{ "id": 8520563, "name": "STATE OF NORTH CAROLINA v. LONNIE DEAN KEATON", "name_abbreviation": "State v. Keaton", "decision_date": "1983-03-15", "docket_number": "No. 8218SC724", "first_page": "279", "last_page": "284", "citations": [ { "type": "official", "cite": "61 N.C. App. 279" } ], "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": "297 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561402 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0247-01" ] }, { "cite": "300 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523490 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0679-01" ] }, { "cite": "298 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562412 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0370-01" ] }, { "cite": "255 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570219 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0314-01" ] }, { "cite": "268 S.E. 2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562782 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0515-01" ] }, { "cite": "264 S.E. 2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549552 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0138-01" ] }, { "cite": "273 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563625 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0001-01" ] } ], "analysis": { "cardinality": 488, "char_count": 10703, "ocr_confidence": 0.757, "pagerank": { "raw": 2.941132224418366e-07, "percentile": 0.8481255084755907 }, "sha256": "08814ec1c5158873970701429d1dccee626d581f6a76813dbe724936a6e2e2a6", "simhash": "1:802ac02f7a4d0cea", "word_count": 1752 }, "last_updated": "2023-07-14T21:13:54.976609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Johnson concurs.", "Judge Hedrick concurs in the result." ], "parties": [ "STATE OF NORTH CAROLINA v. LONNIE DEAN KEATON" ], "opinions": [ { "text": "EAGLES, Judge.\nDuring defendant\u2019s trial, the State was permitted to introduce into evidence three photographs of the victim as he appeared before the autopsy to illustrate Detective Davis\u2019 testimony. Defendant\u2019s first assignment of error maintains that this evidence was not relevant to any issue before the court and its introduction prevented defendant from receiving a fair and impartial trial.\nWhere, as here, neither the photo nor accompanying testimony was necessary to prove the State\u2019s case, claims of prejudice have been rejected previously. See, State v. Temple, 302 N.C. 1, 273 S.E. 2d 273 (1981); 1 Brandis, Brandis On North Carolina Evidence \u00a7 34 (2d rev. ed. 1982). Even if allowing the introduction of these three photographs were error, we hold that it was harmless error beyond a reasonable doubt in light of the overwhelming evidence of defendant\u2019s guilt presented at trial. State v. Temple, supra.\nThe defendant next argues that the trial court erred in failing to suppress defendant\u2019s alleged oral statement to a detective. Defendant maintains that he was denied a meaningful opportunity to prepare his defense because the State did not inform him of the existence or contents of the detective\u2019s notes concerning defendant\u2019s oral statement until the day of trial.\nG.S. 15A-903(a)(2) provides:\n(a) Statement of Defendant. \u2014 Upon motion of a defendant, the court must order the prosecutor:\n(2) To divulge, in written or recorded form, the substance of any oral statement made by the defendant which the State intends to offer in evidence at the trial.\nThis court has previously held that defendant has the burden of making a written request for voluntary discovery and making a motion to compel discovery where voluntary discovery does not occur, before the State\u2019s duty arises to produce oral statements made by defendant. State v. Lang, 46 N.C. App. 138, 264 S.E. 2d 821 (1980). Defendant failed to file a motion pursuant to G.S. 15A-903(a)(2). Therefore, we find no merit in defendant\u2019s second assignment of error.\nFurthermore, we find no prejudice in admission of the complained-of testimony at trial. Defendant had already stipulated, prior to trial, that he had intentionally shot the victim. He suffered little, if any, by the admission of Detective Davis\u2019 testimony that defendant had earlier denied that he had shot the victim.\nDefendant also assigns as error the failure of the court to sequester a twelve-year-old witness for the defense during his mother\u2019s testimony as a witness for the State. A motion to sequester a witness is within the trial court\u2019s discretion and is reviewable only upon abuse. State v. Royal, 300 N.C. 515, 268 S.E. 2d 517 (1980). Because the record contains no evidence that the twelve-year-old\u2019s testimony was different as a result of his hearing his mother testify, we find no abuse of discretion on the part of the trial court.\nDefendant assigns as error the trial court\u2019s denial of bond pending appeal of his second degree murder conviction. We reject this assignment based on the language of G.S. 15A-536(a) which permits but does not require a judge to order release of a convicted defendant pending appeal. The matter of granting or denying post-trial bond is within the trial court\u2019s discretion. State v. Sparks, 297 N.C. 314, 255 S.E. 2d 373 (1979). Considering defendant\u2019s past criminal record, the circumstances surrounding Hawks\u2019 death, and defendant\u2019s history of misconduct, we find no abuse of discretion in the trial court\u2019s denial of defendant\u2019s request for bond pending appeal.\nFinally, defendant maintains that his sentence of twenty-five years imprisonment for second degree murder was not supported by the evidence. The trial court found two aggravating and no mitigating factors and sentenced defendant to an additional ten years imprisonment beyond the presumptive sentence of fifteen years for second degree murder. The aggravating factors which the court considered were 1) the defendant used a deadly weapon at the time of the crime and 2) the defendant had prior convictions for criminal offenses punishable by more than 60 days confinement.\nWe question the propriety of considering the \u201cdeadly weapon\u201d factor in aggravation since G.S. 15A-1340.4(a)(l) provides that \u201c[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .\u201d See State v. Melton, 307 N.C. 370, 298 S.E. 2d 673 (1983), State v. Thompson, 60 N.C. App. 679, 300 S.E. 2d 29 (1983). Here the court had instructed the jury that\nNow, if the State proves beyond a reasonable doubt, or it is admitted that the defendant intentionally killed Eddie Hawks with a deadly weapon, or intentionally inflicted a wound upon Eddie Hawks with a deadly weapon that proximately caused his death, you may infer first that the killing was unlawful; second that it was done with malice.\nYou may consider this along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.\nAs there were no facts and circumstances indicating that Hawks\u2019 death was unusually gruesome, other than the fact that he died from gunshot wounds, the necessary element of malice must have been inferred by the jury from the evidence that defendant intentionally shot Hawks with a gun.\nIn addition, the record is devoid of evidence as to whether defendant was represented by counsel or waived counsel with respect to the prior convictions as required by G.S. 15A-1340.4(e). Id. Waiver of counsel may not be presumed from a silent record. State v. Neeley, 307 N.C. 247, 297 S.E. 2d 389 (1982). We remand for resentencing based on the statutory prohibition forbidding the trial court to use as aggravating circumstances convictions in which the defendant was indigent and not represented by counsel, and on the apparent use as an aggravating factor evidence necessary to prove an element of the offense charged.\nIn the trial itself we find no error, but for the above reasons, we remand for resentencing.\nJudge Johnson concurs.\nJudge Hedrick concurs in the result.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State.", "Janine W. Catcher, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LONNIE DEAN KEATON\nNo. 8218SC724\n(Filed 15 March 1983)\n1. Homicide \u00a7 20.1\u2014 photographs of victim \u2014harmless error\nEven if the trial court erred in allowing the introduction of three photographs of a murder victim as he appeared before an autopsy to illustrate a detective\u2019s testimony, such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant\u2019s guilt.\n2. Bills of Discovery \u00a7 6\u2014 defendant\u2019s oral statement \u2014 failure to disclose officer\u2019s notes\nThe trial court did not err in failing to suppress defendant\u2019s oral statement to a detective because the State did not inform him of the existence or contents of the detective\u2019s notes concerning the statement until the day of trial where defendant failed to file a motion to compel discovery pursuant to G.S. 15A-903(a)(2).\n3. Criminal Law \u00a7 98.2\u2014 failure to sequester witness during mother\u2019s testimony\nThe trial court did not abuse its discretion in failing to sequester a 12-year-old witness for the defense during his mother\u2019s testimony as a witness for the State where the record contains no evidence that the minor witness\u2019s testimony was different as a result of hearing his mother testify.\n4. Arrest and Bail \u00a7 9.2\u2014 denial of bond pending appeal of murder conviction\nThe trial court did not abuse its discretion in the denial of bond pending defendant\u2019s appeal of his second degree murder conviction in light of defendant\u2019s past criminal record, the circumstances surrounding the victim\u2019s death, and defendant\u2019s history of misconduct.\n5. Criminal Law \u00a7 138\u2014 second degree murder \u2014 aggravating factor \u2014 use of deadly weapon \u2014 element of offense\nIn imposing a sentence upon defendant for second degree murder, the trial court erred in finding as an aggravating factor that defendant used a deadly weapon where there were no facts and circumstances indicating that the victim\u2019s death was unusually gruesome other than the fact that he died from gunshot wounds, since the necessary element of malice must have been inferred by the jury from the evidence that defendant intentionally shot the victim with a gun, and G.S. 15A-1340.4(a)(l) prohibits the use of evidence necessary to prove an element of the offense as an aggravating factor.\n6. Criminal Law \u00a7 138\u2014 prior convictions as aggravating factor \u2014 necessity for evidence as to counsel or waiver thereof\nThe trial court erred in finding as an aggravating factor that defendant had prior convictions for criminal offenses punishable by more than 60 days confinement where there was no evidence as to whether defendant was represented by counsel or waived counsel with respect to the prior convictions as required by G.S. 15A-1340.4(e).\nJudge HEDRICK concurs in the result.\nAPPEAL by defendant from Davis, Judge. Judgment entered 18 March 1982 in Superior Court, GUILFORD County. Heard in the Court of Appeals 18 January 1983.\nDefendant was charged with first degree murder in the shooting death of Eddie A. Hawks. The State\u2019s evidence tended to show that as Hawks got out of his car and started towards Bob\u2019s Gas Town Lounge, the defendant called to him from his car which was parked in an alley beside the lounge, that Hawks turned towards defendant and started moving in that direction and that defendant fired three shots at Hawks, two of which hit him. Two of the State\u2019s witnesses, Hawks\u2019 girl friend and her twelve-year-old son, testified that Hawks was unarmed when he turned and started walking towards the defendant. The State also presented testimony that Hawks had nothing in his hands at the time of the shooting. Another witness, a waitress at the lounge, testified that the defendant had left the lounge shortly before Hawks pulled into the lounge parking lot stating that he (defendant) was \u201cgoing to get some shit straight.\u201d\nDefendant testified that he had left the lounge so that he would not be there when Hawks came back because defendant was expecting trouble from Hawks. He stated that when he had seen Hawks at the lounge earlier on the same day, Hawks had said to defendant that he was going to cut defendant\u2019s head off. Defendant stated that as he was leaving the lounge to avoid Hawks, Hawks called to him and started walking towards him. Thinking that Hawks had something in his hand, defendant fired at him three times.\nDefendant was convicted of second degree murder and sentenced to twenty-five years imprisonment. From the judgment entered pursuant to that verdict, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State.\nJanine W. Catcher, for defendant-appellant." }, "file_name": "0279-01", "first_page_order": 311, "last_page_order": 316 }