State v. Locklear

APPEALS COURT OF N.C.AрP-] trustees, requires the commissioners act as either appoint- ment or election. herein, For the reasons stated statutory we hold that

[2] scheme seq. set forth G.S. 131-4 et is a delegation constitutional of authority county for a board of commissioners to assume the role of body” “governing for the of purpose implementing that enabling course, legislation, including, of of a levying support tax to township hospital.

The orders from which and plaintiffs intervenors are appeal both affirmed. and

Judges Parker concur. Clark STATE OF NORTH CAROLINA DIXON LOCKLEAR

No. 7716SC216 (Filed 1977) September § 1. Criminal Law 138.7— considered —evidence In the trial relating court is not confined to the evidence to the may character, charged inquire offense but age, into such matters as defendant’s education, environment, habits, mentality, propensities, alleged record acts prison. misconduct sentencing hearing—opportunity § ag- Criminal Law 138.8— gravation to rebut evidence in presentence report determining While a considered the trial court in may hearsay properly apply sentence contain formal rules of evidence do sentencing hearing, sentencing hearing in a of witnesses just, provide must be fair аnd and the trial court must the defendant with a full representations aggravation and other controvert punishment. — hearsay testimony § 3. Criminal Law 138.7 based sentence on possession Defendant is entitled to be resentenced for the offenses of marijuana delivery marijuana appears with intent to sell sale where it finding from the record that the trial court’s that defendant would not benefit youthful imposition as a committed offender and the court’s solely (except maximum consecutive sentences for the offenses were based offenses) hearsay testimony an circumstances of the on officer’s at the senten- cing hearing that an unidentified reliable him but confidential informant told $1,000 grass $500 defendant “was worth of a week.” Judge concurring dissenting verdict and as to as to Morris COURT OF v. Locklear.

State entered Judgment Canada-y,Judge. defendant from Appeal County. Heard Superior 20 1976 October ROBESON 29 June of Appeals Court (1) mari- charges possession guilty Defendant pled (2) sell, marijuana. delivery and sale with intent to juana that on April tended to show for the State The evidence less than one ounce of Max Boliek purchased agent undercover accompanied Boliek wаs $20.00. defendant for marijuana from the Leonard, gave Boliek to whom defendant’s home Clarence shortly house and there- behind defendant’s went $20.00. Leonard bag had a his plastic Leonard with the defendant. after came back hand and real good that it “wasn’t Boliek remarked it to Boliek. gave from him and stated bag took the defendant whereupon stuff’ it. There’s buy you it if don’t want you have to “Hey, man don’t I I got like all the others just It’s pot. trash no haven’t any complaint.” had home, the bag Leonard and delivered bag, took Boliek retrieved analyzed was bag material in the Locklear. The

to Detective Joel laboratory marijuana. as 80% ‍‌​​‌​​‌​​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​‌​‌​​‌‌​‌​​‌‌​​‌‌‍an S.B.I. testimony of Leonard Clarence offered

Defendant that Leonard had sold the tended to show himself. This marijuana marijuana to had never sold and that defendant to Boliek had from Boliek grabbed bag that he denied anybody. Defendant Boliek said he made. the statements had made or that he as jury found trial court that defendant found sentencing hearing After youthful of- sentencing as committed from would not benefit fender. The defendant five-year consecutive judgment imposing appeals imprisonment. terms Attorney Jane Associаte Edmisten

Attorney General the State. Rankin Thompson for appellant. Little

James D. for defendant CLARK, Judge. trial relating to of error assignments merit in the

We find no discussion error which merits assignment of and verdict. The sole sentencing procedure. concerns OF APPEALS After verdict the State called as a witness a sheriff. He deputy

testified, over defendant’s objection, that he had developed reliable, informant, confidential had who told the witness that he occasions, purchased marijuana had from defendant on numerous $1,000 and that defendant $500 “was worth of grass a week.” Defense Attorney counsel the District made statements to the court. Thereupon, court found that de- (under years fendant age) would not benefit from sentencing as youthful committed offender under G.S. 148-49.4. The court then imposed five-year two consecutive prison terms.

The record on appeal does not disclose that defendant had record prior of convictions nor does the record disclose that other evidence or information was offered and considered the in aggravation court of punishment.

[1] State, demands that the trial judge have The importance of both to the defendant and the adequate information as the basis for a proper sеntence. Under G.S. 15-198 the trial court may require a officer make a probation presentence to investigation and report, which should be received and in disclosed court. open 15A-1332, See G.S. Trial part of the State and Appellate Procedure ‍‌​​‌​​‌​​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​‌​‌​​‌‌​‌​​‌‌​​‌‌‍(Criminal Commission), 1978; Act of 1977 July Code effective 1 State (1962). 326, 126 v. 257 Pope, N.C. S.E. 2d 126 In sentencing, the trial court is not confined to the evidence relating to the offense character, education, may It inquire into such matters as age, en vironment, habits, mentality, propensities, and record of person 241, about to be sentenced. State v. 238 77 S.E. 2d 695 Cooper, N.C. (1953). may And the court into inquire alleged acts of misconduct in (1966). 653, prison. State v. 267 148 S.E. 2d 613 Thompson, N.C. State v. ^[2] cedures. See G.S. Different Dawson, evidentiary 15A-1334, App. rules Act of 712, govern 1977, 209 S.E. 2d 503 supra; trial and State sentencing pro (1974). Pope, supra; It would be unreasonable all require to that information in a presentence, report hearsay. be free of Nor should the formal rules of evidence testimony to apply of witnesses in a But sentencing hearing. sentencing hearing just, must be fair and and the trial court must provide hearsay the defendant with full opportunity to controvert representations other in aggravation punishment. ^[3] In State v. Pope, supra, at page 335, we find statement often in quoted other decisions: “Unsolicited whispered representations hearsay and rank shy are to be We disregarded.” attempting from hearsay.” to define the term “rank us ap- But the case before it OF years under 21 defendant was appeal the record on pears from by was offered convictiоns prior and that no record of age of State. was the of punishment only aggravation evidence informant but reliable that an unidentified a law officer $1,000 worth $500 and “was told him that that defendant trial court found Whereupon, a week.” grass of would not benefit 148-49.4, under G.S. youthful offender as prison maximum consecutive then imposed and the court the inform- counts. Since on each of the two yeаrs five sentences of ant, informed as the one who law witness by the officer referred to identified, the was drugs, dealing was him that defendant witness but confront the only had to no defendant not damaging prej- way contradicting had as well no effective Further, hearsay information prejudicial this udicial information. which, accord- only aggravation was the ing con- and apparently was appeal, presented on to the record imposing punishment. sidered the trial ground evidence is not The State contends on State relying prejudice, in the absence of the sentence disturbing v. ant, (1965). the defend- Perry, In 144 S.E. 2d Perry, 265 N.C. entered burglary, pleas with two counts of charged dormitory. At in a girls’ rooms breaking entering or made to as statements testified officer hearing him Justice), investigating (later Parker, dormitоry. J. Chief occupants in the instant the procedure wrote: “While for the as to what testimony of officers hearing case of the court’s witnesses said instead of in court to witnesses present the having cannot be said facts of this case it under the testify is not approved, by sentencing before judge the of such hearing that the the defendant was defendant, it the or to prejudicial it was conduct injustice, or that unfairness or manifested inherent 520-521. fair at play.” sense of public which the offended in hearsay evidence the in the Perry, supra, It is noted to which of the offenses related to circumstances hearing sentencing defendant, with was present who the pled guilty, defendant counsel, in mitigation to offer had full State, by the the evidence offered judice, the offenses. Sub defendаnt, of which not to the offenses related objection over the aggravation in him blit to information jury the found Too, than the offense other “ and the to trial right ‘waives so Perry pled guilty, OF APPEALS ” 2d, 520, at Am. Perry, page citing incidents thereof.’ Jur. supra, Law, p. Criminal § unduly A judge should not be limited justify restrictive Nor should he be to procedure. required by designating sentence the basis for his He imposed punishment. must wide in determining ap- be аllowed to exercise discretion propriate punishment protection society rehabilita- 3d, Law, tion of defendant. 4 Index 138. But Strong, N.C. Criminal § solely the trial should not base his sentence for the cir- judge (except offense) cumstances of the on “unsolicited whispered representa- hearsay.” tions” or “rank verdict,

We find no error but the is vacated and the cause remanded for rеsentencing.

Vacated and remanded. concurs.

Judge PARKER concurs as to verdict and dissents ‍‌​​‌​​‌​​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​‌​‌​​‌‌​‌​​‌‌​​‌‌‍as to sentenc- Judge MORRIS ing.

Judge dissenting. MORRIS verdict, I I concur in the result reached as to the can

Although majority not with the result reaches with to the agree respect I judges am not to tie the hands of our trial willing majority judge this extent. that a trial Although opinion agrees “unduly should cedure,” be limited restrictive pro “justify and that he should not be the sentence required for his and that he by designating punishment,” basis imposed determining should be “allowed to exercise wide discretion in ap society and rehabilita protection for the propriate punishment defendant,” the result reached belies the words and leaves tion For the most all empty meaningless. part presentencing them hearsay. In all judge great contain deal of other reports law, a jury, areas of the when a matter is heard without judge ability duty cull willing we are to accord to the out rely upon reaching judg the evidence and not it in his incompetent ment or in facts. He and ad finding passes upon competency missibility a judge weight of the evidence as determines its Co., 688, 110 S.E. sufficiency jury. as a Everette v. Lumber 250 N.C. (1959); Lambert, 133, 180 Laughter 2d 288 11 S.E. 2d 450 App. (1971). Yet, a has a of jury after been convicted his 42 COURT OF we are

peers, willing ability to accord to the trial the same judge only hearsay on If sentencing hearing. evidence is at the presented maximum, sentencing hearing, justify must judge perhaps maximum, even less than sentence or the matter will be remanded is the one at presided who trial; who witnessed the attitude and demeanor of the defendant Where, here, throughout the trial. as young defendаnt is a man convictions, and the record is barren of prior judge who pro- only hearsay nounces after a sentencing hearing at which presented, evidence was his his firm despite convictions as the result of trial, at observations finds himself in the position untenable of having the matter remanded for sentencing should the defendant punishment deem the harsh and raise the too on question appeal. Unquestionably, had the entered the judgments without hav- all, ing conducted sentencing hearing at we would have refused to review the sentences since the matter of is within discretion statutory court and each sentence is within the maximum. York, 241, In Williams v. New U.S. L.Ed. 69 S.Ct. (1949), Mr. necessity Justice Black spoke allowing trial

judges wide discretion in sentencing:

“In addition to the historical basis for evidentiary different rules trial governing and sentencing procedures there are sound practical reasons for the distinction. In a trial before ver- dict the issue is whether a defendant is en- having gaged certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for narrowly criminal trials which confine the trial contest strictly evidence that is relevant to the particular offense necessity These rules rest in on a part prevent time-consuming confusing They of collateral issues. were designed solely also tribunals concerned prevent with the issue of to convict for that habitually of a offense guilt particular being influenced

offense that the defendant had' A engaged other misconduct. sentencing judge, however, is not confined to the narrow issue His guilt. task statutоry within fixed or constitutional limits is to determine and extent of after the issue type guilt has been determined. Highly relevant —if not essential —to his selection of an sentence is the appropriate possession possible concerning fullest information the defendant’s life and And concepts individualizing characteristics. modern punish- APPEALS OF COURT

State v. Locklear necessary sentencing a made it all the more ment have informa- pertinent to obtain be denied an not judge rules restrictive adherence to rigid a requirement tion trial. applicable evidence properly now relied that most of the information recognize ... We must imposition intelligent them the by judges guide upon if were restricted unavailable information sentences would be witnesses, ‍‌​​‌​​‌​​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​‌​‌​​‌‌​‌​​‌‌​​‌‌‍subject to cross- court oрen that given draws on infor- report And the modern probation examination. life. The every type of defendant’s concerning aspect mation if totally not impractical make and extent of this information Such testimony with cross-examination. impossible open in a delay administration endlessly criminal could procedure issues. retrial of collateral against us we have set out admonish

The considerations thal clause as a uniform command due treating process age-old practice Nation abandon their throughout courts their guide sources to from out-of-court information seeking ... In sentence. just enlightened a more toward one-year receive a defendant shall whether determining sentence, think we do not twenty-year maximum minimum aor view of the restricts Federal Constitution due pro- open received court. to the information judge freezing as a device for not be treated cess clause should trial pro- in the mold of evidential procedure if hinder clause would process treat the due cedure. So to making pro- and federal —from all courts —-state preclude criminal administration improve efforts to gressivе 246-251. justice.” Pp. (1962), Justice 126 S.E. 2d 126 Pope, In State

Moore, 15-198 that G.S. a unanimous noted speaking may made before investigation full be policy establishes the and said: concerning may adduce information “. . . The investigation character, record, stand- any, if his moral criminal defendant’s life, habits, respon- social community, occupation, in the ing health, sibilities, education, specific and physical mental him, proрer to a matters pertinent and other against charge may be by investigation The information obtained judgment. discretionary with It is and considered. received else it divulged, are information the sources of whether or not OF instances, many difficult to obtain information might prove in be required sentencing procedure might and the time unreasonably extended. whispered representations Unsolicited disregarded. practice and rank are to be It is better to officers reports representations probation receive all coming in All information to the notice of the court open court. ag- which tends to defame and condemn the defendant to should be to his attention before gravate punishment brought full to refute given and he should be or explain it. justice put

In оur it would not be in the interest of to a opinion in a in straightjacket of restrictive procedure He in a and be sentencing. put position should not be defensive justify to sustain and the sentences he and be required imposes, subject to examination as to what he has heard and considered' at an He should be arriving appropriate judgment. permitted wide latitude at the truth and broad discretion in arriving are making judgment. investigations Pre-sentence favored There is a encouraged. presumption judgment just. valid and The burden is er- upon appellant court is show ror to a denial of some substantial State v. amounting right. Poolos, 85 S.E. 2d 342. A will not be there is a sentencing procedures disturbed because of unless discretion, showing procedural prejudicial of abuse of conduct defendant, circumstances which manifest inherent un- which injustice, public fairness and or conduct offends fair P. 335. play.” sense of us, a

In the case before detective testified at the plainclothes He testified that he had been sentencing hearing. assigned years six and and in that of time period narcotics detail for one-half had confidential sources of information on the inside of develоped County; that in the months he drug past traffic Robeson two in a part had a confidential source of information certain developed reliable; county; it had proved of the that this source had to be tried; yet which had that that had produced cases not been source “heavy named in a list in the traffic” and people drug $500 had told the witness that defendant was “doing $1000 worth week.” fоr defendant conducted grass Counsel showing cross-examination of the witness. After the searching State, to make defendant was heard the court allowed heard, After the defendant was such statements as he wished. that he did feel the case was an one appropriate announced OF Ashley Ashley defendant’s He further stated that the probation. witness, and he felt that opinion, plausibility his lacked collusion between that witness and defendant for evidence indicated of the trial. purpose that the court majority opinion upon premise If the is based hearsay, it erroneously solely appears based its sentence on rank clearly just that this is not the case. that the record itself indicates case, I no abuse perceive In the of defendant this defendant, discretion, no cir- procedural prejudicial no conduct injustice, which manifest inherent unfairness and no cumstances and I vote to find play, which offends the sense of fair public conduct and in no error in the trial FAYE DEAN ASHLEY v. REX ALLEN ASHLEY and VONDA

ROBERT WADDELL ASHLEY No. 7617SC977 (Filed 1977) September by pedestrian supported stepping § 90.4— into traffic —instruction Automobiles evidence damages plaintiff pedestrian was In an action to reсover for sustained when defendant, by by injured was sufficient an automobile driven struck support plaintiff “stepped out” into the road. the trial court’s instruction that Fountain, entered 2 Judge. Judgment plaintiff APPEAL County. Heard the Court Superior June 1976 SURRY Appeals August was plaintiff, pedestrian, Plaintiff’s complaint alleged injured by an automobile driven defend- ‍‌​​‌​​‌​​‌​​‌​​​‌‌​‌​‌‌‌​​​‌​​​‌​‌​​‌‌​‌​​‌‌​​‌‌‍negligently struck Faye. Defendants ant Rex Allen and owned answered, dеfendant Vonda was con- denying negligence asserting plaintiff of alcohol tributorily in that he “was under the influence negligent or ran” into the of defendants’ car. staggered path He and following: evidence tended to show the Plaintiff’s brother) on Johnny riding (plaintiff’s were with defendant Sprinkle with him and so July angry 1974. Defendant was the afternoon of They walked walking. car and got began he and out of the Sprinkle at the they “right side and were the street on left-hand along

Case Details

Case Name: State v. Locklear

Court Name: Court of Appeals of North Carolina

Date Published: Sep 7, 1977

Citation: 237 S.E.2d 289

Docket Number: 7716SC216

Court Abbreviation: N.C. Ct. App.