State v. Cameron

323 S.E.2d 396 (1984)

STATE of North Carolina v. John Robert CAMERON.

No. 8315SC1236.

Court of Appeals of North Carolina.

December 18, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Ross & Dodge by Harold T. Dodge, Graham, for defendant-appellant.

WEBB, Judge.

The defendant concedes the aggravating factor was properly found. See State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983). He also concedes that determining the relative weight of the one aggravating and the three mitigating factors was within the discretion of the Court. See State v. Goforth, 59 N.C.App. 504, 297 S.E.2d 128 (1982). The defendant contends there was evidence which was uncontradicted and manifestly credible which required findings *397 of two additional mitigating factors. See State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983).

There was evidence that the defendant's wife told him that she had moved out of their home because of an adulterous relationship that she had maintained for six months, and when the defendant expressed disbelief and urged her to return home, she had her lover confirm the liaison by telephone. The defendant contends the Court should have found from this evidence that the defendant acted under strong provocation. See G.S. 15A-1340.4(a)(2)i. We believe that "strong provocation" as a mitigating factor is a conclusion which a court may or may not reach from uncontradicted evidence. We hold it is not a fact which the court must find under the rule of State v. Jones, supra.

There was testimony by an Alamance County law enforcement officer that while defendant was incarcerated awaiting trial he helped prevent a jail break by other prisoners by telling the jailer of certain developments in the jail. As a consequence the authorities discovered that several jail window bars had been sawed through and confiscated eighteen hacksaw blades. The defendant argues that although aiding in the prevention of a jailbreak is not a statutory mitigating factor it is related to the purposes of the sentencing and should have been found by the Court. We do not believe we should hold this is a mitigating factor which the Court must find if the evidence as to it is uncontradicted and credible. We do not believe we should make a rule that a sentencing judge has to anticipate mitigating factors not listed in G.S. 15A-1340.4 which we might think are related to the purposes of sentencing.

Affirmed.

JOHNSON, J., concurs.

PHILLIPS, J., dissents.

PHILLIPS, Judge, dissenting.

Before imposing sentence the court was required, I think, to find and consider the two mitigating factors referred to in the majority opinion, both of which were indisputably and credibly established by the evidence in accord with the rule laid down in State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). When the credible evidence at a sentencing hearing is such that it is possible to draw different conclusions, or no conclusion at all, from it, then, of course, the choice is that of the trial judge and it cannot be upset; but when the evidence is such that only one rational conclusion can be drawn from it and that conclusion is favorable to the defendant under the principles and purposes of the Fair Sentencing Act, I do not believe that the judge is at liberty not to draw it. That would be caprice, not law. In my opinion the only rational conclusion that can conceivably be drawn from the paramour's confirmatory and taunting telephone call to defendant is that, to say the very least, it was strongly provocative; and it can only be concluded, I think, that preventing a jailbreak is a valuable service to both law enforcement and public safety, each of which is obviously in accord with the highest purposes of sentencing. That preventing a jailbreak is not on the statutory list of mitigating factors which sentencing judges must consider is, in my opinion, immaterial since it is as strongly related to the purposes of sentencing as any of the factors that are on the list, and judges are expressly authorized to find other factors that serve the purposes of sentencing. Since the judge based the sentences imposed on aggravating and mitigating factors authorized by the Act, he had the plain duty, it seems to me, to give defendant credit for the valuable service that he admittedly and indisputably rendered to law enforcement and the public safety.