State v. Graham
| Decision Date | 02 October 2007 |
| Docket Number | No. COA06-837.,COA06-837. |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, Plaintiff, v. Ronald GRAHAM, Jr., Defendant. |
Linda B. Weisel, Chapel Hill, for defendant-appellant.
Defendant Ronald Graham, Jr., appeals from judgments entered pursuant to convictions for first-degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) in Pasquotank County Superior Court. Defendant contends that the trial court erred when it: (1) submitted aggravating factors to the jury and imposed a greater than presumptive sentence upon the jury's finding of one of the aggravating factors beyond a reasonable doubt; (2) admitted victim impact evidence at the guilt-innocence phase of the trial, specifically evidence of the impact of the crimes on the mental health of Lorine Spence; (3) allowed the State to cross-examine defendant about his pre-arrest exercise of the right to silence; (4) instructed the jury that a knife is a deadly weapon; (5) allowed two law enforcement officers to testify that the door of the home of Lorine Spence was forced open; and (6) failed to instruct the jury on the lesser included offense of felonious breaking or entering. After carefully reviewing the record, we conclude that defendant received a fair trial, including sentencing, free of prejudicial error.
On the night of 30 December 2004, Demetrius Spence (victim) was sleeping on a sofa in the home of his mother, Lorine Spence (Ms. Spence). Around midnight, defendant and James Ferebee broke the door and entered the home. Once inside, defendant stabbed the victim multiple times with a knife. The victim was taken to the hospital for treatment in the operating room of nine stab wounds, and a collapsed lung. Ms. Spence was present in the room during the incident, and she required mental health treatment as a result of witnessing the attack. Defendant fled the State to nearby Virginia after perpetrating the crime, and subsequently fled to Alabama when news of the crime was publicized in Virginia. He was arrested in Alabama.
On 28 February 2005, the Pasquotank County Grand Jury indicted defendant for first-degree burglary and AWDWIKISI. He was tried before a jury in Pasquotank County Superior Court on 8 and 9 November 2005. Defendant was found guilty of both crimes. Thereafter, the trial court sentenced defendant to 133 to 169 months for AWDWIKISI and to an enhanced sentence of 146 to 185 months for first-degree burglary, the two sentences to be served consecutively. Defendant appeals.
Defendant first contends that the trial court lacked jurisdiction to submit aggravating factors to the jury and impose an enhanced sentence based on an aggravating factor found by the jury beyond a reasonable doubt. Specifically, defendant offers the following syllogism: First, he argues that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), recognizes the constitutional right to have aggravating factors proved to a jury before an enhanced sentence can be imposed. Second, he argues that absent an express statutory command, a trial court has no jurisdiction to submit aggravating factors to a jury. Therefore, he argues, all aggravated sentences are unconstitutional for crimes committed after Blakely was decided but before the General Assembly revised N.C. Gen.Stat. § 15A-1340.161 to expressly authorize submission of aggravating factors to a jury.
Defendant urges us to conduct a de novo review of this alleged jurisdictional question. We note initially that though defendant uses the word "jurisdiction," his brief alleges no facts which would have deprived the trial court of jurisdiction.2 Properly characterized, defendant has assigned error to the constitutional propriety of the trial court's consideration of aggravating factors in sentencing. He did not raise this constitutional question to the trial court, therefore, we will review only for plain error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779-80 (1997); N.C.R.App. P. 10(c)(4).
As defendant correctly asserts, Blakely held that before an aggravated sentence may be imposed, the Sixth Amendment grants "every defendant ... the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment." 542 U.S. at 313, 124 S.Ct. at 2543, 159 L.Ed.2d at 420 (emphasis in original).
However, Blakely expressly declined to declare judicial discretion in sentencing to be unconstitutional; it "limit[ed] judicial power only to the extent that the claimed judicial power infringes on the province of the jury" to find facts essential to the defendant's punishment. 542 U.S. at 308-09, 124 S.Ct. at 2540-41, 159 L.Ed.2d at 417.
At the time Blakely was decided, the law in North Carolina granted discretion to the trial court to impose an enhanced sentence, on the condition that "[t]he State .. . prov[es] by a preponderance of the evidence that an aggravating factor exists." N.C. Gen.Stat. § 15A-1340.16(a) (2003). Our Supreme Court subsequently held that Blakely did not nullify N.C. Gen.Stat. § 15A-1340.16 in its entirety, but instead declared unconstitutional only those portions which authorized the trial judge to enhance a sentence based on aggravating factors found by the judge by a preponderance of evidence and not found by a jury. See State v. Allen, 359 N.C. 425, 449, 615 S.E.2d 256, 272 (2005), withdrawn, 360 N.C. 569, 635 S.E.2d 899 (2006); see also State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001) (). Our Supreme Court also recognized that even before N.C. Gen.Stat. § 15A-1340.163 was amended to expressly authorize the submission of aggravating factors to the jury,
North Carolina law independently permit[ed] the submission of aggravating factors to a jury using a special verdict.... It is difficult to imagine a more appropriate set of circumstances for the use of a special verdict than [to] safeguard[][a] defendant's right to a jury trial [on aggravating factors] under Blakely.
State v. Blackwell, 361 N.C. 41, 46-48, 638 S.E.2d 452, 456-57 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2281, 167 L.Ed.2d 1114 (2007).4 We conclude that the trial court in the case sub judice did not violate defendant's constitutional right to a jury trial when it submitted aggravating factors to the jury by means of a special verdict. To the contrary, the trial court was scrupulously protecting defendant's constitutional right to a jury trial, exactly as Blakely required when it relied on the jury's findings to aggravate defendant's sentence. Because no Blakely error was identified at all, there could be no plain error, and defendant's assignment of error is without merit.
Defendant next assigns error to the admission of testimony from Ms. Spence as to how witnessing the attack on her son had affected her mental health. Defendant, relying on State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 527-28 (2004), contends that evidence of the effect of the incident on Ms. Spence was victim impact evidence, and therefore irrelevant to determining his guilt or innocence. The testimony assigned as error was elicited by the State as follows:
Q. Is there anything different about your life now as opposed to before this happened to you?
THE COURT: You may continue.
...
A. Well, it has sent me to the psychiatrist.
Q. Tell me about that.
A. [...] I done been there a lot of times. I still have appointments with him now.
Q. Now, when you go see the psychiatrist, where do you go?
A. [...] Albemarle Mental Health.
Q. Did you go see a psychiatrist before this happened?
A. No.
Q. [...] What made you decide that you wanted to go see a psychiatrist? What is going on with you?
A. Because I can't sleep. I keep having nightmares about what's happened that night. I can't even rest.
Q. What else?
A. [...] I just have nightmares.
Q. Have your sleep habits changed at all?
[Defense Counsel]: Objection to the leading.
[Witness starts to talk over.]
THE COURT: Sustained as to the form.
Q. Have you had any other changes concerning any of your daily habits or routines?
A. When I go out and I go to the American Legion Hut, I just plays — I usually go there and you know, what you call partying and dancing, but I don't do that anymore....
Q. Did you do that more often before this happened?
...
A. Yes, I went there all of the time.
Q. Do you stay by yourself now?
...
A. Me and my little grand boy.
Q. All right. And do you do anything with regard to securing your house before you go to sleep?
[Defense Counsel]: Objection to the leading.
[Witness starts to talk over.]
THE COURT: Well, overruled, but limited latitude.
...
A. I puts [sic] some of my stuff up to my doors. I am still scared ...
Q. Like what kind of stuff?
A. Like I put chairs there to the front and back on the latch and I have got another lock on the door.
...
Q. And what has changed about your sleep habits, if anything?
A. I can't sleep. I don't sleep much. I don't sleep no time hardly . . . .
Q. [...] What made you decide...
To continue reading
Request your trial
-
Standley v. Town of Woodfin
... 650 S.E.2d 618 ... David STANDLEY, Plaintiff, ... TOWN OF WOODFIN, an incorporated municipality in the State of NC; and Brett Holloman, Chief of Police, in his Official Capacity, Defendants ... No. COA06-1449 ... Court of Appeals of North Carolina ... ...
- State v. Bass
- People v. Martinez
- Barraza v. Gentry