{ "id": 12172590, "name": "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT", "name_abbreviation": "State v. Hurt", "decision_date": "2014-07-15", "docket_number": "No. COA09-442-2", "first_page": "174", "last_page": "186", "citations": [ { "type": "official", "cite": "235 N.C. App. 174" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "632 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636295 ], "year": 2006, "pin_cites": [ { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0258-01" ] }, { "cite": "648 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639085 ], "year": 2007, "pin_cites": [ { "page": "535", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0531-01" ] }, { "cite": "617 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633691 ], "year": 2005, "pin_cites": [ { "page": "274", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0271-01" ] }, { "cite": "617 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633690 ], "year": 2005, "pin_cites": [ { "page": "24", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0001-01" ] }, { "cite": "643 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638285 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0915-01" ] }, { "cite": "616 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633664 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "913" }, { "page": "913-14" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0910-01" ] }, { "cite": "698 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "205 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3734259 ], "year": 2010, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/205/0629-01" ] }, { "cite": "336 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 741", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525213 ], "year": 1985, "pin_cites": [ { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0741-01" ] }, { "cite": "381 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "377 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527896 ], "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0119-01" ] }, { "cite": "720 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "217 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4347698 ], "year": 2011, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/217/0465-01" ] }, { "cite": "710 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "709 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "508" } ], "opinion_index": 0 }, { "cite": "210 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3822003 ], "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/210/0609-01" ] }, { "cite": "642 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "361 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739938, 3743562, 3745230, 3740947, 3739828, 3741139, 3740119, 3747450, 3742237 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0223-06", "/nc/361/0223-09", "/nc/361/0223-08", "/nc/361/0223-01", "/nc/361/0223-03", "/nc/361/0223-04", "/nc/361/0223-05", "/nc/361/0223-02", "/nc/361/0223-07" ] }, { "cite": "178 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378971 ], "year": 2006, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0565-01" ] }, { "cite": "185 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210722 ], "year": 2007, "pin_cites": [ { "page": "509", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0504-01" ] }, { "cite": "144 L.Ed.2d 779", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "527 U.S. 1026", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248035, 1248550, 1248169, 1248458, 1248586, 1248015, 1248113, 1248500, 1248309, 1248056, 1248409, 1248252, 1248413, 1248223 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/527/1026-05", "/us/527/1026-08", "/us/527/1026-13", "/us/527/1026-01", "/us/527/1026-04", "/us/527/1026-07", "/us/527/1026-03", "/us/527/1026-14", "/us/527/1026-12", "/us/527/1026-11", "/us/527/1026-06", "/us/527/1026-02", "/us/527/1026-10", "/us/527/1026-09" ] }, { "cite": "508 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "264", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "349 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571619 ], "year": 1998, "pin_cites": [ { "page": "552", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0535-01" ] }, { "cite": "348 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359764 ], "year": 1986, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0707-01" ] }, { "cite": "437 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "707-08", "parenthetical": "holding that circumstantial evidence including blood typing and hair analysis was sufficient to submit to jury question of whether defendant was perpetrator of murder" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520619 ], "year": 1993, "pin_cites": [ { "page": "61-64", "parenthetical": "holding that circumstantial evidence including blood typing and hair analysis was sufficient to submit to jury question of whether defendant was perpetrator of murder" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0058-01" ] }, { "cite": "359 N.C. 800", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795437 ], "year": 2005, "pin_cites": [ { "page": "804", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0800-01" ] }, { "cite": "567 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "139-40", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511311 ], "year": 2002, "pin_cites": [ { "page": "145", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0141-01" ] }, { "cite": "164 L.Ed.2d 523", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "547 U.S. 1073", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "359 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801139 ], "year": 2005, "pin_cites": [ { "page": "682", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0644-01" ] }, { "cite": "143 L.Ed.2d 1015", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11200388, 11200773, 11201190, 11200487, 11200552, 11201129, 11200618, 11201387, 11200687, 11200441, 11201051, 11201277, 11200958 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1135-01", "/us/526/1135-07", "/us/526/1135-11", "/us/526/1135-03", "/us/526/1135-04", "/us/526/1135-10", "/us/526/1135-05", "/us/526/1135-13", "/us/526/1135-06", "/us/526/1135-02", "/us/526/1135-09", "/us/526/1135-12", "/us/526/1135-08" ] }, { "cite": "506 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "349 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571564 ], "year": 1998, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0264-01" ] }, { "cite": "148 L.Ed.2d 992", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9783616, 9783489, 9784512, 9784931, 9785068, 9784364, 9784782, 9784238, 9785236, 9783863, 9783992, 9784122, 9784638 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1165-02", "/us/531/1165-01", "/us/531/1165-08", "/us/531/1165-11", "/us/531/1165-12", "/us/531/1165-07", "/us/531/1165-10", "/us/531/1165-06", "/us/531/1165-13", "/us/531/1165-03", "/us/531/1165-04", "/us/531/1165-05", "/us/531/1165-09" ] }, { "cite": "532 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2000, "pin_cites": [ { "page": "517-18" }, { "page": "517", "parenthetical": "holding that lack of participation does not preclude submission to jury of especially heinous, atrocious, or cruel aggravating factor" }, { "page": "499" }, { "page": "523" }, { "page": "516" }, { "page": "525" }, { "page": "517" } ], "opinion_index": 0 }, { "cite": "352 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685022 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "525-26" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0489-01" ] }, { "cite": "702 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "208 N.C. App 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4180388 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc-app/208/0001-01" ] }, { "cite": "361 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739670 ], "year": 2007, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0325-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "359 N.C. 840", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796233 ], "year": 2005, "pin_cites": [ { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0840-01" ] }, { "cite": "594 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "52" }, { "page": "55" }, { "page": "55" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918253 ], "year": 2004, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0429-01" ] }, { "cite": "743 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "743 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 } ], "analysis": { "cardinality": 1216, "char_count": 32889, "ocr_confidence": 0.731, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.38010034561860556 }, "sha256": "bb029893bfe21d4f564fe8fa93e429c6563388216c52d95913f93839d15123dc", "simhash": "1:87ee0030d26f0d4c", "word_count": 5255 }, "last_updated": "2023-07-14T16:54:11.341648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and HUNTER, JR. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT" ], "opinions": [ { "text": "DAVIS, Judge.\nThis case is before this Court on remand from the Supreme Court of North Carolina. Our Supreme Court held that for the reasons stated in State v. Ortiz-Zape, _ N.C. _, 743 S.E.2d 156 (2013), Defendant\u2019s rights under the Confrontation Clause were not violated. State v. Hurt, _ N.C. _, 743 S.E.2d 173 (2013). On remand, we address Defendant\u2019s remaining arguments.\nDavid Franklin Hurt (\u201cDefendant\u201d) appeals from a judgment imposing a sentence in the aggravated range for second-degree murder. Specifically, Defendant alleges the trial court erred by (1) denying his motion to dismiss the aggravating factor due to the State\u2019s failure to establish that the offense was especially heinous, atrocious, or cruel as to him; (2) quashing the subpoena of a former prosecutor, thereby denying Defendant the opportunity to elicit the State\u2019s prior judicial admissions and depriving him of his rights to due process, trial by jury, presentation of a defense, and compulsory process; (3) overruling Defendant\u2019s objection and motion to strike testimonial evidence from a State Bureau of Investigation (\u201cSBI\u201d) agent; and (4) refusing to admit one of Defendant\u2019s exhibits at the mitigation phase of his sentencing hearing. After careful review, we conclude that Defendant received a fair trial free from prejudicial error.\nFactual and Procedural Background\nThe State presented evidence tending to show the following facts: On 26 February 1999, law enforcement officers found Howard Nelson Cook (\u201cMr. Cook\u201d) dead in his home in Caldwell County. Mr. Cook had sustained blunt force trauma, 12 major stab wounds, and various other \u201ccutting wounds\u201d and abrasions. Earlier that morning, Deputies Jason Beebee (\u201cDeputy Beebee\u201d) and Joel Fish (\u201cDeputy Fish\u201d) of the Catawba County Sheriff\u2019s Office responded to a call from Nancy and Jody Hannah about a white van that appeared to be stuck in their backyard. William Parlier (\u201cMr. Parlier\u201d) \u2014 Mr. Cook\u2019s nephew \u2014 and Defendant had been driving the van. As the deputies approached the scene, they encountered Mr. Parlier, who appeared to be intoxicated, walking in the road. The deputies also observed a white van parked in front of a house they later learned belonged to Paula Calloway (\u201cMs. Calloway\u201d), Defendant\u2019s girlfriend.\nThe deputies arrested Mr. Parlier on an outstanding warrant and transported him to the Catawba County Jail. The deputies discovered four one-dollar bills with reddish-brown stains on Mr. Parlier\u2019s person. Deputy Fish returned to the location of the white van while other officers went to check on Mr. Cook at his house based on Mr. Parlier\u2019s statement that \u201c[t]he man inside that house killed my uncle.\u201d Deputy David Bates of the Caldwell County Sheriff\u2019s Office found the door of Mr. Cook\u2019s house open and the body of Mr. Cook lying on the floor in a large puddle of blood.\nEarlier that evening, Defendant and Mr. Parlier had arrived at Ms. Calloway\u2019s home in a white van. Ms. Calloway and Defendant went to sleep and when they awoke, Mr. Parlier was leaving in the van. Defendant and Ms. Calloway went looking for the van and found it stuck in a yard. Defendant freed the van and drove it back to Ms. Calloway\u2019s house. Soon thereafter, law enforcement officers came to Ms. Calloway\u2019s house, and Deputy Fish found Defendant in Ms. Calloway\u2019s bed, under the covers, wearing white pants with darkened reddish-brown stains. Defendant\u2019s sweatshirt and boots were also tarnished with reddish-brown spots. The SBI later conducted a DNA analysis on Defendant\u2019s sweatshirt and boots and determined that both of these items contained Mr. Cook\u2019s blood.'\nOn 15 March 1999, Defendant was indicted by a grand jury in Caldwell County for first-degree murder, burglary, and robbery. Mr. Parlier was also charged with the first-degree murder of Mr. Cook. Pursuant to a plea bargain, Mr. Parlier pled guilty to first-degree murder and received a sentence of life in prison. After Mr. Parlier reneged on his promise to testify against Defendant, the State agreed to negotiate a plea with Defendant, and on 26 August 2002, Defendant pled guilty to second-degree murder in exchange for the dismissal of the remaining charges. The trial judge sentenced Defendant to the maximum aggravated range of 276 to 341 months imprisonment.\nDefendant appealed, and on 6 April 2004, this Court vacated and remanded, concluding that the trial court erred in utilizing the fact that Defendant joined with one other person in committing the offense as an aggravating factor. State v. Hurt, 163 N.C. App. 429, 430, 594 S.E.2d 51, 52 (2004). We explained that N.C. Gen. Stat. \u00a7 15A-1340.16(d)(2) provides grounds for sentencing a defendant to the aggravated range in circumstances where despite joining with more than one person to commit the offense, the defendant was not charged with committing a conspiracy. Id. at 434, 594 S.E.2d at 55. Because the evidence indicated Defendant only conspired with one person \u2014 Mr. Parlier \u2014 we held that N.C. Gen. Stat. \u00a7 15A-1340.16(d)(2) did not apply. Id. We further concluded that Defendant\u2019s participation with Mr. Parlier was not a proper non-statutory aggravating factor because the General Assembly \u201ccarefully crafted the statutory language to require that a defendant join with more than one other person to support the finding of an aggravating factor on these grounds.\u201d Id. at 435, 594 S.E.2d at 55.\nOur Supreme Court reversed the decision of this Court, concluding that the fact that Defendant joined with one other person in the commission of an offense yet was not charged with conspiracy was reasonably related to the purposes of sentencing and was thus a proper non-statutory aggravating factor under N.C. Gen. Stat. \u00a7 15A-1340.16(d)(20). State v. Hurt, 359 N.C. 840, 844, 616 S.E.2d 910, 913 (2005). The Court remanded for resentencing on different grounds in accordance with Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), because Defendant\u2019s sentence exceeded the statutory maximum and the upward durational departure from the presumptive range was based solely on judicially-found facts. Id. at 845-46, 616 S.E.2d at 913-14. Upon reconsideration, our Supreme Court vacated its earlier opinion in part and remanded the case with instructions to remand to the trial court for a new sentencing hearing. State v. Hurt, 361 N.C. 325, 332, 643 S.E.2d 915, 919 (2007). The Supreme Court explained that \u201c[i]f the State seeks an aggravated sentence upon remand, the trial court can consider the evidence then presented to determine which aggravating factors may be submitted to the jury.\u201d Id.\nA jury was empaneled for the purpose of determining the presence of aggravating factors on 2 December 2007 in Caldwell County Superior Court. A mistrial was declared due to misconduct by a juror. A new trial commenced on 31 March 2008. At the outset of the trial, the trial judge informed the jury that Defendant had previously entered a guilty plea for second-degree murder and that the State was now seeking to establish the existence of the aggravating factor that the offense to which Defendant had pled guilty was especially heinous, atrocious, or cruel.\nThe State presented evidence that Defendant had participated with Mr. Parlier in the vicious beating and stabbing of Mr. Cook. The State\u2019s evidence tended to show that (1) Defendant drove himself and Mr. Parlier to Mr. Cook\u2019s house; (2) Defendant\u2019s clothing and boots tested positive for Mr. Cook\u2019s blood; (3) a cigarette butt found outside Mr. Cook\u2019s door tested positive for blood and Defendant\u2019s DNA; and (4) Defendant drove Mr. Parlier and himself away from the crime scene and to his girlfriend\u2019s house.\nSpecial Agent David Freeman (\u201cSpecial Agent Freeman\u201d) of the DNA unit of the forensic biology section of the SBI testified that the end of the cigarette butt containing saliva found outside Mr. Cook\u2019s house matched Defendant\u2019s DNA and that a pair of blue jeans found in the van had Mr. Cook\u2019s blood on them as did Defendant\u2019s shirt and boots. The State also presented evidence regarding the specific manner of Mr. Cook\u2019s death. Dr. Patrick Lantz, a forensic pathologist and a medical examiner for Forsyth County, explained that six of the twelve major stab wounds struck vital organs. He further testified that each of these wounds would have been painful and would have caused bleeding both inside and outside of Mr. Cook\u2019s body. Dr. Lantz noted, however, that none of the wounds would have caused an immediate loss of consciousness, meaning that Mr. Cook likely would have been awake for approximately five to ten minutes before he lost consciousness due to blood loss. Dr. Lantz then opined that an additional five to ten minutes probably passed between the time Mr. Cook lost consciousness and the time he died.\nAt the conclusion of the State\u2019s evidence, Defendant made a motion to dismiss the jury\u2019s consideration of the aggravating factor that this offense was especially heinous, atrocious, or cruel, arguing that the State had not presented sufficient evidence that Defendant had participated in the actual killing of Mr. Cook. Defendant contended that the State\u2019s evidence may have placed Defendant at the crime scene but that it did not establish Defendant\u2019s actual participation in the murder itself. The trial court denied Defendant\u2019s motion, and Defendant did not present any evidence at this proceeding.\nOn 3 April 2008, the jury returned a verdict finding that the offense was especially heinous, atrocious, or cruel. The trial court then heard evidence regarding mitigating factors, at which time Defendant argued that the State had offered evidence showing only that he brought Mr. Parlier to Mr. Cook\u2019s house, was present at the front door, and had driven himself and Mr. Parlier away from the scene of the crime. The trial court rejected the argument that Defendant was a passive participant in the murder and declined to find any non-statutory mitigating factors. The court found three statutory mitigating factors: (1) that Defendant supported his family; (2) that Defendant had a support system in the community; and (3) that Defendant had a positive employment history or was gainfully employed. The trial court found that the aggravating factor outweighed the factors in mitigation and that an aggravated sentence was therefore appropriate. The trial court imposed a sentence in the maximum aggravated range of 276 to 341 months, and Defendant appealed.\nDefendant raised five arguments on appeal. In State v. Hurt, 208 N.C. App 1, 702 S.E.2d 82 (2010), this Court held that the introduction of certain forensic evidence violated Defendant\u2019s rights under the Confrontation Clause, and, therefore, Defendant was entitled to a new sentencing hearing. For this reason, we declined to address Defendant\u2019s remaining arguments on appeal. Id. at 6, 702 S.E.2d at 87. Discretionary review was allowed, and our Supreme Court reversed, holding that for the reasons stated in Ortiz-Zape no violation of the Confrontation Clause had occurred. Therefore, we now consider Defendant\u2019s remaining four issues on appeal.\nAnalysis\nI. Denial of Motion to Dismiss\nDefendant first argues that the trial court erred in denying his motion to dismiss due to the State\u2019s failure to introduce substantial evidence that the offense was especially heinous, atrocious, or cruel. We disagree.\nQuestions of sufficiency of the evidence are reviewed under the substantial evidence test. See State v. Brewington, 352 N.C. 489, 525-26, 532 S.E.2d 496, 517-18 (2000), cert. denied, 531 U.S. 1165, 148 L.Ed.2d 992 (2001). In determining whether sufficient evidence supported the trial court\u2019s submission of the especially heinous, atrocious, or cruel aggravator to the jury, the reviewing court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998), cert. denied, 526 U.S. 1135, 143 L.Ed.2d 1015 (1999). \u201cIf the evidence supports a reasonable inference of defendant\u2019s guilt based on the circumstances, then it is for the jurors to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt.\u201d State v. Campbell, 359 N.C. 644, 682, 617 S.E.2d 1, 24 (2005) (citations, quotation marks, and brackets omitted), cert. denied, 547 U.S. 1073, 164 L.Ed.2d 523 (2006).\nTo be substantial, the evidence need not be irrefutable or uncontroverted; it need only be such as would satisfy a reasonable mind as being adequate to support a conclusion. For purposes of a motion to dismiss, evidence is deemed less than substantial if it raises no more than mere suspicion or conjecture as to the defendant\u2019s guilt.\nState v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139-40 (2002) (citation and internal quotation marks omitted). The inquiry into whether substantial evidence has been presented examines \u201cthe sufficiency of the evidence presented but not its weight.\u201d State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (citation omitted).\nA defendant\u2019s role or presence is simply one of the circumstances of a murder to be considered when viewing the evidence in the light most favorable to the State. Evidence showing a less active role by a defendant or absence from the scene does not preclude submission of the aggravating factor to the jury as a matter of sufficiency of the evidence but rather goes to the weight that the jury might put toward its consideration of the aggravating factor. Brewington, 352 N.C. at 525, 532 S.E.2d at 517 (holding that lack of participation does not preclude submission to jury of especially heinous, atrocious, or cruel aggravating factor).\nDefendant contends that the State presented no evidence establishing that he directly participated in the killing of Mr. Cook as no evidence was presented regarding his role in the actual perpetration of the homicide. Accordingly, Defendant argues that the State\u2019s failure to submit any evidence that Defendant played an active role in the actual murder precludes a finding by the jury beyond a reasonable doubt that the murder was especially heinous, atrocious, or cruel as to Defendant.\nHowever, our Supreme Court has held that lack of presence at or participation in a codefendant\u2019s gruesome murder does not preclude the submission to the jury of the especially heinous, atrocious, or cruel aggravating factor. Rather, it is a matter for the jury to consider in determining the weight to give the aggravating factor. Id.\nIn Brewington, the defendant was convicted of first-degree murder, conspiracy to commit murder, and arson. Id. at 493, 532 S.E.2d at 499. On appeal, he argued that the jury had impermissibly found the existence of the especially heinous, atrocious, or cruel aggravating factor based on the actions of his codefendants. He conceded that the murders for which he was convicted were especially heinous, atrocious, or cruel. Id. at 523, 532 S.E.2d at 516. However, he maintained that although he had planned the murders, the jury could not have found the existence of the aggravating circumstance as to him because there was no evidence that he was personally responsible for the manner in which they were carried out or that he was actually present at the time they were committed. Id. Our Supreme Court rejected this argument, explaining that \u201c[t]he fact that defendant was not present when the murders occurred, and that a codefendant actually committed the murders, is a matter that a jury would properly consider in determining the weight to give an aggravating circumstance and in balancing the aggravating and mitigating circumstances.\u201d Id. at 525, 532 S.E.2d at 517.\n.Similarly, in the present case, Defendant does not dispute the fact that the manner in which Mr. Cook was murdered was sufficient to support the submission of the especially heinous, atrocious, or cruel aggravating factor to the jury. Instead, Defendant asserts that the aggravating factor was erroneously submitted to the jury as to him.\nRecognizing that a defendant need not be physically present for the commission of the crime in order for this aggravating factor to be submitted to the jury, we believe that in this case, when viewing the evidence in the light most favorable to the State, a reasonable inference can be drawn that Defendant did actively participate in the murder of Mr. Cook. Unlike in Brewington, where the evidence established that the defendant was not physically present for the commission of the murders, the circumstantial evidence presented here permits a reasonable inference that Defendant had a personal role in the murder of Mr. Cook in that (1) Defendant had Mr. Cook\u2019s blood on him; (2) Defendant drove Mr. Parlier and himself away from the scene of the murder and to his girlfriend\u2019s house; and (3) a cigarette butt with blood and Defendant\u2019s saliva on it was found at Mr. Cook\u2019s home. See, e.g., State v. Demery, 113 N.C. App. 58, 61-64, 437 S.E.2d 704, 707-08 (1993) (holding that circumstantial evidence including blood typing and hair analysis was sufficient to submit to jury question of whether defendant was perpetrator of murder). Accordingly, we hold that the trial court did not err in denying Defendant\u2019s motion to dismiss.\nII. Motion to Quash Subpoena\nDefendant next contends that the trial court erred in granting the State\u2019s motion to quash the subpoena of Jason Parker (\u201cMr. Parker\u201d), one of the prosecutors at the 2002 hearing on Defendant\u2019s guilty plea. A motion to quash a subpoena is addressed to the sound discretion of the trial court and is not subject to review absent a showing of an abuse of discretion. State v. Newell, 82 N.C. App. 707, 709, 348 S.E.2d 158, 160 (1986). An abuse of discretion occurs only where a trial court\u2019s ruling was \u201cmanifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. White, 349 N.C. 535, 552, 508 S.E.2d 253, 264 (1998) (citation and quotation marks omitted), cert. denied, 527 U.S. 1026, 144 L.Ed.2d 779 (1999).\nAt the hearing, Defendant sought to have Mr. Parker testify about the factual basis the State proffered at Defendant\u2019s plea hearing \u2014 that the State believed Mr. Parlier killed Mr. Cook and that the State had no physical evidence placing Defendant inside the house when the murder occurred. Defendant argues that Mr. Parker\u2019s statements regarding the State\u2019s acceptance of Defendant\u2019s guilty plea to second-degree murder established his guilt as merely an aider and abettor rather than an active participant in the murder. However, Defendant mischaracter-izes Mr. Parker\u2019s statements at his plea hearing as judicial admissions. A recitation of the factual basis for a guilty plea is not a judicial admission. Rather, a prosecutor\u2019s summary of the facts supporting the plea is merely one procedural mechanism by which a judge may find that a factual basis exists for the plea. See N.C. Gen. Stat. \u00a7 15A-1022(c) (2013) (prohibiting trial judge from accepting guilty plea \u201cwithout first determining that there is a factual basis for the plea\u201d which may be based on \u201c[a] statement of the facts by the prosecutor\u201d).\nA judicial admission, conversely, is \u201ca formal concession made by a party... in the course of litigation for the purpose of withdrawing a particular fact from the realm of dispute.... Such an admission is not evidence, but rather removes the admitted fact from the field of evidence by formally conceding its existence.\u201d Jones v. Durham Anesthesia Assocs., P.A., 185 N.C. App. 504, 509, 648 S.E.2d 531, 535 (2007) (citation omitted). Mr. Parker\u2019s statements were not \u201cconcessions,\u201d nor were they offered \u201cfor the purpose of \u2022withdrawing a particular fact from the realm of dispute.\u201d Consequently, we are not persuaded by Defendant\u2019s contention that the trial court\u2019s decision to quash the subpoena deprived him of the opportunity to elicit binding admissions on the State.\nDefendant has failed to demonstrate that the trial court abused its discretion in quashing the subpoena of Mr. Parker. The trial court allowed the State\u2019s motion to quash after the State argued there was no compelling reason for Mr. Parker\u2019s live testimony and that requiring Mr. Parker to testify in person was unduly burdensome and unreasonable. In quashing the subpoena, the trial court expressly noted that there were other ways for Defendant to show the absence of the especially heinous, atrocious, or cruel aggravator without calling the original prosecutor for Defendant\u2019s case to the stand.\nIndeed, we note that during the mitigation phase, Defendant was able to introduce the statements previously made by Mr. Parker in his recitation during the plea hearing through the admission of Defendant\u2019s Exhibit 9, which contained Mr. Parker\u2019s statements as transcribed from the plea hearing. While Defendant maintains that he nonetheless suffered prejudice because Mr. Parker\u2019s statements were never before the jury, Defendant does not dispute the fact that he could have introduced this exhibit during the aggravation phase of the proceeding. As such, we cannot say that the trial court abused its discretion in quashing the subpoena.\nIII. Denial of Motion to Strike Special Agent Freeman\u2019s Testimony\nDefendant next argues that the trial court erred in overruling his objection and motion to strike Special Agent Freeman\u2019s testimony regarding the general percentages of cases in which the SBI laboratory is able to find a DNA match. Defendant contends that this testimony was irrelevant and undependable \u201cas the jury could not have reliably determined [Defendant\u2019s] role from the fact that blood matching the victim was found on his clothing\u201d and that Special Agent Freeman \u201cessentially told the jury that a DNA match establishes that a person committed an offense, whereas the absence of a match establishes that a person did not.\u201d\nEvidence is relevant if it has \u201cany 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.\u201d N.C.R. Evid. 401. Although a trial court\u2019s relevancy determinations are not discretionary and, therefore, are not reviewed for abuse of discretion, this Court gives such determinations great deference on appeal. State v. Grant, 178 N.C. App. 565, 573, 632 S.E.2d 258, 265 (2006), appeal dismissed and disc. review denied, 361 N.C. 223, 642 S.E.2d 712 (2007). Relevant evidence may be excluded under Rule 403 \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the juiy.\u201d N.C.R. Evid. 403. A trial court has discretion whether or not to exclude evidence under Rule 403, and a trial court\u2019s determination will only be disturbed upon a showing of an abuse of that discretion. Campbell, 359 N.C. at 674, 617 S.E.2d at 20.\nAt Defendant\u2019s sentencing hearing, Special Agent Freeman was asked in what percentage of cases the SBI was able to find a DNA match, and he testified as follows:\nOf the cases the [sic] we obtain approximately seventy percent of them are able to determine a match. In approximately thirty percent then we\u2019ll say that there isn\u2019t a match and that person couldn\u2019t have committed the crime.\nEven assuming, without deciding, that this testimony lacked relevance, Defendant has failed to show that any such error was prejudicial. State v. Oliver, 210 N.C. App. 609, 615, 709 S.E.2d 503, 508 (\u201cThe admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded. Further, it is the defendant\u2019s burden to show prejudice from the admission of evidence.\u201d (citations and quotation marks omitted)), disc. review denied, 365 N.C. 206, 710 S.E.2d 37 (2011).\nThis portion of Special Agent Freeman\u2019s testimony was from the preliminary stages of his direct examination, during which he was asked about his qualifications, the nature of DNA, and the process by which DNA matching is done in the laboratory. Special Agent Freeman had not yet begun testifying about Defendant\u2019s case in particular; rather, he was speaking generally about the nature of his work.\nMoreover, Defendant misconstrues Special Agent Freeman\u2019s testimony. Defendant asserts that, in essence, Special Agent Freeman told the jury that a DNA match indicates the person whose DNA was tested actually committed the offense. However, that is not what Special Agent Freeman stated in his testimony. Rather, he explained that where no match is found, the person in question could not have committed the crime. He did not affirmatively state that when a match is found, the subject definitely committed the crime.\nDefendant has failed to show prejudicial error by the trial court in allowing this testimony. Accordingly, this argument is overruled.\nIV. Refusal to Admit Notebook Offered by Defendant\nDefendant\u2019s final argument on appeal is that the trial court erred in excluding Defendant\u2019s Exhibit 3 \u2014 a notebook prepared for the 2002 sentencing proceedings that contained recitations of Mr. Parlier\u2019s multiple confessions, a forensic blood spatter expert report, and medical reports regarding Defendant\u2019s alcohol consumption \u2014 during the mitigation phase of sentencing.\nN.C. Gen. Stat. \u00a7 15A-1340.16(a) requires a trial court to consider evidence of aggravating and mitigating factors during sentencing. The trial court is given wide latitude in conducting sentencing hearings, including the ability to weigh the credibility of the evidence in determining the existence of mitigating factors. State v. Mabry, 217 N.C. App. 465, 471, 720 S.E.2d 697, 702 (2011). A defendant who seeks a sentence in the mitigated range bears the burden of persuading the court by a preponderance of the evidence. N.C. Gen. Stat. \u00a7 15A-1340.16(a) (2013).\n\u201cAlthough the formal rules of evidence do not apply in sentencing hearings, evidence offered at sentencing must be both pertinent and dependable. While the court may base its sentencing decision on reliable hearsay, [a] defendant is not entitled to consideration of hearsay evidence that is of doubtful credibility.\u201d State v. Reed, 93 N.C. App. 119, 125, 377 S.E.2d 84, 88 (internal citations and quotation marks omitted and emphasis added), disc. review denied, 324 N.C. 580, 381 S.E.2d 779 (1989). The trial court\u2019s failure to find a mitigating factor when evidence is offered in support of that factor will not be overturned on appeal unless the supporting evidence \u201cis uncontradicted, substantial, and there is no reason to doubt its credibility.\u201d State v. Lane, 77 N.C. App. 741, 745, 336 S.E.2d 410, 412 (1985).\nDefendant argues that the trial court committed reversible error when it refused to consider his \u201cmitigation report\u201d because it deprived him of the opportunity to present mitigating evidence. We disagree. The trial court declined to admit the notebook marked as Defendant\u2019s Exhibit 3 and instead asked that Defendant call live witnesses from his witness list. In reaching this decision, the trial judge expressed his concerns about considering Defendant\u2019s written documents over live in-court testimony, stating as follows:\n[J]ust simply handing something up, a piece of paper writing, unsupported, unauthenticated, over objection \u2014 when you handed me a list of ten or fifteen witnesses that you were going to call. . . who have information set forth in this report on mitigation, some of which were brought back from prison units and are in facilities here adjacent to the courtroom and courthouse that could be produced. I\u2019m going to sustain the [State\u2019s] objection. These people are going to be produced in this courtroom.\nThus, the trial court did not refuse to consider Defendant\u2019s mitigation evidence. Instead, the trial court was simply informing Defendant of its preference for live testimony. Furthermore, our review of the transcript reveals that Defendant was, in fact, allowed to introduce certain portions of the documents contained in Defendant\u2019s Exhibit 3, including (1) the affidavit of Mr. Parlier; and (2) parts of the plea hearing. Defendant also offered live testimony from Mr. Parlier and testified on his own behalf during the mitigation phase. Defendant has failed to show how the trial court\u2019s refusal to admit Exhibit 3 in its entirety deprived him of the opportunity to present evidence of a mitigating factor. Therefore, Defendant\u2019s argument on this issue lacks merit.\nConclusion\nFor these reasons, we conclude that Defendant received a fair trial free from prejudicial error and affirm the sentence imposed by the trial court.\nNO PREJUDICAL ERROR; AFFIRMED.\nJudges STEPHENS and HUNTER, JR. concur.\n. In the prosecutor\u2019s submission to the trial court of the factual basis for Defendant\u2019s plea to second-degree murder, he indicated that without Mr. Parlier\u2019s testimony against Defendant, the State\u2019s evidence that Mr. Parlier was the one who committed the stabbing was much stronger than the evidence against Defendant and that was the basis for proceeding against Defendant only on a charge of second-degree murder.\n. In his brief, Defendant argues that the trial court\u2019s ruling on this issue deprived him of his constitutional rights to due process, trial by jury, presentation of a defense, and compulsory process. However, Defendant did not raise these constitutional claims in the trial court. Therefore, any such constitutional issues have been waived. State v. Moses, 205 N.C. App. 629, 635, 698 S.E.2d 688,-693 (2010).", "type": "majority", "author": "DAVIS, Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Daniel P. O\u2019Brien, Assistant Attorney General, for the State.", "Staples Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID FRANKLIN HURT\nNo. COA09-442-2\nFiled 15 July 2014\n1. Sentencing\u2014aggravating factor\u2014especially heinous, atrocious, or cruel\u2014sufficient evidence\nThe trial court did not err in a sentencing hearing on defendant\u2019s second-degree murder plea by denying defendant\u2019s motion to dismiss the aggravating factor that the offense was especially heinous, atrocious, or cruel. A lack of presence at or participation in a code-fendant\u2019s gruesome murder does not preclude the submission to the jury of the especially heinous, atrocious, or cruel aggravating factor. Furthermore, in this case, a reasonable inference could have been drawn that defendant did actively participate in the murder of the victim.\n2. Sentencing\u2014subpoena\u2014quashed\u2014recitation of basis for guilty plea\u2014not judicial admission\nThe trial court did not abuse its discretion in a sentencing hearing on defendant\u2019s second-degree murder plea by granting the State\u2019s motion to quash the subpoena of one of the prosecutors at the hearing on defendant\u2019s guilty plea. A recitation of the factual basis for a guilty plea is not a judicial admission. Therefore, the prosecutor\u2019s statements regarding the State\u2019s acceptance of defendant\u2019s guilty plea to second-degree murder did not establish his guilt as merely an aider and abettor rather than an active participant in the murder.\n3. Evidence\u2014SBI agent testimony\u2014no prejudice\u2014sentencing\nThe trial court did not err in a second-degree murder sentencing hearing by overruling defendant\u2019s objection and motion to strike an SBI agent\u2019s testimony. The agent explained that where no DNA match is found, the person in question could not have committed the crime. Contrary to defendant\u2019s contention, the agent did not affirmatively state that when a DNA match is found, the subject definitely committed the crime. Even assuming, without deciding, that the testimony lacked relevance, defendant failed to show that any such error was prejudicial.\n4. Sentencing\u2014mitigation phase\u2014admission of exhibit\u2014preference for live testimony\nThe trial court did not err during the mitigation phase of sentencing by excluding defendant\u2019s exhibit \u2014 a notebook prepared for the previous sentencing proceedings in the same case that contained recitations of another individual\u2019s multiple confessions, a forensic blood spatter expert report, and medical reports regarding defendant\u2019s alcohol consumption. Instead, the trial court informed defendant of its preference for live testimony and admitted parts of the notebook. Furthermore, defendant failed to show how the trial court\u2019s refusal to admit the exhibit in its entirety deprived him of the opportunity to present evidence of a mitigating factor.\nAppeal by defendant from judgment entered 4 April 2008 by Judge Thomas D. Haigwood in Caldwell County Superior Court. Originally heard in the Court of Appeals 1 October 2009, with opinion filed 16 November 2010. An opinion reversing the decision of the Court of Appeals and remanding for consideration of issues not previously addressed by this Court was filed by the Supreme Court of North Carolina on 27 June 2013.\nRoy Cooper, Attorney General, by Daniel P. O\u2019Brien, Assistant Attorney General, for the State.\nStaples Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0174-01", "first_page_order": 184, "last_page_order": 196 }