{ "id": 8523229, "name": "STATE OF NORTH CAROLINA v. LAWRENCE CLINTON COLEMAN", "name_abbreviation": "State v. Coleman", "decision_date": "1986-04-15", "docket_number": "No. 8522SC834", "first_page": "271", "last_page": "279", "citations": [ { "type": "official", "cite": "80 N.C. App. 271" } ], "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": "64 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527532 ], "opinion_index": -1, "case_paths": [ "/nc-app/64/0678-01" ] }, { "cite": "310 S.E. 2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "390" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 813", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525955 ], "year": 1984, "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0813-01" ] }, { "cite": "307 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526836 ], "year": 1983, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0354-01" ] }, { "cite": "307 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "316 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681917 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0183-01" ] }, { "cite": "307 S.E. 2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "834" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 578", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527320 ], "year": 1983, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0578-01" ] }, { "cite": "307 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "590", "parenthetical": "even though cooperation with the authorities is a mitigating factor, absence of cooperation cannot support a factor in aggravation" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527229 ], "year": 1983, "pin_cites": [ { "page": "558", "parenthetical": "even though cooperation with the authorities is a mitigating factor, absence of cooperation cannot support a factor in aggravation" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0554-01" ] }, { "cite": "306 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "788" }, { "parenthetical": "emphasis added" }, { "page": "786", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "698" }, { "page": "698" }, { "page": "704" }, { "page": "698" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] } ], "analysis": { "cardinality": 717, "char_count": 18152, "ocr_confidence": 0.781, "pagerank": { "raw": 3.482879975655937e-07, "percentile": 0.8818604868469165 }, "sha256": "2efd8525cb51d07f6907c28c2d50da3ed02aa0a2d018f141bdcf094390a029e0", "simhash": "1:c37cee0326053420", "word_count": 2945 }, "last_updated": "2023-07-14T15:01:08.586003+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge PHILLIPS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LAWRENCE CLINTON COLEMAN" ], "opinions": [ { "text": "JOHNSON, Judge.\nEvidence presented to establish the factual basis for defendant\u2019s plea tended to show in pertinent part that shortly after midnight on 11 May 1984, defendant and a companion, Wilson Wommack, called Blue Bird Cab Company and requested that a cab be dispatched to an address on Granite Street in Winston-Salem, North Carolina, the address of defendant\u2019s mother.' Cab number twenty-two (#22), driven by Joseph Gray Privetta, was dispatched to that address at 12:23 a.m. According to a statement made by Wilson Wommack, they wanted a cab to take them to the highway because they planned to go on a camping trip. As they were riding down Interstate Forty (1-40) defendant took out a knife, leaned over and cut the cab driver\u2019s throat. According to Wommack\u2019s written statement and testimony, defendant\u2019s action took him completely by surprise.\nThe cab driver, bleeding profusely, got out of the vehicle under his own strength. Detective John Stevens of the Davie County Sheriffs Department testified that shortly after 1:00 a.m. on 11 May 1984, he found the body of the deceased Joseph Privet-ta in the westbound lane of Interstate Forty (1-40) with a trail of blood forty-five feet five inches leading to the body. Both defendant and Wommack were apprehended that same day late in the morning near Bland, Virginia, not far from where the taxicab was found.\nThe court accepted pleas of guilty from defendant to charges of second-degree murder, armed robbery and felonious larceny and pleas of guilty from Wommack to accessory after the fact as to each of the same three offenses.\nIn arriving at a sentence for defendant for each offense beyond the presumptive, the court correctly treated each offense separately and supported each offense separately by findings tailored to the individual offense as required by State v. Ahearn, 307 N.C. 584, 598, 300 S.E. 2d 689, 698 (1983). Separate treatment not only aids appellate review but also offers the option of affirming judgment for one offense while remanding for resentencing only the offense or offenses where error is found. Id. Consistent with the requirement of separate treatment and for purposes of clarity, we will discuss defendant\u2019s Assignments of Error as they apply to each offense separately.\nSecond-Degree Murder\nDefendant contends the court erred in finding as a statutory aggravating factor that defendant used a deadly weapon at the time of the crime. Our Supreme Court has held that when \u201cevidence of the use of a deadly weapon is deemed necessary to prove the element of malice,\u201d the court is precluded from using it as an aggravating factor at sentencing. State v. Blackwelder, 309 N.C. 410, 417, 306 S.E. 2d 783, 788 (1983). The State argues that Blackwelder is inapposite because in the instant case defendant pled guilty, but in Blackwelder the defendant\u2019s case went to trial and the jury was actually instructed on the inference of malice raised by the use of a deadly weapon. The State\u2019s argument is without merit. When our Supreme Court adopted what it referred to as a \u201cbright-line\u201d rule, it set forth with specificity when evidence of the use of a deadly weapon is precluded from serving as an aggravating factor, to wit:\nWhen the facts justify the giving of the instruction of the inference of malice arising as a matter of law from the use of a deadly weapon and it is in fact given, or when it could have been given had defendant not entered a plea of guilty. . . \u25a0\nId. (emphasis added). In the instant case the facts are such that a jury instruction could have been given on the inference of malice from the use of a deadly weapon had the defendant not entered a plea of guilty on the day set for trial. Therefore, we hold that Blackwelder is controlling and that the court erred in finding this factor in aggravation of defendant\u2019s sentence. Defendant is entitled to a new sentencing hearing regarding the murder offense for this error alone. State v. Ahearn, supra.\nBecause defendant raises other issues on appeal, which if left unresolved could lead to error at resentencing, we will address all remaining Assignments of Error.\nDefendant contends the court had insufficient evidence to find as a factor in aggravation that the offense was especially heinous, atrocious or cruel. Our Supreme Court has given us guidance in determining the applicability of this factor in the context of capital cases. Previous construction of the heinous, atrocious or cruel language has led courts to conclude that the following considerations are pivotal: whether death was immediate; whether there was unusual infliction of suffering upon the victim; whether there is evidence of excessive brutality beyond that normally present in any killing; and whether the facts as a whole portray the commission of the crime as, conscienceless, pitiless or unnecessarily torturous to the victim. State v. Ahearn, supra, at 599, 300 S.E. 2d at 698. \u201c[T]he focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.\u201d State v. Blackwelder, supra, at 414, 306 S.E. 2d at 786 (emphasis in original).\nAn examination of the facts of the case sub judice neither supports a finding that this murder was excessively brutal nor discloses physical or psychological suffering beyond that normally present in the offense. One wound was inflicted to the jugular vein. The victim walked approximately forty-five feet and collapsed, losing consciousness soon after the wound was inflicted. Although we acknowledge defendant\u2019s actions appear to have been conscienceless, other considerations \u2014 the absence of multiple wounds, the relative immediacy of death, the absence of excessive brutality \u2014 lead us to conclude that this finding was not sufficiently supported by the evidence.\nDefendant next contends that the court erred in finding two nonstatutory factors in aggravation. We agree. The court found as nonstatutory aggravating factors the following:\nCourt finds that Statutory Aggravating factors to be uncon-tradicted and manifest credibility; find that the offense was characterized by more brutality than is inher[e]nt in any murder; that the victim suffered physically & mentally b[y] being conscious of the fact that his life blood was flowing away and being unable to do anything about it. The offense had dehumanizing features.\nDefendant has exhibited no remorse for crime.\nWe find that the first factor above is tantamount to a finding that the offense was especially heinous, atrocious or cruel. The factors are equivalent. The court merely restated the statutory aggravating factor in definitional terms. Because we found the evidence insufficient to support the finding that the crime was especially heinous, atrocious or cruel, this nonstatutory factor, likewise, cannot stand.\nNext defendant contends that the court\u2019s finding that defendant exhibited no remorse for the crime cannot be the basis for a nonstatutory aggravating factor. We agree for two reasons. First, it is improper to aggravate a defendant\u2019s sentence for his failure to perform an act when the doing of the act would support the finding of a factor in mitigation. State v. Rivers, 64 N.C. App. 554, 558, 307 S.E. 2d 588, 590 (1983) (even though cooperation with the authorities is a mitigating factor, absence of cooperation cannot support a factor in aggravation). Evidence which shows that defendant exhibited remorse for the crime could support finding the statutory mitigating factor that defendant voluntarily acknowledged wrongdoing prior to the arrest or at an early stage of the criminal process. State v. Ahearn, supra, at 607-08, 300 S.E. 2d at 704. Therefore, assuming arguendo that the record contains evidence showing defendant exhibited no remorse prior to arrest or at an early stage of the criminal process, this lack of remorse cannot be the basis for an additional written finding of a factor in aggravation.\nSecondly, the Court in State v. Brown, 64 N.C. App. 578, 582, 307 S.E. 2d 831, 834 (1983), specifically held that the court erred in finding as an additional factor in aggravation that the defendant had not acknowledged his guilt or wrongdoing. The Court in Brown stated that acknowledgment of wrongdoing would be inconsistent with the defendant\u2019s plea of not guilty. In the instant case, defendant pled not guilty, then changed his plea to guilty on the day of trial. We see no reason why only defendants who plead not guilty should benefit from the rule formulated in Brown. Both nonstatutory factors in aggravation are in error.\nFelonious Larceny\nDefendant contends the court cannot find the use of a deadly weapon at the time of the crime as a factor in aggravation of the larceny offense because evidence of its use was necessary to prove an essential element of the joinable offense of second-degree murder. We disagree.\nThis very issue was addressed in State v. Toomer, 311 N.C. 183, 316 S.E. 2d 66 (1984), where the defendant challenged the aggravation of his first-degree burglary offense with the fact he had the use of a deadly weapon when evidence of the use of a deadly weapon was necessary to prove an essential element of the join-able crime of first-degree sexual offense. The Court upheld the judge\u2019s finding of the use of a deadly weapon in aggravation. Id. We hold Toomer is controlling on the facts at bar. Defendant\u2019s Assignment of Error on this point is overruled.\nNext the defendant challenges the court\u2019s finding as a factor in aggravation that the offense involved the taking of property of great monetary value. Defendant contends the record is devoid of evidence regarding the value of the property taken, that is, the taxicab. We disagree.\nWe have reviewed the record and have found evidence, the testimony of S.B.I. Special Agent William R. Foster, tending to show the value of the taxicab was approximately $3,000.00. Further, the trial judge is not precluded from finding the taking of property of great monetary value as an aggravating factor because defendant had been charged with larceny. State v. Thompson, 309 N.C. 421, 422, 307 S.E. 2d 156, 158 (1983). Evidence necessary to prove great monetary value is deemed evidence in addition to that needed to prove an element of felonious larceny. Id. Accordingly, defendant\u2019s Assignment of Error on this point is overruled.\nIn defendant\u2019s last Assignment of Error regarding sentencing for the larceny offense, defendant contends the court erred in failing to find as a mitigating factor that defendant was suffering from a physical condition which reduced his culpability when the court did find this factor in mitigation of the second-degree murder offense. Defendant\u2019s contention is without merit. To adopt such a rule would undermine the well-settled rule we stated earlier, namely, when one sentencing hearing addresses multiple offenses, the trial judge must treat each offense separately and make separate findings as to the aggravating and mitigating factors for each. State v. Ahearn, supra, at 598, 300 S.E. 2d at 698; State v. Thompson, 64 N.C. App. 354, 356, 307 S.E. 2d 397, 399 (1983). Defendant argues on appeal that defendant was less culpable because he was under the influence of alcohol and marijuana at the time the crime was committed. We are indulging defendant in allowing him to speculate for the sake of argument that it was the \u00e9vidence of alcohol and drug influence upon which the court relied when it found this mitigating factor regarding the second-degree murder offense. The record itself is unconclusive on this point. Nonetheless, recent use of alcohol and drugs is not per se a statutorily enumerated mitigating factor. It could perhaps be found to mitigate the offense as suggested by defendant. See State v. Bynum, 65 N.C. App. 813, 815, 310 S.E. 2d 388, 390 (1984). We agree with the Court\u2019s reasoning in Bynum. The evidence at the sentencing hearing, even though it could have permitted such a finding, did not compel it. Id. This Assignment of Error is overruled.\nWe find no errors occurred at the sentencing hearing with respect to the offense of larceny; therefore, judgment is affirmed as to sentencing for this offense.\nRobbery with a Dangerous Weapon\nIn defendant\u2019s only Assignment of Error regarding the armed robbery phase of the sentencing hearing, he contends the court erred in failing to find as a mitigating factor that defendant was suffering from a physical condition which reduced his culpability when the court found this factor in mitigation of the second-degree murder offense. This is the same argument we addressed immediately above regarding the offense of felonious larceny. For the reasons stated therein, we overrule this Assignment of Error. The judgment as to the sentence for the offense of robbery with a dangerous weapon is affirmed.\nIn summary, we hold as follows:\nIn Case Number 84CRS1635 \u2014 charge of felonious larceny\u2014 Sentence Affirmed;\nIn Case Number 84CRS2402 \u2014 charge of robbery with a dangerous weapon \u2014 Sentence Affirmed;\nIn Case Number 84CRS1634 \u2014 charge of second-degree murder \u2014 Sentence Vacated and case remanded for resentencing.\nChief Judge HEDRICK and Judge PHILLIPS concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Victor H. E. Morgan, Jr., for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Robin E. Hudson, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAWRENCE CLINTON COLEMAN\nNo. 8522SC834\n(Filed 15 April 1986)\n1. Criminal Law \u00a7 138.23\u2014 second degree murder \u2014 use of deadly weapon as aggravating factor \u2014 error\nIn a second degree murder case where the facts were such that a jury instruction could have been given on the inference of malice from the use of a deadly weapon had defendant not entered a plea of guilty on the day set for trial, the trial court erred in finding as a statutory aggravating factor that defendant used a deadly weapon at the time of the crime.\n2. Criminal Law 8 138.21\u2014 second degree murder \u2014 atrocity as aggravating factor \u2014error\nThe trial court in a second degree murder case had insufficient evidence to find as a factor in aggravation that the offense was especially heinous, atrocious or cruel, although defendant\u2019s actions appeared to have been conscienceless, since the evidence tended to show that one wound was inflicted to the jugular vein; the victim walked approximately forty-five feet and collapsed, losing consciousness soon after the wound was inflicted; and there was an absence of excessive brutality beyond that normally present in the offense.\n3. Criminal Law 8 138.21\u2014 second degree murder \u2014 brutality as aggravating factor-error\nThe trial court erred in finding as a nonstatutory aggravating factor that the offense was characterized by more brutality than is inherent in any murder, that the victim suffered physically and mentally by being conscious of the fact that his life blood was flowing away and being unable to do anything about it, and that the offense had dehumanizing features, since that factor was tantamount to a finding that the offense was especially heinous, atrocious or cruel, and evidence was insufficient to support such a finding.\n4. Criminal Law 8 138.29\u2014 second degree murder \u2014 guilty plea \u2014 failure to show remorse \u2014 no aggravating factor\nThe trial court\u2019s finding that defendant exhibited no remorse for the crime could not be the basis for a nonstatutory aggravating factor, since it is improper to aggravate a defendant\u2019s sentence for his failure to perform an act when the doing of the act would support the finding of a factor in mitigation, and since State v. Brown, 64 N.C. App. 678, held that the court erred in finding as an additional factor in aggravation that defendant had not acknowledged his guilt or wrongdoing, and that rule applies to defendants who plead guilty as well as to those pleading not guilty.\n5. Criminal Law 8 138.23\u2014 use of deadly weapon \u2014 evidence necessary to prove joinable offense \u2014 use of deadly weapon as aggravating factor proper\nThere was no merit to defendant\u2019s contention that the court could not find the use of a deadly weapon at the time of the crime as a factor in aggravation of the larceny offense because evidence of its use was necessary to prove an essential element of the joinable offense of second degree murder.\n6. Criminal Law 8 138.26\u2014 taking of property of great monetary value \u2014aggravating factor proper\nEvidence in a prosecution for felonious larceny was sufficient to support the trial court\u2019s finding in aggravation that the offense involved the taking of property of great monetary value, since evidence tended to show that defendant took a taxi cab, and testimony of an SBI agent tended to show that its value was approximately $3,000.\n7. Criminal Law 8 138.34\u2014 several offenses \u2014 mitigating factor in one offense not found in another \u2014 no error\nThere was no merit to defendant\u2019s contention that the trial court erred in failing to find as a mitigating factor for larceny and armed robbery that defendant was suffering from a physical condition which reduced his culpability when the court did find this factor in mitigation of the second degree murder offense, since it is the established rule that, when one sentencing hearing addresses multiple offenses, the trial judge must treat each offense separately and make separate findings as to the aggravating and mitigating factors for each.\nAPPEAL by defendant from Cornelius, Preston, Judge. Judgment entered 4 February 1985 in Superior Court, Davie County. Heard in the Court of Appeals 11 December 1985.\nDefendant was charged with first-degree murder, felonious larceny, felonious possession of stolen goods, and robbery with a dangerous weapon, all charges flowing from one incident occurring 11 May 1984. Defendant entered pleas of guilty to second-degree murder, felonious larceny, and robbery with a dangerous weapon on the day set for trial. Following a sentencing hearing, defendant was sentenced to consecutive maximum prison terms of fifty (50) years, ten (10) years, and forty (40) years respectively. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Victor H. E. Morgan, Jr., for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Robin E. Hudson, for defendant appellant." }, "file_name": "0271-01", "first_page_order": 299, "last_page_order": 307 }