State v. Clifton
481 S.E.2d 393
N.C. Ct. App.
1997
Check Treatment
EAGLES, Judge.

Defendant fails to bring forward or argue assignments of error 4, 6, 7, 8, 9, 10, 11 and 12 in her brief. These assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(a).

We first consider whether the trial court erred by allowing evidence of results of blood splatter experiments conducted by the State’s witness over defendant’s objection on the grounds that the experiments were not conducted under substantially similar circumstances to those prevailing at the time of the shooting and that the experiment was not relevant.

In order for experimental evidence to be admissible it must be relevant and the experiment must be conducted under circumstances substantially similar to those prevailing at the time of the occurrence in controversy. State v. Phillips, 228 N.C. 595, 598, 46 S.E.2d 720 (1948); State v. Wright, 52 N.C. App. 166, 173-74, 278 S.E.2d 579, 585, disc. review denied, 303 N.C. 319, 281 S.E.2d 658 (1981). The requirement of substantial similarity does not require precise reproduction of circumstances to be admissible. Id. The trial court must consider whether there are dissimilarities in conditions likely to distort the results of the experiment, and whether the dissimilarities may be adjusted or explained so that their effects can be understood by the jury. State v. Jones, 287 N.C. 84, 97-98, 214 S.E.2d 24, 33-34 (1975); Wright, 52 N.C. App. at 174, 278 S.E.2d at 585. If the differences in the conditions are explainable by the expert witness, precise reproduction of the circumstances is not required. Id. Candid acknowledgement of dissimilarities and limitations of the experiment are enough to insulate the testimony from prejudice great enough to warrant reversal. Wiles v. N.C. Farm Bureau Insurance Co., 85 N.C. App. 162, 165-66, 354 S.E.2d 248, 250, disc. review denied, 320 N.C. 517, 358 S.E.2d 533 (1987). Whether an experiment was conducted under substantially similar conditions is a question of law and is reviewable by the appellate courts. Wright, 52 N.C. App. at 173, 278 S.E.2d at 585 (citing State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975)).

The experiments were conducted by firing .22 caliber and .44 caliber revolvers through blood soaked sponges and by slapping a blood source by hand. White paper and a tee shirt were placed in close proximity to the sources of blood to record the blood spray patterns. The State’s expert testified that these methods of experimentation were standard procedure conducted by his agency, that the results obtained were indicative of or similar to blood patterns observed in other actual shootings, and that the results seen in the experiment were consistent with the stains actually found on defendant’s blouse in evidence.

While there were differences between the circumstances of the experiments and of the shooting, the expert witness acknowledged the dissimilarity of the sponge used in the experiments from human flesh and that his experiments could not identify who held the weapon at the moment of firing. He also stated that variables of caliber, muzzle velocity, and other factors could influence the result. He clearly communicated his limited conclusion: “Based on the blood stain analysis detailed in this report, the blood splatter on the right shoulder of the [defendant’s blouse] is the result of the person wearing the [blouse] being in close proximity to a source of blood at the time it was being acted upon by a force.”

Defendant also argues that the experiments were not relevant pursuant to N.C. Rule Evid. 401 which provides, “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” However, the experiments demonstrated that it was more probable that defendant was in close proximity to James Clifton at the time the gun was fired because of the back splatter blood stains on the right shoulder of her blouse. Furthermore, the experiments cast doubt on the credibility of defendant’s statements to Chief Deputy Beckham that she did not remember being close to her husband at the time of the shooting and that she did not see the shooting. Accordingly, we conclude that the trial court properly admitted the results of the experiments.

The second issue is whether the trial court committed reversible error by denying defendant’s motion to dismiss for insufficiency of the evidence.

The test for sufficiency of the evidence to support a conviction in a criminal case is whether there is substantial evidence of all elements of the offense charged that would allow any rational trier of fact to find beyond a reasonable doubt that defendant committed the offense. State v. Richardson, 342 N.C. 772, 785, 467 S.E.2d 685, 692, cert. denied, - U.S. -, 136 L.Ed.2d 160 (1996). Substantial evidence is that relevant evidence which a reasonable mind would accept as sufficient to support a conclusion. State v. Patterson, 335 N.C. 437, 449, 439 S.E.2d 578, 585 (1994). “The law will not allow a conviction on evidence that merely gives rise to a suspicion or a conjecture that defendant committed a crime.” State v. Lambert, 341 N.C. 36, 42, 460 S.E.2d 123, 127 (1995). On sufficiency of evidence review, the evidence “must be viewed in a light most favorable to the State, and the State is to receive any reasonable inference that can be drawn from the evidence.” State v. Hardy, 339 N.C. 207, 236, 451 S.E.2d 600, 617 (1994).

Involuntary manslaughter is the “unintentional killing of a human being without malice proximately caused by a culpably negligent act or omission.” State v. McKoy, 122 N.C. App. 482, 485, 470 S.E.2d 542, 544, disc. review denied, 343 N.C. 755, 473 S.E.2d 622 (1996). Culpable negligence means any act or omission which evidences a disregard for human rights and safety. State v. Burton, 119 N.C. App. 625, 633, 460 S.E.2d 181, 188 (1995). The act or omission must be so careless or reckless that it “imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others.” State v. Meadlock, 95 N.C. App. 146, 149, 381 S.E.2d 805, 806, disc. review denied, 325 N.C. 434, 384 S.E.2d 544 (1989).

The jury confronted a single question in reaching their verdict of guilty of involuntary manslaughter: Did defendant pull the trigger of the gun that killed James Clifton? The State presented the following evidence that assisted the jury in answering the question in the affirmative: Defendant’s statements the day of the shooting; evidence that James Clifton had been happy just prior to the shooting; evidence that defendant was in close proximity to James Clifton with back splatter blood stains on the right shoulder of her blouse; evidence that shortly before the shooting, defendant and James Clifton were arguing about a new pickup truck and pistol; evidence that both defendant and James Clifton had been drinking at the time of the shooting; evidence concerning the path of the bullet and the wound itself, in the left armpit, coursing slightly down and through the body, coupled with the strong powder residue and stippling present on James Clifton’s inside upper arm and left forearm, contradicted the possibility of self-infliction; evidence that self-infliction of such a wound by the victim with the .44 caliber pistol that was thirteen inches in length with a seven and three eighths inch barrel would be physically difficult; evidence that the pistol was found lying on the kitchen counter some 54 inches from the body of James Clifton while the victim’s glasses were askew on the floor near the body; evidence that no blood was found on the pistol; evidence that James Clifton’s father did not hear about his son’s death from his daughter-in-law; evidence that defendant did not speak to her father-in-law for over a year prior to trial; and evidence that both defendant and James Clifton were right handed. We conclude that the trial court correctly determined that there is sufficient evidence to justify submission of the case to the jury. Accordingly, the trial court did not err in denying defendant’s motion to dismiss.

The third issue is whether the trial court erred in ordering defendant to pay $3,000.00 in restitution for funeral expenses to the father of James Clifton where defendant failed to object to the order of restitution and where there was nothing in the record to support a finding that any amount of restitution was due or to whom it might be payable.

Generally, in order to preserve a question for appellate review a party must have presented the trial court with a timely objection or motion, stating the specific grounds for the ruling the party desired the court to make. N.C.R. App. P. 10(b)(1); see State v. Reid, 322 N.C. 309, 312, 367 S.E.2d 672, 674 (1988). Immediately after the trial court sentenced defendant and ordered her to pay restitution, the court asked defendant if there was anything further for the court. At that time defendant renewed her motion to dismiss. At no time prior to the court’s order to pay restitution did the prosecution request restitution or present evidence supporting an order of restitution. Therefore, it appears that defendant had little if any opportunity to object specifically to the order to pay restitution. Despite defendant’s failure to object, we review this order in our discretion pursuant to N.C.R. App. P. 2.

A trial court’s award of restitution must be supported by competent evidence in the record. State v. Wilson, 340 N.C. 720, 459 S.E.2d 192 (1995); State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992); State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560, affirmed, 318 N.C. 502, 349 S.E.2d 576 (1986). In Daye this Court stated that to justify an order to pay restitution, “there must be something more than a guess or conjecture as to an appropriate amount of restitution. Restitution is not intended to punish defendants, but to compensate victims. There is no predetermined fine or presumption of damages.” 78 N.C. App. at 757-58, 338 S.E.2d at 561 (1986). After careful review of the record we find no evidence of the cost of James Clifton’s funeral or who paid for it. Accordingly, we conclude that the trial court erred in ordering payment of restitution.

The final issue is whether the trial court erred in finding as an aggravating factor that defendant had a prior conviction punishable by more than sixty days and therefore improperly sentenced the defendant to a maximum term of ten years.

The weighing of factors in aggravation and mitigation is within the sound discretion of the sentencing court, and will not be disturbed upon appeal absent a showing of an abuse of discretion. State v. Abee, 60 N.C. App. 99, 298 S.E.2d 184 (1982), aff’d and modified on other grounds, 308 N.C. 379, 302 S.E.2d 230 (1983). G.S. 15A-1340.4(e) (1988) provides in pertinent part that prior convictions “may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.” The permissible methods of proof of prior convictions in G.S. 15A-1340.4(e) are per missive, not mandatory or exclusive. State v. Brewer, 89 N.C. App. 431, 436, 366 S.E.2d 580, 583, cert. denied, 322 N.C. 482, 370 S.E.2d 229 (1988). Here the trial court noted that North Carolina Rules of Evidence provide that evidence of a conviction is not admissible if the conviction has been pardoned; however, during a sentencing proceeding the rules of evidence are suspended. N.C.R. Evid. 609, 1101(b)(3). Here, the trial court took judicial notice of defendant’s pardon of forgiveness for her 1979 conviction of accessory after the fact to robbery with a dangerous weapon and considered her 1979 conviction an aggravating factor during sentencing.

No decisions in North Carolina have specifically addressed whether a trial court during sentencing may consider a pardoned offense as an aggravating factor.

This issue raises a potential conflict between the executive and judicial functions under the North Carolina Constitution. The North Carolina Constitution provides the governor with the exclusive prerogative to issue pardons. N.C. CONST, art. Ill, § 5(6); see State v. Lewis, 226 N.C. 249, 37 S.E.2d 691 (1946). Here the trial court took judicial notice of defendant’s pardon as proof of a prior conviction in order to impose additional punishment for defendant’s crime of involuntary manslaughter. In short, the issues we face are: Is the court impinging on the governor’s executive power to pardon by increasing defendant’s sentence for a present offense based on a prior pardoned offense and may the court properly use the governor’s pardon of a prior conviction as proof of that prior conviction? There is a conflict of authority on these issues in other jurisdictions. See G. Van Ingen, Annotation, Pardon as Affecting Consideration of Earlier Conviction in Applying Habitual Criminal Statute, 31 A.L.R.2d 1181 (1953).

A number of courts have held a pardoned conviction cannot be used as a basis for increasing the punishment of a second subsequent offender. 31 A.L.R.2d at 1189; see Havens v. State, 429 N.E.2d 618 (Ind. Sup. Ct. 1981); Guastello v. Dept. of Liquor Control, 536 S.W.2d 21 (Mo. Sup. Ct. 1976); Fields v. State, 85 So.2d 609 (Fla. Div. A 1956); Kelly v. State, 185 N.E. 453 (Ind. Sup. Ct. 1933); State v. Childers, 2 So.2d 189 (La. Sup. Ct. 1941); State v. Lee, 132 So. 219 (La. Sup. Ct. 1931); State v. Martin, 52 N.E. 188 (Ohio Sup. Ct. 1898); Edwards v. Commonwealth, 78 Va. 39 (1883). Courts following this view have reasoned that the additional punishment imposed on a subsequent offense is not done because there is a subsequent offense alone, but as a consequence of the prior offense; therefore, because the prior offense was blotted out and its consequences removed by the full pardon, the pardoned prior conviction cannot be considered. Edwards, 78 Va. at 49 (1883). Also, at least one court has reasoned that because some states have expressly included pardoned offenses among those that may be considered for purposes of their habitual criminal act, and because their legislature had not, the court had to construe their legislature intended that pardoned offenses not be considered under their habitual felon statute. Kelly, 185 N.E. 453 (Ind. Sup. Ct. 1933).

Other states, which constitute a majority, hold that the pardon of a conviction does not preclude the underlying conviction from being considered as a prior offense under a statute increasing the punishment for a subsequent offense. Id.; see State v. Cobb, 403 N.W.2d 329 (Minn. Ct. App. 1987); State v. Wiggins, 360 S.W.2d 716 (Mo. Sup. Ct. 1962); Murry v. Hand, 356 P.2d 814 (Kan. Sup. Ct. 1961); Shankle v. Woodruff, 324 P. 2d 1017 (N.M. Sup. Ct. 1958); Dean v. Skeen, 70 S.E.2d 256 (W. Va. Sup. Ct. 1952); People ex rel. Prisament v. Brophy, 287 N.E.2d 468 (N.Y. Sup. Ct. 1941); State v. Stern, 297 N.W. 321, 322-23 (Minn. Sup. Ct. 1941); People v. Biggs, 71 P.2d 214 (Cal. Sup. Ct. 1937); United States v. Salas, 387 F.2d 121, 122 (2d Cir. 1967); Groseclose v. Plummer, 106 F.2d 311, 314 (9th Cir. 1939). One reason stated for this view is that “increased punishment decreed by the statute for any offender who commits a second error is not, however, further punishment for the prior offense. ‘The punishment is for the new crime only, but is the heavier if he is an habitual criminal.’ ” Brophy, 287 N.E.2d at 469-70 (quoting McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 312, 45 L. Ed. 542 (1901)); Carlesi v. People of State of New York, 233 U.S. 51, 58, 58 L. Ed. 843 (1914); see United States v. Salas, 387 F.2d 121, 122 (2nd Cir. 1967). Another reason supporting this view is that the “ambit of the pardons statute must be confined to a restoration of civil rights; it cannot have the effect of eliminating consideration of a prior conviction in a subsequent judicial proceeding.” 403 N.W.2d at 330. This logic raises serious concerns over the separation of powers of the judiciary and the executive branches of government.

In North Carolina a governor may issue two types of pardons: A pardon of innocence, a full pardon; and a pardon of forgiveness, a conditional pardon. Although N.C. CONST, art. Ill, § 5(6) provides the governor with the exclusive prerogative to issue pardons, G.S. 147-24 (1993) requires the governor to examine violations of a conditional pardon and to revoke the conditional pardon once the governor has determined that the conditions of the pardon have been violated. See State v. Lewis, 226 N.C. 249, 37 S.E.2d 691 (1946). A conditional pardon can be revoked only by the governor and only after the governor has performed his administrative duty of evaluating any violation of the conditions of the pardon. Here by taking judicial notice of the pardon of forgiveness and by finding that defendant’s prior conviction constituted an aggravating factor, the trial court infringed upon the prerogatives of the governor. The reasoning that an increased punishment for the present offense due to a prior pardoned conviction is not punishment for the prior pardoned offense is a legal fiction that conflicts with logic and the administrative duties of the governor.

We hold that a pardoned prior conviction may not be considered as an aggravating factor during sentencing absent revocation of the pardon by the governor. Accordingly, we conclude that the trial court erred in taking judicial notice of defendant’s prior conviction for purposes of enhancing the sentence.

No error in trial; remanded for resentencing.

Judges MARTIN, John C., and SMITH concur.