State v. Borlase

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-985

Filed 2 January 2024

Watauga County, No. 19 CRS 50415

STATE OF NORTH CAROLINA,

v.

TRISTAN NOAH BORLASE, Defendant.

Appeal by defendant from judgment entered 3 March 2022 by Judge R. Gregory

Horne in Watauga County Superior Court. Heard in the Court of Appeals 20

September 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Heidi M.
Williams, for the State.

Law Office of Lisa Miles, by Lisa Miles, for defendant.

DILLON, Judge.

Defendant Tristan Noah Borlase was convicted of two counts of first-degree

murder for killing his parents one month before turning eighteen years of age and

was sentenced by the trial court to two life sentences without the possibility of parole,

to run consecutively. He appeals his sentence. For the following reasons, we conclude

Defendant received a fair trial, free from reversible error.

I. Background
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Opinion of the Court

On 10 April 2019, Defendant brutally killed his father and mother in separate

attacks at their home near Boone. Evidence at trial showed as follows:

On the morning of 10 April 2019, Defendant attended his Civics and Economics

class at school. The lesson that day focused on how juveniles are punished differently

than adults in the criminal justice system. Specifically, the lesson instructed that

juveniles could not receive the death penalty for murder.

In the afternoon, Defendant’s father surprised Defendant by picking him up

from high school after receiving a call from school personnel informing him that

Defendant’s grades had been slipping and that he was at risk of not graduating. Once

home, Defendant’s parents informed him that they were disciplining him by taking

his car keys and cell phone and by prohibiting him from participating on the school’s

track team for the remainder of the season, including participating in the track meet

that afternoon.

Later that evening, Defendant was inside the home with his mother while his

father was outside engaged in yardwork. While alone with his mother, Defendant

inflicted multiple stab wounds on her with a large knife. He also inflicted blunt force

injuries on his mother and strangled her. He then went outside, approached his

father from behind, and inflicted a stab wound. He chased and subdued his father,

riding his father’s back until he fell to the ground, and inflicted several more stab

wounds in a violent fashion. When he finished the attack, he walked away with his

father still alive. He looked back towards his father and saw him on his knees,

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struggling to get up. His father then collapsed to the ground, and Defendant

continued to walk away. He did not render aid to either parent.

Defendant spent the next two hours attempting to conceal his actions, hiding

the bodies of his deceased parents and attempting to clean the crime scene. He hosed

down the front porch and the living room area. To dispose of his mother’s body, he

tied a rope around her feet to drag her from the house. When this was unsuccessful,

he resorted to carrying her, but he repeatedly dropped her. He hid his mother’s body

in the bed of a pickup truck, under a blanket and bags of mulch, in the woods on the

family’s property. He stole his father’s wallet from his body but left the body in place

and covered it with a hammock (which his sister would find later that night while

searching for her parents).

Defendant then drove to his grandmother’s home to pick up his youngest

brother, rather than requiring his grandmother to bring his brother home. That

brother described Defendant as “overly happy” and “kinda upbeat” when Defendant

picked him up. The grandmother described Defendant as being “just in a really good

mood” and said that he “smiled and laughed a bit.”

After bringing his brother home, Defendant then left to smoke marijuana with

friends, leaving his twelve-year-old brother alone and scared in a home covered with

blood, worried about his missing parents. As he was returning home a few hours

later, he saw his grandmother’s car, whereupon he turned off his headlights and

drove away. He stayed at a friend’s house overnight and attempted to flee the state

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the next morning but was caught shortly after crossing the border into Tennessee.

At the time of the killings, Defendant was 17 years, 11 months old, a senior in

high school, and had been accepted to attend a state university in South Carolina,

with plans to join the school’s track team as a pole vaulter.

While in jail, Defendant repeatedly showed a lack of remorse for his crimes.

And a few weeks after the killings, Defendant even hosted a birthday gathering for

himself, with his friends attending, at the jail.

Approximately three years later, on 2 March 2022, a jury found Defendant

guilty of two counts of first-degree murder based on premeditation and deliberation.

The following day, on 3 March 2022, the trial court held a hearing to consider

the appropriate sentence, as Defendant was a minor when he committed the two

murders. At the conclusion of the hearing, the trial court entered a written

sentencing order with its two judgments, sentencing Defendant to two life sentences

without the possibility of parole, to run consecutively. Defendant appeals.

II. Analysis

Defendant’s sole argument is that the trial court erred by sentencing him to

two consecutive life sentences without parole. In making his argument, Defendant

contends that the trial court did not comply with Section 15A-1340.19B of our General

Statutes, which provides the procedure for considering a sentence of life without the

possibility of parole (“LWOP”) for a juvenile offender. He further contends that he

was sentenced in violation of the Eighth Amendment to the federal constitution and

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Article 1, Section 27 of our state constitution.

A. Federal Constitution – Eighth Amendment Jurisprudence

In the present case, the sentencing judge held a hearing in which he

heard evidence concerning Defendant’s youth and upbringing. The judge exercised

discretion and determined two consecutive sentences of LWOP to be appropriate. For

the reasoning below, we conclude the procedure employed in sentencing Defendant

conformed with the Eighth Amendment of the federal constitution.

The Eighth Amendment to our federal constitution bars the imposition

of “cruel and unusual punishments.” U.S. Const. amend. VIII. The Eighth

Amendment applies to states by virtue of the Fourteenth Amendment. See Harmelin

v. Michigan, 501 U.S. 957, 962 (1991).

A LWOP sentence is “the second most severe [punishment] known to the law.”

Id. at 996. But as a LWOP sentence is markedly different than a death sentence,

Furman v. Georgia, 408 U.S. 238, 306 (1972), a LWOP sentence is permissible under

the Eighth Amendment for adult offenders, even for many non-violent crimes, such

as simply possessing a large amount of cocaine, Harmelin, 501 U.S. at 996, and may

be imposed on adult offenders even without ever considering mitigating factors or the

“particularized circumstances of the crime and of the criminal.” Id. at 962.

However, the United States Supreme Court has determined that the Eighth

Amendment is more restrictive on the ability of a trial court to impose a LWOP

sentence on a defendant who was a minor when he committed his crimes. For

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instance, in 2010, the Court held that the Eighth Amendment bars the imposition of

a sentence of LWOP for a juvenile nonhomicide offender. Graham v. Florida, 560

U.S. 48, 75 (2010).

In 2012, the Court held that a sentencing scheme which requires a sentencing

judge to impose a LWOP sentence on a juvenile homicide offender violates the Eighth

Amendment. Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding that “the Eighth

Amendment forbids a sentencing scheme that mandates [LWOP] for juvenile

offenders.”). In so holding, the Court reasoned that a sentencing scheme must afford

a sentencing judge or jury “the opportunity to consider mitigating circumstances

before imposing the harshest possible penalty for juveniles.” Id. at 489. The Court

quoted earlier cases to reiterate the “great difficulty [for the sentencing judge] of

distinguishing at this early age between ‘the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile offender whose crime

reflects irreparable corruption.’ ” Id. at 479 (quoting Roper v. Simmons, 543 U.S. 551,

573 (2004), and Graham, 560 U.S. at 68) (emphasis added).

Four years later, the Court explained that Miller “drew a line between children

whose crimes reflect transient immaturity and those rare children whose crimes

reflect irreparable corruption.” Montgomery v. Louisiana, 577 U.S. 190, 209 (2016).

Courts across our country have grappled with the proper interpretation of

these decisions, specifically whether or not the Eighth Amendment prohibits a judge

from sentencing a juvenile homicide offender to LWOP without expressly finding that

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the offender was permanently incorrigible (or at least that his crime reflected

incorrigibility). See Jones v. Mississippi, 141 S. Ct. 1307, 1313 (2021) (recognizing a

“disagreement in state and federal courts about how to interpret Miller”).

In 2021, in Jones v. Mississippi, the Court clarified that the Eighth

Amendment does not require a sentencing judge to make any finding regarding the

juvenile offender’s permanent incorrigibility or otherwise to provide a “sentencing

explanation with an implicit finding of permanent incorrigibility” before imposing a

sentence of LWOP. Id. at 1318-19, 1321. Rather, the Eighth Amendment merely

requires that the sentencing judge be afforded the “discretion to consider the

mitigating qualities of youth and impose a lesser punishment.” Id. at 1314.

In the present case, the sentencing judge held a hearing, considered evidence

concerning Defendant’s youth, and in his discretion determined two LWOP sentences

to be appropriate. The procedure employed by the sentencing judge met the

requirements of the Eighth Amendment as articulated by the United States Supreme

Court in Jones and was at least as robust as the procedure employed by the

Mississippi judge in Jones, which that Court held to be constitutionally sufficient.

Specifically, in Jones, the trial court held a hearing, allowed the defendant to

introduce “any evidence relevant to the factors discussed in Miller[,]” including five

factors touching on the defendant’s youth, his upbringing, the circumstances of the

offense, his competence, and the possibility of rehabilitation. Jones v. State, 285 So.3d

626, 632-33 (Miss. Ct. App. 2017), aff’d, Jones v. Mississippi, 141 S. Ct. 1307 (2021).

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The judge made an oral ruling in which he “did not specifically discuss on the record

each and every factor mentioned in the Miller opinion,” but in which he did state that

he “considered each of the Miller factors.” Id. at 634. In sum, he “recognized the

correct legal standard (‘the Miller factors’), his decision was not arbitrary, and his

findings of fact [were] supported by substantial evidence.” Id.

In the present case, the sentencing judge entered a written order in which he

considered similar factors with much more articulation as to each factor than that

provided by the sentencing judge in Jones. He exercised discretion to determine an

appropriate punishment. His decision was not arbitrary. And for the reasoning in

the next section, we conclude his findings are supported by substantial evidence.

Accordingly, we conclude the sentence does not violate the Eighth Amendment.

B. North Carolina’s Sentencing Scheme

In 2012, in response to Miller, our General Assembly enacted a statute

which affords a judge discretion whether to sentence a juvenile homicide offender to

LWOP. See N.C. Gen. Stat. § 15A-1340.19B (2022). The statute requires the

sentencing judge to hold a hearing and allows the State and the defendant to present

evidence “as to any matter that the court deems relevant to sentencing.” Id. § 15A-

1340.19B(b). The statute also allows a defendant to offer evidence of mitigating

factors, including, but not limited to, eight specific factors which touch on the

defendant’s youth. Id. § 15A-1340.19B(c). Our Supreme Court has held that this

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sentencing scheme “facially conform[s] to the federal constitutional case law.” State

v. Conner, 381 N.C. 643, 666, 873 S.E.2d 339, 354 (2022).

It may be that our sentencing statute provides more limits than that

required by Miller and Jones. However, as stated in Jones, states are free to impose

“additional sentencing limits in cases involving defendants under 18 convicted of

murder.” Jones, 141 S. Ct. at 1323.

We now turn to Defendant’s contentions in his brief on this issue.

1. Permanent Incorrigibility and Potential for Rehabilitation

Defendant challenges that the evidence did not support the trial court’s

finding that he was “permanently incorrigible” and “beyond rehabilitation.” We note

that there is nothing in our sentencing statute which requires the trial court to

expressly find a juvenile homicide offender to be permanently incorrigible in order to

sentence him to LWOP; however, the statute does require the sentencing judge to

consider the “[l]ikelihood that the defendant would benefit from rehabilitation in

confinement.” N.C. Gen. Stat. § 15A-1340.19B(c)(8). In any event, here, the trial

court determined that his “crimes and other [behavior] demonstrate a condition of

irreparable corruption and permanent incorrigibility without the possibility of

rehabilitation.” We conclude the trial court made several findings supporting its

determination and that these findings are supported by the evidence.

Specifically, the trial court made extensive findings concerning Defendant’s

crimes, his intelligence, his devious calculations made during the crimes, his lack of

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sincere remorse for those crimes, his manipulative behaviors during and after his

crimes and other behaviors, and other relevant factors to determine that there was

insufficient evidence concerning the statutory mitigating factor of the likelihood of

rehabilitation. While Defendant argues that “the record as a whole” suggests

otherwise, our review is not a “whole record test” review. The trial court considered

all the evidence, and there was substantial evidence to support the trial court’s

determination.

2. Defendant’s Age

The statute requires the trial court to consider evidence concerning the

offender’s “[a]ge at the time of the offense” as a mitigating factor. N.C. Gen. Stat. §

15A-1340.19B(c)(1). Here, the trial court found Defendant was one month shy of his

eighteenth birthday when he murdered his parents. Defendant takes issue with the

failure by the trial court to indicate in its order whether it considered Defendant’s

age to be a mitigating factor. We disagree. Though the trial court did not expressly

state that it did not consider Defendant’s age to be a mitigating factor, it is apparent

from the section in the order concerning Defendant’s age and from the order as a

whole that the trial court did not consider Defendant’s age as a mitigating factor. For

example, the court pointed out that Defendant “reached the age of adulthood only one

month after committing these homicides.” Accordingly, we conclude that the trial

court did not err in its consideration of this factor.

3. Immaturity

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The statute requires the trial court to consider evidence concerning

Defendant’s “[i]mmaturity” as a mitigating factor. N.C. Gen. Stat. § 15A-

1340.19B(c)(2). Defendant takes issue with the trial court’s handling of this factor.

The trial court gave some weight to Defendant’s immaturity as a mitigating factor

but did not find the factor “to be a significant mitigating factor[.]” In so determining,

the trial court recognized that juveniles in general are immature but that there was

no evidence to suggest that Defendant was more immature than someone of his age.

We conclude that the trial court did not err in considering this factor.

4. Ability to Appreciate Risks and Consequences

The statute requires the trial court to consider evidence concerning

Defendant’s “[a]bility to appreciate the risks and consequences of [his] conduct” as a

mitigating factor. N.C. Gen. Stat. § 15A-1340.19B(c)(3). The trial court found no

mitigating value as to this factor, noting Defendant’s actions in planning the

murders, his attempts to cover up his crimes, and his flight from the crime scene.

Defendant merely notes in his brief concerning this factor that his attempt to clean

up the crime scene was sloppy at best. Nonetheless, we conclude that the trial court

did not err in its consideration of this factor.

5. Intellectual Capacity

The statute requires the trial court to consider evidence concerning

Defendant’s “[i]intellectual capacity” as a mitigating factor. N.C. Gen. Stat. § 15A-

1340.19B(c)(4). The trial court found Defendant’s IQ to be 128 (placing him in the

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97th percentile) and that he had no intellectual limitations and, accordingly,

determined Defendant’s intellectual capacity not to be a mitigating factor. Defendant

argues that the trial court should have considered Defendant’s high intellectual

capacity as a mitigating factor. We conclude that the trial court did not err in its

consideration of this mitigating factor.

6. Familial or Peer Pressure

The statute requires the trial court to consider evidence concerning “[f]amilial

or peer pressure exerted upon [D]efendant” as a mitigating factor. N.C. Gen. Stat. §

15A-1340.19B(c)(7). Concerning this factor, the trial court found that Defendant had

a positive home environment with loving parents and did not experience any

significant peer pressure. There was evidence to support this finding. For instance,

Defendant’s forensic psychologist testified regarding his conversations with

Defendant about his father. In those conversations, Defendant “talked about wanting

to be like his father and that his father was a role model for him. Talked about how

his father taught him how to play the guitar, and how proud his father was, how

proud he was when he came to his track meets and would put his arms around his

son.” During his testimony at trial, Defendant characterized his mother as “a good

mom” and “understanding[.]” One of Defendant’s sisters testified that their mother

had a “soft spot” for Defendant.

Defendant points to evidence suggesting that his relationship with his parents

was strained, causing him emotional harm. The trial court did note that Defendant

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disagreed with some of the decisions his parents made concerning discipline. There

was other evidence to support the trial court’s findings. We conclude the trial court

did not err by determining that Defendant’s evidence was not credible or otherwise

had any impact on his decision to murder his parents.

Defendant takes issue with the trial court’s “myopic focus on the” murders

committed by Defendant. We note that the trial court did not focus exclusively on the

murders but considered other evidence concerning Defendant when determining the

appropriate sentence. In any event, we conclude that it was not error for the trial

court to give significant consideration to the circumstances of the murders

themselves. Indeed, a major focus of the analysis by the United States Supreme

Court in the cases cited above in determining the appropriateness of a LWOP

sentence is on whether the “crime” committed by the juvenile offender “reflects

irreparable corruption.” Jones, 141 S. Ct. at 1315 (citations omitted).

In sum, the sentencing judge considered the evidence presented

concerning mitigating factors, including those enumerated in the sentencing statute.

We conclude that the trial court complied with N.C. Gen. Stat. § 15A-1340.19B in

sentencing Defendant.

B. North Carolina Constitution – Article I, Section 27

Defendant contends the trial court violated his rights under Article I,

Section 27 of our state constitution, a provision which prohibits “cruel and unusual

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punishments,” in sentencing him to two consecutive sentences of LWOP. N.C. Const.

art. I, § 27.

Our Supreme Court recently held that this state constitutional provision

“offers protections distinct from, and in [the context of sentencing juvenile offenders]

broader than, those provided under the Eighth Amendment” of the federal

constitution. State v. Kelliher, 381 N.C. 558, 579, 873 S.E.2d 366, 382 (2022).

Further, the Court held that “sentencing a juvenile who can be rehabilitated to

[LWOP] is cruel within the meaning of article 1, section 27.” Id. at 585, 873 S.E.2d

at 386. The Court reiterated this principle in another opinion decided the same day.

See Conner, 381 N.C. 643, 669, 873 S.E.2d at 355-56 (2022) (holding that sentencing

a juvenile offender whom the court finds not to be “incorrigible or irredeemable” to

LWOP violates “the even more protective provisions of article 1, section 27” of our

state constitution).

In both Kelliher and Conner, the sentencing judge found the juvenile offender

not to be permanently incorrigible. Our Supreme Court held in each case that it was

a violation of our state constitution to sentence a juvenile offender to LWOP where

the sentencing court found the offender not to be permanently incorrigible. However,

here, the sentencing judge made no finding that Defendant was not permanently

incorrigible. Rather, the trial court expressly found that “it did not believe that there

is a likelihood of rehabilitation in confinement” and that Defendant’s crimes

“demonstrate a condition of irreparable corruption and permanent incorrigibility.”

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In what is arguably dicta, our Supreme Court further stated in Kelliher and

Conner that even if the trial court does not find the juvenile offender not to be

permanently incorrigible, the Court considered it a violation of our state constitution

for a judge to sentence a juvenile offender to LWOP unless the judge affirmatively

found the offender permanently incorrigible. See, e.g., Kelliher, 381 N.C. at 587, 873

S.E.2d at 387 (noting that “unless the trial court expressly finds that a juvenile

homicide offender is one of those ‘exceedingly rare’ juveniles who cannot be

rehabilitated, he or she cannot be sentenced to [LWOP]” under our state constitution).

That is, where the federal constitution does not require an express finding by a

sentencing judge that the juvenile offender is or his crime reflects permanent

incorrigibility, see Jones v. Mississippi, supra, our Supreme Court expressed the view

that such a finding is required under our state constitution.

However, even if these statements in Kelliher and Conner are not dicta, we

conclude the trial court complied with the holding when it expressly found that there

was no likelihood that Defendant would be rehabilitated during confinement.

Accordingly, we conclude the trial court did not violate Defendant’s rights under our

state constitution in sentencing him to two consecutive sentences of LWOP for the

murder of his parents.

III. Conclusion

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The trial court did not err in sentencing Defendant to two consecutive

sentences of LWOP. We, therefore, conclude Defendant received a fair trial, free of

reversible error.

NO ERROR.

Judge GORE concurs.

Judge Arrowood dissents by separate opinion.

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ARROWOOD, Judge, dissenting.

I respectfully dissent from the majority’s holding that the trial court did not

err in sentencing defendant to two consecutive sentences of life without the possibility

of parole. The majority’s opinion not only misreads the record, but it also ignores and

calls into question our Supreme Court’s precedent regarding a sentencing judge’s

“duty to find a statutory mitigating factor when the evidence in support of a factor is

uncontradicted, substantial and manifestly credible.” State v. Spears, 314 N.C. 319,

321 (1985) (citing State v. Jones, 309 N.C. 214, 219–20 (1983)). This duty of the trial

court “is at the heart of the factfinding function[,]” and by allowing the trial court to

ignore credible evidence, the majority renders meaningless the requirement that it

consider the statutory factors under N.C.G.S. § 15A-1340.19B. Jones, 309 N.C. at

219–20.

Such blatant disregard for precedent demands justification, but the majority

offers none. Instead, it wrongly concludes that the sentencing judge considered the

evidence presented and complied with the statute. Moreover, rather than

acknowledge defendant’s evidence, the majority concentrates on excusing the trial

court for its “significant consideration” of the crime when sentencing defendant—

“despite the fact that the case law warns against such a focus[.]” State v. Ames, 268

N.C. App. 213, 225 (2019). In the process, the majority diminishes longstanding
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ARROWOOD, J., dissenting

concerns surrounding the sentencing of juveniles and the importance of “considering

an offender’s youth and attendant characteristics before imposing a life-without-

parole sentence.” Miller v. Alabama, 567 U.S. 460, 483 (2012) (cleaned up).

I would vacate and remand for resentencing because the trial court violated

N.C.G.S. § 15A-1340.19 as well as its duty under Jones in the face of credible evidence

alone. However, by refusing to consider relevant mitigating evidence—despite such

evidence being manifestly credible under North Carolina law—the trial court also

violated defendant’s constitutional rights under the Eighth Amendment and Article

1, Section 27 of the North Carolina Constitution.1 See Eddings v. Oklahoma, 455 U.S.

104, 104 (1982).

The majority implies defendant murdered his parents because they took “his

car keys and cell phone” and “prohibit[ed] him from participating on the school’s track

team[.]” The record before us, however, tells a much different story.

I. Background

Defendant’s convictions arise from the killing of his parents in spring of 2019

at the family’s home in Deep Gap, a remote area near Boone, North Carolina. At the

time, defendant was seventeen years old and a senior in high school. Defendant’s

parents had eight children, four biological and four adopted. Defendant was the

1 Because “our Supreme Court ‘historically has analyzed [Eighth Amendment] claims by criminal

defendants the same under both the federal and state Constitutions[,]’ ” my analysis applies to both.
See State v. Seam, 263 N.C. App. 355, 365 (2018), aff’d, 373 N.C. 529 (2020) (quoting State v. Green,
348 N.C. 588, 603 (1998)).

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youngest of the biological children. The addition of the adopted children created

many challenges for the family. Two of defendant’s adoptive siblings had to leave the

household due to family conflict. Specifically, one was sent to a psychiatric hospital

before permanently ending up in foster care while another was sent to a home for

troubled children in Missouri.

Defendant’s parents were described as loving and committed to their children.

They were also deeply religious, particularly defendant’s mother. These religious

views strained defendant’s relationship with his mother and became a source of

conflict. Defendant described discipline in the household as harsh. Defendant

testified to being awakened in the middle of the night by his mother sometimes as

many as “four out of five school nights[,]” so his mother could lecture him on religion,

school, and girls for several hours. Defendant’s adoptive siblings also described being

awakened by their mother and taken to a place referred to as “the nest”—the place

in the house where these late-night confrontations occurred. Some of these conflicts

lasted several hours and escalated to screaming.

Before relocating to Deep Gap, the family lived in Mooresville, North Carolina.

In 2017, the family physically separated when defendant’s mother and two of the

siblings moved to Deep Gap, leaving defendant, defendant’s father, and another

sibling in an apartment in Mooresville.

At the end of defendant’s junior year, they joined his mother and siblings in

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Deep Gap, where the home was unfinished and not yet approved for occupancy. At

one point, defendant testified that out of fear that building inspectors would discover

them living in the structure, the family took down or moved everything in it that

made it “look[ ] like people were living inside.” Defendant testified that during this

period, his sleeping arrangements varied from staying with his grandmother to

sleeping in his car or a goat pen that was on the property.

Although athletically gifted and highly intelligent, defendant struggled

academically. He was frequently absent or late to class and failed to finish

assignments. While in class, defendant would listen to music and not pay attention.

During his senior year of high school, defendant testified to frequently using

marijuana and nicotine and having sex with multiple partners. In 2018, defendant

was suspended from school after being found with a knife during a search for vaping

paraphernalia by school administrators. That same month, defendant participated

in outpatient counseling “due to concerns regarding poor judgment and impulsive

decision-making within the home and school environments[.]” Moreover, defendant

suffered from depression and anxiety. Before his arrest, he engaged in self-harm by

cutting his forearms. He also testified to contemplating suicide and attempting it in

2018.

On 10 April 2019, defendant’s English teacher called defendant’s mother

because defendant “wasn’t turning in a lot of assignments and . . . was having a hard

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time staying awake in class.” In response to the call, defendant’s parents pulled

defendant out of class. The majority suggests that because it was discussed in his

civics class that day that juveniles could not receive the death penalty for murder,

the lecture somehow fueled defendant’s actions. This suggestion has no support in

the record and is mere speculation—in fact, the record reflects defendant’s lack of

attention and interest in the classroom, specifically on the day of the civics class

lecture.

After his parents picked him up from school, defendant testified that they went

home and discussed his shortcomings, such as being tardy “almost 30 . . . out

of . . . 40-some days of school[,]” and his risk of not graduating high school. At some

point, defendant’s mother had him take a drug test. Defendant and his father then

went to Lowe’s Home Improvement to purchase mulch. After the three of them

completed some household chores, surveillance cameras, which defendant had helped

his father install around the home, showed defendant’s father walking toward his

truck in the driveway to start unloading pallets of mulch at 6:31 p.m. One minute

later, defendant was seen walking out of the home toward the driveway before

returning to the door and reentering the house.

According to defendant, his father had asked him to help him with the mulch,

but his mother told him that he “needed to figure out some stuff for school.” While

defendant sent an email to a teacher regarding his class performance, which was

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dictated by his mother, defendant testified that they started arguing about religion.

When he was at the table typing another email, defendant stated that the argument

intensified to a point where he said, “Fuck you, that’s not what Christianity is about.”

According to defendant, his mother stated that he “was about to be talking to God or

Jesus, whether [he] wanted to or not” before putting her arm around his neck and

applying pressure.

Defendant testified that he responded by twisting around and elbowing her,

after which, his mother retrieved a pair of scissors and approached him. Defendant

stated that he then grabbed a kitchen knife and stabbed her to defend himself but

that she kept coming toward him. Defendant testified that while they were pressed

up against each other, he stabbed her again in a “reactive frenzy” while he was “trying

to get outside[.]” According to the forensic pathologist, her death was caused by stab

wounds to her torso. The autopsy results also found that defendant’s mother “had

been asphyxiated by some type of pressure to the neck prior to death.”

At 6:35 p.m., the driveway surveillance camera showed defendant running

toward his father in the driveway with a knife and stabbing him in the upper torso.

Defendant’s father is then seen running away from defendant. Another camera then

showed defendant’s father running down a hill adjacent to the house while defendant

pursued him. While running, defendant’s father appeared to trip and fall on the

ground, at which point defendant started attacking his father with the knife.

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ARROWOOD, J., dissenting

According to defendant, after he went outside, he started yelling for his father

“want[ing] to tell him what happened[.]”2 Defendant recalled colliding with his father

in the driveway but not stabbing him at that point. Defendant testified that when

running after his father, he saw his father reach for something in his pocket, believing

it could have been a pocketknife or phone. Defendant testified, “I was trying to talk

to him. And either I was talking or my thoughts were screaming very loudly in my

own head, but I thought I was audibly talking and trying to talk to him.” Defendant

further testified that when he caught up with his father, he started stabbing him.

Then, according to defendant, the knife dropped to the ground and defendant’s father

picked it up after a brief scuffle. In response, defendant testified that he knocked the

knife out of his father’ hand with a rock before retrieving it and stabbing his father

again. The forensic pathologist found that defendant’s father died from stab wounds

to his torso.

Dr. James Hilkey (“Dr. Hilkey”), defense counsel’s expert witness and forensic

psychologist, reported that “the encounter between [defendant] and his mother was

a highly disturbing and emotionally arousing event; a culmination of years of

conflict.” The report found that defendant’s actions “in killing his father after the

assault on his mother was a continuous event and consistent with individuals

experiencing a depersonalization/derealization disorder[,]” which involves

2 The surveillance cameras did not record audio.

7
 STATE V. BORLASE

ARROWOOD, J., dissenting

“experiences of unreality or detachment with respect to surroundings[.]”

Defendant testified that, after killing his father, he went back to the house and

vomited in the toilet before returning to his father where he got the knife and his

father’s phone and wallet. From 6:41 to 6:56 p.m., surveillance footage showed

defendant retrieving the knife, hosing down the front porch, and dragging his mother

into the driveway. Although there is no surveillance footage, defendant testified that

he loaded his mother’s body in the back a truck, covered her with a blanket, and drove

the truck toward the barn. According to defendant, he then took a shower, packed

some clothes, and at some point, covered his father’s body with a hammock and

leaves.

Around 8:30 p.m., defendant picked up his younger brother from their

grandmother’s house and brought his brother back to the house. When defendant’s

brother asked him where his parents were and why there was blood in the house,

defendant told him that their parents were in Wilkesboro and that the blood was from

him cutting himself while doing dishes. After telling his brother to go upstairs and

play video games, defendant drove to the high school to see friends and smoke

marijuana. Defendant testified that after leaving the school, he went to pick up his

other brother from work, but his brother had already left. Defendant then drove back

to the house, but upon seeing several cars in the driveway, he left and ultimately

ended up staying the night with a friend after telling her he had gotten into an

8
 STATE V. BORLASE

ARROWOOD, J., dissenting

argument with his family.

In the morning, defendant told his friend that he wanted to run away, so they

left her apartment, got some breakfast at McDonalds, and purchased some toiletries

and a pillow at Walmart. The friend told defendant that he could stay at her father’s

house who lived nearby in Tennessee and defendant agreed. As they crossed the

border into Tennessee, police pulled the car over and arrested defendant.

Defendant was indicted with two counts of first-degree murder on

30 September 2019 to which defendant later entered pleas of not guilty. On

2 March 2022, a jury found defendant guilty on both counts of first-degree murder.

Pursuant to N.C.G.S. § 15A-1340.19, a sentencing hearing was held on

3 March 2023. During the hearing, the trial court first allowed the State and family

members to be heard. In addition to family members providing victim impact

statements, the State introduced letters from other family members and two written

statements that were previously read in court. The State concluded with the

following statement:

Your, honor, I will just say very briefly, I don’t have the
words to express what this family has been through. They
have articulated it much better than I ever could. I will
say, Your Honor, over the three years that this case has
been pending, I and my staff have been truly honored and
humbled to get to know them, to see the resilience and
strength of this family. The way they have come together
and supported one another in this loss has been truly
inspiring for I and my staff, Your Honor, and I think that
that along with the words that they’ve expressed here

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ARROWOOD, J., dissenting

today truly shows the Court what kind of people that Jeff
and Tanya were and what their family was all about.

Your Honor, this community, this family has lost – has
suffered an incomprehensible loss. On behalf of the State
of North Carolina, Your Honor, given the gravity of this
loss and all the other evidence that this Court has heard
over the course of this trial, we would argue that the weight
of the evidence, the weight of this loss would overcome any
mitigating factors that the defense might present, and that
the sentence for [defendant] should be life without the
possibility of parole for the death of Tanya Maye Borlase
and another sentence of life without the possibility of
parole in the death of Jeffrey David Borlase, and that those
two sentences should run consecutively, Your Honor.
Thank you.

Defendant then introduced several sentencing exhibits, including (1) Dr.

Hilkey’s trial report; (2) Dr. Hilkey’s report of psychological forensic evaluation

addressing §15A-1340.19’s mitigating factors; (3) a letter from Susan Schall (“Ms.

Schall”), defendant’s 11th grade Honors English teacher; (4) a letter from Cindy

Wilkinson (“Ms. Wilkinson”), a mother who had spent a week as defendant’s group

leader during a church camp in 2017; and (5) a letter from Rachel Chrane regarding

defendant’s health issues. Defendant provided copies of the exhibits to the State.

Dr. Hilkey’s trial report described a strict, chaotic household and a highly

dysfunctional relationship between defendant and his mother. Specifically, the

report included an interview with defendant’s sibling, who described being

“summoned to ‘the nest’ ” and lectured to “for hours at a time and at times until 3:00

in the morning.” The sibling stated that “punishments delivered were often done in

10
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ARROWOOD, J., dissenting

isolation and away from other siblings.” Dr. Hilkey’s report additionally explained

that due to defendant’s “emotionally reserved nature and his discomfort expressing

strong emotions[,] he can come across to others as calloused and unfeeling.”

The report also included an interview with defendant’s ex-girlfriend who stated

that she “often hear[d] defendant’s mother screaming while she was on the phone

with [defendant and had informed the investigator] that [defendant’s] mother was

very strict and did not feel [defendant] could ‘do anything right.’ ” She further stated

that “[t]oward the end, [defendant] quit trying to please and just wanted to make it

through each day.”

Additionally, the report described a “deeply religious” household where

defendant reported that his mother “held to a literal translation of the Bible.”

According to defendant, it was “not uncommon for his mother to reference receiving

instructions from God and removing African and West Indian objects of art from the

home believing they were demonic, and at times, screaming at them.”

Lastly, the report described significant conflicts between defendant’s parents

and adoptive siblings, including the removal of two of the siblings from the family. It

was reported that before one was removed to a group home, the sibling had attacked

his brother, grandmother, father, and mother.

In the letter from Ms. Schall, she described conversations she had with

defendant about his “strict religious upbringing” and him “feeling confined by his

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ARROWOOD, J., dissenting

family’s choices and values.” In 2018, Ms. Schall was asked to write a letter about

defendant to the high school administration. In the letter, Ms. Schall states:

Currently [defendant], his dad, and one adopted brother
live in an apartment in Mooresville (his parents just sold
their home this semester) while his mother and the rest of
the children live in Boone. This arrangement is partly due
to the Borlases building a house in Boone . . . and because
[defendant’s] brother is so violent that his mother cannot
live with him until they work out some issues. This puts
an undue burden on [defendant] to help parent his
brother.3

Moreover, when interviewed by Dr. Hilkey, Ms. Schall reported that defendant “was

frequently late for class and appeared physically fatigued.” Defendant related to her

“chaos in the home, separation of family members, and [moving] concerns[.]”

In Ms. Wilkinson’s letter, she described a time during church camp in Myrtle

Beach in 2017 where she was defendant’s small group leader. According to Ms.

Wilkinson, she learned that defendant was sent to the weeklong camp “with only a

pair of shorts and a tee shirt” as punishment. In response, Ms. Wilkinson purchased

some clothing and toiletries for defendant from Walmart. Ms. Wilkinson “sensed that

he needed mothering and felt his emotional rawness and talked through some of the

pain privately and in the group.” Ms. Wilkinson further stated that defendant “was

in despair and showed multiple signs of suicide risk: depression, sense of

3 The omitted portion consists of a note Ms. Schall added in a email excerpting the letter.
The note is
as follows: {I now know they were renovating a home. [Defendant] told me on more than
one occasion that it was illegal for them to be living in the home due to the lack of upgrades,
electrical and otherwise}.

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ARROWOOD, J., dissenting

hopelessness, despair, withdrawal, isolation, worthlessness, saw no way out, fatigue,

confusion, and talked about how broken he felt in group time.”

Finally, Dr. Hilkey’s report of psychological forensic evaluation, which

addressed the §15A-1340.19’s mitigating factors, stated that although defendant’s

parents “were law-abiding parents and attempted to provide a safe home consistent

with their moral values[,]” defendant’s “offense behavior was influenced by [his]

conflicted relationship with his mother[.]”

After defense counsel and defendant made their closing statements regarding

sentencing, the State declined to make any further argument. In the sentencing

order, the trial court concluded that “[d]efendant’s crimes and condition reflect a

condition of irreparable corruption and permanent incorrigibility without the

possibility of rehabilitation” and sentenced defendant to two terms of life without the

possibility of parole. Defendant gave oral notice of appeal in open court following

sentencing.

II. Discussion

On appeal, defendant argues that the trial court erred by sentencing him to

two consecutive life without parole sentences. With regard to the trial court’s findings

on the mitigating factors enumerated in N.C.G.S. § 15A-1340.19B(c), defendant

challenges six of them for either failing to establish whether the factor was mitigating

or failing to find mitigating factors despite evidence that they existed. Defendant

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ARROWOOD, J., dissenting

also argues that the trial court violated defendant’s constitutional rights because it

“refuse[d] to consider” relevant mitigating evidence in violation of the Eighth

Amendment. Before addressing each argument in turn, I first review federal and

state law on the punishment of juvenile offenders.

A. Statutory and case law on the punishment of juvenile offenders

In Miller v. Alabama, the United States Supreme Court held “that mandatory

life without parole for those under the age of 18 at the time of their crimes violates

the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” 567 U.S.

at 465. “Such mandatory penalties, by their nature, preclude a sentencer from taking

account of an offender’s age and the wealth of characteristics and circumstances

attendant to it.” Id. at 476. Thus, “the case for retribution is not as strong with a

minor as with an adult” because their “culpability or blameworthiness is diminished,

to a substantial degree, by reason of youth and immaturity.” Roper v. Simmons, 543

U.S. 551, 571 (2005).

The Supreme Court also stated in Miller that because of “children’s diminished

culpability and heightened capacity for change,” sentencing juveniles to life without

parole will be an uncommon occurrence. 567 U.S. at 479. This is especially the case

“because of the great difficulty . . . of distinguishing at this early age between ‘the

juvenile offender whose crime reflects unfortunate yet transient immaturity, and the

rare juvenile offender whose crime reflects irreparable corruption.’ ” Id. at 479–80,

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ARROWOOD, J., dissenting

183 (citations omitted); see also Graham v. Florida, 560 U.S. 48, 72 (2010) (explaining

that “[t]o justify life without parole on the assumption that the juvenile offender

forever will be a danger to society requires the sentencer to make a judgment that

the juvenile is [permanently] incorrigible.”).

Thus, in making such rare finding, “the trial court should be satisfied that in

25 years, in 35 years, in 55 years—when the defendant may be in his seventies or

eighties—he will likely still remain incorrigible or corrupt, just as he was as a

teenager, so that even then parole is not appropriate.” State v. Sims, 260 N.C. App.

665, 683 (2018) (Stroud, J., concurring); see also State v. James, 371 N.C. 77, 96–97

(2018) (“Miller and its progeny indicate that life without parole sentences for

juveniles should be exceedingly rare and reserved for specifically described

individuals[.]”).

Moreover, “almost all of the cases” subjecting juveniles to a sentence of life

without parole “arose from heinous and shocking crimes[.]” State v. May, 255 N.C.

App. 119, 130 (2017) (Stroud, J., concurring). However, Miller and its progeny

“dwell[ ] on the danger in focusing the sentencing inquiry on the nature of the

offense.” State v. Ames, 268 N.C. App. 213, 221 (2019) (citing Miller, 567 U.S. at 472);

see also Roper, 543 U.S. at 553 (“An unacceptable likelihood exists that the brutality

or cold-blooded nature of any particular crime would overpower mitigating

arguments based on youth as a matter of course[.]”).

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ARROWOOD, J., dissenting

Nine years after Miller, in Jones v. Mississippi, the United States Supreme

Court held “that a separate factual finding of permanent incorrigibility is not

required before a sentencer imposes a life-without-parole sentence on a murderer

under 18.” 209 L. Ed. 2d 390 (2021). Although parts of Jones could be seen as in

conflict with Miller, our Supreme Court clarified Jones’s meaning in State v. Kelliher.

381 N.C. 558 (2022).

Specifically, the Kelliher Court explained that although Jones does not require

a separate finding of incorrigibility “under a discretionary sentencing scheme like

North Carolina’s[,]” the substantive Eighth Amendment rule announced in Miller

and its progeny remains undisturbed: Id. at 576. Miller forbids sentencing courts

“from sentencing redeemable juveniles to life without parole.” Id.

In response to Miller, our General Assembly enacted what is now codified as

N.C.G.S. § 15A-1340.19B, which requires trial courts to “conduct a hearing to

determine whether the defendant should be sentenced to life imprisonment without

parole . . . or a lesser sentence of life imprisonment with parole” whenever a juvenile

is convicted of first-degree murder. § 15A-1340.19B(a)(2). In determining whether

the sentence will be life without parole or life with parole, § 15A-1340.19B requires

the sentencing court to consider mitigating factors including (1) age at the time of

offense, (2) immaturity, (3) ability to appreciate the risks and consequences of the

conduct, (4) intellectual capacity, (5) prior record, (6) mental health, (7) familial or

16
 STATE V. BORLASE

ARROWOOD, J., dissenting

peer pressure exerted upon the defendant, (8) likelihood that the defendant would

benefit from rehabilitation in confinement, and (9) any other mitigating factor or

circumstance. § 15A-1340.19B(c).

B. Mitigating factors under § 15A-1340.19

Regarding the trial court’s findings for the factors enumerated in § 15A-

1340.19B(c), defendant argues that the trial court erred in that it (1) failed to

establish whether defendant’s age was mitigating or not and (2) failed to find

mitigating factors for defendant’s familial pressure and immaturity. I agree.

After the hearing required by § 15A-1340.19B, the trial court must enter a

sentencing order that “include[s] findings on the absence or presence of any

mitigating factors[.]” § 15A-1340.19C(a). The sentencing court must also “expressly

state the evidence supporting or opposing those mitigating factors[.]” State v.

Santillian, 259 N.C. App. 394, 403 (2018) (citations omitted). “To show that the trial

court erred in failing to find a mitigating factor, the evidence must show conclusively

that this mitigating factor exists[.]” State v. Canty, 321 N.C. 520, 524 (1988) (citing

State v. Michael, 311 N.C. 214 (1984)).

1. Failure to establish whether defendant’s age was mitigating

In its sentencing order, the trial court found “that [d]efendant was 17 years

and 11 months old on the offense date” and that “[h]e reached the age of adulthood

only one month after committing these homicides[.]” Nothing further was stated.

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 STATE V. BORLASE

ARROWOOD, J., dissenting

Defendant argues that “the court made no indication that it considered any

mitigating value that [defendant’s] age might have provided.”

North Carolina statute requires that the trial court’s sentencing order “include

findings on the absence or presence of any mitigating factors[.]” § 15A-1340.19C(a).

Here, the trial court violated the statute by neither expressly nor impliedly stating

whether defendant’s age was mitigating or not. The majority states “it is apparent”

from the sentencing order “that the trial court did not consider Defendant’s age as a

mitigating factor” because it found “[d]efendant was a month shy of his 18th birthday”

at the time of the offense. This is hardly the case. Although the trial court’s

statement that defendant reached the age of adulthood only one month after

committing these homicides could indicate that it found no mitigating value as to age,

it could also mean that it found mitigating value, just not a significant amount. See

Sims, 260 N.C. App. at 675 (finding that defendant’s age—seventeen years and six

months at the time of the offense—was not a considerable mitigating factor, but still

a mitigating one nonetheless). This ambiguity is insufficient to satisfy the

requirements of § 15A-1340.19C(a).

Certainly, a defendant who is fourteen at the time of an offense may receive

more mitigation value for the age factor as compared to if they were seventeen.

However, United States Supreme Court precedent makes clear: the relevant

distinction is between children and adults, not between defendants who are fourteen

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 STATE V. BORLASE

ARROWOOD, J., dissenting

and seventeen. See Miller, 567 U.S. at 460 (“Roper and Graham establish that

children are constitutionally different from adults for sentencing purposes.”); see also

Matter of Monschke, 197 Wash. 2d 305, 313, 482 P.3d 276, 280–81 (2021) (extending

the age range in Miller to defendants who are eighteen to twenty years old). Because

it is unclear whether the trial court found an “absence or presence of” mitigation with

respect to defendant’s age, it violated the statutory mandate. § 15A-1340.19C(a).

2. Failure to find credible evidence of familial pressure

With respect to the enumerated factor “familial or peer pressure exerted upon

the defendant,” the trial court’s sentencing order states:

In Miller v. Alabama, the majority placed emphasis on the
negative family, home, environmental and peer influences
a juvenile faced while growing up. The specific situations
addressed in that and following cases included growing up
exposed to a troubled childhood, lack of parental care and
involvement, exposure to drugs and even violence. This
would also include a situation in which the juvenile was not
the “trigger-man” or his involvement in the killing was only
tangential. None of the factors are present in this case. In
fact, the very opposite is true. Defendant had the benefit
of very loving, caring and nurturing parents. He benefited
from being raised by parents who deeply loved him and all
his siblings and who sacrificed beyond even reasonable
measure to provide for their children’s health, welfare,
happiness, needs and even wishes. While the Defendant
may have genuinely disagreed with the form of discipline
(taking of privileges and interactive discussions), even he
seemingly admits in his testimony that both his parents
had his best interests and his very future at heart
throughout. As to any tangential involvement in murders,
that is clearly not the case here. Defendant killed both
parents separately by his own hand. There is no credible

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 STATE V. BORLASE

ARROWOOD, J., dissenting

evidence before the Court to support any finding of
mitigation as to this factor[.] (emphasis added).

Defendant argues the trial court erred in finding “no credible evidence” to

support this mitigating factor and in relying “on the fact that [defendant] was raised

in a loving home[.]”

Our Supreme Court has established that the sentencing judge has a duty to

find statutory mitigating factors when the evidence in support of such factors is

“uncontradicted, substantial and manifestly credible.” Spears, 314 N.C. at 321

(citation omitted). Thus, to give proper effect to § 15A-1340.19B, “we must find the

sentencing judge in error if he fails to find a statutory factor when evidence of its

existence is both uncontradicted and manifestly credible.” State v. Jones, 309 N.C.

214, 220 (1983).

In Jones, our Supreme Court acknowledged that “[i]t is easier to determine

from a record on appeal whether evidence of a particular fact is uncontradicted than

it is to determine” the credibility of the evidence. Id. However, the Jones Court

discussed situations in which courts have considered “credibility to be manifest[.]”

Id. Two of those situations occur (1) when “the controlling evidence is documentary

and [the] non-movant does not deny the authenticity or correctness of the

documents[,]” and (2) when “there are only latent doubts as to the credibility of oral

testimony and the opposing party has failed to point to specific areas of impeachment

20
 STATE V. BORLASE

ARROWOOD, J., dissenting

and contradictions.” Id. (citations and internal quotation marks omitted).

Here, defendant offered considerable evidence of familial pressure,

conflict, and dysfunction that went well beyond the “taking of privileges and

interactive discussions[,]” particularly with respect to religion. Such evidence

included but was not limited to (1) defendant being summoned to “the nest” in the

middle of the night multiple days out of the week; (2) defendant’s mother screaming

at art objects in the home in front of defendant because she believed they were

demonic; (3) defendant needing to sleep in his car or in a goat pen because of the

family’s chaotic living arrangement; (4) reports of significant familial conflicts with

his adoptive siblings, which involved violence at times and put an undue burden on

defendant to help parent his siblings; (5) reports of defendant being sent to a

weeklong church camp without a change of clothes or toiletries as a form of

punishment; and (6) Dr. Hilkey’s report that defendant’s “offense behavior was

influenced by [his] conflicted relationship with his mother[.]” Defendant’s evidence

also tends to support that defendant was regularly pressured by his mother in that

he felt he could not “do anything right” and “just wanted to make it through each

day.”

Such evidence was not contradicted by the State. Specifically, nothing

in the State’s evidence spoke to these conflicts or pressures, and after defendant

introduced such evidence for sentencing, the State declined to make any further

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 STATE V. BORLASE

ARROWOOD, J., dissenting

argument. Moreover, under Jones, defendant’s evidence is presumed credible.

Specifically, the evidence was largely documentary, and the State did not deny the

authenticity or correctness of the reports or letters.4 Although the State’s evidence

supports the fact that defendant’s parents loved and cared about him deeply—love

and conflict are not mutually exclusive; rather, both can exist in a family

simultaneously. Although the majority cites this evidence, such as defendant’s

idolization of his father, the majority again fails to highlight anything that refutes or

contradicts the substantial evidence of familial conflict discussed in part I.

Further, nothing in Miller states that a defendant must lack parental care or

be exposed to violence and drugs for the mitigating factor to have value, which the

trial court’s sentencing order wrongly suggests. Rather, Miller considers “the family

and home environment that surrounds [the defendant]—and from which he cannot

usually extricate himself—no matter how brutal or dysfunctional.” Miller, 567 U.S.

at 477 (emphasis added).

“When evidence in support of a particular mitigating . . . factor is

uncontradicted, substantial, and there is no reason to doubt its credibility, to permit

the sentencing judge simply to ignore it would eviscerate” the statute. Jones, 309

N.C. at 218–19. Accordingly, the trial court erred in ignoring the evidence of familial

4 Nor did the State “point to specific areas of impeachment and contradictions” with respect to
defendant’s oral testimony about being awakened in the middle of the night by his mother sometimes
as many as “four out of five school nights” or needing to sleep in a car or goat pen as the result of the
family’s dysfunctional living arrangement. Jones, 309 N.C. at 220.

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 STATE V. BORLASE

ARROWOOD, J., dissenting

disfunction and the mother’s irrational behavior while finding no credible evidence

regarding the familial pressure exerted upon defendant.

3. Failure to find credible evidence of immaturity

With respect to the enumerated factor “immaturity,” the sentencing order

states:

Dr. Hilkey’s report cites various general studies tending to
indicate that the juvenile brain tends to develop slowly and
that the brain does not become fully developed until later
in adulthood. While undoubtedly true, there is no credible,
specific evidence before the Court that Defendant suffered
from any specific immaturity that would act to mitigate his
decisions and conduct in this case. Accordingly, the Court
does not find this factor to be a significant mitigating factor
in this case[.]

Defendant argues that the trial court erred in this finding because there was

“credible, specific evidence before the Court that [d]efendant suffered from . . . specific

immaturity that would” have mitigated his decisions.

Here, Dr. Hilkey’s report stressed that because defendant was only “seventeen

on the date of his offense . . . the frontal cortex of his brain was not yet fully

developed.” Additionally, Dr. Hilkey reported “evidence supporting [defendant’s]

clinical depression and a significant degree of physiological arousal . . . activating

hormonal chemicals in [his] brain. When coupled with the adolescent brain

phenomenon, these factors would have impacted his ability to make sound decisions

and fully appreciate the impact of his behaviors when he killed his parents.”

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ARROWOOD, J., dissenting

Defendant’s previous participation in outpatient counseling “due to concerns

regarding poor judgment and impulsive decision-making within the home and school

environments” corroborate Dr. Hilkey’s findings regarding immaturity. See Miller,

567 U.S. at 471 (explaining that children’s “lack of maturity and underdeveloped

sense of responsibility lead to recklessness, impulsivity, and heedless risk-taking.”

(cleaned up)). Defendant’s “shirking class time on his phone, vaping and smoking

weed, and [being] sexually active with more than one partner” acts to further

underscore his immaturity.

In addition to being specific, defendant’s evidence was credible. In fact, by

acknowledging and agreeing with the science of juvenile brain development in its

order, the trial court emphasized its credibility. Moreover, the evidence was

“documentary[,]” and the State never “den[ied] the authenticity or correctness of [the

findings].” See Jones, 309 N.C. at 220.

By stating there was “no credible, specific evidence” in its order, the trial court

thus disregarded its duty. See Spears, 314 N.C. at 321 (“The sentencing judge has a

duty to find a statutory mitigating factor when the evidence in support of a factor is

uncontradicted, substantial and manifestly credible.”). Accordingly, the trial court

again erred in finding no credible evidence that defendant suffered from immaturity.

C. Violation of the State and Federal Constitutions

Defendant argues that the trial court violated defendant’s constitutional rights

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ARROWOOD, J., dissenting

under the Eighth Amendment in that it refused to consider “relevant mitigating

evidence” involving his “family life as a source of pressure.” I agree.

“Just as the State may not by statute preclude the sentencer from considering

any mitigating factor, neither may the sentencer refuse to consider, as a matter of

law, any relevant mitigating evidence.” Eddings v. Oklahoma, 455 U.S. 104, 104

(1982). In Eddings, the trial court refused to consider the mitigating circumstances

of the juvenile defendant’s turbulent family history because it “found that as a matter

of law he was unable even to consider the evidence.” Id. at 113. Because the

“sentence was imposed without ‘the type of individualized consideration of mitigating

factors . . . required by the Eighth and Fourteenth Amendments in capital cases,’ ”

the Supreme Court reversed and required on remand the trial court’s consideration

of the defendant’s home life. Id. at 105 (quoting Lockett v. Ohio, 438 U.S. 586, 606

(1978)); see also Jones v. Mississippi, 209 L. Ed. 2d 390 (2021) (listing a series of its

capital cases requiring “the sentencer to consider mitigating circumstances when

deciding whether to impose the death penalty.”).

Although these cases involved the death penalty, the Supreme Court expressly

acknowledged in Jones v. Mississippi that these cases

recognize a potential Eighth Amendment claim if the
sentencer expressly refuses as a matter of law to consider
relevant mitigating circumstances . . . . By analogy here, if
a sentencer considering life without parole for a murderer
who was under 18 expressly refuses as a matter of law to
consider the defendant’s youth (as opposed to, for example,

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ARROWOOD, J., dissenting

deeming the defendant’s youth to be outweighed by other
factors or deeming the defendant’s youth to be an
insufficient reason to support a lesser sentence under the
facts of the case), then the defendant might be able to raise
an Eighth Amendment claim under the Court’s precedents.

209 L. Ed. 2d 390 n.7 (2021). I find this analogy relevant because “life without

parole sentences share some characteristics with death sentences that are shared by

no other sentences.” Graham, 560 U.S. at 69, 176 L. Ed. 2d 825. Although no

execution takes place, “the sentence alters the offender’s life by a forfeiture that is

irrevocable” and “deprives [them] of the most basic liberties without giving hope of

restoration[.]” Id. at 69–70.

“Life without parole is an especially harsh punishment for a juvenile[,]” who

“will on average serve more years and a greater percentage of his life in prison than

an adult offender. A 16-year-old and a 75-year-old each sentenced to life without

parole receive the same punishment in name only.” Id. at 70, 176 (citations omitted).

Even more, in the case sub judice, the trial court sentenced defendant to two

consecutive life sentences. Because “[t]his reality cannot be ignored[,]” id. at 71, I

agree with defendant that “logic dictates that th[e] Eighth Amendment condition

[under Eddings] apply with equal force when considering the ultimate punishment

for a juvenile.”

Here, the trial court refused as a matter of law to consider relevant mitigating

evidence when it determined there was “no credible evidence before the Court to

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support any finding of mitigation as to [the familial pressure] factor.” The current

edition of Black’s Law Dictionary defines “matter of law” as “[a] matter involving a

judiciary inquiry into the applicable law.” BLACK’S LAW DICTIONARY (11th ed. 2019).

As discussed in part II.B., determining whether mitigating evidence is credible

involves a judicial inquiry into the law. See Jones, 309 N.C. at 220–21; see also N.

Carolina Nat. Bank v. Burnette, 297 N.C. 524, 533 (1979) (explaining that credibility

of the evidence was “manifest as a matter of law.”). Specifically, if the “evidence is

documentary and the non-movant does not deny the authenticity or correctness of the

documents,” then courts should deem it manifestly credible. Jones, 309 N.C. at 220–

21 (cleaned up). Likewise, oral testimony should be deemed manifestly credible if

“there are only latent doubts as to [its] credibility . . . and the opposing party has to

‘failed to point to specific areas of impeachment and contradictions.’ ” Id. (citations

omitted).

Thus, like in Eddings, when the trial court here found “no credible specific

evidence . . . that [d]efendant suffered from any specific immaturity” or familial

pressure that would support mitigation, it expressly declined as a matter of law not

to consider it. Yet, as discussed in part II.B., under Jones, considerable credible and

relevant evidence was proffered by defendant at the sentencing hearing as to both

factors.

Accordingly, I would hold that the trial court violated defendant’s

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ARROWOOD, J., dissenting

constitutional rights under the Eighth Amendment by “refus[ing] to consider, as a

matter of law, [the] relevant mitigating evidence” regarding defendant’s family life

and immaturity. Eddings, 455 U.S. at 104. Because our Supreme Court

“ ‘historically has analyzed [Eighth Amendment] claims by criminal defendants the

same under both the federal and state Constitutions[,]’ ” I would also hold that the

trial court violated defendant’s constitutional rights under Article 1, Section 27 of the

North Carolina Constitution. See State v. Seam, 263 N.C. App. 355, 365 (2018), aff’d,

373 N.C. 529 (2020) (quoting State v. Green, 348 N.C. 588, 603 (1998)).

III. Conclusion

For the foregoing reasons, I dissent from the majority opinion and would

remand for a new sentencing hearing with respect to defendant’s first-degree murder

convictions.

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