STATE OF NORTH CAROLINA
v. Lenoir County
No. 94 CRS 2496
JOSEPH CALVIN HEATH
Attorney General Roy Cooper, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Kathryn L. VandenBerg for defendant-appellant.
MARTIN, Chief Judge.
Defendant Joseph Calvin Heath was indicted for the 19 March
1994 murder of his wife, Frances Cannon Heath (94 CRS 2496). On 28
March 1995, he pled guilty, pursuant to a plea agreement, to
second-degree murder. Defendant waived a formal presentation of
evidence and the State's showing of the factual basis for the plea
tended to show that in March 1994, defendant assaulted and stabbed
his wife during a domestic altercation, inflicting severe stab
wounds to her chest. The victim died at the scene as a result of
her injuries. She had been hospitalized in February 1993 as a
result of another attack by defendant. There was evidence that she
had previously attempted to obtain a restraining order againstdefendant, but failed to complete the process. After making
written aggravating and mitigating factors and finding that the
aggravating factors outweighed the mitigating factors, the trial
court sentenced defendant to an aggravated term of fifty years
imprisonment.
On or about 14 September 2001, defendant filed a motion for
appropriate relief in the superior court. The motion was denied by
order of the superior court entered 10 October 2001, and defendant
then filed a petition for writ of certiorari in this Court, seeking
review of the superior court's 10 October 2001 order. On 19
December 2001, this Court allowed the petition for writ of
certiorari for the limited purpose of entering the following order:
It appearing that the trial court improperly
found as an aggravating factor that
“[petitioner] acted with malice, premeditation
and deliberation” where petitioner was
convicted of second-degree murder, the order
entered on or about 10 October 2001 by Judge
Paul L. Jones in Lenoir County Superior Court,
denying petitioner's motion for appropriate
relief, is vacated and this matter remanded to
the superior court for resentencing. See N.C.
Gen. Stat. § 15A-1340.4(a)(1)(1993)(repealed
by Sessions Laws 1993, ch. 538, § 14); State
v. McBride, 109 N.C. App. 64, 70, 425 S.E.2d
731, 735 (1993).
Resentencing proceedings were held in the superior court on 23
April 2003. The State presented the testimony of Detective
Jennifer Darden of the Kinston Police Department, who had
investigated the murder. Detective Darden, with the use of
statements made by several members of the victim's family,
testified about her investigation of the offense. The State also
submitted various exhibits as evidence-- three exhibits showingdefendant's prior convictions for driving while impaired, carrying
a concealed weapon, resisting police and driving while license
revoked; a transcript from the prior guilty plea proceeding,
photographs of the crime scene, and the autopsy report of the
victim.
Defendant testified on his own behalf. He testified that he
had been married to the victim for seventeen years, but that their
relationship suffered when the victim's daughter and granddaughter
moved in with them. Defendant testified that he did not remember
many of the events surrounding the victim's death. He noted that
he had been drinking earlier in the morning of the incident in
question. Moreover, while he did remember stabbing the victim two
times, defendant stated that he does not remember what happened
before that. Defendant subsequently turned himself into the
authorities. He expressed remorse for the victim's death.
Based upon the evidence presented, the trial court found
aggravating and mitigating factors. After finding and concluding
that the aggravating factors outweighed the mitigating factors, the
court sentenced defendant to an aggravated term of 50 years
imprisonment. Defendant appeals.
__________________________
On appeal, defendant again takes issue with the trial court
finding as an aggravating factor that he acted with premeditation
and deliberation. First, defendant submits that such a finding is
in error since this Court previously entered an order providing
that the aggravating factor that “[he] acted with malice,premeditation and deliberation,” was improper. We note, however,
that this Court's order specifically referenced repealed statutory
provision N.C. Gen. Stat. § 15A-1340.4(a)(1)(1993) and this Court's
opinion in State v. McBride, 109 N.C. App. 64, 70, 425 S.E.2d 731,
735 (1993). The order, therefore, spoke only to the impropriety of
the finding the element of malice, inasmuch as malice is an element
of the offense to which defendant pled guilty. Conversely,
premeditation and deliberation are not elements of second-degree
murder, and hence, can properly be used as an aggravating finding.
See McBride, 109 N.C. App. at 70, 425 S.E.2d at 735. We reject
defendant's claim that the Court's prior order is ambiguous, and as
such, must be construed in a light most favorable to him. We
conclude that the trial court's finding in this regard was not
contrary to this Court's 19 December 2001 order.
Defendant next contends there was not sufficient evidence to
support the court's finding that he acted with premeditation and
deliberation. It is well settled that the State has the burden of
proving by a preponderance of the evidence, that a particular
aggravating factor exists. See State v. Canty, 321 N.C. 520, 364
S.E.2d 410 (1988). Moreover, the trial court is allowed wide
latitude in making a decision as to the existence of an aggravating
factor. See State v. Barton, 335 N.C. 741, 750, 441 S.E.2d 306,
311 (1994). The formal rules of evidence do not apply in the
context of sentencing hearings. N.C. Gen. Stat. § 15A-
1334(b)(2003). All of the circumstances transactionally related to
the admitted offense are to be considered during sentencing. Statev. Melton, 307 N.C. 370, 378, 298 S.E.2d 673, 679 (1983). The use
of hearsay evidence during sentencing does not violate the United
States Constitution. See State v. Phillips, 325 N.C. 222, 381
S.E.2d 325 (1989); but see State v. Stephens, 347 N.C. 352, 363,
493 S.E.2d 435, 442 (1997)(providing that hearsay statements
introduced during sentencing must still be relevant and bear
indicia of reliability), cert. denied, 525 U.S. 831, 142 L. Ed. 2d
66 (1998).
Premeditation and deliberation may properly be found as a
factor in aggravation even though the defendant has been convicted
of second degree murder. State v. Vandiver, 326 N.C. 348, 389
S.E.2d 30 (1990).
Premeditation means the perpetrator thought
out the act beforehand for some period of
time, however short, but no particular amount
of time is necessary. Deliberation means the
perpetrator carried out an intent to kill in a
cool state of blood and not under the
influence of a violent passion or sufficient
legal provocation. In this context, the term
'cool state of blood' does not mean the
perpetrator was devoid of passion or emotion.
State v. Olsen, 330 N.C. 557, 564, 411 S.E.2d 592, 595-96 (1992).
The following circumstances tend to establish premeditation
and deliberation:
(1) want of provocation on the part of the
deceased; (2) the conduct and statements of
the defendant before and after the killing;
(3) threats and declarations of the defendant
before and during the course of the occurrence
giving rise to the death of the deceased; (4)
ill-will or previous difficulty between the
parties; (5) the dealing of lethal blows after
the deceased has been felled and rendered
helpless; and (6) evidence that the killingwas done in a brutal manner.
State v. Easter, 101 N.C. App. 36, 42, 398 S.E.2d 619, 622 (1990).
In the instant case, the trial court had before it the
transcript of the original sentencing hearing, which included a
factual basis given by the State, the autopsy report and certain
photographs of the crime scene. At the resentencing hearing, the
investigating officer testified about her investigation of the
instant crime. During her testimony, the officer referred to
statements made by the victim's daughter, granddaughter and niece,
which detailed defendant's previous assault on the victim and the
victim's resulting hospitalization. Additionally, the statements
of the victim's granddaughter and niece detailed the events
surrounding the March 1994 stabbing of the victim, indicating that
defendant and the victim had been arguing because defendant did not
want the victim to go to her cousin's house. When the victim
attempted to leave, defendant picked her up by the collar and threw
her outside, where he began to beat the victim with his fist.
Defendant then pulled out a knife and started stabbing the victim
in the chest. Defendant testified at the hearing to having been
drinking early on the day of the stabbing, and to remembering that
he stabbed the victim twice. The autopsy showed that the victim
had been stabbed seven times in the chest, and that she died as the
result of blood loss due to one of those stab wounds.
We conclude the evidence before the court at the re-sentencing
hearing was sufficient to establish by a preponderance of the
evidence that defendant's killing of his wife was done withpremeditation and deliberation. The trial court, therefore, did
not err in finding such as a factor in aggravation of punishment.
The judgment of the trial court is affirmed.
Affirmed.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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