STATE of North Carolina
v.
Travis Osborne PHILLIPS.
No. 139PA88.
Supreme Court of North Carolina.
July 26, 1989.*326 Lacy H. Thornburg, Atty. Gen. by Debra C. Graves, Associate Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellee.
WEBB, Justice.
The Court of Appeals did not hold that a victim impact statement may not be used at a sentencing hearing. Relying on the confrontation clause of the Sixth Amendment to the United States Constitution and the due process clause of the Fourteenth Amendment to the United States Constitution as well as the law of the land clause of Article I, Sec. 19 of the Constitution of North Carolina, the Court of Appeals held that a defendant must be given prior notice of any victim impact statement which is to be used at a sentencing hearing.
N.C.G.S. § 15A-825 provides for the use of victim impact statements and, pursuant to N.C.G.S. § 15A-1334(b) which provides that formal rules of evidence do not apply at sentencing hearings, hearsay evidence can be used at such hearings. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). The use of hearsay evidence at sentencing hearings does not violate the Constitution of the United States. Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). In Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987) the United States Supreme Court held that the Eighth Amendment to the United States Constitution proscribes the use of victim impact statements at the penalty phase of death cases but specifically said it implied no opinion as to the use of such evidence in non-capital cases. The Sixth Amendment does not include the right to discovery or notice of evidence to be presented. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).
The Court of Appeals said it failed "to see how the defendant was prejudiced by the trial court's action" and we agree with them, in part because the court did not find an aggravating factor based on the evidence adduced by the victim impact statements. The defendant had the right to have brought to his attention all information received by the court which tended to aggravate punishment with the full opportunity to refute or explain it. State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1962). We do not believe the defendant has shown he was deprived of this right. He was shown the victim impact statements at the sentencing hearings. He objected to their admission but he did not move for a continuance to seek evidence in rebuttal or to issue subpoenas for the persons who made the statements. Indeed the last thing the *327 defendant may have wanted was to have the victims appear in person. We cannot say the court would have denied such a motion if it had been made by the defendant. In addition, the two victims testified at trial to the things that were contained in the victim impact statements and they were cross-examined by the defendant's attorney. The matters contained in the victim impact statements were thus brought to the court's attention without the victim impact statements being introduced. State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978). We hold the defendant has not shown he was prejudiced by the sentencing hearing in this case.
We reverse the Court of Appeals and remand for remand to the superior court for reinstatement of the judgments.
REVERSED AND REMANDED.