By Michael Lowrey
July 14, 2005

RALEIGH — What is an ”item of evidence?” While seemingly a simple question, the answer is critical in determining whether criminals in North Carolina are eligible for longer sentences. To get a definitive answer required a ruling from the N.C Supreme Court.

North Carolina law provides for three sentencing ranges for crimes: a presumptive (default) range, a mitigated range, and an aggravated range. The mitigated range and aggravated range are 25 percent shorter and longer, respectively, than the presumptive range. If the judge determines that aggravating factors outweigh any mitigating factors, he may impose a sentence in the aggravated range.

N.C.G.S. § 15A-1340.16(d) sets out some limits to aggravating factors: “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation.”

Melvin Beck was put on trial in 2002 in Forsyth County on murder and burglary charges. He was ultimately convicted of second-degree murder. At sentencing, the state introduced a Florida fugitive warrant for Beck. Based upon information in the warrant, the court found that two aggravating factors existed: (1) Beck had committed the murder while on pretrial release on another charge and (2) he was a fugitive from Florida as he didn’t appear for the trial on that charge. Judge William Wood sentenced Beck in the aggravated range to a term of 313 to 385 months in prison.

The N.C. Court of Appeals ruled, however, that Beck had been improperly sentenced. The appeals court found, “While this evidence [the fugitive warrant] is sufficient to establish one of these aggravating factors, the trial court erred in relying on the same evidence to find two distinct aggravating factors.”

Before the state’s highest court, five of the seven justices found that the fugitive warrant could indeed be used to support both aggravating factors. In their view, “N.C.G.S. § 15A- 1340.16(d) proscribes the use of the same fact in enhancement, not the same source.”

“Defendant urges that ‘item of evidence’ be literally interpreted to mean the specific thing that is presented as ‘evidence’ during the trial,“ wrote Justice Paul Newby for the majority.

“In other words, ‘item’ could mean a piece of paper, such as a warrant or medical record, or gun, or perhaps a single witness. This literal interpretation could lead to absurd results. For example, during oral argument, defense counsel conceded that if the warrant had been torn into two separate pieces of paper, with the fact that defendant was a fugitive on one piece and the fact that he was on pretrial release on the other, it would then constitute two items of evidence. That result would yield an extreme version of form over substance. Similarly, if the phrase is read to mean the method of proof, then the same fact could be counted twice so long as it was established by two distinct documents or other mode of proof.”

Justices Edward Brady and Sarah Parker disagreed with the majority interpretation.

“Here, the first clause of N.C.G.S. § 15A-1340.16(d) clearly prohibits double-counting of elements and aggravators,” Brady wrote. “The second clause, which contains the phrase ‘same item of evidence,’ however, prohibits the use of the same item of evidence to support more than one aggravating factor. This conclusion is necessitated by the plain language of the phrases employed by the drafters and the basic tenet of statutory construction that ’the entire sentence, section or statute must be taken into consideration, and every word must be given its proper effect and weight.’”

“The majority makes much ado about the ‘absurd result’ the same item of evidence rule might have; I however, see no absurdity in requiring the State to adequately establish the existence of an aggravating factor, particularly in light of this Court’s application of Blakely v. Washington in State v. Allen. Thus, because I would give ‘proper effect and weight’ to the General Assembly’s use of ‘item of evidence’ as opposed to ‘evidence,’ I respectfully dissent.”

The case is State v. Melvin Wayne Beck, (191PA04).

Michael Lowrey is associate editor of Carolina Journal.