State v. Massey

• Decision Date: 28 June 2007
• Docket Number: No. 637A05.,637A05.
• Citation: 646 S.E.2d 362
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Marlon Rio MASSEY.

646 S.E.2d 362

STATE of North Carolina v. Marlon Rio MASSEY.

No. 637A05.

Supreme Court of North Carolina.

June 28, 2007.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 174 N.C.App. 216, 621 S.E.2d 633 (2005), reversing in part and finding no error in part in judgments entered by Judge William Z. Wood, Jr. on 22 April 2004 in Superior Court, Forsyth County, and remanding for resentencing and a new trial. On 19 December 2006, the Supreme Court allowed the State's petition for discretionary review as to an additional issue. Heard in the Supreme Court 9 May 2007.

Roy Cooper, Attorney General, by Anne M. Middleton, Assistant Attorney General, for the State-appellant.

C. Scott Holmes, Durham, for defendant-appellee.

NEWBY, Justice.

In this case we first decide whether certain of defendant's convictions were obtained in violation of the unanimous verdict requirement of the North Carolina Constitution. Second, we address whether the Court of Appeals properly remanded this case for resentencing because defendant was sentenced in the aggravated range without a jury determination concerning the aggravating factor.

At trial the State presented evidence showing defendant's sexual abuse of H.J., the daughter of a girlfriend in whose home defendant was living at the time. Defendant was convicted of five counts of first-degree sexual offense with a child under thirteen, ten counts of felonious sexual act with a minor over whom he had assumed the position of a parent residing in the home, and four counts of indecent liberties. These verdicts were consolidated for sentencing, and defendant received five consecutive sentences of a minimum of 275 months to a maximum of 339 months. For each sentence, the trial court found as an aggravating factor that "defendant took advantage of a position of trust or confidence to commit the offense."

Defendant appealed his convictions and sentences. A divided panel of the Court of Appeals reversed eight of defendant's convictions of felonious sexual act with a minor and the four indecent liberties convictions because it could not determine whether the jury unanimously convicted defendant based on specific incidents and remanded those charges for a new trial. State v. Massey, 174 N.C.App. 216, 621 S.E.2d 633 (2005). The Court of Appeals also unanimously granted defendant a new sentencing hearing on the remaining convictions because a jury did not find beyond a reasonable doubt the aggravating factor used to enhance defendant's sentence. Id. The State appealed the unanimity issue as of right and sought discretionary review of the sentencing issue, which this Court allowed. State v. Massey, 361 N.C. 175, 640 S.E.2d 390 (2006).

The North Carolina Constitution provides: "No person shall be convicted of any crime but by the unanimous verdict of a jury in open court." N.C. Const. art. I, § 24. Following its own case law, the Court of Appeals held it was impossible to know whether the jury had unanimously determined that defendant committed the same specific act to support each conviction because the evidence showed more acts of sexual misconduct than the number of charges against defendant and the verdicts were identical on each charge, State v. Markeith Lawrence, 170 N.C.App. 200, 612 S.E.2d 678 (2005); State v. Gary Lawrence, 165 N.C.App. 548, 599 S.E.2d 87 (2004), and that "`there is no apparent statutory or common law authority that would permit the return of more than one indictment based on the same generic testimony,'" Massey, 174 N.C.App. at 227, 621 S.E.2d at 640 (quoting Gary Lawrence, 165 N.C.App. at 557, 599 S.E.2d at 94).

This Court subsequently reversed the decision of the Court of Appeals in both Lawrence cases as to the jury unanimity issue. State v. Markeith Lawrence, 360 N.C. 368, 627 S.E.2d 609 (2006); State v. Gary Lawrence, 360 N.C. 393, 627 S.E.2d 615 (2006). We concluded that, although the evidence showed a greater number of incidents committed by the defendant than the number of offenses with which he was charged and convicted, no jury unanimity problem existed regarding the convictions because, "while one juror might have found some incidents of misconduct and another juror might have found different incidents of misconduct, the jury as a whole found that improper sexual conduct occurred." Markeith Lawrence, 360 N.C. at 374, 627 S.E.2d at 613-14 (citation omitted). In the case sub judice, our Lawrence decisions control and require reinstatement of the eight felonious sexual act with a minor and four indecent liberties convictions reversed by the Court of Appeals.

The Court of Appeals also determined defendant was entitled to a new sentencing hearing on his five first-degree sexual offense convictions because a jury did not find the imposed aggravating factor beyond a reasonable doubt.¹ See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). After the Court of Appeals issued its decision, the United States Supreme Court concluded that Blakely error was subject to federal harmless error analysis. Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). Shortly thereafter, in State v. Blackwell, this Court held a Blakely error harmless because a review of...