State v. Pope

• Decision Date: 15 June 1962
• Docket Number: No. 722,722
• Parties: STATE, v. Eugene Collins POPE.
• Court: North Carolina Supreme Court

Page 126

126 S.E.2d 126

257 N.C. 326

STATE, v. Eugene Collins POPE.

No. 722

Supreme Court of North Carolina.

June 15, 1962

T. W. Bruton, Atty. Gen., for the State.

Dalton, Long & Latham, Burlington, for defendant.

MOORE, Justice.

The motives of Judge Williams are not in question on this appeal. Defendant's brief states: 'Judge Williams went to a lot of trouble * * * out of a sense of duty. He knew none of the parties and had no prior feelings one way or the other. In fact, as the record shows, on his own initiative Judge Williams brought out in open court what he apparently thought was the most important matter he had elicited in chambers--the theft of the gasoline not charged in any of the bills or warrants. Nevertheless, the defendant feels he was entitled to hear what the Judge heard at the time he heard it and not by way of recapitulation.'

Thus is presented the sole question as to whether or not a judge presiding at a criminal term of court violates a fundamental right of a defendant when he receives in the absence of defendant, after a plea or verdict of guilty has been entered, information bearing upon the matter of punishment, either in aggravation or mitigation, even when the information is known, or disclosed, to defendant and his counsel before judgment is entered, and defendant is given opportunity to refute any unfavorable aspects of the information.

As to what is proper procedure in the sentencing process we do not find unanimity among the courts.

In every criminal prosecution it is the right of the accused to be present throughout the trial, unless he waives the right. And in capital trials the right cannot be waived by the prisoner. State v. O'Neal, 197 N.C. 548, 149 S.E. 860; State v. Cherry, 154 N.C. 624, 70 S.E. 294; State v. ydry, 152 N.C. 813, 67 S.E. 1000. '* * * (T)he tradition of our courts is that their hearings shall be open. The Constitution of North Carolina so provides, Article I, Section 35.' Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782. The right to be present at the time sentence or judgment is pronounced is a common law right, separate and apart from the constitutional or statutory right to be present at the trial. Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377. A defendant should be present when evidence is introduced for the purpose of determining the amount of punishment to be imposed. 14 Am.Jur., Criminal Law, s. 190, pp. 899, 900; Fowler's Case, 49 Mich. 234, 13 N.W. 530 (1882). However, the procedure in the sentencing process is not the same as that in the trial process. Driver v. State, 201 Md. 25, 92 A.2d 570 (1952).

In some jurisdictions the sentencing procedure is regulated by statute. California and Montana have laws providing that punishment is to be determined in the sound discretion of the trial judge after the circumstances have been presented by the testimony of witnesses examined in open court. California Penal Code, §§ 1203, 1204; Revised Code of Montana (1947), §§ 94-7813, 94-7814. Under these statutory provisions any representation made to the court in aggravation or mitigation of punishment may not be considered unless made in open court in the presence of the accused. People v. Sauer, 67 Cal.App.2d 664, 155 P.2d 55 (1945). Though the court may receive and consider the pre-sentence report of a probation officer, letters, telephone messages and personal requests relating to punishment may not be considered, and where it appeared that such were received and given attention by the trial judge, the sentence imposed was vacated and the cause remanded for proper sentence. People v. Giles, 70 Cal.App.2d Supp. 872, 161 P.2d 623 (1945). And under such statute the unsworn report and recommendations of an investigating probation officer 'privately offered to and privately received and adopted by the trial judge do not measure up to * * * requirements * * *.' Kuhl v. District Court, 366 P.2d 347 (Mont.1961).

In South Carolina the reception and adoption of information in aggravation or mitigation of punishment is strictly guarded. Evidence of moral character and affidavits may be received, and these do not violate the constitutional right of confrontation. State v. Reeder, 79 S.C. 139, 60 S.E. 434 (1908). It is proper 'for the trial Judge in open Court, in the presence of the defendant, to inquire into any relevant facts in aggravation or mitigation of punishment.' State v. Brandon, 210 S.C. 495, 43 S.E.2d 449 (1947); State v. Bodie, 213 S.C. 325, 49 S.E.2d 575 (1948). But where the judge discussed with the solicitor and another in his chambers, in the absence of defendant and his counsel, the matter of punishment, the sentence thereafter imposed was vacated on appeal. Held: Defendant 'has a right that everything pertaining to the case, in the way of evidence affecting the case, be open * * * and public.' State v. Harvey, 128 S.C. 447, 123 S.E. 201 (1924). And where, in sentencing accused, the judge remarked, 'A number of people from your community have been to see me at my office about you, and they have all spoken against you. * * * (N)o one has come * * * to speak a good word in your behalf,' on appeal the case was remanded for resentencing. State v. Simms, 131 S.C. 420, 127 S.E. 840 (1925).

In a Texas case the trial judge held a conference in the absence of defendant, and reviewed the evidence with the county attorney and an officer before entering judgment. The appellate court stated that the right to be present extends to the time '* * * 'when evidence is introduced for the purpose of determining the amount of punishment to be imposed.' * * * We think the trial court should be granted great latitude in what he considers, in order to properly fit the punishment to the offender, but all reason and justice require that the accused be present when he hears anything defamatory of the accused. ' Phelps v. State, 158 Tex.Cr.R. 510, 257 S.E.2d 302 (1953).

It has been declared the better practice to receive and consider in open court in defendant's presence pre-sentence investigation reports of probation officers and other officials. Stephan v. United States, 133 F.2d 87 (CC6C 1943); Smith v. United States, 223 F.2d 750 (CC5C 1955).

In Pennsylvania when a defendant enters a general plea of guilty to a murder indictment, a three-judge court en banc hears evidence and determines the degree of guilt and fixes the punishment, and thus to some extent exercises the functions of both jury and judge. In such cases the reception of evidence is subject to approximately the same rules as in jury trials. Commonwealth v. Johnson, 348 Pa. 348, 35 A.2d 312 (Pa.1944); Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50 (Pa.1940). But the opinion in Petrillo lays down the principles applicable in sentencing generally, as follows: 'In determining what the penalty shall be after convictions in criminal cases, courts have a wide latitude in considering facts, whether or not these facts are produced by witnesses whom the members of the court may see and hear. In many jurisdictions courts in determining proper sentences consider official records and the reports of probation officers, psychiatrists and others.' See Commonwealth v. Coleman, 179 Pa.Super. 1, 115 A. 2d 811 (1955). In a case in which accused was charged with robbery, the judge, after verdict but before imposing sentence, held a conference in chambers. He invited a captain of police into consultation and stated, 'All of you can be present.' On appeal the court stated: 'It is of course true that a defendant * * * has a right to be present at every stage of the proceedings from arraignment to the rendition of verdict. (Citing authorities.) However, this right does not extend to a pre-sentence investigation. In determining appropriate sentences, trial judges have a wide latitude in ascertaining pertinent facts, whether or not these facts are produced by witnesses who are seen and heard * * *. The sentencing of a defendant is a matter which is committed to the sound discretion of the trial judge.' Judgment was not disturbed. Commonwealth v. Myers, 193 Pa.Super. 531, 165 A. 2d 400 (1960).

The Maryland court states the matter thus: 'To aid the sentencing judge in exercising * * * discretion intelligently, the procedural policy of the State encourages him to consider information concerning the convicted person's reputation, past offenses, health, habits, mental and moral propensities, social background and any other matters that a judge ought to have before him in determining the kind of sentence that should be imposed. In such cases, however, any information which might influence his judgment, which has not been received from the defendant himself or has not been given in his presence, should be called to his attention, or to the attention of his counsel, without necessarily disclosing the sources of such information, so that he may be afforded an opportunity to refute or discredit it.' Driver v. State, supra.

The Supreme Court of the United States, in a well considered opinion, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), delivered by Mr. Justice Black, has spoken clearly and with practical understanding on the subject of procedure and the exercise of discretion by trial judges in the sentencing process. The opinion states:

'Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted...