State v. Mullican
| Decision Date | 14 August 1991 |
| Docket Number | No. 379A89,379A89 |
| Citation | 329 N.C. 683,406 S.E.2d 854 |
| Parties | STATE of North Carolina v. Thomas Nolen MULLICAN. |
| Court | North Carolina Supreme Court |
Lacy H. Thornburg, Atty. Gen. by David Gordon, Asst. Atty. Gen., Greenville, for the State.
Frederick G. Lind, Asst. Public Defender, Greensboro, for defendant-appellant.
The question on this appeal is whether there was sufficient evidence to support the finding of the aggravating factors. We have held that a statement by the prosecuting attorney is not sufficient standing alone to find an aggravating factor. State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983). If opposing counsel stipulates to a statement it may be used to support the finding of an aggravating factor. State v. Swimm, 316 N.C. 24, 340 S.E.2d 65 (1986).
The defendant contends that the only evidence to support the finding of the aggravating factors in this case was the unsupported statement of the prosecuting attorney and the defendant did not stipulate to this statement. The Court of Appeals held that it was not necessary to find there was a stipulation. It held the statement by the defendant's attorney constituted an admission as to the things with which the defendant was charged.
We cannot say the Court of Appeals was wrong, but if it were, we hold that the record shows the defendant stipulated that the prosecuting attorney could state the evidence. The defendant relies on State v. Toomer, 311 N.C. 183, 316 S.E.2d 66 (1984), which dealt with the authentication of a transcript of a tape recording so that it could be offered into evidence during a trial. We held that a statement by the defendant's attorney that he stipulated "it is a tape" and the officer was reading from it was not sufficient to prove the matters necessary to authenticate a transcript of a tape for introduction into evidence.
Toomer does not govern this case. It is not necessary in order to stipulate that the prosecuting attorney can state the evidence to stipulate to all the things necessary to authenticate a transcript of a tape recording for admission into evidence. It is only necessary to stipulate that the prosecuting attorney may make a statement as to what the evidence would show. The question in this case is whether the defendant did so. We hold that he did.
When the prosecuting attorney said he would summarize the State's evidence with the permission of the defendant, this was an invitation to the defendant to object if he had not...
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State v. Bennett
...admissions may take a variety of forms and may be found by implication." Id. at 330, 643 S.E.2d at 918 (citing State v. Mullican , 329 N.C. 683, 686, 406 S.E.2d 854, 855–56 (1991) ); see also State v. Alexander , 359 N.C. 824, 826, 830, 616 S.E.2d 914, 916, 918 (2005) (holding that the defe......
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State v. Canady, No. 278A90
...The State argues that the defendant seemed to concede the accuracy of the statements by the prosecuting attorney. See State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991). It bases this argument on the statement of the attorney for the defendant at the sentencing hearing in which he said,......
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State v. Jeffery
...83 C.J.S., Stipulations, s.3, p. 3); see also State v. Mullican, 95 N.C.App. 27, 29, 381 S.E.2d 847, 848 (1989), aff'd, 329 N.C. 683, 406 S.E.2d 854 (1991). Defendant's agreement to six presumptive range sentences is not a "definite and certain" indication that defendant has a prior record ......
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State v. Harris
...amounts to an admission or stipulation of those factors, and therefore Blakely does not apply. The State, citing State v. Mullican, 329 N.C. 683, 406 S.E.2d 854 (1991), argues that North Carolina courts have permitted such concessions by a defense attorney to serve as stipulations to facts ......