State v. Hurt

NO. COA09-442-2

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Caldwell County
No. 99 CRS 1677
DAVID FRANKLIN HURT

Appeal by defendant from judgment entered 4 April 2008 by

Judge Thomas D. Haigwood in Caldwell County Superior Court.

Originally heard in the Court of Appeals 1 October 2009, with

opinion filed 16 November 2010. An opinion reversing the

decision of the Court of Appeals and remanding for consideration

of issues not previously addressed by this Court was filed by

the Supreme Court of North Carolina on 27 June 2013.

Roy Cooper, Attorney General, by Daniel P. O’Brien,
Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Barbara S. Blackman,
Assistant Appellate Defender, for defendant-appellant.

DAVIS, Judge.

This case is before this Court on remand from the Supreme

Court of North Carolina. Our Supreme Court held that for the

reasons stated in State v. Ortiz-Zape, ___ N.C. ___, 743 S.E.2d

156 (2013), Defendant’s rights under the Confrontation Clause
 -2-
were not violated. State v. Hurt, ___ N.C. ___, 743 S.E.2d 173

(2013). On remand, we address Defendant’s remaining arguments.

David Franklin Hurt (“Defendant”) appeals from a judgment

imposing a sentence in the aggravated range for second-degree

murder. Specifically, Defendant alleges the trial court erred

by (1) denying his motion to dismiss the aggravating factor due

to the State’s failure to establish that the offense was

especially heinous, atrocious, or cruel as to him; (2) quashing

the subpoena of a former prosecutor, thereby denying Defendant

the opportunity to elicit the State’s prior judicial admissions

and depriving him of his rights to due process, trial by jury,

presentation of a defense, and compulsory process; (3)

overruling Defendant’s objection and motion to strike

testimonial evidence from a State Bureau of Investigation

(“SBI”) agent; and (4) refusing to admit one of Defendant’s

exhibits at the mitigation phase of his sentencing hearing.

After careful review, we conclude that Defendant received a fair

trial free from prejudicial error.

Factual and Procedural Background

The State presented evidence tending to show the following

facts: On 26 February 1999, law enforcement officers found

Howard Nelson Cook (“Mr. Cook”) dead in his home in Caldwell
 -3-
County. Mr. Cook had sustained blunt force trauma, 12 major

stab wounds, and various other “cutting wounds” and abrasions.

Earlier that morning, Deputies Jason Beebee (“Deputy Beebee”)

and Joel Fish (“Deputy Fish”) of the Catawba County Sheriff’s

Office responded to a call from Nancy and Jody Hannah about a

white van that appeared to be stuck in their backyard. William

Parlier (“Mr. Parlier”) — Mr. Cook’s nephew — and Defendant had

been driving the van. As the deputies approached the scene,

they encountered Mr. Parlier, who appeared to be intoxicated,

walking in the road. The deputies also observed a white van

parked in front of a house they later learned belonged to Paula

Calloway (“Ms. Calloway”), Defendant’s girlfriend.

The deputies arrested Mr. Parlier on an outstanding warrant

and transported him to the Catawba County Jail. The deputies

discovered four one-dollar bills with reddish-brown stains on

Mr. Parlier’s person. Deputy Fish returned to the location of

the white van while other officers went to check on Mr. Cook at

his house based on Mr. Parlier’s statement that “[t]he man

inside that house killed my uncle.” Deputy David Bates of the

Caldwell County Sheriff’s Office found the door of Mr. Cook’s

house open and the body of Mr. Cook lying on the floor in a

large puddle of blood.
 -4-
Earlier that evening, Defendant and Mr. Parlier had arrived

at Ms. Calloway’s home in a white van. Ms. Calloway and

Defendant went to sleep and when they awoke, Mr. Parlier was

leaving in the van. Defendant and Ms. Calloway went looking for

the van and found it stuck in a yard. Defendant freed the van

and drove it back to Ms. Calloway’s house. Soon thereafter, law

enforcement officers came to Ms. Calloway’s house, and Deputy

Fish found Defendant in Ms. Calloway’s bed, under the covers,

wearing white pants with darkened reddish-brown stains.

Defendant’s sweatshirt and boots were also tarnished with

reddish-brown spots. The SBI later conducted a DNA analysis on

Defendant’s sweatshirt and boots and determined that both of

these items contained Mr. Cook’s blood.

On 15 March 1999, Defendant was indicted by a grand jury in

Caldwell County for first-degree murder, burglary, and robbery.

Mr. Parlier was also charged with the first-degree murder of Mr.

Cook. Pursuant to a plea bargain, Mr. Parlier pled guilty to

first-degree murder and received a sentence of life in prison.

After Mr. Parlier reneged on his promise to testify against

Defendant, the State agreed to negotiate a plea with Defendant,

and on 26 August 2002, Defendant pled guilty to second-degree
 -5-
murder in exchange for the dismissal of the remaining charges.1

The trial judge sentenced Defendant to the maximum aggravated

range of 276 to 341 months imprisonment.

Defendant appealed, and on 6 April 2004, this Court vacated

and remanded, concluding that the trial court erred in utilizing

the fact that Defendant joined with one other person in

committing the offense as an aggravating factor. State v. Hurt,

163 N.C. App. 429, 430, 594 S.E.2d 51, 52 (2004). We explained

that N.C. Gen. Stat. § 15A-1340.16(d)(2) provides grounds for

sentencing a defendant to the aggravated range in circumstances

where despite joining with more than one person to commit the

offense, the defendant was not charged with committing a

conspiracy. Id. at 434, 594 S.E.2d at 55. Because the evidence

indicated Defendant only conspired with one person — Mr. Parlier

— we held that N.C. Gen. Stat. § 15A-1340.16(d)(2) did not

apply. Id. We further concluded that Defendant’s participation

with Mr. Parlier was not a proper non-statutory aggravating

factor because the General Assembly “carefully crafted the

1
In the prosecutor’s submission to the trial court of the
factual basis for Defendant’s plea to second-degree murder, he
indicated that without Mr. Parlier’s testimony against
Defendant, the State’s evidence that Mr. Parlier was the one who
committed the stabbing was much stronger than the evidence
against Defendant and that was the basis for proceeding against
Defendant only on a charge of second-degree murder.
 -6-
statutory language to require that a defendant join with more

than one other person to support the finding of an aggravating

factor on these grounds.” Id. at 435, 594 S.E.2d at 55.

Our Supreme Court reversed the decision of this Court,

concluding that the fact that Defendant joined with one other

person in the commission of an offense yet was not charged with

conspiracy was reasonably related to the purposes of sentencing

and was thus a proper non-statutory aggravating factor under

N.C. Gen. Stat. § 15A-1340.16(d)(20). State v. Hurt, 359 N.C.

840, 844, 616 S.E.2d 910, 913 (2005). The Court remanded for

resentencing on different grounds in accordance with Blakely v.

Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), because

Defendant’s sentence exceeded the statutory maximum and the

upward durational departure from the presumptive range was based

solely on judicially-found facts. Id. at 845-46, 616 S.E.2d at

913-14. Upon reconsideration, our Supreme Court vacated its

earlier opinion in part and remanded the case with instructions

to remand to the trial court for a new sentencing hearing.

State v. Hurt, 361 N.C. 325, 332, 643 S.E.2d 915, 919 (2007).

The Supreme Court explained that “[i]f the State seeks an

aggravated sentence upon remand, the trial court can consider
 -7-
the evidence then presented to determine which aggravating

factors may be submitted to the jury.” Id.

A jury was empaneled for the purpose of determining the

presence of aggravating factors on 2 December 2007 in Caldwell

County Superior Court. A mistrial was declared due to

misconduct by a juror. A new trial commenced on 31 March 2008.

At the outset of the trial, the trial judge informed the jury

that Defendant had previously entered a guilty plea for second-

degree murder and that the State was now seeking to establish

the existence of the aggravating factor that the offense to

which Defendant had pled guilty was especially heinous,

atrocious, or cruel.

The State presented evidence that Defendant had

participated with Mr. Parlier in the vicious beating and

stabbing of Mr. Cook. The State’s evidence tended to show that

(1) Defendant drove himself and Mr. Parlier to Mr. Cook’s house;

(2) Defendant’s clothing and boots tested positive for Mr.

Cook’s blood; (3) a cigarette butt found outside Mr. Cook’s door

tested positive for blood and Defendant’s DNA; and (4) Defendant

drove Mr. Parlier and himself away from the crime scene and to

his girlfriend’s house.
 -8-
Special Agent David Freeman (“Special Agent Freeman”) of

the DNA unit of the forensic biology section of the SBI

testified that the end of the cigarette butt containing saliva

found outside Mr. Cook’s house matched Defendant’s DNA and that

a pair of blue jeans found in the van had Mr. Cook’s blood on

them as did Defendant’s shirt and boots. The State also

presented evidence regarding the specific manner of Mr. Cook’s

death. Dr. Patrick Lantz, a forensic pathologist and a medical

examiner for Forsyth County, explained that six of the twelve

major stab wounds struck vital organs. He further testified

that each of these wounds would have been painful and would have

caused bleeding both inside and outside of Mr. Cook’s body. Dr.

Lantz noted, however, that none of the wounds would have caused

an immediate loss of consciousness, meaning that Mr. Cook likely

would have been awake for approximately five to ten minutes

before he lost consciousness due to blood loss. Dr. Lantz then

opined that an additional five to ten minutes probably passed

between the time Mr. Cook lost consciousness and the time he

died.

At the conclusion of the State’s evidence, Defendant made a

motion to dismiss the jury’s consideration of the aggravating

factor that this offense was especially heinous, atrocious, or
 -9-
cruel, arguing that the State had not presented sufficient

evidence that Defendant had participated in the actual killing

of Mr. Cook. Defendant contended that the State’s evidence may

have placed Defendant at the crime scene but that it did not

establish Defendant’s actual participation in the murder itself.

The trial court denied Defendant’s motion, and Defendant did not

present any evidence at this proceeding.

On 3 April 2008, the jury returned a verdict finding that

the offense was especially heinous, atrocious, or cruel. The

trial court then heard evidence regarding mitigating factors, at

which time Defendant argued that the State had offered evidence

showing only that he brought Mr. Parlier to Mr. Cook’s house,

was present at the front door, and had driven himself and Mr.

Parlier away from the scene of the crime. The trial court

rejected the argument that Defendant was a passive participant

in the murder and declined to find any non-statutory mitigating

factors. The court found three statutory mitigating factors:

(1) that Defendant supported his family; (2) that Defendant had

a support system in the community; and (3) that Defendant had a

positive employment history or was gainfully employed. The

trial court found that the aggravating factor outweighed the

factors in mitigation and that an aggravated sentence was
 -10-
therefore appropriate. The trial court imposed a sentence in

the maximum aggravated range of 276 to 341 months, and Defendant

appealed.

Defendant raised five arguments on appeal. In State v.

Hurt, 208 N.C. App 1, 702 S.E.2d 82 (2010), this Court held that

the introduction of certain forensic evidence violated

Defendant’s rights under the Confrontation Clause, and,

therefore, Defendant was entitled to a new sentencing hearing.

For this reason, we declined to address Defendant’s remaining

arguments on appeal. Id. at 6, 702 S.E.2d at 87. Discretionary

review was allowed, and our Supreme Court reversed, holding that

for the reasons stated in Ortiz-Zape no violation of the

Confrontation Clause had occurred. Therefore, we now consider

Defendant’s remaining four issues on appeal.

Analysis

I. Denial of Motion to Dismiss

Defendant first argues that the trial court erred in

denying his motion to dismiss due to the State’s failure to

introduce substantial evidence that the offense was especially

heinous, atrocious, or cruel. We disagree.

Questions of sufficiency of the evidence are reviewed under

the substantial evidence test. See State v. Brewington, 352
 -11-
N.C. 489, 525-26, 532 S.E.2d 496, 517-18 (2000), cert. denied,

531 U.S. 1165, 148 L.Ed.2d 992 (2001). In determining whether

sufficient evidence supported the trial court’s submission of

the especially heinous, atrocious, or cruel aggravator to the

jury, the reviewing court must view the evidence in the light

most favorable to the State, giving the State the benefit of all

reasonable inferences. State v. Flippen, 349 N.C. 264, 270, 506

S.E.2d 702, 706 (1998), cert. denied, 526 U.S. 1135, 143 L.Ed.2d

1015 (1999). “If the evidence supports a reasonable inference

of defendant’s guilt based on the circumstances, then it is for

the jurors to decide whether the facts, taken singly or in

combination, satisfy them beyond a reasonable doubt.” State v.

Campbell, 359 N.C. 644, 682, 617 S.E.2d 1, 24 (2005) (citations,

quotation marks, and brackets omitted), cert. denied, 547 U.S.

1073, 164 L.Ed.2d 523 (2006).

To be substantial, the evidence need not be
irrefutable or uncontroverted; it need only
be such as would satisfy a reasonable mind
as being adequate to support a conclusion.
For purposes of a motion to dismiss,
evidence is deemed less than substantial if
it raises no more than mere suspicion or
conjecture as to the defendant’s guilt.

State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139-40

(2002) (citation and internal quotation marks omitted). The

inquiry into whether substantial evidence has been presented
 -12-
examines “the sufficiency of the evidence presented but not its

weight.” State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271,

274 (2005) (citation omitted).

A defendant’s role or presence is simply one of the

circumstances of a murder to be considered when viewing the

evidence in the light most favorable to the State. Evidence

showing a less active role by a defendant or absence from the

scene does not preclude submission of the aggravating factor to

the jury as a matter of sufficiency of the evidence but rather

goes to the weight that the jury might put toward its

consideration of the aggravating factor. Brewington, 352 N.C.

at 525, 532 S.E.2d at 517 (holding that lack of participation

does not preclude submission to jury of especially heinous,

atrocious, or cruel aggravating factor).

Defendant contends that the State presented no evidence

establishing that he directly participated in the killing of Mr.

Cook as no evidence was presented regarding his role in the

actual perpetration of the homicide. Accordingly, Defendant

argues that the State’s failure to submit any evidence that

Defendant played an active role in the actual murder precludes a

finding by the jury beyond a reasonable doubt that the murder

was especially heinous, atrocious, or cruel as to Defendant.
 -13-
However, our Supreme Court has held that lack of presence

at or participation in a codefendant’s gruesome murder does not

preclude the submission to the jury of the especially heinous,

atrocious, or cruel aggravating factor. Rather, it is a matter

for the jury to consider in determining the weight to give the

aggravating factor. Id.

In Brewington, the defendant was convicted of first-degree

murder, conspiracy to commit murder, and arson. Id. at 493, 532

S.E.2d at 499. On appeal, he argued that the jury had

impermissibly found the existence of the especially heinous,

atrocious, or cruel aggravating factor based on the actions of

his codefendants. He conceded that the murders for which he was

convicted were especially heinous, atrocious, or cruel. Id. at

523, 532 S.E.2d at 516. However, he maintained that although he

had planned the murders, the jury could not have found the

existence of the aggravating circumstance as to him because

there was no evidence that he was personally responsible for the

manner in which they were carried out or that he was actually

present at the time they were committed. Id. Our Supreme Court

rejected this argument, explaining that “[t]he fact that

defendant was not present when the murders occurred, and that a

codefendant actually committed the murders, is a matter that a
 -14-
jury would properly consider in determining the weight to give

an aggravating circumstance and in balancing the aggravating and

mitigating circumstances.” Id. at 525, 532 S.E.2d at 517.

Similarly, in the present case, Defendant does not dispute

the fact that the manner in which Mr. Cook was murdered was

sufficient to support the submission of the especially heinous,

atrocious, or cruel aggravating factor to the jury. Instead,

Defendant asserts that the aggravating factor was erroneously

submitted to the jury as to him.

Recognizing that a defendant need not be physically present

for the commission of the crime in order for this aggravating

factor to be submitted to the jury, we believe that in this

case, when viewing the evidence in the light most favorable to

the State, a reasonable inference can be drawn that Defendant

did actively participate in the murder of Mr. Cook. Unlike in

Brewington, where the evidence established that the defendant

was not physically present for the commission of the murders,

the circumstantial evidence presented here permits a reasonable

inference that Defendant had a personal role in the murder of

Mr. Cook in that (1) Defendant had Mr. Cook’s blood on him; (2)

Defendant drove Mr. Parlier and himself away from the scene of

the murder and to his girlfriend’s house; and (3) a cigarette
 -15-
butt with blood and Defendant’s saliva on it was found at Mr.

Cook’s home. See, e.g., State v. Demery, 113 N.C. App. 58, 61-

64, 437 S.E.2d 704, 707-08 (1993) (holding that circumstantial

evidence including blood typing and hair analysis was sufficient

to submit to jury question of whether defendant was perpetrator

of murder). Accordingly, we hold that the trial court did not

err in denying Defendant’s motion to dismiss.

II. Motion to Quash Subpoena

Defendant next contends that the trial court erred in

granting the State’s motion to quash the subpoena of Jason

Parker (“Mr. Parker”), one of the prosecutors at the 2002

hearing on Defendant’s guilty plea. A motion to quash a

subpoena is addressed to the sound discretion of the trial court

and is not subject to review absent a showing of an abuse of

discretion.2 State v. Newell, 82 N.C. App. 707, 709, 348 S.E.2d

158, 160 (1986). An abuse of discretion occurs only where a

trial court’s ruling was “manifestly unsupported by reason or

[was] so arbitrary that it could not have been the result of a

2
In his brief, Defendant argues that the trial court’s ruling on
this issue deprived him of his constitutional rights to due
process, trial by jury, presentation of a defense, and
compulsory process. However, Defendant did not raise these
constitutional claims in the trial court. Therefore, any such
constitutional issues have been waived. State v. Moses, 205
N.C. App. 629, 635, 698 S.E.2d 688, 693 (2010).
 -16-
reasoned decision.” State v. White, 349 N.C. 535, 552, 508

S.E.2d 253, 264 (1998) (citation and quotation marks omitted),

cert. denied, 527 U.S. 1026, 144 L.Ed.2d 779 (1999).

At the hearing, Defendant sought to have Mr. Parker testify

about the factual basis the State proffered at Defendant’s plea

hearing — that the State believed Mr. Parlier killed Mr. Cook

and that the State had no physical evidence placing Defendant

inside the house when the murder occurred. Defendant argues

that Mr. Parker’s statements regarding the State’s acceptance of

Defendant’s guilty plea to second-degree murder established his

guilt as merely an aider and abettor rather than an active

participant in the murder. However, Defendant mischaracterizes

Mr. Parker’s statements at his plea hearing as judicial

admissions. A recitation of the factual basis for a guilty plea

is not a judicial admission. Rather, a prosecutor’s summary of

the facts supporting the plea is merely one procedural mechanism

by which a judge may find that a factual basis exists for the

plea. See N.C. Gen. Stat. § 15A-1022(c) (2013) (prohibiting

trial judge from accepting guilty plea “without first

determining that there is a factual basis for the plea” which

may be based on “[a] statement of the facts by the prosecutor”).

A judicial admission, conversely, is “a formal concession
 -17-
made by a party . . . in the course of litigation for the

purpose of withdrawing a particular fact from the realm of

dispute. . . . Such an admission is not evidence, but rather

removes the admitted fact from the field of evidence by formally

conceding its existence.” Jones v. Durham Anesthesia Assocs.,

P.A., 185 N.C. App. 504, 509, 648 S.E.2d 531, 535 (2007)

(citation omitted). Mr. Parker’s statements were not

“concessions,” nor were they offered “for the purpose of

withdrawing a particular fact from the realm of dispute.”

Consequently, we are not persuaded by Defendant’s contention

that the trial court’s decision to quash the subpoena deprived

him of the opportunity to elicit binding admissions on the

State.

Defendant has failed to demonstrate that the trial court

abused its discretion in quashing the subpoena of Mr. Parker.

The trial court allowed the State’s motion to quash after the

State argued there was no compelling reason for Mr. Parker’s

live testimony and that requiring Mr. Parker to testify in

person was unduly burdensome and unreasonable. In quashing the

subpoena, the trial court expressly noted that there were other

ways for Defendant to show the absence of the especially

heinous, atrocious, or cruel aggravator without calling the
 -18-
original prosecutor for Defendant’s case to the stand.

Indeed, we note that during the mitigation phase, Defendant

was able to introduce the statements previously made by Mr.

Parker in his recitation during the plea hearing through the

admission of Defendant’s Exhibit 9, which contained Mr. Parker’s

statements as transcribed from the plea hearing. While

Defendant maintains that he nonetheless suffered prejudice

because Mr. Parker’s statements were never before the jury,

Defendant does not dispute the fact that he could have

introduced this exhibit during the aggravation phase of the

proceeding. As such, we cannot say that the trial court abused

its discretion in quashing the subpoena.

III. Denial of Motion to Strike Special Agent Freeman’s

Testimony

Defendant next argues that the trial court erred in

overruling his objection and motion to strike Special Agent

Freeman’s testimony regarding the general percentages of cases

in which the SBI laboratory is able to find a DNA match.

Defendant contends that this testimony was irrelevant and

undependable “as the jury could not have reliably determined

[Defendant’s] role from the fact that blood matching the victim

was found on his clothing” and that Special Agent Freeman
 -19-
“essentially told the jury that a DNA match establishes that a

person committed an offense, whereas the absence of a match

establishes that a person did not.”

Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” N.C.R. Evid. 401. Although

a trial court’s relevancy determinations are not discretionary

and, therefore, are not reviewed for abuse of discretion, this

Court gives such determinations great deference on appeal.

State v. Grant, 178 N.C. App. 565, 573, 632 S.E.2d 258, 265

(2006), appeal dismissed and disc. review denied, 361 N.C. 223,

642 S.E.2d 712 (2007). Relevant evidence may be excluded under

Rule 403 “if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” N.C.R. Evid. 403. A trial court has

discretion whether or not to exclude evidence under Rule 403,

and a trial court’s determination will only be disturbed upon a

showing of an abuse of that discretion. Campbell, 359 N.C. at

674, 617 S.E.2d at 20.

At Defendant’s sentencing hearing, Special Agent Freeman

was asked in what percentage of cases the SBI was able to find a
 -20-
DNA match, and he testified as follows:

Of the cases the [sic] we obtain
approximately seventy percent of them are
able to determine a match. In approximately
thirty percent then we’ll say that there
isn’t a match and that person couldn’t have
committed the crime.

Even assuming, without deciding, that this testimony lacked

relevance, Defendant has failed to show that any such error was

prejudicial. State v. Oliver, 210 N.C. App. 609, 615, 709

S.E.2d 503, 508 (“The admission of evidence which is technically

inadmissible will be treated as harmless unless prejudice is

shown such that a different result likely would have ensued had

the evidence been excluded. Further, it is the defendant’s

burden to show prejudice from the admission of evidence.”

(citations and quotation marks omitted)), disc. review denied,

365 N.C. 206, 710 S.E.2d 37 (2011).

This portion of Special Agent Freeman’s testimony was from

the preliminary stages of his direct examination, during which

he was asked about his qualifications, the nature of DNA, and

the process by which DNA matching is done in the laboratory.

Special Agent Freeman had not yet begun testifying about

Defendant’s case in particular; rather, he was speaking

generally about the nature of his work.

Moreover, Defendant misconstrues Special Agent Freeman’s
 -21-
testimony. Defendant asserts that, in essence, Special Agent

Freeman told the jury that a DNA match indicates the person

whose DNA was tested actually committed the offense. However,

that is not what Special Agent Freeman stated in his testimony.

Rather, he explained that where no match is found, the person in

question could not have committed the crime. He did not

affirmatively state that when a match is found, the subject

definitely committed the crime.

Defendant has failed to show prejudicial error by the trial

court in allowing this testimony. Accordingly, this argument is

overruled.

IV. Refusal to Admit Notebook Offered by Defendant

Defendant’s final argument on appeal is that the trial

court erred in excluding Defendant’s Exhibit 3 — a notebook

prepared for the 2002 sentencing proceedings that contained

recitations of Mr. Parlier’s multiple confessions, a forensic

blood spatter expert report, and medical reports regarding

Defendant’s alcohol consumption — during the mitigation phase of

sentencing.

N.C. Gen. Stat. § 15A-1340.16(a) requires a trial court to

consider evidence of aggravating and mitigating factors during

sentencing. The trial court is given wide latitude in
 -22-
conducting sentencing hearings, including the ability to weigh

the credibility of the evidence in determining the existence of

mitigating factors. State v. Mabry, 217 N.C. App. 465, 471, 720

S.E.2d 697, 702 (2011). A defendant who seeks a sentence in the

mitigated range bears the burden of persuading the court by a

preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.16(a)

(2013).

“Although the formal rules of evidence do not apply in

sentencing hearings, evidence offered at sentencing must be both

pertinent and dependable. While the court may base its

sentencing decision on reliable hearsay, [a] defendant is not

entitled to consideration of hearsay evidence that is of

doubtful credibility.” State v. Reed, 93 N.C. App. 119, 125,

377 S.E.2d 84, 88 (internal citations and quotation marks

omitted and emphasis added), disc. review denied, 324 N.C. 580,

381 S.E.2d 779 (1989). The trial court’s failure to find a

mitigating factor when evidence is offered in support of that

factor will not be overturned on appeal unless the supporting

evidence “is uncontradicted, substantial, and there is no reason

to doubt its credibility.” State v. Lane, 77 N.C. App. 741,

745, 336 S.E.2d 410, 412 (1985).

Defendant argues that the trial court committed reversible
 -23-
error when it refused to consider his “mitigation report”

because it deprived him of the opportunity to present mitigating

evidence. We disagree. The trial court declined to admit the

notebook marked as Defendant’s Exhibit 3 and instead asked that

Defendant call live witnesses from his witness list. In

reaching this decision, the trial judge expressed his concerns

about considering Defendant’s written documents over live in-

court testimony, stating as follows:

[J]ust simply handing something up, a piece
of paper writing, unsupported,
unauthenticated, over objection — when you
handed me a list of ten or fifteen witnesses
that you were going to call. . . who have
information set forth in this report on
mitigation, some of which were brought back
from prison units and are in facilities here
adjacent to the courtroom and courthouse
that could be produced. I’m going to
sustain the [State’s] objection. These
people are going to be produced in this
courtroom.

Thus, the trial court did not refuse to consider

Defendant’s mitigation evidence. Instead, the trial court was

simply informing Defendant of its preference for live testimony.

Furthermore, our review of the transcript reveals that Defendant

was, in fact, allowed to introduce certain portions of the

documents contained in Defendant’s Exhibit 3, including (1) the

affidavit of Mr. Parlier; and (2) parts of the plea hearing.
 -24-
Defendant also offered live testimony from Mr. Parlier and

testified on his own behalf during the mitigation phase.

Defendant has failed to show how the trial court’s refusal to

admit Exhibit 3 in its entirety deprived him of the opportunity

to present evidence of a mitigating factor. Therefore,

Defendant’s argument on this issue lacks merit.

Conclusion

For these reasons, we conclude that Defendant received a

fair trial free from prejudicial error and affirm the sentence

imposed by the trial court.

NO PREJUDICAL ERROR; AFFIRMED.

Judges STEPHENS and HUNTER, JR. concur.