 7 February 2002, defendant pled no contest to two counts of second degree murder pursuant to a plea arrangement. Defense counsel stipulated that there was a factual basis for each of the pleas, and the State summarized the evidence against defendant as follows:
Defendant along with Antione Allen and Steven Gaines went to Stephon Hairston's home on 27 January 1998. Defendant asked Hairston to accompany him to "do a lick," meaning to rob several Mexicans of some drugs. Hairston agreed and left with the three men. Allen borrowed his aunt's car, and the group went to where Kenyon Grooms was located. Defendant told Grooms that he wanted Grooms to participate in the robbery as the driver. Grooms agreed and drove the men to the victims' apartment complex. Defendant possessed a 9-mm handgun, Allen possessed an AK-47 rifle, and Grooms possessed a .380 handgun. Hairston stated he was not going to participate and walked away. Defendant and Allen entered the victims' apartment from the front, and "a lot of shots were heard." Gaines, who had gone to the back door, came around from the back and entered the apartment's front door. One victim was killed by a bullet which was consistent with a 9-mm handgun, and the other victim was killed by a bullet consistent with an AK-47 rifle.
After defense counsel stipulated to defendant's prior record level, the State requested that sentencing be deferred until after the conclusion of the co-defendant's trial, and based that request upon the possibility of defendant being called as a witness at that trial. Over defendant's objection, the trial court deferred any evidence on defendant's behalf and also deferred "sentencing until judgment is prayed by the State." On 15 April 2002, the trial court conducted defendant's sentencing hearing. Defendant objected to any evidence which the trial court "might feel it must consider from the [co-defendant's] trial[,]" but stated he was "not contesting the fact there was a factual basis for the plea . . . ."
The State informed the trial court it was requesting three aggravating factors: (1) one victim was very young; (2) defendant joined with more than one other person in committing the offense and was not charged with conspiracy; and (3) defendant induced others to participate in the offense. After the trial court requested that the State summarize the evidence in support of the third aggravating factor, the State related an abbreviated version of its earlier summary of the evidence. Defendant offered his cousin, a friend, and a former high school teacher to testify on his behalf.
The trial court found two aggravating factors: (1) that defendant induced others to participate in the commission of the offense, and (2) that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. After finding three mitigating factors, the trial court found that the aggravating factors outweighed the mitigating factors and imposed consecutive sentences of 235 to 291 months imprisonment. From the trial court's judgment, defendant appeals.
II. Issues
Defendant contends: (1) the trial court erred by deferring sentencing until the conclusion of the co-defendant's trial,(2) the trial court committed plain error by considering evidence from the co-defendant's trial, and (3) the trial court erred by finding that the aggravating factors outweighed the mitigating factors.
III. Deferral
Defendant contends the trial court erred by deferring sentencing until the conclusion of the co-defendant's trial. Defendant neither cited any authority nor stated any reason or argument in support of this assignment of error. It is deemed abandoned. See N.C.R. App. P. 28(b)(6) (2002).
IV. Evidence from Co-defendant's Trial
Defendant argues error from the allowance of the State referenced evidence from the co-defendant's trial in which defendant did not participate. We disagree.
Defense counsel stipulated that there was a factual basis for each of defendant's pleas of no contest at the close of jury selection, and the State presented a summary of the evidence against defendant. Because defense counsel stipulated to the State's summation of the evidence when defendant entered his pleas of no contest, those statements may be used to support the trial court's findings of aggravating and mitigating factors. See State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 71 (1986).
Defendant did state during the sentencing hearing that he objected to a summation of the evidence from the co-defendant's trial when asked by the trial court if he was willing to stipulate to a summary of the evidence in support of factors in aggravation. The summation of the evidence presented thereafter by the State was wholly consistent with its earlier summation given before the co-defendant's trial.
Taking those facts as true, the evidence supports the trial court's finding that defendant induced others to participate in the commission of the offense and that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. The trial court did not commit error in finding those aggravating factors. The sentencing assignment of error is overruled.
V. Aggravating vs. Mitigating Factors
In his final argument, defendant contends the trial court erred by finding that the aggravating factors outweighed the mitigating factors. Defendant argues the trial court improperly found the two aggravating factors, and asserts only the three mitigating factors were properly supported by the evidence. Defendant claims this matter should be remanded for resentencing within the mitigated range of punishment. We disagree.
Competent evidence in the form of the summation was presented by the State at the time of entry of defendant's pleas and was stipulated to by defense counsel to support the two aggravating factors found by the trial court. The weight given by the trial court of those two aggravating factors and of the three mitigating factors found is discretionary. See State v. Wampler, 145 N.C. App. 127, 133, 549 S.E.2d 563, 568 (2001).
A trial court may properly determine that one factor in aggravation outweighs more than one factor in mitigation, and its determination "`will not be disturbed unless it is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision.'" Id. (citation omitted). Defendant has shown no abuse of discretion by the trial court. This assignment of error is overruled.
VI. Conclusion
We have carefully reviewed defendant's assignments of error; the trial court's judgment and defendant's sentence is affirmed.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).