State v. Swann

443 S.E.2d 740, 115 N.C. App. 92, 1994 N.C. App. LEXIS 548
CourtCourt of Appeals of North Carolina
DecidedJune 7, 1994
DocketNo. 9328SC585
StatusPublished
Cited by2 cases

This text of 443 S.E.2d 740 (State v. Swann) 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. Swann, 443 S.E.2d 740, 115 N.C. App. 92, 1994 N.C. App. LEXIS 548 (N.C. Ct. App. 1994).

Opinion

ORR, Judge.

I.

The defendant argues four assignments of error before this Court. He first argues that changes in the police officers’ report omitting racial phraseology and substituting acceptable terminology impermissibly violated N.C. Gen. Stat. § 15A-903 by depriving defense counsel of the opportunity to voir dire prospective jurors regarding their reactions to the racial slurs prior to hearing those epithets during the officers’ testimony. He argues that the changes between the verbatim reports of defendant’s statements to police and the subsequent testimony of the officers unfairly surprised the defendant. We disagree with this contention and accordingly affirm the trial court.

N.C. Gen Stat. § 15A-903 provides in pertinent part:
(a) Statement of Defendant. — Upon motion of a defendant, the court must order the prosecutor:
(1) To permit the defendant to inspect and copy or photograph any relevant written or recorded statements made by the defendant, or copies thereof, ....

“N.C.G.S. 15A-903(a)(2) requires the trial court, upon motion by the defendant, to order the prosecutor to disclose ‘the substance of any oral statement’ by the defendant. As used in the statute, ‘substance’ means: ‘Essence; the material or essential part of a thing, as distinguished from “form”. That which is essential.’ ” State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985) (quoting Black’s Law Dictionary 1280 (rev. 5th ed. 1979)).

In the case at bar, the State voluntarily provided the discovery at issue. The defendant does not argue that the prosecution failed to provide the officers’ reports; rather, he contends that the use of the word “B/M” in the reports and the subsequent use of the actual racially inflammatory language created prejudicial error in his trial. Obvi[95]*95ously, defense counsel was aware that the defendant did not literally use the term “B/M” when questioned by the officers. “B/M” commonly indicates that the person speaking is referring to an African-American male, and we do not believe that the defendant was deceived or unfairly surprised when he discovered during trial that another term, even one more racially inflammatory, was used.

Furthermore, the record indicates that the defendant did not move for discovery pursuant to N.C.G.S. § 15A-903 in order to determine the actual terminology used by the defendant in his statement. Additionally, he did not move for sanctions for the State’s failure to comply with discovery pursuant to N.C.G.S. § 15A-910 which would have allowed the court in its discretion, inter alia, to declare a mistrial, dismiss the charges, recess, or issue “other appropriate orders.” Rather, the defendant argues for the first time in this appeal that N.C.G.S. § 15A-903 has been violated by the State. We find no violation of the statute in question.

We also note that under N.C.G.S. § 15A-1446, an assignment of error will not be considered on appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion. Failure to do so amounts to a waiver. State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988). In the case sub judice, it was incumbent upon defendant to object to the testimony of the police officers at the time the statements were made. Our review of the transcript indicates no such objections. We therefore hold that any evidentiary assignment of error in the admission of testimony of the officers has been waived by the defendant.

II.

Secondly, the defendant argues that the trial court committed reversible error in instructing the jury that malice could be inferred from the use of a deadly weapon, then applying as an aggravating factor in sentencing the fact that the defendant armed himself prior to going into the area. He contends that since the evidence of the use of the deadly weapon was necessary to prove the element of malice in the second degree murder offense, it could not be again used as an aggravating factor during sentencing. He further argues that the trial court failed to find or to consider as a factor in mitigation that the defendant acted under strong provocation during the altercation leading to the victim’s death. Finally, he argues that the trial court should have found as a mitigating factor that the victim, as a thirty-one-year-old, was a “voluntary participant.” He contends that [96]*96because these applications of aggravating and mitigating factors were erroneous, a new sentencing hearing is mandated. We agree that the non-statutory aggravating factor that the defendant “deliberately armed himself with a gun” was used impermissibly by the trial court in sentencing and accordingly remand for sentencing consistent with the reasoning set forth below.

The Fair Sentencing Act, N.C.G.S. §§ 15A-1340.1 et seq., applies to sentencing of all convictions other than Class A or Class B felonies. N.C.G.S. § 15A-1340.4(a) provides that “[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, . . . .”

In State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983), our Supreme Court adopted a “bright-line” rule regarding the use of a deadly weapon as an aggravating factor where the jury had been given instructions that it might consider the use of that weapon in finding malice as an element of second degree murder. The Court held that when “the facts justify an instruction on the inference of malice arising as a matter of law from the use of a deadly weapon, evidence of the use of that deadly weapon may not be used as an aggravating factor at sentencing.” Id. at 417, 306 S.E.2d at 788. The rule was adopted in order “to avoid hairsplitting factual disputes necessitated by having to second-guess jury decisions as to the existence of malice.” Id.

We find that Blackwelder controls the case sub judice. After the close of all the evidence, the trial court instructed the jury as follows:

[T]he defendant, Jeffrey Alan Swann, has been accused of Second Degree Murder. Under the law and under the evidence in this case, it is your duty to return one of the following verdicts: Guilty of Second Degree Murder, or Guilty of Voluntary Manslaughter, or Not Guilty.
Now Second Degree Murder is the unlawful killing of a human being with malice. . . .
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Now I charge that for you to find the defendant guilty of Second Degree Murder, the state must prove three things beyond a reasonable doubt:
First, that the defendant intentionally and with malice killed the victim with a deadly weapon.
[97]*97[[Image here]]
Now if the state proves beyond a reasonable doubt that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused his death, you may infer first that the killing was unlawful; and, second, that it was done with malice, but you are not compelled to do so.

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Related

State v. Byrd
596 S.E.2d 860 (Court of Appeals of North Carolina, 2004)
State v. Baldwin
532 S.E.2d 808 (Court of Appeals of North Carolina, 2000)

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Bluebook (online)
443 S.E.2d 740, 115 N.C. App. 92, 1994 N.C. App. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-swann-ncctapp-1994.