State v. Benbow
308 S.E.2d 647
N.C.
1983
Check Treatment
MEYER, Justice.

As the record does not support a finding that the defendant was hired or paid to commit the offense, the trial judge erred in relying on the aggravating factor that the offense was committed for pecuniary gain. State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983); State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983). Defendant is therefore entitled to resentencing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).

Defendant next assigns as error the trial court’s reliance on the aggravating factor that the offense was especially heinous, atrocious, or cruel. This Court has most recently articulated the standard by which this factor may be fоund in State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983). In Blackwelder we stated that “the focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense. ” Id. at 414, 306 S.E. 2d at 786. We further stated that it was not “inappropriate in any case to measure the brutality of the ‍​​‌​​​‌​​​​​​‌‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌‌​​​‌‌‌‌​‌‌​‌‍crime by the extent of the physical mutilation of the body of the deceased or surviving victim.” Id. at 415, 306 S.E. 2d at 787. The evidence in this case supports a finding that the beating death of Kauno A. Lehto was especially heinous, atrocious, or cruel. The victim’s skull was crushed and fractured in several places. The orb of one eye was driven into the brain. In spite of the continued blows to his head and the severity of the wounds, the victim lingered and remained in a semiconscious state for over twelve hours.

Defendant next contends that the trial court erred in failing to find as a mitigating factor under G.S. § 15A-1340.4(a)(2)d that the defendant was suffering from a mental or physical сondition that, while insufficient to constitute a defense, was sufficient to entitle him to the benefit of the mitigating circumstance that his culpability for the offense was substantially reduced. We do not agree. In support of his contention, defendant points to the uncontradicted testimony of Dr. Peter J. Boyle, a clinical psychologist, who indicated that defendant would not understand that as a lookout, he could be held legally responsible for the murder. In other words, argues defendant, while he “could anticipate the consequences of his own acts as a lookout in an armed robbery,” he “would be unable, because of a borderline range of mental retardation and low general intellectual function, to comprehend what consequences the actions of [Stokes and Murray] would have on his life.” We do not doubt defendant’s inability at the time of the murder to comprehend the full legal implications of his decision to participate in the armed robbery of Kauno A. Lehto. Ignorance of the legal implications of an act, nothing else appearing, however, is not tantamount to a mental condition sufficient to reduce one’s culpability. Similarly, defendant contends that the trial court erred in failing to find as a mitigating factor under G.S. § 15A-1340.4(a)(2)j that defendant could not reasonably have foreseen that his conduct could cause or threaten serious harm. Defendant maintains now, as he did when he was first apprehended, that he did not know he was involving himself in anything more than a simple robbery. Again, we do not doubt defendant’s sincerity in stating that hе failed to understand that his role as a lookout in an armed robbery could possibly result in his personal responsibility for the resulting brutal murder. The test, however, is not what the defendant subjectively does or does not believe, but whethеr he could reasonably foresee that his conduct would cause harm. Serious bodily injury or death is an omnipresent danger in any armed robbery. The trial judge properly rejected these two factors in mitigation.

Defendant next contеnds that the trial court erred in failing to find in mitigation that he was a passive participant or played a minor role in the commission of the offense. The evidence would not support a finding of this factor with respect tо defendant’s participation in the robbery. Defendant clearly played an active role in the planning and execution of the robbery. For sentencing purposes, however, the evidence could suppоrt a finding that defendant was a passive participant in the murder for which he was sentenced. Both the defendant and the State stipulated to the following ‍​​‌​​​‌​​​​​​‌‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌‌​​​‌‌‌‌​‌‌​‌‍facts: defendant acted as a lookout, he was not present, and he did not participate in the actual bludgeoning of the victim. Defendant’s own evidence, as discussed above, indicated that he did not anticipate that a murder would be the result of the plan to rob Mr. Lehto. In fact, defendant testified that it wasn’t until the next day that he learned that Mr. Lehto had been as seriously injured as he was. We emphasize that a defendant’s liability for a crime, including whether he was the principal offender or an aсcessory, is determined at the guilt phase of a trial or, as in the case sub judice, by a plea. At sentencing the focus must be on the offender’s individual culpability. It is therefore proper at sentencing to consider the defendant’s actual role in the offense as opposed to his legal liability for the acts of others. On resentencing, the sentencing judge will consider whether defendant has met his burden of proving by a preponderance of the еvidence that he was a passive participant in the actual murder. State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983).

Finally, defendant assigns as error the trial court’s failure to find as a mitigating factor under G.S. § 15A-1340.4(a)(2)n that he has been a person of good charactеr or has a good reputation in the community in which he lives. Defendant’s evidence in support of this mitigating factor consisted of the following: Defendant’s probation officer testified that after some initial problems, the dеfendant was complying with the conditions of his probation. He was paying his fine and attending school. He was described by family and friends as being nonviolent. “He didn’t fight back.” He had completed the tenth grade in school, was well-mannеred and respectful, and regularly helped his mother with household chores. He had “a little job at the Housing Authority” to pay his court fine. He spent most of his time at home listening to his music and if he went out at night to visit one of his aunts, he would сall his mother and let her know where he was. He was generally truthful and until he was seventeen, attended church regularly with his grandmother. He was, however, susceptible to peer pressure and although his family cautioned him about associating with the wrong people, he continued to see Freddy Stokes and Stokes’ sister, Betty, even after Stokes had beaten him severely enough to require hospitalization.

When the defendant in his sentencing hearing produces evidence of his good character in order to take advantage of that particular mitigating circumstance, G.S. § 15A-1340.4(a)(2)m (Cum. Supp. 1981), character is “a direct issue in ‍​​‌​​​‌​​​​​​‌‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌‌​​​‌‌‌‌​‌‌​‌‍the case” and thus not limited to the traditional methods of proof but may be proved by specific acts as well as by reputation and by the opinions of others. State v. Taylor, 309 N.C. 570, 308 S.E. 2d 302 (1983); 1 Brandis on North Carolina Evidence §§ 102, 113. In such circumstances good character, or the lack of it, is a dirеct issue in the case because it is one of the “factors that may diminish or increase the offender’s culpability” and thus an important consideration to be taken into account in sentencing. G.S. § 15A-1340.3 (Cum. Supp. 1981). On the question of dеfendant’s individual culpability, evidence of character is, without question, highly relevant and directly in issue.

We have also recently held that “[w]hen evidence in support of a particular mitigating or aggravating factor is uncontradicted, substantial, and there is no reason to doubt its credibility, to permit the sentencing judge simply to ignore it would eviscerate the Fair Sentencing Act.” State v. Jones, 309 N.C. 214, 218, 306 S.E. 2d 451, 454 (1983); see State v. Taylor, 309 N.C. 570, 308 S.E. 2d 302; State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983). In Blackwelder, however, we noted that “uncontradicted, quantitatively substantial, and credible evidence may simply fail to establish, by a preponderance of the evidence, any given factor in aggravation or mitigation. While evidence may not be ignored, it can be properly rejected if it fаils to prove, as a matter of law, the existence of the mitigating factor.” Id. at 419, 306 S.E. 2d at 789.

For a definition of good character, we turn to another case in which character was a direct issue:

Whether a person is of gоod moral character is seldom subject to proof by ‍​​‌​​​‌​​​​​​‌‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌‌​​​‌‌‌‌​‌‌​‌‍reference to one or two incidents. In the words of Chief Justice Stacy in In re Applicants for License, supra, 191 N.C. at 238, 131 S.E. at 663:
‘[Good moral character] is something more than the absence of bad character. It is the good name which the applicant has acquired, or should have acquired, through association with his fellows. It means that he must have conducted himself as a man of upright character ordinarily would, should or does. Such character expresses itself, not in negatives nor in following the line of least resistance, but quite often in the will to do the unpleasant thing, if it is right, and the resolve not to do the pleasant thing, if it is wrong.’
Character thus encompasses both a person’s past behavior and the opinion of members of his community arising from it.

In re Rogers, 297 N.C. 48, 58, 253 S.E. 2d 912, 918 (1976).

With these principles in mind, we turn to the evidence in the case sub judice. This evidence paints a picture of a young man who, aрart from one incident with the law for which he appeared to have been making satisfactory amends, was generally well-behaved, considerate, and respectful to family and friends. Arguably this evidence might entitle defеndant to a mitigating circumstance that he was generally truthful, was good to his mother, attended church regularly as a youth, etc. The evidence does not rise to the level which would entitle defendant to a finding in mitigation that he wаs a person of “good character” or that he had a “good reputation.” Furthermore, because defendant’s character witnesses were, for the most part, family members, their relationship with the defendant wаs a factor in assessing these witnesses’ credibility. It was therefore within the trial court’s prerogative to accept or reject their testimony. See State v. Taylor, 309 N.C. 570, 308 S.E. 2d 302.

We note from the transcript that the district attorney placed before the sentencing judge two files apparently containing the evidence heard at the trials of Freddy ‍​​‌​​​‌​​​​​​‌‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​​‌‌​​​‌‌‌‌​‌‌​‌‍Stokes and James Murray over which Judge Stevens also presided. We must caution that for purposes of resentencing this dеfendant, and indeed at any sentencing hearing held pursuant to a plea of guilty, reliance on evidence from the trials of others connected with the same offense is improper absent a stipulation. Even with such а stipulation reliance exclusively on such record evidence from other trials (in which the defendant being sentenced had no opportunity to examine the witnesses) as a basis for a finding of an aggravating circumstance may constitute prejudicial error. In such other trials the focus is necessarily upon the culpability of others and not on the culpability of the defendant being sentenced. Thus, by proper stipulation and in the interests оf judicial economy, the sentencing judge may consider the evidence from such other trials, but only as incidental to his present determination of defendant’s individual culpability as a factor in sentencing. In so considering this evidence, trial judges must scrupulously avoid shifting the focus from the offender’s individual culpability for the offense. See G.S. § 15A-1340.3; State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689.

The case is remanded to the Superior Court, New Hanover County, for resentencing.

Remanded for resentencing.