{ "id": 2397021, "name": "STATE OF NORTH CAROLINA v. DON ORLANDO LATTIMORE", "name_abbreviation": "State v. Lattimore", "decision_date": "1984-02-02", "docket_number": "No. 414A83", "first_page": "295", "last_page": "302", "citations": [ { "type": "official", "cite": "310 N.C. 295" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "263 S.E. 2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575344 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0515-01" ] }, { "cite": "277 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571552 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0112-01" ] }, { "cite": "301 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710824 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0169-01" ] }, { "cite": "308 S.E. 2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763381 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0570-01" ] }, { "cite": "306 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "308 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761304 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0587-01" ] }, { "cite": "306 S.E. 2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "307 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "308 S.E. 2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766182 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0538-01" ] }, { "cite": "306 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761187 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0063-01" ] }, { "cite": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] } ], "analysis": { "cardinality": 601, "char_count": 15147, "ocr_confidence": 0.781, "pagerank": { "raw": 6.692247451632453e-07, "percentile": 0.962730645686293 }, "sha256": "872c08b69d2f5b4f4eaaaba4ceaa0faac6c74eb0b8a5cbccd607f79628fdaaa9", "simhash": "1:a3ecca61628ba8de", "word_count": 2509 }, "last_updated": "2023-07-14T22:57:26.657763+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DON ORLANDO LATTIMORE" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant brings forward numerous assignments of error, most of which have merit and entitle defendant to a new sentencing hearing. Pursuant to our recommendation in State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983), the trial judge made separate findings regarding aggravating and mitigating circumstances for each offense. We will therefore discuss defendant\u2019s assignments of error separately as they relate to each offense.\nI. Attempted Robbery With a Firearm\nAs statutory aggravating factors the trial judge found that:\n1. The defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants.\n2. The offense was committed for pecuniary gain.\nAs additional written findings of factors in aggravation, the trial judge found that:\nThe victim of the attempted armed robbery was killed and the defendant has a substantial criminal history of a serious nature.\nThe trial judge found no factors in mitigation.\nDefendant contends that the trial court erred in aggravating his sentence for attempted armed robbery \u201con the ground that the defendant induced others to participate in the attempted robbery or occupied a position of leadership or dominance of other participants because the evidence showed that the defendant was the only participant in the attempted robbery.\u201d We disagree. Although co-defendant Jeff McNeair pleaded guilty only to accessory after the fact to robbery, the evidence at the sentencing hearing, including McNeair\u2019s statement to police, supports this finding in aggravation.\nMcNeair stated that he spent the evening prior to the attempted robbery playing basketball with the defendant. On the way home the defendant told McNeair that \u201che needed some money before he went to Court, that he needed to hit something, which means to rob something, break into something.\u201d As they passed the Pantry, the defendant indicated that it \u201cought to be an easy one to rob.\u201d McNeair drove past the Pantry at defendant\u2019s request because \u201cthere were three or four cars there.\u201d He turned his car around and let the defendant out in front of the Pantry and then left to visit a friend. McNeair saw the defendant conceal a gun \u201cin the front left side of his pants\u201d as he walked in front of the car. McNeair\u2019s friend was not at home and as he passed by the railroad tracks near the Pantry, he heard the defendant call out to him. Learning that the defendant had attempted to rob the Pantry and had shot the clerk, McNeair nevertheless aided the defendant in his escape. This evidence is clearly sufficient to support a finding that defendant induced McNeair to participate in the attempted robbery or that defendant occupied a position of leadership. G.S. \u00a7 15A-1340.4(a)(l)(a).\nDefendant contends, however, that by accepting McNeair\u2019s plea to accessory after the fact, the State conceded that McNeair \u201cwas not involved in the actual commission of the offenses and was not aware of the commission of the crimes until after they had occurred.\u201d Defendant\u2019s contention places the emphasis on the wrong party. The focus of G.S. \u00a7 15A-1340.4(a)(l)(a) is not on the role of the \u201cparticipants\u201d in the crime, but on the role of the defendant in inducing others to participate or in assuming a position of leadership. Here the evidence fully supports the trial court\u2019s finding that defendant occupied a position of leadership which resulted in McNeair\u2019s involvement in the crimes. This assignment of error is overruled.\nDefendant next contends that the trial judge erred in finding in aggravation that the offense was committed for pecuniary gain. We agree. It is well-settled law now that, under the Fair Sentencing Act, in order to find this factor in aggravation, there must be evidence that the defendant was paid or hired to commit the offense. State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983). See State v. Benbow, 309 N.C. 538, 308 S.E. 2d 647 (1983); State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983); State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983).\nFinally, defendant assigns as error the additional finding in aggravation that the victim of the attempted armed robbery was killed. We agree.\nG.S. \u00a7 15A-1340.4(a)(l)(o) specifically prohibits, as an aggravating factor, the use of convictions for offenses \u201cjoinable, under G.S. Chapter 15A, with the crime or crimes for which the defendant is currently being sentenced.\u201d To permit the trial judge to find as a non-statutory aggravating factor that the defendant committed the joinable offense would virtually eviscerate the purpose and policy of the statutory prohibition.\nDefendant requested that the trial judge find as a factor in mitigation that prior to arrest or at an early stage of the criminal process, he voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer. G.S. \u00a7 15A-1340.4 (a)(2)(l). Defendant is entitled to this finding upon resentencing. Defendant, in his first statement, admitted that he entered the Pantry with the intent to rob it and that he shot the clerk, although he also maintained that he did so at the insistence of McNeair and that the shooting was accidental. As we recently stated in State v. Graham, 309 N.C. 587, 591, 308 S.E. 2d 311 (1983):\nAlthough a trial judge may be required, under the circumstances set forth above, to find in mitigation that a defendant voluntarily acknowledged wrongdoing in connection with the offense, the weight to be given to that factor remains within his sound discretion.\nII. Second Degree Murder\nIn support of a sentence in excess of the presumptive sentence for this offense, the trial judge found in aggravation that:\n1. The offense was committed for pecuniary gain.\n2. The defendant was armed with or used a deadly weapon at the time of the crime.\nAs additional factors in aggravation, the trial judge found that:\n(a) The offense was committed during the course of an armed robbery and the defendant has a substantial criminal history of a serious nature.\n(b) The presumptive sentence does not do substantial justice to the seriousness of the crime.\nWe agree with defendant that, in the absence of evidence that defendant was hired or paid, the trial judge erred in finding as an aggravating factor that this offense was committed for pecuniary gain. State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983).\nLikewise, the trial judge erred in finding, as an aggravating factor, that the defendant used a deadly weapon at the time of the crime. In State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983), we adopted a per se rule that when the facts justify an inference of malice arising only from the use of a deadly weapon, evidence concerning the use of that deadly weapon may not be used to support an aggravating factor at sentencing. The rule is applicable to both convictions or pleas in first or second degree murder cases where malice is an essential element. Id.; See State v. Taylor, 309 N.C. 570, 308 S.E. 2d 302 (1983).\nWith respect to the additional aggravating factor that the murder was committed during the course of an armed robbery, we adopt the reasoning and holding as discussed in Part I of this opinion and therefore find error. Logic dictates that G.S. \u00a7 15A-1340.4(a)(l)(o) prohibits the trial court from finding in aggravation that defendant committed a joinable offense.\nThe trial judge also erred in finding as an additional aggravating factor that the presumptive sentence \u201cdoes not do substantial justice to the seriousness of the crime.\u201d We have held that the seriousness of a crime was fully considered by the legislature in establishing the presumptive sentence. State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783; State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983).\nFinally, based on his statement to law enforcement officers prior to his arrest, defendant is entitled to a finding in mitigation that he voluntarily acknowledged wrongdoing in connection with the offense of second degree murder. State v. Graham, 309 N.C. 587, 308 S.E. 2d 311 (1983).\nIII. Committed Youthful Offender Status\nDefendant contends that he is entitled to a new sentencing hearing for both offenses because he was nineteen years old at the time of his convictions and \u201cthe court failed to sentence the defendant as a committed youthful offender or find on the record that he would not benefit from such a commitment.\u201d\nG.S. \u00a7 15A-1340.4(a) provides in pertinent part that:\nIf the convicted felon is under 21 years of age at the time of conviction and the sentencing judge elects to impose an active prison term, the judge must either sentence the felon as a committed youthful offender in accordance with Article 3B of Chapter 148 of the General Statutes and subject to the limit on the prison term provided by G.S. 148-49.14, or make a \u201cno benefit\u201d finding as provided by G.S. 148-49.14 and impose a regular prison term.\nWe find nothing on the record to indicate compliance with this mandate. The trial court erred in failing to make a \u201cno benefit\u201d finding and for this reason, and for those enunciated above, the cases must be remanded for resentencing. State v. Bracey, 303 N.C. 112, 277 S.E. 2d 390 (1981); State v. Rupard, 299 N.C. 515, 263 S.E. 2d 554 (1980).\nCase No. 82-CRS-6833 remanded for resentencing.\nCase No. 82-CRS-6834 remanded for resentencing.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Evelyn M. Coman and Charles M. Hensey, Assistant Attorneys General, for the State.", "Adam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., Assistant Appellate Defender, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DON ORLANDO LATTIMORE\nNo. 414A83\n(Filed 2 February 1984)\n1. Criminal Law \u00a7 138\u2014 attempted robbery with a firearm \u2014 aggravating factor that defendant induced others to participate supported by evidence\nThe evidence in a prosecution for second degree murder and robbery with a firearm amply supported the aggravating factor that defendant induced another to participate in the attempted armed robbery or that defendant occupied a position of leadership. G.S. 15A-1340.4(a)(l)(a). The fact that the State accepted the other person\u2019s plea to accessory after the fact should not exclude this factor from consideration since it is the role of defendant in inducing others to participate or in assuming a position of leadership and not the role of the \u201cparticipant\u201d that is emphasized by this aggravating factor.\n2. Criminal Law \u00a7 138\u2014 attempted robbery with a firearm \u2014 aggravating factor of pecuniary gain improperly considered\nIn a prosecution for robbery with a firearm and second degree murder, the trial court erred in finding in aggravation that the offense was committed for pecuniary gain since there was no evidence that the defendant was paid or hired to commit the offense.\n3. Criminal Law \u00a7 138\u2014 attempted armed robbery \u2014 aggravating factor that victim killed improperly considered\nIn a prosecution for attempted robbery with a firearm and second degree murder, the trial court erred in considering as an aggravating factor for the attempted robbery with a firearm conviction that the victim of the armed robbery was killed. G.S. 15A-1340.4(a)(l)(o).\n4. Criminal Law \u00a7 138\u2014 failure to find voluntary acknowledgment of wrongdoing as mitigating factor \u2014 error\nUpon request, the trial judge erred in failing to find as a factor in mitigation that prior to his arrest or at an early stage of the criminal process, defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer. G.S. 15A-1340.4(a)(2)(l).\n5. Criminal Law \u00a7 138\u2014 aggravating factor of pecuniary gain improperly found\nIn a sentencing hearing on a second degree murder conviction, the trial judge erred in finding as an aggravating factor that the offense was committed for pecuniary gain since there was no evidence that defendant was hired or paid.\n6. Criminal Law \u00a7 138\u2014 aggravating factor of use of deadly weapon improperly considered\nIn sentencing upon a conviction of second degree murder, the trial judge erred in finding as an aggravating factor that the defendant used a deadly weapon at the time of the crime since when the facts justify an inference of malice arising only from the use of a deadly weapon, evidence concerning the use of that deadly weapon may not be used to support an aggravating factor at sentencing.\n7. Criminal Law \u00a7 138\u2014 aggravating factor that presumptive sentence fails to do justice to seriousness of crime improperly considered\nThe trial judge erred in finding as an aggravating factor, upon conviction of second degree murder, that the presumptive sentence \u201cdoes not do substantial justice to the seriousness of the crime\u201d since the seriousness of the crime was fully considered by the legislature in establishing the presumptive sentence.\n8. Criminal Law \u00a7 134.4\u2014 failure to consider youthful offender statute error\nIn prosecutions for attempted robbery with a firearm and second degree murder, the trial judge erred in failing to follow the mandate of G.S. 15A-1340.4(a) by failing to either sentence the defendant as a committed youthful offender or make a \u201cno benefit\u201d finding.\nBEFORE Freeman, Judge, at the 7 March 1983 Criminal Session of Superior Court, ROWAN County, following pleas of guilty, defendant was sentenced to forty years imprisonment for attempted robbery with a firearm at the expiration of which he was to serve a life sentence for second degree murder. Since both sentences exceed the presumptive term for the offenses, defendant appeals from the life sentence pursuant to N.C. Rules of Appellate Procedure 4(d), as authorized by G.S. \u00a7 15A-1444(al) and (d) (Cum. Supp. 1981). Motion to bypass the Court of Appeals on the attempted robbery conviction was allowed 15 August 1983. Heard in the Supreme Court 7 November 1983.\nBy his own testimony, the defendant admitted entering the Pantry Convenience Store shortly before midnight on 2 June 1982. He picked up a bag of potato chips and gave the clerk, Marlene McNeely, a ten dollar bill. As Ms. McNeely opened the cash register, the defendant pointed a gun at her and said \u201cthis is a stickup.\u201d The victim told the defendant to leave. Defendant fired the gun at the floor. Ms. McNeely then appeared to reach down under the counter. The defendant shot her in the face. She died before reaching the hospital. Defendant\u2019s transportation to and from the scene of the crime was provided by Jeffrey McNeair. Defendant, in his first statement to law enforcement authorities, implicated McNeair in the planning and execution of the robbery. At trial, defendant testified that McNeair neither planned nor participated in the offenses; that McNeair dropped the defendant off in front of the Pantry and then left to visit a friend; that defendant was able to flag down McNeair some distance from the Pantry after the robbery; and that McNeair then assisted defendant in his escape. McNeair\u2019s statement to the police corroborated the defendant\u2019s trial testimony in most of the essential details, although he indicated that he knew, prior to dropping defendant off at the Pantry, that defendant intended to commit an armed robbery.\nRufus L. Edmisten, Attorney General, by Evelyn M. Coman and Charles M. Hensey, Assistant Attorneys General, for the State.\nAdam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., Assistant Appellate Defender, for defendant." }, "file_name": "0295-01", "first_page_order": 331, "last_page_order": 338 }