{ "id": 4779755, "name": "STATE OF NORTH CAROLINA v. TERRY LEE MOORE", "name_abbreviation": "State v. Moore", "decision_date": "1986-07-02", "docket_number": "No. 25A86", "first_page": "275", "last_page": "283", "citations": [ { "type": "official", "cite": "317 N.C. 275" } ], "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": "337 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "78 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519586 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/78/0077-01" ] }, { "cite": "241 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "68" } ], "opinion_index": 0 }, { "cite": "294 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572384 ], "year": 1978, "pin_cites": [ { "page": "213-14" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0210-01" ] }, { "cite": "307 S.E. 2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "309 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760257 ], "year": 1983, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0326-01" ] }, { "cite": "306 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "789" } ], "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": "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": "343 S.E. 2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "theft of a firearm, which defendant admitted but with which he had not been charged, was properly considered an aggravating factor in sentencing" } ], "opinion_index": 0 }, { "cite": "316 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694299 ], "year": 1986, "pin_cites": [ { "parenthetical": "theft of a firearm, which defendant admitted but with which he had not been charged, was properly considered an aggravating factor in sentencing" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0666-01" ] }, { "cite": "342 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697700 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0523-01" ] }, { "cite": "308 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705257, 4705802, 4706060, 4706142 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0680-01", "/nc/308/0680-04", "/nc/308/0680-03", "/nc/308/0680-02" ] }, { "cite": "301 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521972 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0500-01" ] }, { "cite": "77 S.E. 2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603394 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0241-01" ] }, { "cite": "148 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560291 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0653-01" ] }, { "cite": "164 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560990 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0519-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "171" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "81-82" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "337 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "69" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519586 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "83" }, { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0077-01" ] } ], "analysis": { "cardinality": 847, "char_count": 18772, "ocr_confidence": 0.821, "pagerank": { "raw": 2.410389969568837e-07, "percentile": 0.7999008822522086 }, "sha256": "566f6f77013c8c0fa19a000e5e53bea6bfaad60bbf9ff85cc74d4989ebea9c4e", "simhash": "1:21690322646b6ac0", "word_count": 2999 }, "last_updated": "2023-07-14T14:55:24.016055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices MITCHELL and Frye join in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY LEE MOORE" ], "opinions": [ { "text": "MARTIN, Justice.\nThe body of Angela Ballard was found partially buried in sand at the base of an Atlantic Beach sand dune on the morning of 9 July 1982. Angela\u2019s pantsuit was tangled around her feet, and her mouth and throat were packed with sand. A forensic pathologist testified that he observed bruises and scrapes on Angela\u2019s face, neck, and chest, and opined that these had been caused by the blows of a blunt object, such as a fist. The pathologist believed the cause of Angela\u2019s death to have been asphyxiation, from either the compression of her neck by an arm or the obstruction of the airways by sand, or from a combination of these. An examination of the victim\u2019s genital area revealed neither injuries nor the presence of sperm; however, the pathologist testified that such findings did not preclude the possibility that the victim had experienced sexual activity or penetration before her death.\nDefendant and his companion, Lee Johnson, testified that they had been with Angela in the wee hours of the ninth and had engaged in sexual intercourse with her near the spot where her body was found. Defendant asserted on the stand that, after Lee had left them, he and Angela had been interrupted by two abusive intruders, one of whom had \u201cjumped on\u201d Angela. He further testified that, even though the other intruder did not defend himself, he attacked the other intruder and punched him. Defendant then blacked out. When defendant regained consciousness, he stumbled upon Angela\u2019s body, whereupon he ran off in a panic.\nUnder cross-examination, defendant admitted to having used a panoply of drugs, to having sold drugs, and to having broken into motel rooms at the beach three or four times in order to steal cash and goods to fund his drug use. Counterpoint to these admissions was provided by testimony from a number of defendant\u2019s neighbors and friends from Garner, N.C., where he had been raised and had still lived with his parents until his arrest for Angela\u2019s murder. These witnesses attested to defendant\u2019s good moral character and sound reputation in that community.\nThe jury found defendant guilty of murder in the second degree. Defendant was sentenced to forty-five years\u2019 imprisonment, being more than the presumptive term stated for a Class C felony in the Fair Sentencing Act, N.C.G.S. \u00a7 15A-1340.4(f). The trial judge found as an aggravating factor that\ndefendant acknowledged under oath the following criminal offenses all of which carry sentences in excess of 60 days:\nA. Possession of a schedule I controlled substance, L.S.D.[,] a Class H felony.\nB. Sale of a schedule VI controlled substance, marijuana, a Class I felony.\nC. Breaking and Entering and Larceny, Class H felonies.\nAs mitigating factors, the trial judge found that defendant had no record of criminal convictions and that he had been a person of good character or had had a good reputation in the community in which he lived.\nTwo issues concerning the Fair Sentencing Act are before us in defendant\u2019s appeal. First, defendant contends that the trial court erred in sentencing him to imprisonment for a period longer than the presumptive term because no aggravating factor other than defendant\u2019s acknowledgment of participation in felonious activities was indicated in the judgment and because defendant rejects these admissions as an aggravating factor \u201creasonably related to the purposes of sentencing.\u201d N.C.G.S. \u00a7 15A-1340.4(a) (1983). Second, defendant insists that his age of seventeen at the time of the offense was a factor the trial court should have found in mitigation as \u201cimmaturity . . . significantly reducing] culpability for the offense.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(2)(e).\nA majority of the Court of Appeals found no error in defendant\u2019s trial or sentencing, holding as to the issue of defendant\u2019s immaturity that \u201ca person at 17 years of age should be as well aware as any person of the wrong involved in the commission of murder.\u201d 78 N.C. App. at 83, 337 S.E. 2d at 69. We accepted discretionary review of this issue. The court below divided, however, regarding whether defendant\u2019s acknowledgment of involvement in felonious activity could support the trial court\u2019s finding of an aggravated factor. The majority considered these admissions to be subsumed in N.C.G.S. \u00a7 15A-1340(a)(l)(o): whether \u201c[t]he defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days\u2019 confinement.\u201d Id. However, Judge Becton dissented on this issue, rejecting the majority\u2019s \u201cimplicit premises that an uncorroborated admission \u2014 without evidence aliunde \u2014 is legally sufficient and that a defendant\u2019s characterization of conduct as criminal \u2014 without regard to whether the conduct was justifiable or excusable \u2014 is conclusive.\u201d 78 N.C. App. at 84, 337 S.E. 2d at 70.\nIt is our view that the aggravating factor of acknowledged participation in felonies found by the trial court need not have been characterized \u201ca conviction punishable by sixty days\u2019 confinement,\u201d as the majority of the Court of Appeals termed it. Given the stream of character witnesses marshalled by defendant, it is more natural to view the substance of defendant\u2019s admissions as pertaining to his character than to force them to fit the prior-conviction factor. In fact, the trial court listed these acts as a nonstatutory aggravating factor. N.C.G.S. \u00a7 15A-1340.4(a). Before and since the passage of the Fair Sentencing Act, this Court has consistently approved the trial court\u2019s assessment of character evidence for purposes of sentencing.\nIn determining the proper sentence to impose upon a convicted defendant, it is appropriate for the trial judge to inquire into such matters as the age, character, education, environment, habits, mentality, propensities, and record of the person about to be sentenced.\nState v. Smith, 300 N.C. 71, 81-82, 265 S.E. 2d 164, 171 (1980). Accord, State v. Stafford, 274 N.C. 519, 164 S.E. 2d 371 (1968); State v. Thompson, 267 N.C. 653, 148 S.E. 2d 613 (1966); State v. Cooper, 238 N.C. 241, 77 S.E. 2d 695 (1953). As defendant had placed his character directly in issue, 1 Brandis on North Carolina Evidence \u00a7 108 (1982), specific wrongful acts of the defendant may be brought out to show his character, 1 Brandis \u00a7 111. It is within the discretion of the trial court to use any factors, in addition to those specified in the statute, which are supported by the preponderance of the evidence and which are reasonably related to the purposes of sentencing. N.C.G.S. \u00a7 15A-1340.4(a); State v. Setzer, 61 N.C. App. 500, 301 S.E. 2d 107, cert. denied, 308 N.C. 680 (1983).\nThere is no reason why defendant should have expected that his admission of participation in several felonies would fall upon deaf ears. It was defendant\u2019s right to invoke his fifth amendment privilege against self-incrimination; but having failed to do so, the substance of his testimony was correctly taken into account by the sentencing judge. See State v. Smith, 300 N.C. 71, 265 S.E. 2d 164. Further, because these criminal acts were not elements of the offense, their consideration for sentencing purposes was otherwise constitutionally proper. See State v. Denning, 316 N.C. 523, 342 S.E. 2d 855 (1986). See also State v. Barts, 316 N.C. 666, 343 S.E. 2d 828 (1986) (theft of a firearm, which defendant admitted but with which he had not been charged, was properly considered an aggravating factor in sentencing).\nIn State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983), this Court affirmed that portion of the Court of Appeals\u2019 opinion holding that the defendant\u2019s admissions as to his prior convictions elicited upon cross-examination sufficed to satisfy proof of such convictions for the purposes of the Fair Sentencing Act. We hold that admissions on the stand as to participation in felonies may likewise satisfy the statutory requisites of credible evidence \u2014 not, under the circumstances of this case, for the purpose of proving convictions, but for the purpose of proving character.\nDefendant\u2019s cohort of character witnesses from Garner presents no impediment to the trial court\u2019s finding an aggravating factor based upon defendant\u2019s admitted felonious conduct in Atlantic Beach. Evidence of good character and reputation in Garner, in Wake County, does not cancel out evidence of bad character in Atlantic Beach, in Carteret County. The factors are not mutually exclusive, nor are they quantifiable. Even if they were, the weighing of one factor against the other is entirely within the sound discretion of the sentencing judge. State v. Blackwelder, 309 N.C. 410, 419, 306 S.E. 2d 783, 789 (1983). Defendant\u2019s felonious acts were proved, via admission, by a preponderance of the evidence. The trial court correctly determined these acts to be reasonably related to sentencing. As such, these acts were appropriately considered an aggravating factor in the determination of defendant\u2019s sentence.\nIncluded among the specified mitigating factors in the Fair Sentencing Act is the following: \u201cThe defendant\u2019s immaturity or his limited mental capacity at the time of the commission of the offense significantly reduced his culpability for the offense.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(2)(e). This factor includes two inquiries\u2014 one as to immaturity (or mental capacity) and one as to the effect of such immaturity upon culpability. Clearly, age alone is insufficient to support this factor, not only because of the legislature\u2019s deliberate choice of the word \u201cimmaturity,\u201d but also because of the second part of the inquiry. Case law from this and other jurisdictions sheds no light on the significance of \u201cimmaturity\u201d in regard to adult sentencing: the term appears to be unique in sentencing acts nationwide. However, the fact that North Carolina\u2019s statutory provisions for sentencing in capital cases, which antedate the Fair Sentencing Act, cite the defendant\u2019s \u201cage\u201d as a mitigating circumstance, indicates that, in drafting the latter Act, the legislature had in mind an inquiry into immaturity broader than mere chronological age. Compare N.C.G.S. \u00a7 15A-1340.4(a)(2)(e) with N.C.G.S. \u00a7 15A-2000(f)(7) (1983). This indication is reinforced by comparing the \u201cimmaturity\u201d mitigating factor to other provisions in the General Statutes that designate specific ages for special treatment. Provisions regarding youthful offenders, for example, under N.C.G.S. \u00a7\u00a7 148-40.10 to .16 (1983), target individuals under the age of twenty-one for alternative sentencing treatment at the option of the trial judge. And delinquent juveniles, defined as youths below the age of sixteen who have committed a criminal offense, are treated differently than adult offenders solely because of their age. See N.C.G.S. \u00a7\u00a7 7A-516 to -758 (1981). Also supporting this conclusion is the fact that the second part of the factor requires a determination of the effect of immaturity on culpability. It appears more likely that the legislature was concerned with all facts, features, and traits that indicate a defendant\u2019s immaturity and the effect of that immaturity on culpability \u2014 rather than with the less directly pertinent element of chronological age. Consistent with this view, we are unwilling to say that a defendant\u2019s age of seventeen at the time of the offense classifies him as \u201cimmature\u201d within the meaning of the statute. Here, as in capital cases, \u201c[a]ny hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances.\u201d State v. Oliver, 309 N.C. 326, 372, 307 S.E. 2d 304, 333 (1983).\nIt was wholly within the trial judge\u2019s discretion to assess such conditions and circumstances in determining whether the defendant\u2019s immaturity, whatever its most influential source \u2014 intellect, emotional development, or chronological age \u2014 significantly reduced his culpability for the charged offense. We find no abuse of that discretion in the trial court\u2019s refusal to find defendant\u2019s age a mitigating factor.\n\u201cA judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.\u201d State v. Locklear, 294 N.C. 210, 213-14, 241 S.E. 2d 65, 68 (1978). None of these abuses is apparent from the record of the case at bar, and we accordingly modify and affirm the finding of no error by the Court of Appeals.\nModified and Affirmed.", "type": "majority", "author": "MARTIN, Justice." }, { "text": "Justice Exum\ndissenting.\nThe majority correctly concludes that a defendant\u2019s acknowledgment of past, unprosecuted criminal wrongdoing at a sentencing hearing under the Fair Sentencing Act is not the equivalent of the statutory aggravating factor defined by section 15A-1340 (a)(l)(o) of the Act, i.e., \u201cdefendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days\u2019 confinement.\u201d Judge Becton, dissenting in the Court of Appeals, demonstrates persuasively why such an acknowledgment should not be treated the same as if defendant had been convicted for his wrongdoing.\nYet the record reveals, I think beyond argument, that the sentencing judge treated this defendant\u2019s acknowledgment precisely as if the statutory prior conviction aggravating circumstance were present. Indeed, he was careful to note that the acts of wrongdoing were \u201ccriminal offenses all of which carry sentences in excess of 60 days.\u201d He then proceeded to list each offense in language suitable for an indictment, specifying the class into which the offense falls under the Fair Sentencing Act. The Court of Appeals accurately assessed the sentencing judge\u2019s action. It affirmed on the ground defendant\u2019s acknowledgment was the equivalent of prior convictions under section 15A-1340(a)(l)(o), saying:\nIf the fact of a defendant\u2019s prior convictions punishable by 60 days\u2019 confinement is reasonably related to the purposes of sentencing, we believe the fact of a defendant\u2019s admitted commission of prior criminal offenses also punishable by 60 days\u2019 confinement is reasonably related to the purposes of sentencing.\nThis, I think, is the error committed at sentencing which entitles defendant to a new sentencing hearing. As the majority seems to recognize, defendant\u2019s acknowledgment of past wrongful acts bears on sentencing, not as if these acts were prior convictions but only as evidence of defendant\u2019s character. That defendant committed the acts tends to rebut the evidence he offered of his good character. On the other hand defendant\u2019s voluntary acknowledgment of his past wrongdoing could indicate that defendant was at least truthful, willing to admit his past wrongs, and perhaps ready to mend his ways and lead a better life. This acknowledgment could thus be some evidence of present good character.\nThe point is that however this aspect of the case is considered, it goes to the question of defendant\u2019s character. This is how defendant\u2019s acknowledgment should have been, but was not, regarded by the trial judge. The crucial question for purposes of sentencing in this case is whether defendant is a Dr. Jekyll or a Mr. Hyde. Is he a person of good character or bad character? Do his past wrongful acts demonstrate his bad character or does his acknowledgment of them demonstrate present good character? Is he entitled to have his sentence mitigated because he is a person of good character or aggravated because he is a person of bad character? The trial judge never answered these questions. In mitigation he found defendant to be a person of good character or reputation in his community and one with no prior criminal convictions. Yet he determined to aggravate the sentence as if defendant had been criminally convicted in the past.\nThe majority recognizes that a sentence may be set aside if it is imposed under \u201ccircumstances which manifest inherent unfairness and injustice or . . . which [offend] the public sense of fair play.\u201d I believe the sentence before us was imposed under such circumstances. My vote is to reverse the Court of Appeals and remand the matter for a new sentencing hearing to be conducted consistently with the principles the majority recognizes but does not apply in this case.\nJustices MITCHELL and Frye join in this dissenting opinion.", "type": "dissent", "author": "Justice Exum" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by James Peeler Smith, Assistant Attorney General, for the state.", "Tharrington, Smith & Hargrove, by Roger W. Smith, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY LEE MOORE\nNo. 25A86\n(Filed 2 July 1986)\n1. Criminal Law \u00a7 138.28\u2014 admission of unprosecuted felonies \u2014 considered as character evidence \u2014 proper aggravating factors\nThe trial court did not err in a prosecution for second degree murder by sentencing defendant to more than the presumptive term where defendant had admitted under cross-examination that he had been in possession of LSD, that he had sold marijuana, and that he had committed several breaking and enterings and larcenies. The aggravating factor of acknowledged participation in felonies need not have been characterized by the Court of Appeals as a \u201cconviction punishable by more than 60 days\u2019 confinement\u201d because, given defendant\u2019s character evidence, it was more natural to view defendant\u2019s admissions as pertaining to his character; the trial court\u2019s assessment of character evidence has been consistently approved for purposes of sentencing; defendant\u2019s admissions on the stand as to participation in felonies satisfied the statutory requirements of credible evidence for the purpose of proving character; and defendant\u2019s evidence of good character did not cancel out the evidence of bad character since the weighing of factors is in the discretion of the trial judge. N.C.G.S. \u00a7 15A-1340.4(a).\n2. Criminal Law \u00a7 138.35\u2014 murder \u2014 seventeen-year-old defendant \u2014 age not a mitigating factor\nThe trial court did not abuse its discretion when sentencing a seventeen-year-old defendant for second degree murder by refusing to find defendant\u2019s age as a mitigating factor. Age alone is insufficient to support the factor, and it is wholly within the trial court\u2019s discretion to assess conditions and circumstances in determining whether defendant\u2019s immaturity reduced his culpability. N.C.G.S. \u00a7 15A-1340.4(a)(2)(e).\nJustice Exum dissenting.\nJustices Mitchell and Frye join in the dissenting opinion.\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, reported in 78 N.C. App. 77, 337 S.E. 2d 66 (1985), which found no error in the trial and conviction of defendant before Strickland, J., at the 16 April 1984 session of Carteret Superior Court. Heard in the Supreme Court 10 June 1986.\nLacy H. Thornburg, Attorney General, by James Peeler Smith, Assistant Attorney General, for the state.\nTharrington, Smith & Hargrove, by Roger W. Smith, for defendant." }, "file_name": "0275-01", "first_page_order": 311, "last_page_order": 319 }