State v. Mullican

406 S.E.2d 854 (1991)

329 N.C. 683

STATE of North Carolina v. Thomas Nolen MULLICAN.

No. 379A89.

Supreme Court of North Carolina.

August 14, 1991.

*855 Lacy H. Thornburg, Atty. Gen. by David Gordon, Asst. Atty. Gen., Greenville, for the State.

Frederick G. Lind, Asst. Public Defender, Greensboro, for defendant-appellant.

WEBB, Justice.

The question on this appeal is whether there was sufficient evidence to support the finding of the aggravating factors. We have held that a statement by the prosecuting attorney is not sufficient standing alone to find an aggravating factor. State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983). If opposing counsel stipulates to a statement it may be used to support the finding of an aggravating factor. State v. Swimm, 316 N.C. 24, 340 S.E.2d 65 (1986).

The defendant contends that the only evidence to support the finding of the aggravating factors in this case was the unsupported statement of the prosecuting attorney and the defendant did not stipulate to this statement. The Court of Appeals held that it was not necessary to find there was a stipulation. It held the statement by the defendant's attorney constituted an admission as to the things with which the defendant was charged.

We cannot say the Court of Appeals was wrong, but if it were, we hold that the record shows the defendant stipulated that the prosecuting attorney could state the evidence. The defendant relies on State v. Toomer, 311 N.C. 183, 316 S.E.2d 66 (1984), which dealt with the authentication of a transcript of a tape recording so that it could be offered into evidence during a trial. We held that a statement by the defendant's attorney that he stipulated "it is a tape" and the officer was reading from it was not sufficient to prove the matters necessary to authenticate a transcript of a tape for introduction into evidence.

Toomer does not govern this case. It is not necessary in order to stipulate that the prosecuting attorney can state the evidence to stipulate to all the things necessary to authenticate a transcript of a tape recording for admission into evidence. It is only necessary to stipulate that the prosecuting attorney may make a statement as to what the evidence would show. The question in this case is whether the defendant did so. We hold that he did.

When the prosecuting attorney said he would summarize the State's evidence with the permission of the defendant, this was an invitation to the defendant to object if he had not consented. He did not do so. The defendant then said he too would like to present his evidence with the consent of the State. We can infer from this that the defendant had consented to the prosecuting attorney's making the statement. The defendant's attorney then made a statement which was consistent with the statement of the prosecuting attorney and concluded it by saying, "[o]f course that is not any excuse for his doing this." This is very *856 nearly an admission of what the State was attempting to prove. We hold that the statement of the prosecuting attorney considered with the statement of the defendant's attorney shows that there was a stipulation that the prosecuting attorney could state what the evidence would show.

AFFIRMED.