Opinion
No. 7716SC216
Filed 7 September 1977
1. Criminal Law 138.7 — sentencing — evidence considered In sentencing, the trial court is not confined to the evidence relating to the offense charged but may inquire into such matters as defendant's age, character, education, environment, habits, mentality, propensities, record and alleged acts of misconduct in prison.
2. Criminal Law 138.8 — sentencing hearing — opportunity to rebut evidence in aggravation of punishment While a presentence report considered by the trial court in determining a sentence may properly contain hearsay and formal rules of evidence do not apply to the testimony of witnesses in a sentencing hearing, the sentencing hearing must be fair and just, and the trial court must provide the defendant with a full opportunity to controvert hearsay and other representations in aggravation of punishment.
3. Criminal Law 138.7 — sentence based on hearsay testimony Defendant is entitled to be resentenced for the offenses of possession of marijuana with intent to sell and sale and delivery of marijuana where it appears from the record that the trial court's finding that defendant would not benefit from sentencing as a committed youthful offender and the court's imposition of maximum consecutive sentences for the offenses were based solely (except for the circumstances of the offenses) on an officer's hearsay testimony at the sentencing hearing that an unidentified but reliable confidential informant told him that defendant "was doing between $500 and $1,000 worth of grass a week."
APPEAL by defendant from Canaday, Judge. Judgment entered 20 October 1976 in Superior Court, ROBESON County. Heard in the Court of Appeals 29 June 1977.
Attorney General Edmisten by Associate Attorney Jane Rankin Thompson for the State.
James D. Little for defendant appellant.
Judge MORRIS concurring as to verdict and dissenting as to sentencing.
Defendant pled not guilty to charges of (1) possession of marijuana with intent to sell, and (2) sale and delivery of marijuana.
The evidence for the State tended to show that on 22 April 1976, undercover agent Max Boliek purchased less than one ounce of marijuana from the defendant for $20.00. Boliek was accompanied to defendant's home by Clarence Leonard, to whom Boliek gave the $20.00. Leonard went behind defendant's house and shortly thereafter came back with the defendant. Leonard had a plastic bag in his hand and gave it to Boliek. Boliek remarked that it "wasn't real good stuff" whereupon defendant took the bag from him and stated
"Hey, man you don't have to buy it if you don't want it. There's no trash in that pot. It's just like all the others I got and I haven't had any complaint."
Boliek retrieved the bag, took Leonard home, and delivered the bag to Detective Joel Locklear. The material in the bag was analyzed in an S.B.I. laboratory as 80% marijuana.
Defendant offered the testimony of Clarence Leonard and himself. This evidence tended to show that Leonard had sold the marijuana to Boliek and that defendant had never sold marijuana to anybody. Defendant denied that he had grabbed the bag from Boliek or that he had made the statements Boliek said he made.
The jury found defendant guilty as charged.
After sentencing hearing the trial court found that defendant would not benefit from sentencing as a committed youthful offender. The defendant appeals from judgment imposing consecutive five-year terms of imprisonment.
We find no merit in the assignments of error relating to trial and verdict. The sole assignment of error which merits discussion concerns the sentencing procedure.
After verdict the State called as a witness a deputy sheriff. He testified, over defendant's objection, that he had developed a reliable, confidential informant, who had told the witness that he had purchased marijuana from defendant on numerous occasions, and that defendant "was doing between $500 and $1,000 worth of grass a week." Defense counsel and the District Attorney made statements to the court. Thereupon, the trial court found that defendant (under 21 years of age) would not benefit from sentencing as a committed youthful offender under G.S. 148-49.4. The court then imposed two consecutive five-year prison terms.
The record on appeal does not disclose that defendant had any record of prior convictions nor does the record disclose that any other evidence or information was offered and considered by the court in aggravation of punishment.
The importance of sentencing, both to the defendant and the State, demands that the trial judge have adequate information as the basis for a proper sentence. Under G.S. 15-198 the trial court may require a probation officer to make a presentence investigation and report, which should be received and disclosed in open court. See G.S. 15A-1332, a part of the Trial State and Appellate Procedure Act of 1977 (Criminal Code Commission), effective 1 July 1978; State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1962). In sentencing, the trial court is not confined to the evidence relating to the offense charged. It may inquire into such matters as age, character, education, environment, habits, mentality, propensities, and record of the person about to be sentenced. State v. Cooper, 238 N.C. 241, 77 S.E.2d 695 (1953). And the court may inquire into alleged acts of misconduct in prison. State v. Thompson, 267 N.C. 653, 148 S.E.2d 613 (1966).
Different evidentiary rules govern trial and sentencing procedures. See G.S. 15A-1334, Act of 1977, supra; State v. Pope, supra; State v. Dawson, 23 N.C. App. 712, 209 S.E.2d 503 (1974). It would be unreasonable to require that all information in a presentence report be free of hearsay. Nor should the formal rules of evidence apply to the testimony of witnesses in a sentencing hearing. But the sentencing hearing must be fair and just, and the trial court must provide the defendant with full opportunity to controvert hearsay and other representations in aggravation of punishment.
In State v. Pope, supra, at page 335, we find a statement often quoted in other decisions: "Unsolicited whispered representations and rank hearsay are to be disregarded." We shy from attempting to define the term "rank hearsay." But in the case before us it appears from the record on appeal that defendant was under 21 years of age and that no record of prior convictions was offered by the State. The only evidence in aggravation of punishment was the testimony of a law officer that an unidentified but reliable informant told him that defendant "was doing between $500 and $1,000 worth of grass a week." Whereupon, the trial court found that defendant would not benefit from sentencing as a youthful offender under G.S. 148-49.4, and the court then imposed maximum consecutive prison sentences of five years on each of the two counts. Since the informant, referred to by the law officer witness as the one who informed him that defendant was dealing in drugs, was not identified, the defendant not only had no opportunity to confront the witness but had as well no effective way of contradicting the damaging and prejudicial information. Further, this prejudicial hearsay information was the only evidence in aggravation of punishment which, according to the record on appeal, was presented to and apparently considered by the trial court in imposing punishment.
The State contends that hearsay evidence is not ground for disturbing the sentence in the absence of prejudice, relying on State v. Perry, 265 N.C. 517, 144 S.E.2d 591 (1965). In Perry, the defendant, charged with two counts of burglary, entered pleas of guilty to breaking or entering rooms in a girls' dormitory. At sentencing hearing the investigating officer testified as to statements made to him by the occupants of the dormitory. Parker, J. (later Chief Justice), for the Court, wrote: "While the procedure in the instant case of the court's hearing testimony of officers as to what witnesses said instead of having the witnesses present in court to testify is not approved, under the facts of this case it cannot be said that the hearing of such testimony by the judge before sentencing the defendant was prejudicial to the defendant, or that it manifested inherent unfairness or injustice, or that it was conduct which offended the public sense of fair play." 265 N.C. at 520-521.
It is noted that in Perry, supra, the hearsay evidence in the sentencing hearing related to circumstances of the offenses to which defendant pled guilty, and the defendant, who was present with counsel, had full opportunity to offer any evidence in mitigation of the offenses. Sub judice, the hearsay evidence offered by the State over the objection of defendant, related not to the offenses of which the jury found him guilty but to information in aggravation of punishment other than the offense charged. Too, the defendant in Perry pled guilty, and in so doing "`waives the right to trial and the incidents thereof.'" Perry, supra, at page 520, citing 21 Am. Jur.2d Criminal Law, 495, p. 484.
A trial judge should not be unduly limited in sentencing by restrictive procedure. Nor should he be required to justify the sentence imposed by designating the basis for his punishment. He must be allowed to exercise wide discretion in determining appropriate punishment for the protection of society and rehabilitation of defendant. 4 Strong, N.C. Index 3d, Criminal Law, 138. But the trial judge should not base his sentence solely (except for the circumstances of the offense) on "unsolicited whispered representations" or "rank hearsay."
We find no error in the verdict, but the judgment is vacated and the cause remanded for resentencing.
Vacated and remanded.
Judge PARKER concurs.
Judge MORRIS concurs as to verdict and dissents as to sentencing.