State v. Morston

728 S.E.2d 400, 221 N.C. App. 464, 2012 WL 2545969, 2012 N.C. App. LEXIS 825
CourtCourt of Appeals of North Carolina
DecidedJuly 3, 2012
DocketNo. COA12-133
StatusPublished
Cited by7 cases

This text of 728 S.E.2d 400 (State v. Morston) 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. Morston, 728 S.E.2d 400, 221 N.C. App. 464, 2012 WL 2545969, 2012 N.C. App. LEXIS 825 (N.C. Ct. App. 2012).

Opinion

McCullough, Judge.

Kerry Lemar Morston (“defendant”) appeals his sentences entered 15 June 2011 based on convictions for conspiracy to commit murder, assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”), and discharging a firearm into occupied property. Defendant received a sentence of thirty years for conspiracy to commit murder, twenty years for AWDWIKISI, and ten years for discharging a firearm into occupied property. Defendant was also convicted of first-degree murder for which he received a sentence of life imprisonment. He does not appeal this sentence. For the following reasons, we affirm the trial court’s resentencing of defendant.

I. Background

Southern Pines Police Officer, Ed Harris, had been investigating drug trafficking involving Bernice McDougald for a period of time. Prior to joining the Southern Pines Police Department, Detective Harris had served as a deputy with the Hoke County Sheriff’s Department, and still resided in Hoke County. On the evening of 4 April 1991, Detective Harris and McDougald had an argument in the [466]*466parking lot of a Southern Pines apartment complex regarding some recent shots fired as well as McDougald’s involvement in the drug trade. Soon thereafter, McDougald decided Detective Harris was impeding his business and that he needed to “get rid of’ him that night. That same night, McDougald met up with a group of men, including defendant, who planned to kill Detective Harris at his home in Hoke County.

While contemplating the murder of Detective Harris, the group proceeded to drink gin, laced with crack cocaine and Tylenol. At trial, one man testified that defendant’s eyes were big and red and that he “looked like he was high.” As the men ventured to Harris’ house, McDougald gave them an opportunity to back out, but defendant reaffirmed his willingness. After arriving at Harris’ house and parking a few blocks away, one of the men knocked on Harris’ door. As Harris opened his front door, defendant and McDougald fired multiple shots, hitting Harris between four and five times. Harris’ wife, sitting in the family’s living room, had one of her fingers severed by a stray bullet. Detective Harris died en route to the hospital. Following the shooting, defendant claimed that he “got him,” referring to Detective Harris, and even bragged about it the next day.

On 13 May 1991, defendant was indicted by a grand jury for first-degree murder and conspiracy to commit murder. Subsequently, on 19 August 1991, defendant was indicted on the other charges of AWDWIKISI and discharging a firearm into occupied property. After a trial before Judge B. Craig Ellis, beginning on 27 April 1992, a jury found defendant guilty on all charges. At the 1992 sentencing hearing, defendant presented evidence that he had fallen behind in elementary school, had taken “special ed” classes, and had been denoted as “emotionally handicapped.” Furthermore, following his arrest, defendant was treated for clinical depression at Dorothea Dix Hospital; and while in jail, he helped a jailor who was held hostage during a jailbreak. Based on all the evidence, the trial court found four statutory aggravating factors and three mitigating factors for the charge of conspiracy to commit murder. The trial court concluded the aggravating factors outweighed the mitigating and sentenced defendant to thirty years. On the AWDWIKISI charge for shooting Detective Harris’ wife, the trial court found three aggravating factors and three mitigating factors, but again found the aggravating factors outweighed the mitigating, sentencing defendant to twenty years. Finally, on the charge of discharging a firearm into occupied property, the trial court found four aggravating factors and three mitigating with the aggra[467]*467vating again outweighing the mitigating. The trial court sentenced defendant to ten years on this charge with all three sentences to run consecutively with the life imprisonment sentence on the first-degree murder conviction.

Defendant appealed his sentences to our Supreme Court, which affirmed his convictions based on guilt, but found errors in the sentencing phases relating to the conspiracy, AWDWIKISI, and discharging a firearm charges. The trial court had erred by finding two aggravating factors for the conspiracy charge based on the same evidence. Moreover, the trial court’s finding of aggravating factor number seven on AWDWIKISI and discharging a firearm was in error because the aggravating factor was based on evidence also used to prove an element of each offense. Consequently, our Supreme Court remanded the case to the trial court for resentencing

On remand in 1995, Judge Joe F. Britt conducted a resentencing hearing during which the State summarized the evidence from trial. The defense accepted the evidence and minimally supplemented it. The State submitted certified copies of defendant’s prior convictions. Subsequently, both parties were given an opportunity to argue in favor of aggravating and mitigating factors. The trial court found three aggravating factors and three mitigating for both charges of conspiracy and discharging a firearm. On the charge of AWDWIKISI, the trial court found one aggravating factor and the same three mitigating factors. The trial court went on to find that the aggravating factors outweighed the mitigating factors on all charges and sentenced defendant to the same greater-than-presumptive, consecutive terms, as Judge Ellis did in 1992. Defendant appealed to this Court through a writ of certiorari, which this Court granted on 30 September 2009. In his appeal, defendant contended Judge Britt failed to conduct a de novo resentencing hearing. This Court agreed in holding that the hearing “was not the result of an independent decision-making process” and, thus, was not a de novo resentencing hearing. The matter was again vacated and remanded to the trial court for a third sentencing hearing.

The 26 May 2011 resentencing hearing was again held before Judge Ellis. The State again presented evidence to support the aggravating factor that defendant has prior convictions punishable by moré than sixty days’ confinement. Specifically, the State presented evidence that defendant had been convicted of assault with a deadly weapon inflicting serious injury, involving the alleged accidental shooting of his cousin while playing with a gun; three convictions for [468]*468assault on a female against his ex-wife; injury to personal property; carrying a concealed weapon; and resisting, delaying, and obstructing justice. Furthermore, the State presented evidence of the admiration for Detective Harris within the community.

Alternatively, defendant presented evidence in furtherance of the mitigating factors, including the ones regarding his mental abilities while in elementary school. Defendant testified at the 2011 hearing that he had fallen behind in school when his grandfather had a stroke and he had been the only one capable of taking care of him, resulting in his having to drop out of school at age fifteen. However, he admitted that during school he was “in the same classes as everybody else” and was not “slow.” Furthermore, he ultimately received his GED while incarcerated. After his grandfather improved, he held various employment positions, which allowed him to support his wife and child, as well as his mother. Defendant admitted to his prior convictions and testified regarding the night of the incident. That night he was drunk on various substances, which he had not previously used.

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Cite This Page — Counsel Stack

Bluebook (online)
728 S.E.2d 400, 221 N.C. App. 464, 2012 WL 2545969, 2012 N.C. App. LEXIS 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morston-ncctapp-2012.