{ "id": 8520274, "name": "STATE OF NORTH CAROLINA v. MICHAEL R. MASSEY", "name_abbreviation": "State v. Massey", "decision_date": "1983-05-03", "docket_number": "No. 8221SC938", "first_page": "66", "last_page": "71", "citations": [ { "type": "official", "cite": "62 N.C. App. 66" } ], "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": "300 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "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": "292 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "year": 1982, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] } ], "analysis": { "cardinality": 489, "char_count": 10109, "ocr_confidence": 0.805, "pagerank": { "raw": 3.291803064227762e-07, "percentile": 0.8713743542577193 }, "sha256": "457b81f7d36b20d9464ef4c9c231e7fa261fff4060f25fbc545efccb0cf4f2b7", "simhash": "1:e228c6cf622399f6", "word_count": 1683 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WEBB concurs.", "Chief Judge VAUGHN dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL R. MASSEY" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant argues that the trial court abused its discretion in finding that the factors in aggravation outweigh the factors in mitigation and imposing the maximum sentence of ten years for the Class H felony, the presumptive sentence for which is three years.\nPursuant to G.S. 15A-1340.4(a)(l), the trial court found the following facts in aggravation:\n6. The offense was especially heinous, atrocious, or cruel.\n15. The defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days\u2019 confinement.\n16. Additional written findings of factors in aggravation.\na. The defendant on his own admission was associated with people who was (sic) members of a motorcycle gang, who had had records for dealing in drugs.\nb. The defendant conspired with others to commit the crime.\nc. That the defendant went there with a baseball bat, and shotgun, and went over to do revenge.\nd. That [although] the defendant was not charged with conspiracy, there was strong evidence of a conspiracy . . . with others, who were sentenced to life sentences for 1st Degree murder [and who] went there for the purpose of recovering drugs and money taken from Regina Deadmon.\nThe following factor was found in mitigation:\n3. The defendant was a passive participant or played a minor role in the commission of the offense.\nDefendant first argues that the trial judge erred in finding that the crime was especially heinous, atrocious or cruel. At the sentencing hearing, the trial judge stated that he based his findings of this factor of aggravation upon the defendant\u2019s action of \u201cgoing over there at that lady\u2019s house and knocking the door in at 11:30 at night . ...\u201d We agree with the defendant that this circumstance falls far short of the \u201cexcessive brutality\u201d or \u201cconscienceless, pitiless or unnecessarily tortuous\u201d [sic] conduct necessary to categorize a crime as heinous, atrocious or cruel. See, State v. Ahearn, 307 N.C. 584, 599, 300 S.E. 2d 689, 698 (1983), quoting State v. Pinch, 306 N.C. 1, 34, 292 S.E. 2d 203, 228 (1982).\nIn the second finding of an aggravating factor, the record reveals that defense counsel stipulated that defendant had a prior conviction for a criminal offense punishable by more than 60 days\u2019 confinement, i.e., driving under the influence of an intoxicating beverage. However, there is no evidence as to whether the defendant was indigent at the time of this prior conviction and if so, whether he was represented by counsel. In the absence of this supporting evidence, the trial judge\u2019s finding of a prior conviction cannot be upheld. See, State v. Thompson, 60 N.C. App. 679, 300 S.E. 2d 29 (1983).\nWe agree with the defendant that the trial judge erred in finding as an aggravating factor that the defendant associated with members of a motorcycle gang who had dealt in drugs. This finding of \u201cculpability by association\u201d bears no relation to the stated purposes of the Fair Sentencing Act. See, G.S. 15A-1340.3.\nWe also agree with defendant\u2019s argument that the trial judge violated the prohibition of G.S. 15A-1340.4(a)(l) against using the same item of evidence to prove more than one factor in aggravation. Two of the aggravating factors, set out at 16(b) and (d), are essentially restatements of each other, i.e., that defendant conspired with others in his participation in the events of the crime which took place on 29 November 1981.\nError has also occurred in the trial judge\u2019s finding as an aggravating factor that \u201cdefendant went there with a . . . shotgun . . . to do revenge.\u201d G.S. 15A-1340.4(a)(l) mandates that \u201c(e)vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . .\u201d Defendant was indicted for first degree burglary, i e., the nighttime breaking and entering of an occupied apartment with the intent to commit the felony of \u201cassault(ing) two black males with a deadly weapon, a shotgun, with intent to kill.\u201d Defendant was convicted of an attempt to commit this crime. Evidence that defendant traveled to the apartment in question with a shotgun for the purpose of revenge ^?as an essential part of the State\u2019s proof of the charged offense.\nBecause of the errors committed in the sentencing phase of defendant\u2019s trial, the case is remanded for resentencing in accordance with this opinion.\nRemanded for resentencing.\nJudge WEBB concurs.\nChief Judge VAUGHN dissents.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Chief Judge VAUGHN\ndissenting.\nI disagree with that portion of the opinion holding that the judge erred in finding the prior conviction as an aggravating factor. G.S. 15A-1340.4(e) provides that a prior conviction may be proved by stipulation or by the court record. Here, the prior conviction was proved by stipulation. Whether the defendant was afforded right to counsel is not an element of a \u201cprior conviction.\u201d The statute merely provides that the prior conviction may not be used as an aggravating factor unless the defendant was afforded his right to counsel. It is just like any other evidence that is made inadmissible by statute or rule. If this defendant was not afforded right to counsel at his prior conviction, it was his duty to raise the issue in the trial court and not, for the first time, on appeal. The statute expressly so provides:\nA defendant may make a motion to suppress evidence of a prior conviction pursuant to Article 53 of this Chapter. If the motion is made for the first time during the sentencing stage of the criminal action, either the State or the defendant is entitled to a continuance of the sentencing hearing.\nG.S. 15A-1340.4(e).\nIf defendant contends he was not afforded right to counsel, he raises a factual issue to be resolved in the trial court just as he does under Article 53 when he moves to suppress other evidence. The legislature very reasonably and expressly provided for the same procedures in Article 81A, the sentencing act we are now considering.\nIt may be that I could concur in some of the other matters discussed in the majority opinion. Instead, I elect to dissent to afford the right of further review on the question raised in this dissent.", "type": "dissent", "author": "Chief Judge VAUGHN" } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General John F. Maddrey, for the State.", "Habegger and Johnson, by Daniel S. Johnson, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL R. MASSEY\nNo. 8221SC938\n(Filed 3 May 1983)\n1. Criminal Law \u00a7 138\u2014 aggravating factor \u2014 heinous, atrocious or cruel crime \u2014 insufficient evidence\nIn imposing a sentence for attempted first degree burglary, the trial court erred in finding as an aggravating factor that the crime was especially heinous, atrocious or cruel on the basis of defendant\u2019s action in \u201cgoing over there at that lady\u2019s house and knocking the door in at 11:30 at night.\u201d\n2. Criminal Law \u00a7 138\u2014 aggravating factor \u2014 prior conviction \u2014 representation by counsel\nThe trial court erred in finding as an aggravating factor that defendant had a prior conviction for a criminal offense punishable by more than 60 days\u2019 confinement where there was no evidence as to whether defendant was indigent at the time of the prior conviction and, if so, whether he was represented by counsel.\n3. Criminal Law \u00a7 138\u2014 aggravating factor \u2014 association with motorcycle gang which dealt in drugs\nIn imposing a sentence for attempted first degree burglary, the trial court erred in finding as an aggravating factor that defendant associated with members of a motorcycle gang who had dealt in drugs.\n4. Criminal Law \u00a7 138\u2014 attempted first degree burglary \u2014 aggravating factor-use of shotgun for revenge\nIn imposing a sentence for attempted first degree burglary pursuant to defendant\u2019s conviction upon an indictment alleging the nighttime breaking and entering of an occupied apartment with the intent to commit the felony of assaulting two males with a shotgun with intent to kill, the trial court erred in finding as an aggravating factor that defendant went to the apartment in question with a shotgun for the purpose of revenge since evidence of such factor was an essential part of the State\u2019s proof of the offense charged. G.S. 15A-1340.4(a)(l).\nChief Judge Vaughn dissenting.\nAPPEAL by defendant from Wood, Judge. Judgment entered 6 May 1982 in Superior Court, Forsyth County. Heard in the Court of Appeals 9 March 1983.\nDefendant was tried on charges of first degree burglary, second degree murder, and assault with a deadly weapon with intent to kill resulting in serious injury. The State presented evidence that on the night of 29 November 1981 defendant was present in an apartment with a group of friends when Regina Deadmon complained that she had been raped the previous evening by two black men who stole her money and drugs. Subsequently, five people, including the defendant, left the apartment in Miss Dead-mon\u2019s car to find the alleged rapists and recover the money and drugs. Two of the members of the group were armed with a sawed-off shotgun and a baseball bat. At approximately 11:00 p.m. they arrived at the apartment of Alena Gibbs and unsuccessfully tried to gain entry through the back door by banging on the door with the baseball bat. Upon being assured by Mrs. Gibbs that the two men they sought were not in her apartment, they left to continue their search. After travelling a short while, the group happened upon Donald Burns, a black man, and Miss Deadmon wounded him with a gun shot. They subsequently saw another black man on the same street, and Miss Deadmon shot and killed this individual.\nDefendant admitted his presence during the events of 29 November as presented by the State. He denied any active participation or any intent to commit a crime.\nThe trial judge submitted to the jury the offenses of attempted first degree burglary, second degree murder and assault with a deadly weapon with intent to kill resulting in serious injury. The jury returned verdicts of guilty of the attempted burglary and not guilty of all other offenses. Following a hearing pursuant to the Fair Sentencing Act and imposition of a prison sentence of ten years, defendant appeals.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General John F. Maddrey, for the State.\nHabegger and Johnson, by Daniel S. Johnson, for defendant appellant." }, "file_name": "0066-01", "first_page_order": 98, "last_page_order": 103 }