Appeal by Defendant from judgment dated 9 July 2004 by Judge
E. Penn Dameron in Superior Court, Henderson County. Heard by this
Court on 11 October 2005, and opinion filed 3 January 2006, finding
sentencing error and remanding for resentencing. Remanded to this
Court by order of the North Carolina Supreme Court for
reconsideration in light of State v. Blackwell
, 361 N.C. 41, 638
S.E.2d 452 (2006).
Attorney General Roy Cooper, by Assistant Attorney General
Joseph Finarelli, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for Defendant-Appellant.
This case comes before us on remand from the North Carolina
Supreme Court for reconsideration in light of its recent decisionin State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert.
denied, Blackwell v. North Carolina, ___ U.S. ___, 167 L. Ed. 2d
1114 (2007). Pursuant to Blackwell, and for the reasons stated
herein, we hold the trial court's Blakely error was harmless beyond
a reasonable doubt.
Sonya Case Harris (Defendant) was indicted on 8 October 2001
on a charge of second-degree murder. Defendant's case was joined
for trial with the cases of Harlan Ponder and Jason Ponder
(collectively the Ponders). Defendant and the Ponders were
convicted of second-degree murder by a jury. The trial court found
three aggravating factors and sentenced Defendant in the aggravated
range to a term of 276 months to 341 months in prison. Defendant
appealed the conviction and sentence. In an unpublished opinion,
State v. Ponder, 163 N.C. App. 613, 594 S.E.2d 258 (2004), our
Court affirmed Defendant's conviction but remanded her case for
The trial court conducted a resentencing hearing on 6 July
2004, six working days after the United States Supreme Court
decided Blakely. The trial court found two aggravating factors:
(1) that Defendant "joined with more than one other person in
committing the offense and was not charged with committing a
conspiracy[,]"; and (2) that Defendant "was armed with a deadly
weapon at the time of the crime." The trial court again sentenced
Defendant in the aggravated range to a term of 276 months to 341
months in prison.
Defendant appealed, and our Court determined that Defendantwas sentenced in violation of Blakely, and remanded the case for
resentencing. See State v. Harris, 175 N.C. App. 360, 367-68, 623
S.E.2d 588, 592-93 (2006). Our Supreme Court issued an order on 29
December 2006 "(1) vacating that portion of the Court of Appeals
opinion ordering remand to the trial court for resentencing and (2)
remanding to the Court of Appeals for reconsideration in light of
. . . Blackwell[.]" The 29 December 2006 order also stated that
"[t]he Court of Appeals opinion remains undisturbed in all other
respects." We now determine whether the Blakely error in
Defendant's resentencing, as determined in our previous opinion,
was harmless beyond a reasonable doubt, or whether Defendant is
entitled to a new sentencing hearing.
In Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435
(2000), the United States Supreme Court held that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." Id. at 490, 147
L. Ed. 2d at 455. In Blakely v. Washington, 542 U.S. 296, 159 L.
Ed.2d 403, reh'g denied, 542 U.S. 961, 159 L. Ed. 2d 851 (2004),
the Supreme Court further held:
[T]he "statutory maximum" for Apprendi
purposes is the maximum sentence a judge may
impose solely on the basis of the facts
reflected in the jury verdict or admitted by
the defendant. In other words, the relevant
"statutory maximum" is not the maximum
sentence a judge may impose after finding
additional facts, but the maximum [the judge]
may impose without any additional findings.
Id. at 303-04, 159 L. Ed. 2d at 413-14 (internal citationsomitted).
In Blackwell, our Supreme Court held that in accordance with
Washington v. Recuenco, 548 U.S. ___, 165 L. Ed. 2d 466 (2006),
Blakely error is subject to harmless error review. Blackwell, 361
N.C. at 44, 638 S.E.2d at 455. "In conducting harmless error
review, we must determine from the record whether the evidence
against the defendant was so 'overwhelming' and 'uncontroverted'
that any rational fact-finder would have found the disputed
aggravating factor beyond a reasonable doubt." Id. at 49, 638
S.E.2d at 458 (citing Neder v. United States, 527 U.S. 1, 9, 144 L.
Ed. 2d 35, 47 (1999)). Our Supreme Court further held that "[a]
defendant may not avoid a conclusion that evidence of an
aggravating factor is 'uncontroverted' by merely raising an
objection at trial. Instead, the defendant must 'bring forth facts
contesting the omitted element,' and must have 'raised evidence
sufficient to support a contrary finding.'" Id. at 50, 638 S.E.2d
at 458 (quoting Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53).
In support of her argument that the Blakely
error in her
resentencing hearing was not harmless, Defendant first argues that
"no jury had been [e]mpaneled to which special verdict forms could
have been submitted." Defendant relies upon the following language
If [the] respondent is correct that Washington
law does not provide for a procedure by which
his jury could have made a finding pertaining
to his possession of a firearm, that merely
suggests that [the] respondent will be able to
demonstrate that the Blakely
violation in thisparticular case
was not harmless.
, 548 U.S. at ___, 165 L. Ed. 2d at 474.
However, in Blackwell
, our Supreme Court indicated that the
lack of a procedural mechanism for submission of aggravating
factors to a jury was immaterial to a harmless error analysis. See
, 361 N.C. at 46, 638 S.E.2d at 456 (stating that "it
logically makes no difference whether the trial judge could submit
the issue to the jury, because in every instance of Blakely
the judge did not properly do so."). Nevertheless, in Blackwell
our Supreme Court recognized that "North Carolina law independently
permits the submission of aggravating factors to a jury using a
special verdict." Id.
In the present case, Defendant argues that because she appeals
from a resentencing hearing at which no jury was empaneled, there
was no jury to which special verdict forms could have been
submitted. While this is true, this is a distinction without a
difference. Had the trial court empaneled a jury, a procedural
mechanism did exist by which to submit the aggravating factors to
the jury. It makes no difference that the Blakely
error in the
present case occurred at a resentencing hearing rather than at the
conclusion of a jury trial, as in Blackwell
. In both cases,
error occurred. Our task is to determine whether or not
error in the present case was harmless beyond a
Defendant also argues that because she disputed joining withmore than one other person in the commission of the offense, the
evidence was not overwhelming and uncontradicted as to the
aggravating factor under N.C. Gen. Stat. § 15A-1340.16(d)(2).
Therefore, Defendant argues, the Blakely
error at her resentencing
hearing was not harmless. We disagree.
N.C. Gen. Stat. § 15A-1340.16(d)(2) (2005) provides: "The
following are aggravating factors: . . . (2) The defendant joined
with more than one other person in committing the offense and was
not charged with committing a conspiracy." "The plain language of
[N.C.G.S. § 1340.16(d)(2)] requires the participation of [the]
defendant and at least two others." State v. Little
, 163 N.C. App.
235, 244, 593 S.E.2d 113, 118, disc. review denied
, 358 N.C. 736,
602 S.E.2d 366 (2004).
At the resentencing hearing, Captain Doug Jones (Captain
Jones) with the Hendersonville Police Department, testified that he
investigated the death of David Boyd (Mr. Boyd), who died of head
trauma on 22 July 2001. Captain Jones testified that he spoke with
Robert Banks (Mr. Banks), who witnessed the beating of Mr. Boyd in
the vicinity of the Hawkins Glass Company in Hendersonville. Mr.
Banks told Captain Jones he saw Defendant "screaming at" Mr. Boyd
and "kicking" Mr. Boyd. Mr. Banks also told Captain Jones that
Defendant "fell down at which time [Defendant's] boyfriend Harlan
Ponder came over and began assisting [Defendant] in fighting with
[Mr. Boyd]." Mr. Banks also told Captain Jones that Harlan Ponder
held Mr. Boyd around the neck while Defendant kicked Mr. Boyd in
the head and in the ribs, and hit Mr. Boyd in the face "around 50blows." Mr. Banks told Captain Jones that Harlan Ponder's son,
Jason Ponder, then joined Defendant and Harlan Ponder and the three
of them kicked Mr. Boyd in the torso and hit Mr. Boyd in the head.
Captain Jones also testified that he spoke with Lisa Smith
(Ms. Smith), who had been housed with Defendant at a women's
correctional facility in Raleigh. Ms. Smith gave a statement to
Captain Jones in which she said that Defendant told Ms. Smith about
beating Mr. Boyd. Specifically, Defendant told Ms. Smith that on
the day of Mr. Boyd's death, Defendant had been "doing" drugs and
drinking, and had "passed out[.]" Defendant "woke up" to find Mr.
Boyd's hands "down her pants." Captain Jones further testified
that according to Ms. Smith, Defendant became "very upset" and,
along with the Ponders, began kicking and hitting Mr. Boyd.
Captain Jones also testified that Defendant was not charged with
Defendant testified that she was in the vicinity of Hawkins
Glass Company on 22 July 2001. Defendant testified that she was
drunk and was lying down, and that Mr. Boyd was "cussing" at her.
Defendant testified that "when they say I kicked [Mr. Boyd], I
didn't mean to, but when I started to get up I made contact with
[Mr. Boyd]." Defendant further testified that she then "smacked"
Mr. Boyd, who was sitting, twice in the face. Defendant testified
that Mr. Boyd grabbed her leg, causing her to fall. Defendant got
up and hit Mr. Boyd a third time in the face. Defendant testified
that Sandra Seay (Ms. Seay), who was Mr. Boyd's girlfriend, said
she was going to call 911, and that this made Defendant mad. Defendant then started fighting with Ms. Seay. Defendant testified
that while she was fighting with Ms. Seay, she looked back and saw
that Harlan Ponder, who was Defendant's boyfriend, had Mr. Boyd in
a chokehold. Defendant also testified as follows: "I guess because
[Mr. Boyd] had caused me to fall, Jason [Ponder] or Harlan
[Ponder], one, . . . jumped in. I don't know what they did. I
never [saw] anything they [did] to [Mr. Boyd]." Defendant
testified that she never joined with the Ponders in assaulting Mr.
Boyd. Defendant also testified that there was never a time when
all three of them simultaneously hit or kicked Mr. Boyd.
Defendant argues the evidence presented at the resentencing
hearing was conflicting. Pursuant to Defendant's version of
events, Defendant argues she did not join with the Ponders in
assaulting Mr. Boyd; Defendant argues that her assault on Mr. Boyd
preceded the assault by the Ponders. While we agree that the
version of events presented by Captain Jones differed from the
version presented by Defendant, we hold there was overwhelming and
uncontradicted evidence that Defendant joined with more than one
other person in the commission of the offense. Defendant testified
that she struck Mr. Boyd three times in the face. According to
Defendant, at least one of the Ponders then "jumped in," though
Defendant did not see what "they [did] to [Mr. Boyd]." Captain
Jones testified that according to Mr. Banks and Ms. Smith,
Defendant and the Ponders hit and kicked Mr. Boyd, although
according to their version of events, Defendant and the Ponders
struck Mr. Boyd simultaneously. We hold that it is immaterialwhether Defendant and the Ponders struck Mr. Boyd simultaneously.
Even if we accept Defendant's version of events, there is
uncontradicted testimony that Defendant and the Ponders hit and
kicked Mr. Boyd in the head, and that Mr. Boyd died of head trauma.
Accordingly, there is uncontradicted testimony that all three of
them participated in the second-degree murder of Mr. Boyd.
Therefore, there was overwhelming and uncontroverted evidence that
Defendant "joined with more than one other person in committing the
offense and was not charged with committing a conspiracy." See
N.C.G.S. § 15A-1340.16(d)(2).
The trial court also found an aggravating factor under N.C.
Gen. Stat. § 15A-1340.16(d)(10) (2005), which provides: "The
following are aggravating factors: . . . (10) The defendant was
armed with or used a deadly weapon at the time of the crime." As
to this aggravating factor found by the trial court judge,
Defendant concedes that she testified she was armed with a knife at
the time of the crime. Moreover, Defendant testified that she was
"responsible for hitting [Mr. Boyd] [and] assault[ing] . . . [Mr.
Boyd], even with a deadly weapon." However, Defendant argues her
testimony at the resentencing hearing was not preceded by
appropriate warnings as to its effect. Therefore, Defendant argues
that her admission must be given no weight.
However, even if we do not give any weight to Defendant's
testimony that she had a knife and used it on Mr. Boyd, we hold
there was overwhelming and uncontradicted evidence of thisaggravating factor. Captain Jones testified that Ms. Smith told
him that Defendant had a knife and had "carved some type of
markings on [Mr. Boyd's] back." Moreover, the State introduced a
photograph of Mr. Boyd showing the markings on his back. Captain
Jones also testified that the medical examiner determined that the
markings on Mr. Boyd's back were inflicted prior to Mr. Boyd's
death. We hold this was overwhelming and uncontradicted evidence
that Defendant was armed with a deadly weapon at the time of the
Except as herein modified, the opinion filed by this Court on
3 January 2006 remains in full force and effect.
No prejudicial error.
Judge GEER concurs.
Judge WYNN concurs in the result only.
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