{ "id": 8524320, "name": "STATE OF NORTH CAROLINA v. EDWARD EARL LLOYD and ARCHIE GRAY MAY, JR.", "name_abbreviation": "State v. Lloyd", "decision_date": "1988-04-19", "docket_number": "No. 873SC442", "first_page": "630", "last_page": "640", "citations": [ { "type": "official", "cite": "89 N.C. App. 630" } ], "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": "332 S.E. 2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723040, 4722917, 4722387, 4724410, 4724508 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0610-02", "/nc/313/0610-05", "/nc/313/0610-04", "/nc/313/0610-03", "/nc/313/0610-01" ] }, { "cite": "329 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718277, 4723663, 4722611, 4724215, 4722937 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0513-05", "/nc/313/0513-03", "/nc/313/0513-02", "/nc/313/0513-04", "/nc/313/0513-01" ] }, { "cite": "323 S.E. 2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "487", "parenthetical": "evidence that defendant has been drinking, without more, does not show defendant was so inebriated that his ability to understand the consequences of his actions was impaired" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526251 ], "year": 1984, "pin_cites": [ { "page": "106", "parenthetical": "evidence that defendant has been drinking, without more, does not show defendant was so inebriated that his ability to understand the consequences of his actions was impaired" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0094-01" ] }, { "cite": "256 S.E. 2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "year": 1979, "pin_cites": [ { "page": "536-37" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0524-01" ] }, { "cite": "358 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728929, 4728867, 4724042, 4728051, 4730142 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0515-05", "/nc/320/0515-04", "/nc/320/0515-03", "/nc/320/0515-01", "/nc/320/0515-02" ] }, { "cite": "355 S.E. 2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "254" }, { "page": "255" }, { "page": "255" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170005 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "454" }, { "page": "455" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0447-01" ] }, { "cite": "333 S.E. 2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "244" }, { "page": "322" }, { "page": "244" } ], "opinion_index": 0 }, { "cite": "314 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686499 ], "year": 1985, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0319-01" ] }, { "cite": "337 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "806", "parenthetical": "Court held there was sufficient evidence to find aggravating factor that defendant was dangerous and mentally abnormal person separate and apart from evidence which supported finding that defendant engaged in a pattern or course of violent conduct" } ], "opinion_index": 0 }, { "cite": "315 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715685 ], "year": 1985, "pin_cites": [ { "page": "35-36", "parenthetical": "Court held there was sufficient evidence to find aggravating factor that defendant was dangerous and mentally abnormal person separate and apart from evidence which supported finding that defendant engaged in a pattern or course of violent conduct" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0001-01" ] }, { "cite": "278 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "303 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572594 ], "year": 1981, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0185-01" ] }, { "cite": "349 S.E. 2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "582-83" } ], "opinion_index": 0 }, { "cite": "318 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737583 ], "year": 1986, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0487-01" ] }, { "cite": "79 S.E. 883", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "164 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658968 ], "year": 1913, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc/164/0513-01" ] }, { "cite": "49 L.Ed. 2d 1208", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "213 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "244", "parenthetical": "a showing of legal intoxication negates premeditation and deliberation" }, { "page": "244" } ], "opinion_index": 0 }, { "cite": "286 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569931 ], "year": 1975, "pin_cites": [ { "page": "606", "parenthetical": "a showing of legal intoxication negates premeditation and deliberation" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0597-01" ] }, { "cite": "92 L.Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6205024 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/478/0221-01" ] }, { "cite": "340 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "pin_cites": [ { "page": "430-31" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "279 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "year": 1981, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "300 S.E. 2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519699 ], "year": 1983, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0128-01" ] }, { "cite": "328 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524107 ], "year": 1985, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0276-01" ] }, { "cite": "306 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "790" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "308 S.E. 2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "307" } ], "opinion_index": 0 }, { "cite": "309 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763381 ], "year": 1983, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0570-01" ] }, { "cite": "306 S.E. 2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "219" }, { "page": "219" }, { "page": "223" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "298 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "676" }, { "page": "678" } ], "opinion_index": 0 }, { "cite": "307 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562412 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "373" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0370-01" ] } ], "analysis": { "cardinality": 838, "char_count": 21885, "ocr_confidence": 0.826, "pagerank": { "raw": 2.898704083382932e-07, "percentile": 0.8449011892199121 }, "sha256": "2b7e5973e67fda9a042fe35c5c11e7b0ef980e579351f16c52d220afb80da57a", "simhash": "1:abd7c8a9a269fc82", "word_count": 3531 }, "last_updated": "2023-07-14T22:39:00.818604+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Cozort concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDWARD EARL LLOYD and ARCHIE GRAY MAY, JR." ], "opinions": [ { "text": "GREENE, Judge.\nThis is a criminal case in which defendants were charged with first-degree murder. Defendants pled guilty to second-degree murder and were given active prison sentences of fifty years each. Defendants appeal the imposition of these sentences.\nEvidence offered during the sentencing hearing tended to show that defendant Archie Gray May, Jr. (hereinafter \u201cMay\u201d), and Eugene Sides (hereinafter \u201cSides\u201d), both age 16, went to spend the night at the mobile home of May\u2019s uncle, defendant Edward Earl Lloyd (hereinafter \u201cLloyd\u201d), age 26. The mobile home was located next to the residence of the victim, Gray Lineberry. Over the next IV2 to 2 hours, defendants had several drinks of whiskey and smoked three or more marijuana cigarettes. Defendants then walked outside the mobile home with the whiskey. May hid the whiskey near a dog pen and defendant Lloyd looked towards the victim\u2019s home and said, \u201cYou think you\u2019re bad, Gray [the victim]. I\u2019ll shoot you if you come over here.\u201d Apparently, the victim began walking towards Lloyd\u2019s yard. Lloyd told Sides to get Lloyd\u2019s gun but Sides did not do so. Lloyd then went into his mobile home, procured a 22-caliber rifle along with some ammunition, and went back outside. It is unclear who loaded the gun. May walked over to Lloyd and \u201cgrabbed\u201d the rifle from Lloyd. Lloyd then told May to shoot the victim \u201cbecause he\u2019s on my property.\u201d The victim was standing still somewhere in the area between the residences. May aimed the rifle and then fired, killing the victim with a wound to the head. May reloaded the rifle and aimed it at the victim who was now lying on the ground but did not fire again. May and Lloyd then walked over to the body of the victim where May grabbed the victim\u2019s hair and shook his head. The defendants walked back towards Lloyd\u2019s mobile home and shook hands. There was also evidence that Lloyd had previous arguments with the victim and on one other occasion in 1983 had threatened to shoot the victim.\nLloyd introduced evidence through a psychiatrist that he had a verbal I.Q. of 70, a performance I.Q. of 79 and a full scale I.Q. of 73. The psychologist classified Lloyd in the borderline range of intellectual functioning between mild mental retardation and well below average. He also testified that Lloyd possessed limited judgment and social skills and \u201cwould deal less well with stressful situations than the average person\u201d and the use of alcohol and marijuana \u201ccould make it worse.\u201d\nThe sentencing judge found the following factors in aggravation and mitigation:\nEdward Earl Lloyd\nAggravating Factors\nThe defendant induced another to participate in the commission of the offense.\nThe defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days\u2019 confinement.\nThe murder was committed with premeditation and deliberation.\nMitigating Factors\nThe defendant was suffering from a mental condition that was insufficient to constitute a defense [but] significantly reduced his culpability for the offense.\nThe defendant was suffering from a physical condition that was insufficient to constitute a defense but significantly reduced his culpability for the offense.\nPrior to arrest, the defendant voluntarily acknowledged wrong-doing in connection with the offense to a law enforcement officer.\nThe defendant has been a person of good character or has had a good reputation in the community in which he lives.\nArchie Gray May Jr.\nAggravating Factors\nThe murder was committed with premeditation and deliberation.\nMitigating Factors\nThe defendant has no record of criminal convictions.\nThe defendant\u2019s immaturity at the time of the commission of the offense significantly reduced his culpability for the offense.\nPrior to arrest, the defendant voluntarily acknowledged wrong-doing in connection with the offense to a law enforcement officer.\nAt an early stage of the criminal process, the defendant voluntarily acknowledged wrong-doing in connection with the offense to a law enforcement officer.\nThe defendant has some limitation of intelectual [sic] ability.\nDefendants appeal from the judge\u2019s finding of certain factors in aggravation and his failure to find certain factors in mitigation.\nThe issues presented are: I) Whether the evidence supports a finding in aggravation (A) that Lloyd \u201cinduced another to participate in the commission of the offense\u201d and (B) that defendants committed the murder with premeditation and deliberation; II) whether the evidence required a finding in mitigation (A) that Lloyd had limited mental capacity that significantly reduced his culpability for the offense and (B) that May\u2019s use of alcohol and marijuana significantly reduced his culpability for the offense.\nI\nIn imposing a prison term in excess of the fifteen-year presumptive sentence for the Class C felony of second-degree murder, N.C.G.S. Sec. 15A-1340.4(f)(1) (1983), the sentencing judge must consider the statutory aggravating and mitigating factors set out in N.C.G.S. Sec. 15A-1340.4(a), and may consider other aggravating and mitigating factors if reasonably related to the purposes of sentencing. State v. Melton, 307 N.C. 370, 373, 298 S.E. 2d 673, 676 (1983). Each factor must be proved \u201cby a preponderance of the evidence.\u201d N.C.G.S. Sec. 15A-1340.4(b). The burden of persuasion on aggravating factors rests with the State. State v. Jones, 309 N.C. 214, 219, 306 S.E. 2d 451, 455 (1983). The defendant has the burden of persuasion on mitigating factors. State v. Taylor, 309 N.C. 570, 576, 308 S.E. 2d 302, 307 (1983). The sentencing judge must finally find that the factors in aggravation outweigh the factors in mitigation if he imposes a term greater than the presumptive one. Jones, 309 N.C. at 219, 306 S.E. 2d at 455. The weight to be attributed to each factor is within the sound discretion of the sentencing judge. State v. Blackwelder, 309 N.C. 410, 419, 306 S.E. 2d 783, 790 (1983).\nA\nDefendant Lloyd first contends the evidence does not support the sentencing court\u2019s finding that he induced May to participate in the murder. Specifically, Lloyd argues May acted independently of anything Lloyd did or said. We disagree.\nSection 15A-1340.4(a)(1)(a) provides as an aggravating factor: \u201cThe defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants.\u201d In defining \u201cinduced\u201d as used in the above subsection this Court has stated:\nInduce is defined by Black\u2019s Law Dictionary ... as \u201c[t]o bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on. Webster\u2019s New Collegiate Dictionary . . . similarly defines induce as \u201cto lead on: move by persuasion or influence,\u201d to \u201cbring about by influence,\u201d and \u201ceffect, cause.\u201d\nState v. SanMiguel, 74 N.C. App. 276, 281, 328 S.E. 2d 326, 328 (1985).\nThe evidence shows that Lloyd, a 26-year-old adult, by his actions and his words influenced May, a 16-year-old minor, to a course of conduct. Lloyd, after threatening to shoot the victim and getting a gun, told May to shoot the victim. The crime did not occur until after the encouragement from Lloyd. This was sufficient to prove by a preponderance of the evidence that defendant induced May to participate in the offense. See Jones, 309 N.C. at 223, 306 S.E. 2d at 457. We thus hold the evidence supports the sentencing judge\u2019s finding in aggravation that Lloyd induced May to participate in the murder.\nB\nDefendants next argue there was insufficient evidence to support a nonstatutory finding in aggravation that the murder was committed with premeditation and deliberation. If the sentencing court\u2019s finding is supported by the preponderance of the evidence and is reasonably related to the purposes of sentencing, there is no error. N.C.G.S. Sec. 15A-1340.4(a).\nWhen a defendant charged with first-degree murder pleads guilty to second-degree murder, the aggravating factor of premeditation and deliberation is reasonably related to the purposes of sentencing. State v. Gaynor, 61 N.C. App. 128, 132, 300 S.E. 2d 260, 262 (1983). No fixed length of time is necessary for a finding of premeditation and deliberation. State v. Hutchins, 303 N.C. 321, 344, 279 S.E. 2d 788, 802 (1981). Premeditation means thought before the act for some length of time however short. Id. Deliberation \u201cconnotes the execution of an intent to kill in a cool state of blood without legal provocation in furtherance of a fixed design\u201d but does not require any applicable length of time for reflection. Id.\nPremeditation and deliberation are usually proved by circumstantial evidence. Among the circumstances which may tend to prove the killing was with premeditation and deliberation are:\n(1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.\nState v. Gladden, 315 N.C. 398, 430-31, 340 S.E. 2d 673, 693 (citations omitted), cert. denied, \u2014 U.S. \u2014, 92 L.Ed. 2d 166 (1986).\nThe testimony here supports a finding of premeditation and deliberation by the preponderance of the evidence. Defendant Lloyd threatened to shoot the victim on one other occasion and on the day of the killing again threatened the victim a few minutes prior to the actual shooting. There is no evidence of any provocation on the part of the victim and yet after seeing the victim, Lloyd told Sides to get the gun and when he failed to do so, procured it himself.\nDefendant May aimed the rifle, and then killed the victim with one shot to the head after Sides asked him not to shoot the victim. May then reloaded the rifle and again aimed at the victim but did not fire the rifle. After the shooting, both defendants walked over to the victim where May grabbed the deceased\u2019s head and shook it. Defendants walked away and shook hands.\nThis evidence was sufficient to support the sentencing judge\u2019s finding of premeditation and deliberation as an aggravating factor. The evidence of intoxication of the defendants was not sufficient to negate the finding of premeditation and deliberation. See State v. McLaughlin, 286 N.C. 597, 606, 213 S.E. 2d 238, 244 (1975) (a showing of legal intoxication negates premeditation and deliberation), vacated in part, 428 U.S. 903, 49 L.Ed. 2d 1208 (1976). The evidence must demonstrate the defendant\u2019s mind and reason at the time of the killing is \u201cso completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill.\u201d Id. at 607, 213 S.E. 2d at 244 (quoting State v. Shelton, 164 N.C. 513, 520, 79 S.E. 883, 886 (1913)). While there is evidence both defendants consumed alcohol and smoked marijuana prior to the killing, there is no evidence to support a conclusion that either defendant was so intoxicated that he did not know what he was doing.\nIn addition, since defendant Lloyd\u2019s mental incapacity does not rise to the level of legal insanity, it did not negate the finding of premeditation and deliberation. State v. Carter, 318 N.C. 487, 492, 349 S.E. 2d 580, 582-83 (1986); State v. Anderson, 303 N.C. 185, 200, 278 S.E. 2d 238, 247 (1981). Defendant does not contend his mental incapacity constituted legal insanity at the time of the offense and therefore the judge was not precluded from finding he acted with premeditation and deliberation.\nDefendant Lloyd argues the judge considered the same item of evidence to prove both aggravating factors thereby violating Section 15A-1340.3(a)(1) (same item of evidence may not be used to prove more than one factor in aggravation). Specifically, Lloyd argues the only evidence supporting the finding of premeditation and deliberation was Lloyd\u2019s statement to May urging him to shoot the victim and that this was also the only item of evidence supporting the inducement factor.\nHowever, as discussed above, there was other evidence besides Lloyd\u2019s statement to support both findings. Defendant\u2019s plea of guilty does not prevent the trial judge from reviewing all the circumstances surrounding the offense in finding aggravating factors. State v. Melton, 307 N.C. 370, 377, 298 S.E. 2d 673, 678 (1982). The evidence of premeditation and deliberation included Lloyd\u2019s previous threats, the absence of provocation from the victim, and the handshaking after the shooting. Evidence showing inducement included the procurement of the weapon and the age difference of Lloyd and May. Thus, we conclude there was sufficient evidence separate and apart to support the judge\u2019s finding of each factor. Cf. State v. Avery, 315 N.C. 1, 35-36, 337 S.E. 2d 786, 806 (1985) (Court held there was sufficient evidence to find aggravating factor that defendant was dangerous and mentally abnormal person separate and apart from evidence which supported finding that defendant engaged in a pattern or course of violent conduct).\nDefendant Lloyd also argues the sentencing judge erred by using the same evidence necessary to prove an element of the offense to prove an aggravating factor in violation of Section 15A-1340.4(a)(l). However, Lloyd failed to assign error to this use of the evidence and therefore we do not address this issue. See N.C.R. App. P. 10(c) (1986).\nII\nDefendants argue the evidence offered required the sentencing judge to find certain factors in mitigation. If a statutory mitigating factor is supported by \u201cuncontradicted, substantial and manifestly credible evidence,\u201d the sentencing judge must find the mitigating factor. State v. Spears, 314 N.C. 319, 321, 333 S.E. 2d 242, 244 (1985). Consideration of nonstatutory mitigating factors requested by defendants and proven by \u201cuncontradicted, substantial and manifestly credible evidence\u201d is a matter \u201centrusted to the sound discretion of the sentencing judge . . . .\u201d Id. at 322, 333 S.E. 2d at 244.\nA\nDefendant Lloyd argues the evidence supports a finding in mitigation because he possessed limited mental capacity. N.C.G.S. Sec. 15A-1340.4(a)(2)(e) provides:\nThe defendant\u2019s immaturity or his limited mental capacity at the time of commission of the offense significantly reduced his culpability for the offense.\n\u201c[L]imited mental capacity is defined as a low level of intelligence or I.Q.\u201d State v. Hall, 85 N.C. App. 447, 454, 355 S.E. 2d 250, 254, disc. rev. denied, 320 N.C. 515, 358 S.E. 2d 525 (1987).\nThe sentencing judge\u2019s determination under Section 15A-1340.4(a)(2)(e) is a two-part inquiry: first, whether defendant is of limited mental capacity, and if so, the effect of this limited mental capacity on the defendant\u2019s culpability for the offense. Hall, 85 N.C. App. at 455, 355 S.E. 2d at 255. The defendant bears the burden of showing that the \u201cevidence so clearly establishes the fact in issue that no reasonable inference to the contrary can be drawn . . . .\u201d Jones, 309 N.C. at 220, 306 S.E. 2d at 455 (quoting North Carolina National Bank v. Burnette, 297 N.C. 524, 536-37, 256 S.E. 2d 388, 395 (1979)). Lloyd\u2019s evidence established that he had well below average intelligence which would impair his ability to handle stressful situations. However, the evidence of Lloyd\u2019s low intelligence, limited social skills and limited judgment did not clearly establish that these traits significantly reduced his culpability for the offense under the circumstances present at the time of the shooting. See Hall, 85 N.C. App. at 455, 355 S.E. 2d at 255. All the evidence indicated the victim was not threatening Lloyd at any time during the events surrounding the shooting, yet Lloyd procured the gun after threatening the victim and specifically told May to shoot the victim. Therefore, the sentencing judge was not required to find defendant\u2019s limited mental capacity as a mitigating factor.\nB\nDefendant May argues his use of alcohol and marijuana prior to the killing was sufficient to support a statutory factor in mitigation pursuant to N.C.G.S. Sec. 15A-1340.4(a)(2)(d) or a non-statutory factor that \u201cdefendant was under the influence of alcoholic beverages and marijuana to such an extent as to significantly reduce his culpability.\u201d\nN.C.G.S. Sec. 15A-1340.4(a)(2)(d) provides: \u201cThe defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced his culpability for the offense.\u201d\nHowever, the evidence was conflicting concerning the degree of intoxication of May. An officer testified that May had been drinking but was not \u201cstaggering drunk.\u201d Even assuming May was suffering from a mental or physical condition brought about by alcoholic beverages and marijuana, there was no evidence that May\u2019s culpability for the offense was significantly reduced. See State v. Upright, 72 N.C. App. 94, 106, 323 S.E. 2d 479, 487 (1984) (evidence that defendant has been drinking, without more, does not show defendant was so inebriated that his ability to understand the consequences of his actions was impaired), disc. rev. denied, 313 N.C. 513, 329 S.E. 2d 400, cert. denied, 313 N.C. 610, 332 S.E. 2d 82 (1985). Therefore, the sentencing judge committed no error in failing to find either of the mitigating factors put forward by defendant May.\nIII\nFor the reasons above, we hold there was no error in the sentencing hearing. Likewise, we hold the judge did not abuse his discretion in weighing the aggravating and mitigating factors and arriving at the sentences. See State v. Melton, 307 N.C. 370, 298 S.E. 2d 673 (1983).\nNo error.\nJudges Phillips and Cozort concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Donald W. Lat\u00f3n, for the State.", "John M. Savage for defendant-appellant Lloyd.", "Public Defender Robert L. Shoffner, Jr., for defendant-appellant May." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDWARD EARL LLOYD and ARCHIE GRAY MAY, JR.\nNo. 873SC442\n(Filed 19 April 1988)\n1. Criminal Law \u00a7 138.16\u2014 aggravating factor of inducing another to participate in murder \u2014 sufficiency of evidence\nEvidence supported the sentencing judge\u2019s finding in aggravation that the 26-year-old defendant induced the 16-year-old defendant to participate in the murder with which they were both charged where such evidence tended to show that the adult, after threatening to shoot the victim and getting a gun, told the minor to shoot the victim; and the shooting by the minor did not occur until after the encouragement from the adult. N.C.G.S. \u00a7 15A-1340.4(a)(l)(a).\n2. Criminal Law 8 138.29\u2014 aggravating factor of premeditation and deliberation \u2014sufficiency of evidence\nEvidence was sufficient to support the sentencing judge\u2019s finding of premeditation and deliberation as an aggravating factor for second degree murder to which defendants pled guilty where it tended to show that one defendant threatened to shoot the victim on one other occasion and on the day of the killing again threatened the victim a few minutes prior to the actual shooting; there was no evidence of any provocation on the part of the victim and yet, after seeing the victim, defendant told a friend to go get the gun and procured it himself when the friend refused; the minor defendant aimed the rifle and then killed the victim with one shot to the head after the friend asked him not to shoot; the minor defendant then reloaded the rifle and again aimed at the victim but did not fire the rifle; after the shooting both defendants walked over to the victim where the minor grabbed deceased\u2019s head and shook it; and defendants walked away and shook hands.\n3. Criminal Law 8 138.29\u2014 aggravating factor of premeditation and deliberation-evidence of intoxication insufficient to negate\nEvidence of intoxication of the defendants was not sufficient to negate the finding of premeditation and deliberation as an aggravating factor for second degree murder where there was evidence that both consumed alcohol and smoked marijuana prior to the killing, but there was no evidence to support a conclusion that either defendant was so intoxicated that he did not know what he was doing.\n4. Criminal Law 8 138.15\u2014 same evidence not used to support two aggravating factors\nThere was no merit to defendant\u2019s contention that the sentencing judge considered the same item of evidence to prove the aggravating factors of inducing another to participate in the crime and premeditation and deliberation in violation of N.C.G.S. \u00a7 15A-1340.3(a)(l).\n5. Criminal Law \u00a7 138.35\u2014 limited mental capacity as mitigating factor \u2014 finding not required\nThe sentencing judge was not required to find defendant\u2019s limited mental capacity as a mitigating factor where defendant\u2019s evidence established that he had well below average intelligence which would impair his ability to handle stressful situations, but evidence of defendant\u2019s low intelligence, limited social skills, and limited judgment did not clearly establish that these traits significantly reduced his culpability for the offense under the circumstances present at the time of the shooting. N.C.G.S. \u00a7 15A-1340.4(a)(2)(e).\n6. Criminal Law \u00a7 138.34\u2014 intoxication as mitigating factor \u2014 finding not required\nEven if one defendant was suffering from a mental or physical condition brought about by alcoholic beverages and marijuana, there was no evidence that his culpability for the offense was significantly reduced, and the sentencing judge therefore did not err in failing to find intoxication as a mitigating factor. N.C.G.S. \u00a7 15A-1340.4(a)(2)(d).\nAPPEAL by defendants from Brown (Frank RJ, Judge. Judgments entered 15 December 1986 in Superior Court, Pitt County. Heard in the Court of Appeals 30 September 1987.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Donald W. Lat\u00f3n, for the State.\nJohn M. Savage for defendant-appellant Lloyd.\nPublic Defender Robert L. Shoffner, Jr., for defendant-appellant May." }, "file_name": "0630-01", "first_page_order": 658, "last_page_order": 668 }