State v. Byrd

• Decision Date: 01 June 2004
• Docket Number: No. COA03-952.,COA03-952.
• Citation: 596 S.E.2d 860,164 NC App. 522
• Parties: STATE of North Carolina v. Elizabeth Green BYRD.
• Court: North Carolina Court of Appeals

596 S.E.2d 860

164 NC App. 522

STATE of North Carolina v. Elizabeth Green BYRD.

No. COA03-952.

Court of Appeals of North Carolina.

June 1, 2004.

Roy Cooper, Attorney General, by Amar Majmundar, Special Deputy Attorney General, for the State.

Marjorie S. Canaday, Blowing Rock, for defendant-Appellant.

STEELMAN, Judge.

Defendant, Elizabeth Byrd, pled guilty to second-degree murder pursuant to an agreement with the State on 9 December 2002. Under the terms of the plea agreement, the State reduced the charge from first-degree murder, with no provisions relating to sentencing. The sentencing hearing was conducted on that same day, and both the State and defendant offered evidence. The trial judge found four non-statutory aggravating factors and three statutory mitigating factors. The trial court determined that the aggravating factors outweighed the mitigating factors, and sentenced the defendant to an aggravated range sentence of 180-225 months imprisonment.

The evidence tends to show that the defendant killed Travis Parks by shooting him while he was in a motor vehicle. Defendant and Parks had a history of bad blood between them, and one witness interviewed by police indicated that defendant had threatened to kill Parks in the past. On 14 May 2002, Parks had been in an argument with several people outside of defendant's house. This escalated into a fight with Charlie Billings. Parks hit Billings with a pair of pliers, and upon feeling blood on his face, Billings shouted "He stabbed me." At that point others called for defendant (who was in her house at the time) to call the police. Defendant emerged from her house carrying a phone and a rifle and told Parks to stay put because the police were on the way. Parks got in his vehicle and left. A few minutes later, Parks returned in his vehicle. Billings and defendant contended that Parks was driving the vehicle towards them at a high rate of speed when defendant shot him. The State's evidence tended to show that Parks was backing away from defendant at the time of the shooting.

The State argues that defendant has waived her right to appeal her assignments of error because she failed to bring them to the attention of the trial judge by timely objection. While it is true that defendant must normally make specific objections to preserve issues on appeal, our Supreme Court has stated "We shall not require that after a trial is completed and a judge is preparing a judgment or making findings of aggravating factors in a criminal case, that a party object as each fact or factor is found in order to preserve the question for appeal." State v. Canady, 330 N.C. 398, 402, 410 S.E.2d 875, 878 (1991). The Canady Court further held that when a defendant argues for sentencing in the mitigated range, no further objection is required to preserve the issue on appeal when the trial judge sentences her in the aggravated range. Id. In the case at bar, defendant argued for a sentence in the mitigated range, but was sentenced from the aggravated range. She properly preserved her right to appeal the trial court's determination of aggravating and mitigating factors.

All of defendant's assignments of error relate to the trial court's decisions concerning aggravating and mitigating factors. "The mere fact that a guilty plea has been accepted pursuant to a plea bargain does not preclude the sentencing court from reviewing all of the circumstances surrounding the admitted offense in determining the presence of aggravating or mitigating factors." State v. Melton, 307 N.C. 370, 377, 298 S.E.2d 673, 678 (1983) (citations omitted). "As long as they are not elements essential to the establishment of the offense to which the defendant pled guilty, all circumstances which are transactionally related to the admitted offense and which are reasonably related to the purposes of sentencing must be considered during sentencing." Id. at 378, 298 S.E.2d at 679 (citations omitted). The defendant bears the burden of proving the existence of a mitigating factor, while the State bears the burden for aggravating factors. N.C. Gen. Stat. § 15A-1340.16(a) (2003). The proponent must prove by a preponderance of the evidence that the facts are as asserted, and the trial court is compelled to find the factor only if the evidence "so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn." State v. Clark, 314 N.C. 638, 642, 336 S.E.2d 83, 86 (1985)(quoting State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 455 (1983)). The trial court is given great latitude in its decision to allow or disallow aggravating or mitigating factors since it is the one that "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)(quoting State v. Ahearn, 307 N.C. 584, 596, 300 S.E.2d 689, 697(1983)). The trial court's discretionary ruling on sentencing factors "will be upset only upon a showing that it could not have been the result of a reasoned decision." Canty, 321 N.C. at 524, 364 S.E.2d at 413 (quoting State v. Cameron, 314 N.C. 516, 519, 335 S.E.2d 9, 11 (1985). We note that many of the cases analyzing trial courts' decisions concerning aggravating and mitigating factors were decided under the Fair Sentencing Act. Even though this case was heard under Structured Sentencing (N.C. Gen.Stat. Article 81B), the logic of the cases under the earlier act as to aggravating and mitigating factors remains valid.

In her first and fifth assignments of error, defendant argues that the trial court erred in finding as a non-statutory aggravating factor that "the defendant could have been; but was not charged with shooting into occupied property." We disagree.

Defendant contends that the aggravating factor of shooting into occupied property is not reasonably related to sentencing in this case. In order for a non-statutory aggravating factor to be considered in sentencing, it must be "reasonably related to the purposes of sentencing." N.C. Gen.Stat. § 15A-1340.16(d)(20)(2003). In order to be reasonably related to sentencing, an aggravating factor must "be based upon conduct which goes beyond that normally encompassed by the particular crime for which the defendant is convicted." State v. Jones, 104 N.C.App. 251, 257, 409 S.E.2d 322, 325 (1991). The conduct must make the defendant more culpable or blameworthy. N.C. Gen.Stat. § 15A-1340.12 (2003), State v. Hines, 314 N.C. 522, 335 S.E.2d 6 (1985). In Jones, this court found that in a conviction for firing into occupied property, the fact that the defendant fired more than once was an appropriate aggravating factor because the crime only required proof of one shot, and the additional shots increased the danger to those in the building, thus increasing the culpability of the defendant. Jones, 104 N.C.App. at 259,409 S.E.2d at 326-27. When defendant fired into the vehicle in the instant case, she created a risk to others who were present. First, she could not have been certain if anyone else other than Parks was in the vehicle when she fired. Second, she knew that at least four people other than herself and Parks were in the vicinity of the vehicle when she fired. When she shot Parks as he was driving, she created an additional risk to the bystanders, who may have been injured or killed, by Parks either losing control of the vehicle, or attempting to flee in a panic. The additional risk defendant created by firing into a moving vehicle makes her more culpable than if she had shot Parks outside his vehicle. This assignment of error is without merit.

Defendant also argues that finding as an aggravating factor that she fired into occupied property (in this case a motor vehicle) violated the rule of N.C. Gen.Stat. § 15A-1340.16(d) that "evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation." When a defendant pleads guilty to second-degree murder, and the murder was accomplished by use of a firearm, use of the firearm is by law evidence necessary to prove the element of malice. State v. Blackwelder, 309 N.C. 410, 417-18, 306 S.E.2d 783, 788 (1983); State v. Taylor, 309 N.C. 570, 308 S.E.2d 302 (1983). For this reason, when a defendant pleads to second-degree murder, and the murder was accomplished through the use of a firearm, N.C. Gen.Stat. § 15A-1340.16(d) prohibits the trial court from finding the statutory aggravating factor (N.C.Gen.Stat. § 15A-1340.16(d)(10)) that the "defendant was armed with or used a deadly weapon at the time of the crime." Id. Defendant contends that this prohibition also prevents the trial court from ever considering the same evidence of the use of the firearm for the purpose of aggravating sentencing. Defendant is mistaken. In State v. Sellers, 155 N.C.App. 51, 57, 574 S.E.2d 101, 106 (2002), the defendant argued that:

since it was necessary for the State to prove defendant used a firearm to be convicted of assault with a firearm, shooting into an occupied vehicle, and assault with intent to inflict serious bodily injury, therefore the trial court could not consider the use of the firearm as evidence to support an aggravating factor.

This court disagreed with the defendant's argument in Sellers, finding that since the State needed to prove evidence additional to the mere use of the firearm in order to prove the aggravating factor, finding the factor did not violate N.C. Gen.Stat. § 15A-1340.16(d). Id. The appellate courts of this state have consistently allowed evidence of the use of a firearm to support an aggravating factor even though the underlying offense required evidence of the use of the firearm to prove an element of that offense. See State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990)(trial court properly found as an aggravating factor to second-degree murder that defendant knowingly created risk to more than one person by firing a shotgun in direction of more than one person); State v....