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Docket Number

No. 8218SC724

Attorney(S)

Attorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State. Janine W. Cutcher, for defendant-appellant.

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Smart Summary

State of North Carolina v. Lonnie Dean Keaton — Case Summary

Factual and Procedural Background

Defendant Lonnie Dean Keaton was charged with first degree murder in the shooting death of Eddie A. Hawks. The State's evidence tended to show that as Hawks exited his car and walked toward Bob's Gas Town Lounge, the defendant called to him from a car parked in an alley beside the lounge, Hawks turned and began moving toward the defendant, and the defendant fired three shots at Hawks, two of which struck him. Two State witnesses (Hawks' girlfriend and her twelve-year-old son) testified Hawks was unarmed and had nothing in his hands at the time of the shooting. A waitress testified the defendant had left the lounge shortly before Hawks arrived, stating he was "going to get some shit straight."

The defendant testified he left the lounge to avoid trouble because Hawks had earlier threatened him; when Hawks called and walked toward him, defendant thought Hawks had something in his hand and fired three times.

Defendant was convicted of second degree murder and sentenced to twenty-five years imprisonment (the trial court found two aggravating factors and no mitigating factors, imposing ten years above the presumptive fifteen-year sentence for second degree murder). The judgment was entered 18 March 1982 in Superior Court, Guilford County (Davis, Judge). Appeal to the North Carolina Court of Appeals was heard 18 January 1983; the opinion was filed 15 March 1983.

Counsel of record in the opinion: Attorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State; Janine W. Cutcher for defendant-appellant.

Legal Issues Presented

Whether admission of three pre-autopsy photographs of the victim to illustrate a detective's testimony was improper and, if so, whether any error was harmless.
Whether the trial court erred by failing to suppress defendant's alleged oral statement to a detective where the State disclosed the detective's notes concerning the statement only on the day of trial (relating to discovery obligations under G.S. 15A-903(a)(2)).
Whether the trial court abused its discretion by not sequestering a twelve-year-old defense witness during the testimony of his mother for the State.
Whether the trial court abused its discretion in denying bond pending appeal of the defendant's second degree murder conviction.
Whether the trial court erred in using, as aggravating factors for sentencing: (a) the defendant's use of a deadly weapon, and (b) the defendant's prior convictions punishable by more than 60 days confinement—specifically whether those factors were properly established and permissible under G.S. 15A-1340.4.

Arguments of the Parties

Defendant's Arguments

The three pre-autopsy photographs of the victim were irrelevant and prejudicial and deprived defendant of a fair trial.
The defendant was denied a meaningful opportunity to prepare his defense because the State did not inform him of the existence or contents of the detective's notes concerning his oral statement until the day of trial, warranting suppression.
The trial court erred in refusing to sequester the twelve-year-old defense witness during his mother's testimony for the State, which could have influenced the minor's testimony.
The trial court abused its discretion by denying bond pending appeal.
The sentence (an extra ten years above the presumptive fifteen-year term) was not supported by the evidence because (a) use of a deadly weapon should not have been treated as an aggravating factor where the use of the weapon was an element pointing to malice, and (b) the court improperly relied on prior convictions as aggravating factors without evidence whether the defendant had counsel or waived counsel for those convictions.

State's Responses (as reflected in the opinion)

With respect to the photographs, the State proceeded on the basis that such photos were admissible to illustrate Detective Davis' testimony; the court noted prior decisions that similar evidence does not necessarily establish prejudice when not necessary to prove the case.
Regarding discovery of the detective's notes, the State's production obligations under G.S. 15A-903(a)(2) do not arise until the defendant makes a written request for voluntary discovery and, if necessary, moves to compel discovery; the record shows the defendant did not file the required motion.
As to sequestration, the State impliedly relied on the trial court's discretion to decide sequestration motions; the record did not show any difference in the minor witness's testimony resulting from hearing his mother.
On bond, the State relied on statutory discretion under G.S. 15A-536(a) and on the trial court's consideration of defendant's record and case circumstances.
For sentencing, the State's sentencing findings included the two aggravating factors; the Court of Appeals reviewed statutory limits on using evidence necessary to prove elements of the offense and statutory requirements for proving prior convictions as aggravating factors.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981)	Prior authority rejecting claims of prejudice where photographic evidence and accompanying testimony were not necessary to prove the State's case.	Used to conclude that even if the three photographs were improperly admitted, any such error was harmless beyond a reasonable doubt given overwhelming evidence of guilt.
State v. Lang, 46 N.C. App. 138, 264 S.E.2d 821 (1980)	Defendant bears the burden of making a written request for voluntary discovery and must move to compel discovery before the State's duty to produce oral statements arises under G.S. 15A-903(a)(2).	Applied to find no error in failing to suppress defendant's oral statement where defendant did not file the statutory motion to compel discovery of the detective's notes.
State v. Royal, 300 N.C. 515, 268 S.E.2d 517 (1980)	Motion to sequester a witness lies within the trial court's discretion and is reviewable only for abuse of that discretion.	Applied to uphold the trial court's decision not to sequester the twelve-year-old witness because the record showed no evidence that his testimony differed as a result of hearing his mother testify.
State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (1979)	Granting or denying post-trial bond pending appeal is within trial court discretion; G.S. 15A-536(a) permits but does not require release.	Applied to affirm the trial court's denial of bond pending appeal, given consideration of defendant's record, circumstances of the crime, and history of misconduct.
State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983)	Illustrative authority concerning G.S. 15A-1340.4(a)(1), which bars using evidence necessary to prove an element of the offense as an aggravating factor.	Used with other authorities to question the propriety of treating the use of a deadly weapon (an element tied to malice) as an aggravating factor in sentencing.
State v. Thompson, 60 N.C. App. 679, 300 S.E.2d 29 (1983)	Authority relating to the statutory prohibition in G.S. 15A-1340.4(a)(1) on using evidence necessary to prove an element as an aggravator.	Relied upon to support the conclusion that the deadly-weapon factor should not have been used as aggravation where the weapon was integral to proving malice.
State v. Neeley, 307 N.C. 247, 297 S.E.2d 389 (1982)	Waiver of counsel may not be presumed from a silent record; proof is required when prior convictions are used against a defendant in sentencing.	Applied to hold that the record's silence about counsel or waiver for prior convictions made it improper to use those convictions as aggravating factors; required remand for resentencing.

Court's Reasoning and Analysis

The Court of Appeals addressed each assignment of error in turn, applying controlling statutes and prior decisions:

Photographs: The court observed that the three pre-autopsy photographs were used to illustrate Detective Davis' testimony but acknowledged they were not necessary to prove the State's case. Citing State v. Temple and authority on evidence, the court stated that where neither a photograph nor accompanying testimony is necessary, claims of prejudice have been rejected. The court concluded that even if admission of the photographs were erroneous, the error was harmless beyond a reasonable doubt because of the "overwhelming evidence of defendant's guilt."
Oral statement and discovery: The court analyzed G.S. 15A-903(a)(2), which requires the prosecutor, upon a defendant's motion, to disclose the substance of any oral statement by the defendant the State intends to offer. Citing State v. Lang, the court reiterated that a defendant must first make a written request for voluntary discovery and, if necessary, file a motion to compel discovery before the State's duty to produce arises. Because defendant did not file the requisite motion under G.S. 15A-903(a)(2), the trial court did not err in refusing to suppress the oral statement. The court further noted that defendant had stipulated he intentionally shot the victim, reducing any prejudice from the detective's testimony that defendant had earlier denied the shooting.
Sequestration of the minor witness: The court treated a motion to sequester as a discretionary matter reviewable only for abuse, citing State v. Royal. Finding no evidence in the record that the twelve-year-old witness's testimony differed because he heard his mother testify for the State, the court held there was no abuse of discretion.
Denial of bond pending appeal: The court observed that G.S. 15A-536(a) permits, but does not require, release pending appeal and that post-trial bond is within the trial court's discretion (citing State v. Sparks). Considering defendant's criminal record, the circumstances of Hawks' death, and defendant's history of misconduct, the court found no abuse of discretion in denying bond.
Sentencing/aggravating factors: The court examined the two aggravating factors the trial court found — (1) use of a deadly weapon, and (2) prior convictions punishable by more than 60 days confinement. The court questioned the use of the "deadly weapon" aggravator because under G.S. 15A-1340.4(a)(1) evidence necessary to prove an element of the offense (here, malice inferred from intentionally shooting the victim with a gun) may not be used as an aggravating factor. Citing State v. Melton and State v. Thompson, the court concluded that the necessary element of malice had been inferred by the jury from evidence that the defendant intentionally shot Hawks, so using deadly-weapon evidence as aggravation was improper. Additionally, with respect to the prior convictions, the court noted the record lacked evidence whether defendant had counsel or waived counsel for those convictions, as required by G.S. 15A-1340.4(e). Relying on State v. Neeley, the court held that waiver of counsel cannot be presumed from a silent record. Because of these deficiencies, the court determined resentencing was required.

The court concluded that, aside from the sentencing issues discussed, it found no reversible error in the trial proceedings themselves.

Holding and Implications

Holding: The Court of Appeals affirmed the trial on the contested trial issues but vacated the sentencing to the extent that it relied on improper aggravating factors. In particular, the court held that the sentencing determination could not permissibly rely on (a) the "deadly weapon" aggravating factor when that evidence was necessary to prove an element of the offense (malice), and (b) prior convictions used as aggravators without proof whether defendant was represented by counsel or waived counsel for those convictions. The court therefore remanded the case for resentencing consistent with statutory requirements.

Remanded for resentencing.

Implications: The direct consequence is that the defendant's conviction for second degree murder remains intact, but the additional ten-year aggravating increment imposed by the trial court is not sustained on this record; the case is remanded for resentencing in conformity with G.S. 15A-1340.4 and related authorities. The opinion does not purport to announce a new rule of law beyond applying existing statutory and case law constraints on the use of evidence necessary to prove elements and the requirement to establish the adequacy of prior convictions before using them as aggravating factors.

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STATE OF NORTH CAROLINA v. LONNIE DEAN KEATON

1. Homicide 20.1 — photographs of victim — harmless error Even if the trial court erred in allowing the introduction of three photographs of a murder victim as he appeared before an autopsy to illustrate a detective's testimony, such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt.

2. Bills of Discovery 6 — defendant's oral statement — failure to disclose officer's notes The trial court did not err in failing to suppress defendant's oral statement to a detective because the State did not inform him of the existence or contents of the detective's notes concerning the statement until the day of trial where defendant failed to file a motion to compel discovery pursuant to G.S. 15A-903 (a)(2).

3. Criminal Law 98.2 — failure to sequester witness during mother's testimony The trial court did not abuse its discretion in failing to sequester a 12-year-old witness for the defense during his mother's testimony as a witness for the State where the record contains no evidence that the minor witness's testimony was different as a result of hearing his mother testify.

4. Arrest and Bail 9.2 — denial of bond pending appeal of murder conviction The trial court did not abuse its discretion in the denial of bond pending defendant's appeal of his second degree murder conviction in light of defendant's past criminal record, the circumstances surrounding the victim's death, and defendant's history of misconduct.

5. Criminal Law 138 — second degree murder — aggravating factor — use of deadly weapon — element of offense In imposing a sentence upon defendant for second degree murder, the trial court erred in finding as an aggravating factor that defendant used a deadly weapon where there were no facts and circumstances indicating that the victim's death was unusually gruesome other than the fact that he died from gunshot wounds, since the necessary element of malice must have been inferred by the jury from the evidence that defendant intentionally shot the victim with a gun, and G.S. 15A-1340.4 (a)(1) prohibits the use of evidence necessary to prove an element of the offense as an aggravating factor.

6. Criminal Law 138 — prior convictions as aggravating factor — necessity for evidence as to counsel or waiver thereof The trial court erred in finding as an aggravating factor that defendant had prior convictions for criminal offenses punishable by more than 60 days confinement where there was no evidence as to whether defendant was represented by counsel or waived counsel with respect to the prior convictions as required by G.S. 15A-1340.4 (e).

Judge HEDRICK concurs in the result.

Defendant was charged with first degree murder in the shooting death of Eddie A. Hawks. The State's evidence tended to show that as Hawks got out of his car and started towards Bob's Gas Town Lounge, the defendant called to him from his car which was parked in an alley beside the lounge, that Hawks turned towards defendant and started moving in that direction and that defendant fired three shots at Hawks, two of which hit him. Two of the State's witnesses, Hawks' girl friend and her twelve-year-old son, testified that Hawks was unarmed when he turned and started walking towards the defendant. The State also presented testimony that Hawks had nothing in his hands at the time of the shooting. Another witness, a waitress at the lounge, testified that the defendant had left the lounge shortly before Hawks pulled into the lounge parking lot stating that he (defendant) was "going to get some shit straight."

Defendant testified that he had left the lounge so that he would not be there when Hawks came back because defendant was expecting trouble from Hawks. He stated that when he had seen Hawks at the lounge earlier on the same day, Hawks had said to defendant that he was going to cut defendant's head off. Defendant stated that as he was leaving the lounge to avoid Hawks, Hawks called to him and started walking towards him. Thinking that Hawks had something in his hand, defendant fired at him three times.

Defendant was convicted of second degree murder and sentenced to twenty-five years imprisonment. From the judgment entered pursuant to that verdict, defendant appeals.

EAGLES, Judge.

During defendant's trial, the State was permitted to introduce into evidence three photographs of the victim as he appeared before the autopsy to illustrate Detective Davis' testimony. Defendant's first assignment of error maintains that this evidence was not relevant to any issue before the court and its introduction prevented defendant from receiving a fair and impartial trial.

Where, as here, neither the photo nor accompanying testimony was necessary to prove the State's case, claims of prejudice have been rejected previously. See, State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981); 1 Brandis, Brandis On North Carolina Evidence 34 (2d rev. ed. 1982). Even if allowing the introduction of these three photographs were error, we hold that it was harmless error beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt presented at trial. State v. Temple, supra

The defendant next argues that the trial court erred in failing to suppress defendant's alleged oral statement to a detective. Defendant maintains that he was denied a meaningful opportunity to prepare his defense because the State did not inform him of the existence or contents of the detective's notes concerning defendant's oral statement until the day of trial.

G.S. 15A-903 (a)(2) provides:

(a) Statement of Defendant. — Upon motion of a defendant, the court must order the prosecutor:

. . .

(2) To divulge, in written or recorded form, the substance of any oral statement made by the defendant which the State intends to offer in evidence at the trial.

This court has previously held that defendant has the burden of making a written request for voluntary discovery and making a motion to compel discovery where voluntary discovery does not occur, before the State's duty arises to produce oral statements made by defendant. State v. Lang, 46 N.C. App. 138, 264 S.E.2d 821 (1980). Defendant failed to file a motion pursuant to G.S. 15A-903 (a)(2). Therefore, we find no merit in defendant's second assignment of error.

Furthermore, we find no prejudice in admission of the complained-of testimony at trial. Defendant had already stipulated, prior to trial, that he had intentionally shot the victim. He suffered little, if any, by the admission of Detective Davis' testimony that defendant had earlier denied that he had shot the victim.

Defendant also assigns as error the failure of the court to sequester a twelve-year-old witness for the defense during his mother's testimony as a witness for the State. A motion to sequester a witness is within the trial court's discretion and is reviewable only upon abuse. State v. Royal, 300 N.C. 515, 268 S.E.2d 517 (1980). Because the record contains no evidence that the twelve-year-old's testimony was different as a result of his hearing his mother testify, we find no abuse of discretion on the part of the trial court.

Defendant assigns as error the trial court's denial of bond pending appeal of his second degree murder conviction. We reject this assignment based on the language of G.S. 15A-536 (a) which permits but does not require a judge to order release of a convicted defendant pending appeal. The matter of granting or denying post-trial bond is within the trial court's discretion. State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (1979). Considering defendant's past criminal record, the circumstances surrounding Hawks' death, and defendant's history of misconduct, we find no abuse of discretion in the trial court's denial of defendant's request for bond pending appeal.

Finally, defendant maintains that his sentence of twenty-five years imprisonment for second degree murder was not supported by the evidence. The trial court found two aggravating and no mitigating factors and sentenced defendant to an additional ten years imprisonment beyond the presumptive sentence of fifteen years for second degree murder. The aggravating factors which the court considered were 1) the defendant used a deadly weapon at the time of the crime and 2) the defendant had prior convictions for criminal offenses punishable by more than 60 days confinement.

We question the propriety of considering the "deadly weapon" factor in aggravation since G.S. 15A-1340.4 (a)(1) provides that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . ." See State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983), State v. Thompson, 60 N.C. App. 679, 300 S.E.2d 29 (1983). Here the court had instructed the jury that

Now, if the State proves beyond a reasonable doubt, or it is admitted that the defendant intentionally killed Eddie Hawks with a deadly weapon, or intentionally inflicted a wound upon Eddie Hawks with a deadly weapon that proximately caused his death, you may infer first that the killing was unlawful; second that it was done with malice.

You may consider this along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.

As there were no facts and circumstances indicating that Hawks' death was unusually gruesome, other than the fact that he died from gunshot wounds, the necessary element of malice must have been inferred by the jury from the evidence that defendant intentionally shot Hawks with a gun.

In addition, the record is devoid of evidence as to whether defendant was represented by counsel or waived counsel with respect to the prior convictions as required by G.S. 15A-1340.4 (e). Id. Waiver of counsel may not be presumed from a silent record. State v. Neeley, 307 N.C. 247, 297 S.E.2d 389 (1982). We remand for resentencing based on the statutory prohibition forbidding the trial court to use as aggravating circumstances convictions in which the defendant was indigent and not represented by counsel, and on the apparent use as an aggravating factor evidence necessary to prove an element of the offense charged.

In the trial itself we find no error, but for the above reasons, we remand for resentencing.

Judge JOHNSON concurs.