State v. Heatwole, 119A89

• Decision Date: 18 December 1992
• Docket Number: No. 119A89,119A89
• Citation: 423 S.E.2d 735,333 N.C. 156
• Parties: STATE of North Carolina v. George Franklin HEATWOLE, III
• Court: North Carolina Supreme Court

Page 735

423 S.E.2d 735

333 N.C. 156

STATE of North Carolina v. George Franklin HEATWOLE, III

No. 119A89.

Supreme Court of North Carolina.

Dec. 18, 1992.

Appeal of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing sentences of death entered by Freeman, J., at the 20 February 1989 Session of Superior Court, Moore County. On 24 August 1990 the Supreme Court allowed defendant's motion to bypass the Court of Appeals on appeals from related convictions for first-degree kidnapping, assault with a deadly weapon with intent to kill inflicting serious injury, assault with a deadly weapon, and discharging a firearm into an occupied building. Heard in the Supreme Court 9 September 1991.

Lacy H. Thornburg, Atty. Gen., by Joan Herre Byers, Sp. Deputy Atty. Gen., Raleigh for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, and Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

EXUM, Chief Justice.

At the close of the State's evidence defendant entered pleas of guilty to two counts of murder in the first degree and to one count each of first-degree kidnapping, assault with a deadly weapon with intent to kill inflicting serious injury, assault with a deadly weapon, and discharging a firearm into an occupied building. After a capital sentencing hearing the jury recommended death in the two murder cases. The sentencing court imposed terms totalling eighty years for the noncapital offenses. We find prejudicial error under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), in the sentencing phase of the murder cases entitles defendant to a new sentencing hearing and that error in sentencing for the noncapital offenses under N.C.G.S. § 15A-1340.4 requires remand for resentencing for those offenses.

Evidence presented by the State at defendant's trial tended to show the following:

At about 11 p.m. on 26 February 1988, defendant went to the home of his former girlfriend, Kim Chavis Garcia. There he shot at Garcia's sister, Vicky Chavis. The shot missed Chavis, but she fell down, feigning death. Garcia and others in the house bolted for the bedroom. Defendant fired two or three shots at two men, Ricky Cummings and Donald Locklear, who were attempting to escape through the bedroom window. One shot wounded Cummings in the left leg below the knee.

Defendant handcuffed Garcia and, taking her with him, drove to the Woodlake subdivision where his father and stepmother lived. At the entrance gate the security guard Edgar John Garrison waved defendant through; but defendant stopped, rolled down the window, and shot Garrison twice, fatally wounding him.

At his father's house defendant put the pistol to his father's head. When defendant's stepmother, Alta Hamilton Heatwole, came out of the bedroom, defendant shot her twice. She fell and made her way back into the bedroom. Defendant followed her to the bedroom where he kicked her several times and shot her twice in the head at close range, fatally wounding her.

When ten law enforcement officers surrounded the front door with their guns drawn, defendant's father ran out the front door with his hands up. Defendant removed the handcuffs from Garcia, gave her the pistol, and sent her out of the house. Garcia either dropped the pistol on police orders or threw the pistol out the door before she exited. Defendant followed Garcia out, lay down, and was arrested.

I.

Defendant raises a number of issues which, but for his plea of guilty on all charges, would have been available for consideration on appeal as affecting both the guilt and sentencing proceedings of this capital prosecution. By his guilty pleas, provided they were properly entered, defendant has waived all nonjurisdictional errors that might have occurred insofar as they might have affected the guilt proceedings. State v. Caldwell, 269 N.C. 521, 526, 153 S.E.2d 34, 37-38 (1967). We need discuss, therefore, only those assignments of error relating to the guilty pleas themselves and those necessary to dispose of the appeal of the sentencing proceeding.

II.

Regarding his guilty pleas defendant's only contention on appeal is that the trial court erred in concluding there was a factual basis for defendant's plea of guilty to first-degree kidnapping; therefore, this plea should not have been accepted.

Under N.C.G.S. § 15A-1022(c):

The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to:

(1) A statement of the facts by the prosecutor.

(2) A written statement of the defendant.

(3) An examination of the presentence report.

(4) Sworn testimony, which may include reliable hearsay.

(5) A statement of facts by the defense counsel.

Defendant specifically contends there is no factual basis for concluding the kidnap victim, Garcia, "was not released by the defendant in a safe place or had been seriously injured or sexually assaulted," N.C.G.S. § 14-39(b) (1986), either one of which is a requisite element of first-degree kidnapping.

Garcia testified that defendant handcuffed her and forced her to accompany him to his parents' house. She was with him when he shot Garrison and his stepmother. Garcia asked defendant to remove the handcuffs because her arm was bleeding, and defendant directed his father to go to the truck for the keys. When his father returned with the keys, defendant, who was looking out the sidelights by the front door, said he thought somebody was out there. Mr. Heatwole went out the open door while defendant was working on Garcia's handcuffs. Defendant said, "I'll let that son-of-a-bitch go." But once Garcia's handcuffs were removed, defendant put two more bullets in his gun, saying one was for her and one was for him. Garcia told defendant she did not want to die and to give her the gun. When he did, she threw it out the door. Defendant hugged her, said he liked her a lot, and said, "I'm sending Kim out."

Defendant argues his release of Garcia was voluntary ¹ and that sending her into a yard full of police was tantamount to release in a "safe place." The State argues that releasing a kidnap victim when the kidnapper is aware he is cornered and outnumbered by law enforcement officials is not "voluntary" and that sending her out into the focal point of their weapons is not a "safe place." We agree with the State's position. See State v. Jerrett, 309 N.C. 239, 263, 307 S.E.2d 339, 352 (1983) (evidence sufficient to permit the jury reasonably to infer victim was rescued by the presence and intervention of police officer). Inasmuch as there was a factual basis for each element of the offense, there is no reason to upset defendant's guilty plea to first-degree kidnapping on the ground urged by defendant.

III.

With regard to the sentencing proceeding, defendant contends there was reversible error under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). We agree.

At defendant's sentencing proceeding the jury found two aggravating circumstances: (1) defendant had previously been convicted of a felony involving the use of violence to the person and (2) the murder was part of a course of conduct that included commission by defendant of other crimes of violence against other persons. See N.C.G.S. § 15A-2000(e)(3) and (11) (1988). The jury found none of seven nonstatutory mitigating circumstances submitted for its consideration.

In its jury charge on sentencing, the trial court instructed the jurors that they must unanimously find each mitigating circumstance submitted under Issue Two on the Issues and Recommendations as to Punishment form. Issue Two asked: "Do you unanimously find from the evidence the existence of one or more of the following [seven] mitigating circumstances?" The jury was also instructed to answer "no" to any mitigating circumstance not unanimously found. The State concedes these instructions constitute constitutional error under McKoy, but contends such error was harmless beyond a reasonable doubt.

The State first argues that the trial court's instruction on Issue Four eradicated any prejudice that might have arisen from its instruction on Issue Two. Issue Four asked: "Do you unanimously find beyond a reasonable doubt the aggravating circumstance or circumstances found by you is, or are, sufficiently substantial to call for the death penalty when considered with the mitigating circumstance or circumstances present from the evidence?" The trial court proceeded to instruct the jury that in its consideration of "any mitigating circumstances present from the evidence," each juror could include in the final balancing any circumstance he or she considered to have been proved by a preponderance of the evidence, "[e]ven if the jury has not found unanimously the existence of [that] mitigating circumstance."

We rejected this argument in State v. Johnson, 331 N.C. 660, 417 S.E.2d 483 (1992), and for the reasons given there, we also reject it here.

The seven mitigating circumstances submitted to the jury were: (1) defendant's conduct was affected by his bad treatment while in prison in the State of Texas; (2) defendant was honorably discharged from the United States Marine Corps; (3) defendant earned a high school equivalency certificate; (4) defendant has been trustworthy and truthful in his relationship with Mr. Larry Davis; (5) defendant has been a decent person in his relationship with Miss Lisa Cox; (6) defendant has always acted like a gentleman in his relationship with Mrs. Larrie Marie Garner; (7) any other circumstance or circumstances arising from the evidence which the jury deems to have mitigating value. Each of the first six circumstances was supported by some evidence in the record; indeed the trial court peremptorily instructed the jury as to each that "all of the evidence tends to show [that particular mitigating circumstance,] and [t]here was no...