{ "id": 2494759, "name": "STATE OF NORTH CAROLINA v. JAMES EARL MANNING", "name_abbreviation": "State v. Manning", "decision_date": "1990-12-05", "docket_number": "563PA89", "first_page": "608", "last_page": "615", "citations": [ { "type": "official", "cite": "327 N.C. 608" } ], "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": "386 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": -1 }, { "cite": "96 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523269 ], "year": 1989, "opinion_index": -1, "case_paths": [ "/nc-app/96/0502-01" ] }, { "cite": "298 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "679" } ], "opinion_index": 0 }, { "cite": "307 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562412 ], "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0370-01" ] }, { "cite": "389 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "32" } ], "opinion_index": 0 }, { "cite": "326 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306563 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0348-01" ] }, { "cite": "345 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "220" } ], "opinion_index": 0 }, { "cite": "317 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779755 ], "year": 1986, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0275-01" ] }, { "cite": "306 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761187 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0063-01" ] }, { "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": "310 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399372 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0142-01" ] }, { "cite": "334 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685694 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0460-01" ] }, { "cite": "311 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "879" } ], "opinion_index": 0 }, { "cite": "310 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2397021 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0295-01" ] }, { "cite": "386 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "97", "parenthetical": "emphasis added" }, { "page": "97", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523269 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "505" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0502-01" ] } ], "analysis": { "cardinality": 717, "char_count": 17416, "ocr_confidence": 0.748, "pagerank": { "raw": 1.5509940287656404e-07, "percentile": 0.6746339265339408 }, "sha256": "d2654b9aa544371201a5b69ffdd64fb59fcf8a085dd11a16cbcb6edf3e19993d", "simhash": "1:610e41464429ac62", "word_count": 2868 }, "last_updated": "2023-07-14T20:39:47.348264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JAMES EARL MANNING" ], "opinions": [ { "text": "MEYER, Justice.\nDefendant pled guilty to solicitation to commit murder, second-degree murder, and conspiracy to commit murder in violation of N.C.G.S. \u00a7\u00a7 14-3,14-17, and 14-2.4(2) at the 6 September 1988 session of Superior Court, Pitt County, and prayer for judgment was continued. On 23 November 1988, the solicitation and conspiracy counts were consolidated for the purpose of judgment, and defendant was sentenced to a term of ten years for these offenses and a concurrent term of life imprisonment for murder. Defendant appealed, and the Court of Appeals affirmed the trial court in part and reversed it in part. That court affirmed the action of the trial court in refusing to find as a mitigating factor that, on the evidence presented, defendant was a passive participant. The Court of Appeals remanded the case for resentencing on the grounds that the trial court had erred in considering pecuniary gain as a nonstatutory aggravating factor under the Fair Sentencing Act when no evidence was presented that defendant had been hired or paid to commit the offense. The State filed a petition for discretionary review with this Court, which we allowed on 7 February 1990. We now reverse the decision of the Court of Appeals and remand for reinstatement of the judgment of the trial court.\nFor some months prior to 19 March 1988, defendant, James Earl Manning, was involved in an affair with Sandra White, who was still living with her husband, Bobby White, during the course of her involvement with defendant. At one point during the relationship, defendant resided at the residence of Sandra White with the consent and knowledge of her husband, who was also living in the house.\nDuring the latter part of 1987, Sandra White began making statements to defendant and others that she desired to have her husband killed. She stated to an acquaintance and friend, Linda Colville, that she would like to have her husband killed so that she and \u201cDoodle\u201d (referring to defendant) could share in insurance proceeds and other assets of the estate of Bobby White. In December 1987, Sandra White, along with defendant, went to the residence of Michael Ray Rogers in Greenville. Rogers was an acquaintance of defendant, and at one time, the two had worked together. While at the residence, Sandra stated that she desired to have her husband killed and that she was willing to pay Rogers anywhere from $500 to $5,000 to accomplish this. When she was leaving Rogers\u2019 residence, Sandra turned and said, \u201cI\u2019m serious about what I said to you now.\u201d\nIn February 1988, defendant, Sandra White, and defendant\u2019s first cousin, James Alton Mobley, were riding around together in a car near Grimesland. A discussion ensued about the possibility of Mobley being paid the sum of $35,000 to kill Bobby White. This money was to come from insurance proceeds that Sandra White would receive upon the death of her husband.\nOn Saturday afternoon, 19 March 1988, defendant and Mobley were in the vicinity of the \u201cHard Times\u201d nightclub near Greenville. Defendant phoned Sandra White and asked her to leave her residence and meet them at the sand pits behind the nightclub. She met them at this location, and while there, the three of them discussed and planned how Bobby White would be killed that night. Both defendant and Mobley made statements concerning this meeting. According to defendant, Sandra White made the offer directly to Mobley to pay him to kill her husband. According to Mobley, defendant sought Mobley out on that particular day, asked him to kill Bobby White, and stated that Sandra would pay Mobley $35,000. Both defendant\u2019s and Mobley\u2019s statements indicated that later that evening defendant drove to a location outside of Greenville, according to the plan discussed earlier at the sand pits; picked up Mobley; and drove him to within a mile of Bobby White\u2019s residence. Defendant let Mobley out of the car and then drove directly to his parents\u2019 house nearby to establish an alibi. Mobley walked to Bobby White\u2019s residence, at which point he killed White by stabbing him numerous times and cutting his throat.\nOn 19 March 1988, deputies of the Pitt County Sheriff\u2019s Department were called to the White residence where they found the body of Bobby White.\nAfter the murder, officers from the Pitt County Sheriff\u2019s Department and the State Bureau of Investigation interviewed William Nanny, an acquaintance and friend of defendant and Mobley. He told them that a few weeks before the actual murder defendant and Mobley had, in his presence, discussed Mobley killing Bobby White for $35,000.\nA few weeks after Bobby White\u2019s murder, Sandra White was arrested and charged with solicitation to commit murder. Shortly thereafter, Mobley and defendant were arrested and charged with conspiracy to commit murder.\nApproximately a week after defendant was arrested, he made a confession about his involvement in the murder of Bobby White. As part of a plea bargain arrangement, he was allowed to plead guilty to second-degree murder in exchange for his agreement to cooperate with the State and to testify against the codefendants.\nMobley pled guilty to second-degree murder, felonious breaking and entering, and conspiracy to commit murder and, as part of the plea arrangement, received a sentence of life plus twenty years. Mobley agreed to testify against Sandra White, which resulted in her plea to second-degree murder, solicitation, and conspiracy, with an agreed-upon life sentence with twenty years running concurrently.\nAfter White and Mobley were sentenced, the State prayed judgment on defendant, and after evidence was presented by the State and defendant, defendant was sentenced to life imprisonment for his part in the murder of Bobby White. As to the charge of second-degree murder, the trial judge found the statutory aggravating factor that defendant had prior convictions of criminal offenses punishable by more than sixty days\u2019 confinement. N.C.G.S. \u00a7 15A-1340.4(a)(l)(o) (1988). He also found the nonstatutory aggravating factors that the murder was committed with premeditation and deliberation and that the murder was committed for pecuniary gain. As to the mitigating factors, the trial judge found that defendant aided in the apprehension of another felon, N.C.G.S. \u00a7 15A-1340.4(a)(2)(h) (1988), and that defendant, in the early stages of the criminal process, voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer, N.C.G.S. \u00a7 15A-1340.4(a)(2)(l) (1988).\nAs to the charges of aiding and abetting in the solicitation to commit murder and conspiracy to commit murder, the trial judge consolidated the judgment and sentenced defendant to ten years to run concurrently with the life sentence. The trial judge found as a statutory aggravating factor that defendant had a prior conviction of criminal offenses punishable by more than sixty days, N.C.G.S. \u00a7 15A-1340.4(a)(l)(o) (1988), and as a nonstatutory aggravating factor that the solicitation and conspiracy were committed for pecuniary gain. As to mitigating factors, the trial judge found that defendant aided in the apprehension of another felon, N.C.G.S. \u00a7 15A-1340.4(a)(2)(h) (1988), and that at an early stage of the criminal process, defendant voluntarily acknowledged wrongdoing in connection with the offenses to a law enforcement officer, N.C.G.S. \u00a7 15A-1340.4(a)(2)(l) (1988).\nThe case is before this Court on the sole issue of whether the Court of Appeals erred in reversing the trial judge\u2019s use as a nonstatutory aggravating factor that the crimes were committed for pecuniary gain. It is quite clear that there was sufficient evidence to support the factor. There was substantial evidence that defendant was the primary instigator in pursuing and getting the agreement for someone to kill Bobby White in return for payment by Sandra White. The sum of $35,000 to be paid for the killing was to come from $100,000 in insurance proceeds which Sandra White would receive upon Bobby White\u2019s death. While there was no evidence that defendant was hired or paid to commit the offenses, there was plenary evidence that defendant and Sandra White intended to live together after Bobby White\u2019s murder and- to share in the remainder of the proceeds of the insurance policy, as well as the land and the mobile home belonging to Bobby White.\nThe issue to be decided is whether pecuniary gain may be used as a nonstatutory aggravating factor in the absence of any evidence that defendant was hired or paid to commit an offense. The Court of Appeals held that it was not available. We disagree.\nThe Fair Sentencing Act, which became effective 1 July 1981, provided the statutory aggravating factor that \u201c[t]he offense was committed for hire or pecuniary gain.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(l)(c) (Cum. Supp. 1981). Effective 1 October 1983, the General Assembly amended this statute to read: \u201cThe defendant was hired or paid to commit the offense.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(l)(c) (1988). In discussing this statutory factor in State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984), we said: \u201cIt 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.\u201d Id. at 299, 311 S.E.2d at 879; see also State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985); State v. Edwards, 310 N.C. 142, 310 S.E.2d 610 (1984); 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); State v. Abdullah, 309 N.C. 63, 306 S.E.2d 100 (1983).\nIn the case at bar, the State did not contend, and there was no evidence to show, that defendant was hired or paid to commit the offense. The evidence did, however, tend to show that defendant was motivated to commit the crime by expectations of enjoyment of financial or pecuniary gain upon the death of the victim. The uncontradicted evidence showed that Sandra White, the deceased\u2019s wife, had stated in defendant\u2019s presence on many occasions that she would like to see her husband dead so that she and defendant, who was her lover, could get the mobile home and the land and could live together and get her husband\u2019s assets. These assets would include the remainder of approximately $100,000 in insurance payable upon her husband\u2019s death, after paying Mobley to kill the deceased.\nDefendant contended before the Court of Appeals that the trial court improperly found as a nonstatutory aggravating factor that the murder, solicitation, and conspiracy were committed for pecuniary gain. In the Court of Appeals opinion, that court said: \u201cA trial court should not be allowed to assign in aggravation a factor as nonstatutory where the statute clearly prohibits its use as a statutory aggravating factor.\u201d State v. Manning, 96 N.C. App. at 505, 386 S.E.2d at 97 (emphasis added). The State contends, and we agree, that this conclusion is in error because the statute does not prohibit the use of pecuniary gain as a nonstatutory aggravating factor.\nBecause the evidence would not support the statutory aggravating factor in N.C.G.S. \u00a7 15A-1340.4(a)(l)(c), that \u201c[t]he defendant was hired or paid to commit the offense,\u201d does not mean that it cannot be used to support a nonstatutory aggravating factor. As pointed out by the opinion below, the sentencing judge \u201c \u2018may consider any aggravating . . . factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purpose of sentencing...\u2019 even though not enumerated on the statutory list. N.C.G.S. \u00a7 15A-1340.4[(a)].\u201d State v. Manning, 96 N.C. App. at 504, 386 S.E.2d at 97 (citation omitted).\nThis Court has upheld trial courts\u2019 findings of nonstatutory aggravating factors where the use of evidence to aggravate sentences is \u201creasonably related to the purposes of sentencing.\u201d State v. Moore, 317 N.C. 275, 279, 345 S.E.2d 217, 220 (1986); N.C.G.S. \u00a7 15A-1340.4(a) (1988). Since pecuniary gain as an incentive to commit a crime is reasonably related to the purposes of sentencing, it can be a nonstatutory aggravating factor unless there is something to preclude its use.\nN.C.G.S. \u00a7 15A-1340.4 provides:\nEvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, and the same item of evidence may not be used to prove more than one factor in aggravation.\nN.C.G.S. \u00a7 15A-1340.4(a)(l) (1988). In the recent case of State v. Vandiver, 326 N.C. 348, 389 S.E.2d 30 (1990), this Court upheld that trial court\u2019s finding of premeditation and deliberation as a nonstatutory aggravating factor in second-degree murder and reiterated its previous statement that \u201c \u2018[a]s long as they are not elements essential to the establishment of the offense to which the defendant pled guilty, all circumstances which are transactionally related to the admitted offense and which are reasonably related to the purposes of sentencing must be considered during sentencing.\u2019 \u201d Id. at 351, 389 S.E.2d at 32 (quoting State v. Melton, 307 N.C. 370, 378, 298 S.E.2d 673, 679 (1983)) (emphasis added).\nWe find no language in any other provision of the Fair Sentencing Act which would prohibit use of pecuniary gain as a nonstatutory aggravating factor where pecuniary gain is not used to support an element of the crime. Pecuniary gain is not an element essential to the establishment of the crimes of murder, conspiracy to commit murder, and solicitation to commit murder; so use of pecuniary gain as a nonstatutory aggravating factor would not be prohibited by the language forbidding double use of evidence necessary to prove an element of the crime. To find as a nonstatutory aggravating factor that the defendant committed these crimes for pecuniary gain is consistent with the purposes of sentencing as set out in N.C.G.S. \u00a7 15A-1340.3:\nThe primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender\u2019s culpability, to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.\nN.C.G.S. \u00a7 15A-1340.3 (1988) (emphasis added).\nA person who conspires and solicits the taking of a person\u2019s life, so that he may live off the insurance proceeds from that person\u2019s death and live in that person\u2019s home, is more culpable by reason of those motives, and a sentence greater than the presumptive is warranted for purposes of deterrence as well as protection of the unsuspecting public.\nWe therefore hold that, in cases where defendant is not hired or paid to commit the offense, there is nothing to prevent use of pecuniary gain as a nonstatutory aggravating factor, provided pecuniary gain is not an element essential to the establishment of the crime which is sought to be aggravated.\nThe decision of the Court of Appeals is reversed, and the case is remanded to that court for further remand to the Superior Court, Pitt County, for reinstatement of the judgment entered by Reid, J., on 23 November 1988.\nDefendant also argued before the Court of Appeals that the trial court erred in failing to submit the requested statutory mitigating factor that the defendant played a minor role or was a passive participant in the commission of the crimes. N.C.G.S. \u00a7 15A-1340.4(a)(2)(c) (1988). The Court of Appeals affirmed the trial court\u2019s refusal to submit that statutory mitigating factor because the evidence tended to show that defendant actively participated in planning the murder, assisted in the search for an assassin, and took part in the attempted cover-up. Defendant did not seek our review of that issue, and the Court of Appeals decision on that issue remains undisturbed.\nReversed and remanded.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State-appellant.", "Robin L. Fornes for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EARL MANNING\n563PA89\n(Filed 5 December 1990)\nCriminal Law \u00a7 1140 (NCI4th)\u2014 nonstatutory aggravating factor\u2014 pecuniary gain \u2014defendant not hired or paid\nPecuniary gain may be used as a nonstatutory aggravating factor under the Fair Sentencing Act in cases in which defendant was not hired or paid to commit the crime provided pecuniary gain is not an element essential to the establishment of the crime which is sought to be aggravated. Since pecuniary gain is not an essential element of the crimes of second degree murder, conspiracy to commit murder, and solicitation to commit murder, the trial court did not err in finding pecuniary gain as a nonstatutory aggravating factor for those crimes where there was plenary evidence that defendant and the victim\u2019s wife intended to live together after the victim\u2019s death and to share the proceeds of a life insurance policy on the victim as well as the land and mobile home belonging to the victim.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Homicide \u00a7\u00a7 552-554.\nOn discretionary review of a unanimous opinion of the Court of Appeals, 96 N.C. App. 502, 386 S.E.2d 96 (1989), affirming in part and reversing in part a judgment of Reid, J., entered 23 November 1988 in Superior Court, PITT County. Heard in the Supreme Court 11 October 1990.\nLacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State-appellant.\nRobin L. Fornes for defendant-appellee." }, "file_name": "0608-01", "first_page_order": 646, "last_page_order": 653 }