State v. Harrington

454 S.E.2d 713, 118 N.C. App. 306, 1995 N.C. App. LEXIS 162
CourtCourt of Appeals of North Carolina
DecidedMarch 21, 1995
DocketNo. 939SC1117
StatusPublished
Cited by4 cases

This text of 454 S.E.2d 713 (State v. Harrington) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Harrington, 454 S.E.2d 713, 118 N.C. App. 306, 1995 N.C. App. LEXIS 162 (N.C. Ct. App. 1995).

Opinion

JOHN, Judge.

Defendant was indicted on a charge of first degree murder. On 8 March 1993, he pled guilty to second degree murder in exchange for his testimony in cases against any co-defendants and dismissal of [307]*307charges of conspiracy to commit murder and armed robbery. No specific sentence was agreed upon in connection with the plea arrangement.

On 30 June 1993, the trial court found a statutory and a non-statutory factor in aggravation of sentence and a statutory factor in mitigation. After determining the aggravating factors outweighed those in mitigation, the court subsequently enhanced the presumptive term of 15 years and imposed a sentence of 28 years.

Defendant maintains the trial court erred by finding the following non-statutory aggravating factor: “defendant freely and voluntarily and willfully and knowingly made a false fictitious and fraudulent statement (a false alibi) to an investigating officer with [¡Jurisdiction, in the course of the criminal investigation. [See U.S. v. Rogers, 466 U.S. 475, 80 L. Ed. 2d 492 (1984)].” We hold the court did not err.

A sentencing court is required to consider the statutory list of aggravating and mitigating factors, see N.C. Gen. Stat. § 15A-1340.4 (1988), before imposing a sentence other than the presumptive term for a particular offense, to make written findings of fact concerning the factors, and to determine whether one set outweighs the other or whether they are counterbalanced. State v. Green, 101 N.C. App. 317, 322, 399 S.E.2d 376, 379, supersedeas denied and temporary stay denied, 328 N.C. 335, 400 S.E.2d 449 (1991). Moreover, the court may consider, in its discretion, those non-statutory aggravating and mitigating factors which are “reasonably related to the purposes of sentencing and supported by a preponderance of the evidence ....” State v. Flowe, 107 N.C. App. 468, 471-72, 420 S.E.2d 475, 477, disc. review denied, 332 N.C. 669, 424 S.E.2d 412 (1992).

In the case sub judice, defendant does not contend the non-statutory factor of providing a false alibi to law enforcement officers with investigative jurisdiction is not supported by a preponderance of the evidence. Indeed, he refers several times in his appellate brief to the “false alibi given by the [defendant.”

Moreover, the record also reflects uncontroverted evidence in support of the court’s finding. Richard Sims, assistant supervisor of the North Carolina State Bureau of Investigation, testified about his initial pre-arrest interview with defendant. Sims stated inter alia:

Court: On what occasion did you first talk to [the defendant], I believe is counsel’s question.
[308]*308Witness: When we first talked to him, he stated on the date of the killing he was at Loretha Durham’s trailer all day, he did not go anywhere, and stayed there all day and all night.
Court: He gave you an alibi the first time?
Witness: Yes, sir.
Court: You didn’t have him up with charges then?
Witness: No, sir.
Court: He just walked out?
Witness: Plus, we were unsure of his identification. It was just like I stated before; he said his name was Troy Durham, and we weren’t sure his name was Clarence Elvis Harrington until after — after he left.

Once defendant was extradited from New York on 9 February 1993 pursuant to an arrest warrant issued by the State of North Carolina, he gave a second statement to law enforcement officers. Sims testified about that interview as follows:

Q: Prior to the time you talked with [the defendant], did you advise him of his rights?
A: Yes, sir.
Q: And I believe he indicated to you, did he not, Mr. Sims, that he also went into the dwelling of [the victim]?
A: That is what he stated; yes, sir.
Q: And what was his version as to how [the victim] was shot?
A: His version was similar to [his co-defendant’s], except Mr. Harrington stated that he went through the back door, and that [his co-defendant] shot [the victim].

Because the factor is supported by the evidence, therefore, our inquiry is focused upon whether it falls within a stated purpose of sentencing.

The goal of sentencing is to punish the offender with the degree of severity his or her culpability merits. State v. Flowers, 100 N.C. App. 58, 63, 394 S.E.2d 296, 300 (1990). Our General Assembly codified this principle in N.C. Gen. Stat. § 15A-1340.3 (1988) which states:

[309]*309The 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’s 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.

In Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622 (1980), the United States Supreme Court held the trial court properly considered as a factor in sentencing the defendant’s refusal to cooperate with law enforcement officials investigating a criminal conspiracy in which he was a confessed participant. In Roberts, the defendant refused to divulge the names of drug suppliers. Id. at 554-55, 63 L. Ed. 2d at 627. The Court emphasized that

[c]oncealment of crime has been condemned throughout our history. The citizen’s duty to “raise the ‘hue and cry’ and report felonies to the authorities” was an established tenet of Anglo-Saxon law at least as early as the 13th century. . . . This deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself. Unless his silence is protected by the privilege against self-incrimination, the criminal defendant no less than any other citizen is obliged to assist the authorities. ... By declining to cooperate, [defendants reject] an “obligatiofn] of community life” that should be recognized before rehabilitation can begin.

Id. at 557-58, 63 L. Ed. 2d at 629 (citations omitted). The Court further noted that even Roberts did “not seriously contend that disregard for the obligation to assist in a criminal investigation is irrelevant to the determination of an appropriate sentence.” Id. at 559, 63 L. Ed. 2d at 629.

More significantly, the federal court in United States v. Ruminer, 786 F.2d 381, 385 (10th Cir.

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Bluebook (online)
454 S.E.2d 713, 118 N.C. App. 306, 1995 N.C. App. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harrington-ncctapp-1995.