State v. McCord

• Court: Court of Appeals of North Carolina
• Decided: September 17, 2024
• Docket: 23-915
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-915

Filed 17 September 2024

Cleveland County, Nos. 97CRS1876-80

STATE OF NORTH CAROLINA

v.

TRAVIS K. McCORD, AKA SHAWN LATTIMORE, Defendant.

Appeal by defendant from orders and judgments entered 3 March 2023 by

Judge W. Todd Pomeroy in Cleveland County Superior Court. Heard in the Court of

Appeals 13 August 2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Heidi M. Williams, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for defendant-appellant.

DILLON, Chief Judge.

In 1999, Defendant Travis K. McCord was sentenced to life without parole

(“LWOP”) for first-degree murder. As Defendant was only 16 years old at the time of

the murder, Defendant was entitled to a resentencing hearing pursuant to Miller v.

Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016).

After the resentencing hearing, the court again sentenced Defendant to LWOP. We

affirm. STATE V. MCCORD

Opinion of the Court

I. Background

Defendant previously appealed his conviction in the early 2000s.1

Under the law applicable at the time of Defendant’s trial, it was mandatory for

the trial judge to sentence a defendant convicted of first-degree murder who was 16

years of age at the time of the murder to LWOP. See N.C.G.S. § 14-17 (1997).

In 2012, the United States Supreme Court’s decision in Miller v. Alabama held

that mandatory LWOP sentences for defendants who were under 18 years of age at

the time of the crime violate the United States Constitution’s Eighth Amendment

prohibition on cruel and unusual punishments. 567 U.S. at 465. Four years later, in

2016, in the case of Montgomery v. Louisiana, the United States Supreme Court

determined that Miller applies retroactively. 577 U.S. at 208−09.

In response to Miller, our General Assembly enacted N.C.G.S. § 15A-1340.19A,

et seq. (2023) (the “Miller statute”). The Miller statute requires that the sentencing

court conduct a hearing for every defendant convicted of first-degree murder2 who

was under 18 years old at the time of the offense to determine whether LWOP or a

lesser sentence is appropriate. N.C.G.S. § 15A-1340.19B(a)(2).

Defendant was granted a Miller resentencing hearing, which occurred in

1 Defendant appealed his conviction in State v. McCord, 140 N.C. App. 634 (2000). Our Court remanded the case for a Batson hearing but otherwise held no error. See id. On remand, the trial court found no Batson violation, and our Court affirmed. See State v. McCord, 158 N.C. App. 693 (2003). 2 Under the Miller statute, a first-degree murder conviction based on the felony murder rule

carries a sentence of life imprisonment with parole rather than an LWOP sentence. See N.C.G.S. § 15A-1340.19B(1).

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January 2020.

Defendant also filed motions challenging the constitutionality of his sentence

and the constitutionality of North Carolina’s statutory scheme, the Miller statute.

In March 2023, the superior court convened a hearing and entered orders

resentencing Defendant to LWOP and denying his constitutional challenges.

Defendant appeals.

II. Argument

Defendant makes essentially three arguments on appeal, which we address in

turn.

A. Credibility Determination

Defendant first argues that the resentencing judge, in making his sentencing

determination, impermissibly assessed the credibility of witnesses who testified

during the 1999 trial, where he was not the presiding judge at that trial. For

instance, in his order, the resentencing judge made findings regarding Defendant’s

propensity to criminal behavior and the lead role Defendant played in the murder,

based largely on the 1999 trial testimony of two of the three accomplices who had

participated with Defendant in the killing:

The testimony of Katina Lankford (hereinafter Lankford) and Amy Sigmon (hereinafter Sigmon) as set forth in the trial transcript was credible and generally consistent with the testimony of other witnesses in the trial as well as being consistent with physical evidence presented and analyzed for purposes of the trial. Based on consistency of the testimony with other evidence presented at the trial,

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the Court finds that their version of the events is factually true.

Indeed, the testimonies from the accomplices tended to show, not only that Defendant

participated in the murder, but that he was the leader of the group. However, while

it is clear the jury believed the evidence that Defendant participated in the murder

(based on their guilty verdict), it is unknowable whether the jury believed that

Defendant was the leader. But in determining an LWOP sentence to be appropriate,

the resentencing judge found the testimony of two accomplices and other evidence—

tending to show that Defendant was the leader and likely to reoffend—to be credible.

We conclude that the judge in a Miller resentencing hearing, rather than a

jury, may make credibility findings regarding the evidence offered at the trial to

support his sentencing decision. In so holding, we are persuaded by the following:

The United States Supreme Court’s holding in Miller states that “a judge or jury must

have the opportunity to consider mitigating circumstances before imposing the

harshest possible punishment for juveniles.” 567 U.S. at 489 (emphasis added). See

also Raines v. State, 845 S.E.2d 613 (Ga. 2020) (jury not required to make findings in

Miller resentencing hearing); State v. Keefe, 478 P.3d 830 (Mont. 2021) (same); People

v. Skinner, 917 N.W.2d 292 (Mich. 2018) (same).

Also, our Miller statute provides that “[t]he order adjudging the sentence shall

include findings on the absence or presence of any mitigating factors and such other

findings as the court deems appropriate to include in the order.” N.C.G.S. § 15A-

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1340.19C(a) (2023) (emphasis added). Further, the Miller statute provides the matter

may be heard by a judge other than the judge who presided at trial. See N.C.G.S. §

15A-1340.19C(b) (2023).

Our General Assembly has provided that in any criminal jury trial, the

presiding judge may be substituted with a new judge during the course of the trial

prior to sentencing in certain circumstances. See N.C.G.S. § 15A-1224 (2023). After

this substitution, the new judge may be required, and is allowed, to make credibility

findings about witnesses who testified even prior to the substitution in considering

the appropriate sentence within the presumptive range.

Similarly in federal court, the Federal Rules of Criminal Procedure allow for

the substitution of a new judge during the sentencing phase in certain circumstances.

See Fed. R. Crim. P. 25(b)(1). The sentencing judge is allowed to make credibility

findings about witnesses who testified in front of the other judge during the guilt

determination phase of the trial in order to appropriately sentence the defendant.

For example, in United States v. Bourgeois, 950 F.2d 980 (5th Cir. 1992), the trial

judge became disabled after the trial, so the case was transferred to another judge for

sentencing. Id. at 987. The defendant requested that the substituting judge recuse

himself or grant the defendant a new trial because the substituting judge would not

be able to assess the credibility of the witnesses who testified at trial in front of the

preceding judge. Id. The Fifth Circuit rejected the defendant’s argument, concluding

that the substituting judge “was capable of assessing the credibility of the witnesses

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and the evidence at trial by a thorough review of the record.” Id. See also United

States v. Casas, 425 F.3d 23, 56 (1st Cir. 2005); United States v. McGuinness, 769

F.2d 695, 696 (11th Cir. 1985) (stating “[a] sentencing judge enjoys broad discretion

to determine whether he can perform sentencing duties in a case he did not try.”).

Here, the judge who presided over Defendant’s Miller resentencing stated that

he “considered everything presented to it” in determining Defendant’s sentence,

which includes evidence such as the 1999 trial transcript and Defendant’s 1997

confession following his arrest for the murder. We are satisfied that the judge

thoroughly reviewed the record and could appropriately assess the credibility of the

two co-defendants who testified against Defendant at the 1999 trial.

B. Mitigating Factors

Defendant argues that the trial court ignored mitigating evidence and

misapplied some of Miller’s mitigating factors. We review orders weighing the Miller

factors only for abuse of discretion. State v. Golphin, 292 N.C. App. 316, 322 (2024).

“Abuse of discretion results where the trial court’s ruling is manifestly unsupported

by reason or is so arbitrary that it could not have been the result of a reasoned

decision.” Id.

Pursuant to the Miller statute, the defendant may submit mitigating

circumstances for the court to consider in determining whether to impose an LWOP

sentence. N.C.G.S. § 15A-1340.19B(c)(1)–(9).

1. Contested Mitigating Factors

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Defendant specifically contests the court’s weighing of the following factors: (1)

age, (2) immaturity, (3) reduced ability to appreciate risks and consequences, (4)

family and peer pressure exerted upon the defendant, and (5) the defendant’s

likelihood to benefit from rehabilitation.

a. Defendant’s age

Defendant was 16 years, 7 months, and 15 days old at the time of the murder.

The resentencing court found that “Defendant [was] substantially closer to the age of

a criminal adult.” Nonetheless, the court noted that “[t]he chronological age and the

youth of the Defendant is a mitigating factor to which the court gave substantial

weight.” We conclude the court did not abuse its discretion in its consideration of this

mitigating factor.

b. Immaturity

The resentencing court did not give significant weight to the factor of

immaturity. The court found that, being less than 18 years old, Defendant lacked

“some degree of maturity” but there was “no evidence of any specific immaturity that

mitigates Defendant’s conduct in this case.” For example, the forensic psychiatry

expert testified that immaturity can manifest itself in impetuous and impulsive acts,

and the court noted that Defendant did not “act impetuously or impulsively[,]” as the

plans for committing the robbery (which escalated into murder) were modified

multiple times and Defendant was involved in at least two of those plan

modifications. Accordingly, we conclude the court did not abuse its discretion in its

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consideration of this mitigating factor.

c. Ability to appreciate risks and consequences

The court found that Defendant’s ability to appreciate risks and consequences

as a mitigating factor was “not existent and does not apply.” Specifically, the court

noted that a person of Defendant’s age with no intellectual or mental health

disabilities would know the consequences of armed robbery, rape, kidnapping, and

murder. The court further noted: Defendant deliberately minimized the chance of

being held responsible for the murder by moving the victim from the motel (a public

place) to a remote place; Defendant killed the victim to eliminate her as a potential

witness; Defendant forced his co-defendants to participate in the execution-style

murder so they would be less likely to testify against him; and Defendant had

condoms (and let a co-defendant borrow a condom to rape the victim), but he chose

not to use a condom while he raped the victim because he planned to kill her and

knew pregnancy would not be an issue. We conclude the court did not abuse its

discretion in its consideration of this mitigating factor.

d. Familial or peer pressure

The court found that familial or peer pressure was not a mitigating factor in

this case. For example, the court noted that

[a]lthough Defendant was brought into the crime by the other participants, once the plan to rob the victim was initiated, the Defendant became a leader in its execution. At the time of the murder, it was the Defendant who not only pressured the others to participate in the murder but

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he actually forced the other participants to shoot the victim to kill he[r] under the duress of being told if they did not shoot the victim, he would kill them.

And though the court did not assign mitigating value to Defendant’s dysfunctional

childhood here, the court explicitly found his dysfunctional childhood to be a

mitigating factor later in its Order under the category of “any other mitigating factor

or circumstance.” We conclude the court did not abuse its discretion in its

e. Likelihood to benefit from rehabilitation in confinement

The resentencing court found the likelihood that Defendant would benefit from

rehabilitation in confinement was not a mitigating factor. The court noted that it had

the benefit of evaluating Defendant’s behavior while serving his sentence over the

last two decades. Specifically, Defendant has had multiple disciplinary infractions,

he was convicted of simple assault in 2003 and assault of a government official in

2013, and he is a high-ranking member of the Blood Nation gang. We conclude the

court did not abuse its discretion in its consideration of this mitigating factor.

C. Constitutional Arguments

Defendant argues that North Carolina’s Miller statute is unconstitutional on

its face because it contains a presumption in favor of LWOP and its framework does

not provide adequate guidance for sentencing courts.3 Our Supreme Court, however,

3 Defendant asserts this argument to preserve it for reconsideration by our Supreme Court

and for possible future federal review.

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has sustained the constitutionality of our State’s Miller statute. See State v. James,

371 N.C. 77, 99 (2018). We conclude the statute is not unconstitutional on its face.

Defendant also argues that an LWOP sentence for juvenile offenders is

unconstitutional under both the Eighth Amendment of the United States

Constitution and Article 1, Section 27 of the North Carolina Constitution. He

specifically argues an LWOP sentence should never be imposed because it is

impossible to determine how a human being may change in the future (i.e., impossible

to determine if a human being is irreparably corrupt). Defendant’s argument is

without merit, as our Supreme Court has recognized that LWOP sentences are

constitutional (under both the federal and state constitutions) for a juvenile deemed

to be irreparably corrupt. See State v. Conner, 381 N.C. 643, 659−69 (2022); State v.

Kelliher, 381 N.C. 558, 560 (2022).

AFFIRMED.

Judges WOOD and THOMPSON concur.

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