STATE
v.
Eugene Collins POPE.
No. 722.
Supreme Court of North Carolina.
June 15, 1962.*129 T. W. Bruton, Atty. Gen., for the State.
Dalton, Long & Latham, Burlington, for defendant.
MOORE, Justice.
The motives of Judge Williams are not in question on this appeal. Defendant's brief states: "Judge Williams went to a lot of trouble * * * out of a sense of duty. He knew none of the parties and had no prior feelings one way or the other. In fact, as the record shows, on his own initiative Judge Williams brought out in open court what he apparently thought was the most important matter he had elicited in chambersthe theft of the gasoline not charged in any of the bills or warrants. Nevertheless, the defendant feels he was entitled to hear what the Judge heard at the time he heard it and not by way of recapitulation."
Thus is presented the sole question as to whether or not a judge presiding at a criminal term of court violates a fundamental right of a defendant when he receives in the absence of defendant, after a plea or verdict of guilty has been entered, information bearing upon the matter of punishment, either in aggravation or mitigation, even when the information is known, or disclosed, to defendant and his counsel before judgment is entered, and defendant is given opportunity to refute any unfavorable aspects of the information.
As to what is proper procedure in the sentencing process we do not find unanimity among the courts.
In every criminal prosecution it is the right of the accused to be present throughout the trial, unless he waives the right. And in capital trials the right cannot be waived by the prisoner. State v. O'Neal, 197 N.C. 548, 149 S.E. 860; State v. Cherry, 154 N.C. 624, 70 S.E. 294; State v. Dry, 152 N.C. 813, 67 S.E. 1000. "* * * (T)he tradition of our courts is that their hearings shall be open. The Constitution of North Carolina so provides, Article I, Section 35." Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782. The right to be present at the time sentence or judgment is pronounced is a common law right, separate and apart from the constitutional or statutory right to be present at the trial. Ball v. United States, 140 U.S. 118, 11 S. Ct. 761, 35 L. Ed. 377. A defendant should be present when evidence is introduced for the purpose of determining the amount of punishment to be imposed. 14 Am.Jur., Criminal Law, s. 190, pp. 899, 900; Fowler's Case, 49 Mich. 234, 13 N.W. 530 (1882). However, the procedure in the sentencing process is not the same as that in the trial process. Driver v. State, 201 Md. 25, 92 A.2d 570 (1952).
In some jurisdictions the sentencing procedure is regulated by statute. California and Montana have laws providing that punishment is to be determined in the sound discretion of the trial judge after the circumstances *130 have been presented by the testimony of witnesses examined in open court. California Penal Code, §§ 1203, 1204; Revised Code of Montana (1947), §§ 94-7813, 94-7814. Under these statutory provisions any representation made to the court in aggravation or mitigation of punishment may not be considered unless made in open court in the presence of the accused. People v. Sauer, 67 Cal. App. 2d 664, 155 P.2d 55 (1945). Though the court may receive and consider the pre-sentence report of a probation officer, letters, telephone messages and personal requests relating to punishment may not be considered, and where it appeared that such were received and given attention by the trial judge, the sentence imposed was vacated and the cause remanded for proper sentence. People v. Giles, 70 Cal. App. Supp. 2d 872, 161 P.2d 623 (1945). And under such statute the unsworn report and recommendations of an investigating probation officer "privately offered to and privately received and adopted by the trial judge do not measure up to * * * requirements * * *." Kuhl v. District Court, 366 P.2d 347 (Mont.1961).
In South Carolina the reception and adoption of information in aggravation or mitigation of punishment is strictly guarded. Evidence of moral character and affidavits may be received, and these do not violate the constitutional right of confrontation. State v. Reeder, 79 S.C. 139, 60 S.E. 434 (1908). It is proper "for the trial Judge in open Court, in the presence of the defendant, to inquire into any relevant facts in aggravation or mitigation of punishment." State v. Brandon, 210 S.C. 495, 43 S.E.2d 449 (1947); State v. Bodie, 213 S.C. 325, 49 S.E.2d 575 (1948). But where the judge discussed with the solicitor and another in his chambers, in the absence of defendant and his counsel, the matter of punishment, the sentence thereafter imposed was vacated on appeal. Held: Defendant "has a right that everything pertaining to the case, in the way of evidence affecting the case, be open * * * and public." State v. Harvey, 128 S.C. 447, 123 S.E. 201 (1924). And where, in sentencing accused, the judge remarked, "A number of people from your community have been to see me at my office about you, and they have all spoken against you. * * * (N)o one has come * * * to speak a good word in your behalf," on appeal the case was remanded for resentencing. State v. Simms, 131 S.C. 420, 127 S.E. 840 (1925).
In a Texas case the trial judge held a conference in the absence of defendant, and reviewed the evidence with the county attorney and an officer before entering judgment. The appellate court stated that the right to be present extends to the time "* * * `when evidence is introduced for the purpose of determining the amount of punishment to be imposed.' * * * We think the trial court should be granted great latitude in what he considers, in order to properly fit the punishment to the offender, but all reason and justice require that the accused be present when he hears anything defamatory of the accused." Phelps v. State, 158 Tex. Crim. 510, 257 S.W.2d 302 (1953).
It has been declared the better practice to receive and consider in open court in defendant's presence pre-sentence investigation reports of probation officers and other officials. Stephan v. United States, 133 F.2d 87 (CC6C 1943); Smith v. United States, 223 F.2d 750 (CC5C 1955).
In Pennsylvania when a defendant enters a general plea of guilty to a murder indictment, a three-judge court en banc hears evidence and determines the degree of guilt and fixes the punishment, and thus to some extent exercises the functions of both jury and judge. In such cases the reception of evidence is subject to approximately the same rules as in jury trials. Commonwealth v. Johnson, 348 Pa. 348, 35 A.2d 312 (Pa.1944); Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50 (Pa.1940). But the opinion in Petrillo lays down the principles applicable in sentencing generally, as follows: "In determining what the *131 penalty shall be after convictions in criminal cases, courts have a wide latitude in considering facts, whether or not these facts are produced by witnesses whom the members of the court may see and hear. In many jurisdictions courts in determining proper sentences consider official records and the reports of probation officers, psychiatrists and others." See Commonwealth v. Coleman, 179 Pa.Super. 1, 115 A.2d 811 (1955). In a case in which accused was charged with robbery, the judge, after verdict but before imposing sentence, held a conference in chambers. He invited a captain of police into consultation and stated, "All of you can be present." On appeal the court stated: "It is of course true that a defendant * * * has a right to be present at every stage of the proceedings from arraignment to the rendition of verdict. (Citing authorities.) However, this right does not extend to a pre-sentence investigation. In determining appropriate sentences, trial judges have a wide latitude in ascertaining pertinent facts, whether or not these facts are produced by witnesses who are seen and heard * * *. The sentencing of a defendant is a matter which is committed to the sound discretion of the trial judge." Judgment was not disturbed. Commonwealth v. Myers, 193 Pa.Super. 531, 165 A.2d 400 (1960).
The Maryland court states the matter thus: "To aid the sentencing judge in exercising * * * discretion intelligently, the procedural policy of the State encourages him to consider information concerning the convicted person's reputation, past offenses, health, habits, mental and moral propensities, social background and any other matters that a judge ought to have before him in determining the kind of sentence that should be imposed. In such cases, however, any information which might influence his judgment, which has not been received from the defendant himself or has not been given in his presence, should be called to his attention, or to the attention of his counsel, without necessarily disclosing the sources of such information, so that he may be afforded an opportunity to refute or discredit it." Driver v. State, supra.
The Supreme Court of the United States, in a well considered opinion, Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949), delivered by Mr. Justice Black, has spoken clearly and with practical understanding on the subject of procedure and the exercise of discretion by trial judges in the sentencing process. The opinion states:
"Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders. A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure 18 U.S.C.A. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information `as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant * * *.'
"In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict *132 the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant if not essentialto his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial."
"* * * We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to crossexamination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.
"The considerations we have set out admonish us against treating the dueprocess clause as a uniform command that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence. * * * In determining whether a defendant shall receive a one-year minimum or a twenty-year maximum sentence, we do not think the Federal Constitution restricts the view of the sentencing judge to the information received in open court. The dueprocess clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courtsstate and federal from making progressive efforts to improve the administration of criminal justice."
In our opinion rules of mathematical certainty and rigidity cannot be applied to the sentencing process. Justice may be served more by the substance than by the form of the process. We prefer to consider each case in the light of its circumstances. It is conceded that in a great many criminal cases, especially when there has been a plea of guilty, the matters of greatest concern to defendant are the nature and severity of his punishment, and he has the right to fair and just consideration, and to be given full opportunity to rebut representations in aggravation of punishment and to make representations in mitigation. Sentencing is not an exact science, but there are some well established principles which apply to sentencing procedure. The accused has the undeniable right to be personally present when sentence is imposed. Oral testimony, as such, relating to punishment is *133 not to be heard in his absence. He shall be given full opportunity to rebut defamatory and condemnatory matters urged against him, and to give his version of the offense charged, and to introduce any relevant facts in mitigation.
G.S. § 15-198 provides: "When directed by the court the probation officer shall fully investigate and report to the court in writing the circumstances of the offense and the criminal record, social history, and present condition of the defendant, including, whenever practicable, the findings of a physical and mental examination of the defendant." This establishes policy that full investigation may be made before sentencing. The presentence investigation may be made by a probation officer or by the trial judge himself. The investigation may adduce information concerning defendant's criminal record, if any, his moral character, standing in the community, habits, occupation, social life, responsibilities, education, mental and physical health, the specific charge against him, and other matters pertinent to a proper judgment. The information obtained by investigation may be received and considered. It is discretionary with the judge whether or not the sources of information are divulged, else it might prove difficult to obtain information in many instances, and the time required in sentencing procedure might be unreasonably extended. Unsolicited whispered representations and rank hearsay are to be disregarded. It is better practice to receive all reports and representations from probation officers in open court. All information coming to the notice of the court which tends to defame and condemn the defendant and to aggravate punishment should be brought to his attention before sentencing, and he should be given full opportunity to refute or explain it.
In our opinion it would not be in the interest of justice to put a trial judge in a straitjacket of restrictive procedure in sentencing. He should not be put in a defensive position and be required to sustain and justify the sentences he imposes, and be subject to examination as to what he has heard and considered in arriving at an appropriate judgment. He should be permitted wide latitude in arriving at the truth and broad discretion in making judgment. Pre-sentence investigations are favored and encouraged. There is a presumption that the judgment of a court is valid and just. The burden is upon appellant to show error amounting to a denial of some substantial right. State v. Poolos, 241 N.C. 382, 85 S.E.2d 342. A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.
We are of the opinion that the sentences imposed in the instant case should be affirmed. The most reasonable inference to be drawn from the evidence in the record is that Judge Williams retired to chambers for the sole purpose of clerically compiling and considering the information contained in the 68 bills of indictment. Certainly the judge's chambers are better adapted to such activity than the bench in open court. He called to his aid in tabulating the information those most familiar with the indictments and their contents. It must be assumed that defendant and his counsel were thoroughly familiar also with the bills of indictment affecting him. In listing the cases and the value of goods stolen, it was logically called to the judge's attention that there had been thefts of gasoline for which no indictments had been returned. All other matters mentioned in chambers had been testified to in open court in defendant's presence, and were favorable to defendantthat his record was good and he had not been in trouble previously. No recommendation was made as to punishment. Upon the judge's return to the courtroom, he called to the witness stand *134 one of the officers who had been assisting him in chambers, and questioned him concerning the thefts for which no prosecutions had been instituted, thus disclosing the information he had received privately. Defendant was given the opportunity to cross-examine the officer. He had full opportunity to show he was not involved in these thefts, if in fact he was not.
As already indicated, defendant in his brief admits that the facts do not show that he was prejudiced by the conduct of the court. On the charges pending against defendant, the judge could have imposed sentences aggregating in the maximum fifty-four years. None of defendant's fundamental rights were violated, and he was not denied that due process of law guaranteed by Article I, section 17, of the North Carolina Constitution.
The judgments entered by Judge Williams and the ruling and order of Judge Burgwyn are
Affirmed.