State v. Hurt

• Citation: 702 S.E.2d 82
• Decision Date: 16 November 2010
• Docket Number: No. COA09-442.,COA09-442.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. David Franklin HURT.

702 S.E.2d 82

STATE of North Carolina

v.David Franklin HURT.

No. COA09-442.

Court of Appeals of North Carolina.

Nov. 16, 2010.

Appeal by Defendant from judgment entered 4 April 2008 by Judge Thomas D. Haigwood in Caldwell County Superior Court. Heard in the Court of Appeals 1 October 2009.

Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Daniel P. O'Brien, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant.

BEASLEY, Judge.

David Franklin Hurt (Defendant) appeals from judgment imposing a sentence in the aggravated range for second-degree murder. Specifically, Defendant challenges the sentencing jury's finding that, as an aggravating factor, the offense to which he had pled guilty was especially heinous, atrocious, or cruel. For the reasons stated below, we hold Defendant is entitled to a new trial.

In 1999, Defendant was indicted for the first-degree murder of Howard Nelson Cook and the first-degree burglary and common law robbery perpetrated in the course thereof. Cook's nephew, William Parlier, was also charged with Cook's murder. Parlier pled guilty to first-degree murder and received a sentence of life in prison. After Parlier reneged on his promise to testify against Defendant, the State agreed to negotiate a plea with Defendant, and on 26 August 2002, Defendant pled guilty to second-degree murder in exchange for dismissal of the remaining charges. The trial judge sentenced Defendant to the maximum aggravated range of 276 to 341 months' imprisonment. Defendant appealed, and a divided panel held that the trial court erred in treating "its finding that [D]efendant joined with one other person" as an aggravating factor.State v. Hurt, 163 N.C.App. 429, 435, 594 S.E.2d 51, 55 (2004), rev'd, 359 N.C. 840, 616 S.E.2d 910 (2005), and rev'd in part and aff'd in part as modified, 361 N.C. 325, 643 S.E.2d 915 (2007). This Court vacated Defendant's sentence, and remanded for resentencing. See id. at 434-35, 594 S.E.2d at 55-56 (reasoning that N.C. Gen.Stat. § 15A-1340.16(d)(2) provides for an aggravated sentence when " '[t]he defendant joined with more than one other person in committing the offense' " and remanding for a new sentencing hearing because the trial judge imposed a sentence beyond the presumptive term on the basis of an erroneous finding in aggravation). On the State's direct appeal, our Supreme Court reversed this Court's holding as to the aggravating factor issue because "accomplishment of a robbery and murder by uniting with one other individual" is a proper nonstatutory factor under N.C. Gen.Stat. § 15A-1340.16(d)(20). Hurt, 359 N.C. 840, 844, 616 S.E.2d 910, 913 (2005), vacated in part on other grounds, 361 N.C. 325, 643 S.E.2d 915 (2007). Addressing Defendant's motion for appropriate relief, however, the Court remanded for resentencing on different grounds in accordance with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because his sentence exceeded the statutory maximum but the upward durational departure from the presumptive sentence was based solely on judicially found facts. Hurt, 359 N.C. at 845-46, 616 S.E.2d at 913-14. Issuance of the mandate was stayed, Hurt, 359 N.C. at 846, 616 S.E.2d 910, and upon reconsideration, our Supreme Court vacated its earlier opinion in part and remanded the case with instructions to remand to the trial court for a new sentencing hearing, see Hurt, 361 N.C. at 332, 643 S.E.2d at 919 (vacating the portion that remanded due to structural error and, instead, remanding "because the trial court's Blakely error was not harmless beyond a reasonable doubt," but leaving its aggravating factor analysis undisturbed).

During resentencing, a jury trial on aggravating factors was held at the 31 March 2008 Session of Superior Court in Caldwell County. At the outset of the trial, the court informed the jury panel that Defendant had previously entered a plea of guilty to the second-degree murder of Cook and that the State was now contending the existence of the aggravating factor that the offense pleaded to was especially heinous, atrocious, or cruel (HAC).¹

On 26 February 1999, police found Cook dead in his home. Cook had sustained blunt force trauma and multiple stab wounds. Earlier that morning, Nancy and Jody Hannah were awakened when a man drove a white van into their backyard and got it stuck. Paula Calloway testified that Defendant and Parlier had previously come to her house in a white van. When she and Defendant awoke to Parlier leaving in the van, they went looking for it and found it stuck in a yard. Defendant freed the van, drove it back to Calloway's house, and fell asleep. Shortly thereafter, Calloway saw police lights and observed officers picking up Parlier in the road. Deputies Jason Beebee and Joel Fish with the Catawba County Sheriff's Office were responding to a call about a possible drunk driver and the van stuck in a yard when they saw an "extremely intoxicated" Parlier walking up the road and then falling into a ditch. Parlier had on his person four one-dollar bills, two of which had "reddish, brown stains on them." During their encounter with Parlier, the officers observed a white van in Calloway's driveway, which prompted them to return to her residence later that morning. Fish found Defendant in Calloway's bed and noticed that the white pants he was wearing had "darkening red spots" and a "brown stain" on them. Evidence collected from Calloway's bedroom included a pair of Defendant's boots and a sweatshirt lying near Defendant that Fish described as having "large reddish, brown stains on it." Another set of officers, also based on information gathered during the encounter with Parlier, went to check on Cook. Officer David Bates arrived at Cook'sresidence around 4:00 a.m. and found Cook laying on the floor in a large amount of blood. Paramedics and EMS personnel testified to the gross amount of blood at the scene and gaping wounds on Cook's body.

Special Agent Susie Barker, expert forensic biologist and serologist with the State Bureau of Investigation (SBI), testified that her section received a series of physical items in this case. The evidence was assigned to Special Agent Todd, who tested the items for the presence of blood and other bodily fluids and prepared a lab report detailing his results. Barker testified, over objection, that Todd had identified blood on Defendant's sweatshirt and boots and on a cigarette butt found outside Cook's front door. David Freeman, a special agent in the DNA unit of the SBI, then testified that former SBI Special Agent D.J. Spittle performed DNA testing on several items received from the serologist division. Over Defendant's objection, Freeman testified to the results of Spittle's analysis, including his conclusion that DNA found on Defendant's sweatshirt and boots matched Cook's DNA profile. Freeman also testified that the saliva-end of the cigarette found at the crime scene matched Defendant's DNA.

Dr. Patrick Lantz, a forensic pathologist and the Forsyth County Medical Examiner, testified in regards to Cook's autopsy report, completed by former forensic pathologist Dr. David Winston. Lantz testified, over objection by defense counsel, that Cook's "final autopsy diagnosis included sharp force injuries or stab wounds of the head and the neck, the thorax, the abdomen, the back, some blunt trauma to the head, neck[,] chest, abdomen, and some incised wounds." He continued that "[a]ccording to Dr. Winston's report he listed twelve major stab wounds involving the neck, the chest, the abdomen, and the back." Over objection, Lantz recited Winston's findings as to each of the stab wounds and testified to his opinion as a pathologist that six of the major stab wounds noted in the autopsy hit vital organs and could have been fatal in and of themselves. Lantz indicated that "[t]he stab wounds would have caused bleeding inside and outside of [Cook's] body" and would have been painful. However, because the stab wounds did not hit a major blood vessel or "any vital organs that would have caused immediate loss of consciousness," Lantz testified that it might have taken five to ten minutes before Cook went unconscious due to the blood loss. An additional five to ten minutes could have transpired after Cook lost consciousness before the time he died.

At the conclusion of the State's evidence, Defendant made a motion to dismiss the jury's consideration of the aggravating factor that this offense was especially heinous, atrocious, or cruel. The trial court denied this motion, and Defendant did not present any evidence at this stage. The jury found, beyond a reasonable doubt, the existence of the aggravating factor that the offense was especially heinous, atrocious, or cruel.

During the mitigation phase, Defendant offered a "mitigation report" that had been compiled for his 2002 plea bargain proceedings, but the trial court sustained the State's hearsay objection and refused to admit the notebook. The defense first called Parlier, who admitted to currently being in custody for a conviction on his plea to first-degree murder but denied killing Cook and said it was Defendant who had done so. Defense counsel then attempted to impeach Parlier's testimony by asking about an affidavit he had previously signed. The affidavit stated that on the night of 25 February 1999, Parlier told Defendant that he needed a ride to Cook's house to borrow twenty dollars from his uncle; that Defendant waited outside in his van while Parlier went inside; that it was Parlier who stabbed Cook and thereafter directed Defendant to drive to the Rhodhiss Dam to dispose of evidence. Parlier, however, testified that the affidavit was false and, on cross-examination, explained that Defendant paid him forty dollars to copy and sign the affidavit. Defendant testified at the mitigation phase, and his recitation...