Summary
In State v. Green, 62 N.C. App. 1, 301 S.E.2d 920, modified and aff'd, 309 N.C. 623, 308 S.E.2d 326 (1983), defendant was tried for second degree murder and convicted of manslaughter.
Summary of this case from State v. JewellOpinion
No. 822SC1074
Filed 3 May 1983
1. Homicide 15.2 — prior argument between defendant and victim — admissible to show motive In a prosecution for second degree murder, the trial court properly admitted evidence of an argument between defendant and the victim which occurred several days prior to the homicide since the evidence was admissible to show defendant's motive and mental intent or state.
2. Homicide 19.1 — exclusion of testimony concerning character of victim — no evidence of self defense — exclusion proper In a prosecution for second degree murder, the trial court properly excluded testimony regarding the general character and reputation of the victim in the community and his reputation as "a violent and dangerous man" where the defendant had introduced no evidence as to self-defense.
3. Criminal Law 138 — manslaughter — aggravating factor — use of deadly weapon — element of offense Defendant's use of a deadly weapon to shoot his victim, and thereby accomplish the unlawful killing which constituted the offense of manslaughter, could not properly be considered as a factor in aggravation.
4. Criminal Law 138 — manslaughter — aggravating factor — concealment of deadly weapon — properly considered Where a homicide emanated from a game of cards involving defendant and the victim, evidence that defendant carried a concealed weapon was evidence that he committed a separate criminal offense, G.S. 14-269, without which the offense may have been averted; therefore, concealment of a deadly weapon was properly considered by the court as a factor in aggravation.
5. Criminal Law 138 — Fair Sentencing Act — aggravating factors — prior convictions — necessity of showing representation by counsel and defendant not indigent Since the burden is on the State to prove that, at the time of the prior convictions, the defendant either was not indigent, was represented by counsel, or waived counsel and since the record contained no evidence regarding these matters, the court could not have found them by a preponderance of the evidence, and the prior convictions of defendant in a homicide case were improperly considered as factors in aggravation.
APPEAL by defendant from Small, Judge. Judgment entered 10 June 1982 in Superior Court, BEAUFORT County. Heard in the Court of Appeals 12 April 1983.
Attorney General Edmisten, by Assistant Attorney General Steven F. Bryant, for the State.
Franklin B. Johnston for defendant appellant.
Judge WEBB concurring.
Judge BRASWELL dissenting.
Defendant was tried for second degree murder and convicted of manslaughter. The court found certain factors in aggravation and mitigation, found that the factors in aggravation outweighed the factors in mitigation, and sentenced defendant to imprisonment in excess of the presumptive term.
Defendant appeals.
Defendant contends the court erred in admitting evidence of, and instructing the jury regarding, an argument between defendant and the victim which occurred several days prior to the homicide. This evidence was admissible to show defendant's motive and mental intent or state, and to indicate the relationship between defendant and the victim. See State v. Cherry, 298 N.C. 86, 109, 257 S.E.2d 551, 565 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980); State v. Bailey, 49 N.C. App. 377, 380-82, 271 S.E.2d 752, 754-55 (1980), disc. rev. denied, 301 N.C. 723, 276 S.E.2d 288 (1981); State v. Judge, 49 N.C. App. 290, 291-92, 271 S.E.2d 89, 90 (1980). The contention is thus without merit.
Defendant further contends the court erred in excluding testimony regarding the general character and reputation of the victim in the community and his reputation as "a violent and dangerous man." He relies on
the general rule that where the defendant in a homicide prosecution pleads self-defense and there is evidence which tends to show that the killing was in self-defense, evidence of the character of the deceased as a violent and dangerous fighting person is admissible if such character was known to the defendant or the evidence is wholly circumstantial or the nature of the transaction is in doubt.
State v. Price, 301 N.C. 437, 450, 272 S.E.2d 103, 112 (1980).
Defendant sought to elicit the testimony excluded here on cross-examination of a State's witness. At that time he had introduced no evidence as to self-defense. A defendant must present viable evidence of the necessity of self-defense as a condition precedent to the admissibility of evidence regarding the general character of the deceased as a violent and dangerous fighting person. State v. Allmond, 27 N.C. App. 29, 30-31, 217 S.E.2d 734, 736 (1975). Because no such evidence had been presented, the court did not err in sustaining the objections to the inquiries in question.
Defendant finally contends the court erred at the sentencing stage in its findings on factors in aggravation, and in finding that the factors in aggravation outweighed the factors in mitigation.
The court found, as a factor in aggravation, that the defendant was armed with or used a deadly weapon. "Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . ." G.S. 15A-1340.4 (a)(1) (Cum. Supp. 1981). This Court has held use of a deadly weapon improperly considered as a factor in aggravation in second degree murder cases, on the ground that evidence thereof was essential to prove malice, which is an element of second degree murder. State v. Gaynor, 61 N.C. App. 128, 130, 300 S.E.2d 260, 261 (1983); State v. Keaton, 61 N.C. App. 279, 300 S.E.2d 471 (1983). We now consider whether, standing alone, use of a deadly weapon to shoot a victim, and thereby accomplish an unlawful killing, may properly be considered as a factor in aggravation in manslaughter cases.
Manslaughter "is defined as the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury." State v. Roseboro, 276 N.C. 185, 194, 171 S.E.2d 886, 892 (1970), death sentence reversed, 403 U.S. 948, 29 L.Ed.2d 860, 91 S.Ct. 2289 (1971). To convict of manslaughter, then, the State must prove an unlawful killing.
The unlawful killing proven here was accomplished by shooting the victim with a gun, a deadly weapon. Evidence of use of the deadly weapon to shoot the victim was thus necessary to prove the unlawful killing, which was the essence of the offense.
The General Assembly has prescribed, for consideration as a factor in aggravation, that "[t]he defendant was armed with or used a deadly weapon at the time of the crime." G.S. 15A-1340.4 (a)(1)(i) (Cum. Supp. 1981). We do not believe, however, that it intended this factor to be used to enhance sentences in cases where the offense itself is an unlawful killing accomplished by shooting the victim with a deadly weapon. If the deadly weapon was used in a manner which rendered "[t]he offense . . . especially heinous, atrocious, or cruel," that may properly be considered as a factor in aggravation. G.S. 15A-1340.4 (a)(1)(f) (Cum. Supp. 1981). Standing alone, however, we hold that defendant's use of a deadly weapon to shoot his victim, and thereby accomplish the unlawful killing which constitutes the offense of manslaughter, cannot properly be considered as a factor in aggravation.
The court found, as a further factor in aggravation, that the deadly weapon with which defendant was armed was concealed upon his person. While it is somewhat incongruous to disallow, as a factor in aggravation, actual use of the weapon, while allowing its mere concealment, for reasons set forth below we hold that the court could properly consider it.
Concealment of the weapon may well have been a factor in the occurrence of the crime. The homicide here emanated from a game of cards involving defendant and the victim. Had the weapon been visible, the victim might well have altered his behavior toward defendant during the game, or have taken other precautions which would have prevented the shooting. Evidence that defendant carried a concealed weapon was evidence that he committed a separate criminal offense, G.S. 14-269, without which the offense here might have been averted. We thus hold that this factor was properly considered.
The court finally found, as a factor in aggravation, that the defendant had a prior conviction or convictions for criminal offenses punishable by more than sixty days' confinement. G.S. 15A-1340.4 (e) (Cum. Supp. 1981), in pertinent part, provides:
No prior conviction which occurred while the defendant was indigent may be considered in sentencing unless the defendant was represented by counsel or waived counsel with respect to that prior conviction.
This Court has indicated that the burden should be on the State to prove that, at the time of prior convictions, the defendant either was not indigent, was represented by counsel, or waived counsel; and that the Court cannot find these matters by a preponderance of the evidence when the record contains no evidence with regard thereto. State v. Thompson, 60 N.C. App. 679, 300 S.E.2d 29, 33 (1983). See also State v. Farmer, 60 N.C. App. 779, 299 S.E.2d 842 (1983). See State v. Massey, 59 N.C. App. 704, 705, 298 S.E.2d 63, 65 (1982), which indicates the contrary, however.
The record here contains no evidence regarding whether defendant was not indigent, was represented by counsel, or waived counsel at the time of his prior convictions. The court thus could not have found these matters by a preponderance of the evidence, and the prior convictions were therefore improperly considered as factors in aggravation. State v. Thompson, supra
The author of the majority opinion, speaking only for himself and not for the majority, states the following with regard to the issue of the burden of proof as to prior convictions: If I were writing on a clean slate, I would place this burden on the defendant. I so indicated in State v. Massey, 59 N.C. App. 704, 705, 298 S.E.2d 63, 65 (1982). The statement in Massey was not essential to resolution of the issue presented in that defendant's brief, however; and this Court subsequently has held expressly that the State has the burden. State v. Thompson, supra, State v. Farmer, supra. In his concurring opinion Judge Webb makes a persuasive case for that position. I remain unconvinced, however. Allocation of the burden of proof in this situation is appropriately for the legislature. While that body has not clearly allocated it, I do not believe it intended to make either absence of indigency or assistance of counsel in indigent situations an "element" of the aggravating factor of prior convictions, thereby placing the burden on the State to prove absence of indigency or assistance of counsel, just as it must prove an element of a criminal offense. I believe, instead, that it intended merely to provide defendants with a means to resist a finding of prior convictions as an aggravating factor in appropriate cases. Twenty years after Gideon, cases in which a defendant was convicted while indigent and unrepresented should be the exception rather than the rule. A defendant generally will know, without research, whether this occurred. In my view it is not the preferable policy to put the State to the burden of producing records, at times from multiple counties or even multiple jurisdictions, to establish something which only rarely will enable a defendant to resist a finding of the prior convictions as an aggravating factor, and which, when it will, is generally within the defendant's knowledge without the necessity of research, possibly in a multiplicity of geographical areas. If defendant here is to have equal justice with the defendants in Thompson and Farmer, though, the holdings there must also apply here. Until the General Assembly or the Supreme Court resolves the issue, then, preferably, in my view, by placing the burden on the defendant, I consider myself bound to follow those cases, despite disagreement with the policy they establish.
We find no error in the trial. For the reasons stated, the sentence is vacated and the case is remanded for resentencing. See State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
No error; sentence vacated, remanded for resentencing.
Judge WEBB concurs.
Judge BRASWELL dissents.