An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1229


Filed: 18 May 2004


         v.                        Lenoir County
                                No. 94 CRS 2496

    Appeal by defendant from judgment entered 23 April 2003 by Judge Charles Henry in Lenoir County Superior Court. Heard in the Court of Appeals 10 May 2004.

    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.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***