{
  "id": 8525933,
  "name": "STATE OF NORTH CAROLINA v. ROBERT EUGENE McINTYRE",
  "name_abbreviation": "State v. McIntyre",
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  "casebody": {
    "judges": [
      "Judges WEBB and WELLS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROBERT EUGENE McINTYRE"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant contends the court erred in finding as aggravating factors that (1) he had prior convictions punishable by more than sixty days confinement, and (2) he \u201cleft the scene of the homicide[,] procure[d] a gun[,] and returned to lie in wait to shoot the victim.\u201d We find no error.\nI.\nThe prosecuting attorney represented to the court that defendant had four prior convictions. Defendant, through counsel, requested that the court not consider one of these on the ground that he had been indigent and not represented by counsel. He made no similar request as to the other three convictions, nor did he in any way deny their existence or validity. He did not, at the sentencing hearing, object to the finding of fact as to prior convictions, nor did he tender any proposed findings of fact. See State v. Davis, 58 N.C. App. 330, 334, 293 S.E. 2d 658, 661, disc. rev. denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). He did not object to the method used to establish his record, or challenge in any way the accuracy of the record as represented. See State v. Massey, 59 N.C. App. 704, 705-06, 298 S.E. 2d 63, 65 (1982). He did not sustain his burden of raising the issue of indigency or lack of assistance of counsel as to three of the four convictions. See State v. Thompson, 309 N.C. 421, 425-28, 307 S.E. 2d 156, 158-61 (1983). Under these circumstances it was not error for the court to find that the aggravating factor of prior convictions had been proven \u201cby the preponderance of the evidence,\u201d G.S. 15A-1340.4(a).\nII.\nThe ground for defendant\u2019s argument that the court erred in finding as an aggravating factor that he \u201cleft the scene of the homicide[,] procure[d] a gun[,] and returned to lie in wait to shoot the victim\u201d is that evidence of these facts was necessary to prove malice, an element of second degree murder, and thus could not be used to prove a factor in aggravation. G.S. 15A-1340.4(a)(l). This evidence tended to prove more than mere malice, however. It tended to prove that the killing was the product of premeditation and deliberation.\n\u201cPremeditation and deliberation are not elements of murder in the second degree.\u201d State v. Melton, 307 N.C. 370, 375, 298 S.E. 2d 673, 677 (1983). Our Supreme Court has expressly held that\nwhen a defendant pleads guilty to murder in the second degree, a determination by the preponderance of the evidence in the sentencing phase that he premeditated and deliberated the killing is reasonably related to the purposes of sentencing. Such aggravating factors may be considered in determining an appropriate sentence for the killer.\nId. at 376, 298 S.E. 2d at 678. It stated further:\n[A]s premeditation and deliberation are not elements of murder in the second degree, if a defendant charged with murder in the first degree pleads guilty to murder in the second degree, the sentencing judge may conclude . . . that for purposes of sentencing premeditation and deliberation have been established by a preponderance of the evidence and therefore may be used as an aggravating factor.\nId. at 378, 298 S.E. 2d at 679.\nUnchallenged evidence presented to establish the factual basis for defendant\u2019s plea indicated that defendant and the victim had exchanged some words in a store, and the victim had snatched a dollar bill from defendant\u2019s hand. Defendant had told the victim that was the last dollar bill he would snatch from him. He had then gone to his father-in-law\u2019s house nearby, secured a shotgun, and waited behind the store. A girl had seen him behind the store and had asked what he was doing with the shotgun. Defendant had replied: \u201cI\u2019m going to blow his brains out when he comes out of the store.\u201d When she urged him not to do that, he responded \u201coh don\u2019t worry, I\u2019m not going to shoot anybody else but him.\u201d After the shooting defendant had stated: \u201cI did have every intention of killing him at the time.\u201d He had also said: \u201c[RJight now I hope he don\u2019t die, but my intention was to kill him.\u201d\nThis evidence clearly permitted a finding by a preponderance of the evidence that the homicide was a product of premeditation and deliberation. Pursuant to Melton, supra, the court could use such a finding as an aggravating factor to enhance the sentence.\nAffirmed.\nJudges WEBB and WELLS concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General John C. Daniel, Jr., for the State.",
      "Gaylor, Edwards and McGlaughon, by Jimmy F. Gaylor, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROBERT EUGENE McINTYRE\nNo. 834SC492\n(Filed 3 January 1984)\n1. Criminal Law 8 138\u2014 prior convictions as aggravating circumstance \u2014 sufficiency of proof\nIt was not error for the court to find that the aggravating factor of prior convictions had been proven by the preponderance of the evidence where the prosecuting attorney represented to the court that defendant had four prior convictions; defendant requested that the court not consider one of these on the ground that he had been indigent and not represented by counsel; defendant made no similar request as to the other three convictions, nor did he in any way deny their existence or validity; and he did not, at the sentencing hearing, object to the finding of fact as to prior convictions or tender any proposed findings of fact.\n2. Criminal Law \u00a7 138\u2014 second degree murder \u2014 premeditation and deliberation as aggravating factor\nIn imposing a sentence for second degree murder, the trial court did not err in finding as an aggravating factor that defendant left the scene of the homicide, procured a gun, and returned to lie in wait to shoot the victim since these facts tended to prove that the killing was the product of premeditation and deliberation and thus could properly be used to enhance the sentence for second degree murder.\nAPPEAL by defendant from Brown, Judge. Judgment entered 22 September 1982 in Superior Court, ONSLOW County. Heard in the Court of Appeals 7 December 1983.\nDefendant was charged with first degree murder and pled guilty to second degree murder. He appeals from a judgment of imprisonment for a term of forty years.\nAttorney General Edmisten, by Assistant Attorney General John C. Daniel, Jr., for the State.\nGaylor, Edwards and McGlaughon, by Jimmy F. Gaylor, for defendant appellant."
  },
  "file_name": "0807-01",
  "first_page_order": 839,
  "last_page_order": 842
}
