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State v. Stephens12/5/1997
hat Barrow shot both Bates and Jones is not corroborated by this one unclear, inconsistent statement in the ballistic report, and there was plenary evidence from eyewitnesses as to the physical locations of defendant and Barrow relative to their victims. We thus hold defendant was not prejudiced by the trial testimony which corrected the typographical error in the ballistic report.
However, even assuming arguendo this was a discovery violation, the trial court did not abuse its discretion in deciding not to sanction the State. "The sanction for failure to make discovery when required is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion." State v. Herring, 322 N.C. 733, 747-48, 370 S.E.2d 363, 372 (1988); accord State v. King, 311 N.C. 603, 619, 320 S.E.2d 1, 11 (1984). The record in this case shows that the trial court made a well-reasoned decision. The trial court clearly expressed the thought that this statement in the report should have raised some question in defense counsel's mind that this statement may have contained an error. The trial court stated: "I mean just to read that . . . seems to me would have caused someone to say, 'there must be a problem here.' They are comparing this bullet against two different . . . guns." We therefore hold that there was no discovery violation and that the trial court did not abuse its discretion when it denied the motion for a mistrial. This assignment of error is overruled.
In defendant's fourth assignment of error, he contends that the trial court, during the sentencing phase, committed reversible error in preventing defendant from introducing testimony concerning a conversation between Mrs. Barrow and Debbie Jordan, defendant's girlfriend, which occurred immediately prior to the murder. Defendant contends that this conversation would have provided probative evidence supporting the N.C.G.S. § 15A-2000(f)(4) mitigating circumstance, that he played only a minor role in the murders on Grill Road, and that the plan was "hatched" by William Barrow. Defendant contends that testimony by Jordan would have established that Barrow pawned his wife's rings to Lynn Wright and that Wright had later sold these rings. Defendant asserts that the jury could have inferred from this testimony that Barrow's desire to retrieve these rings was the primary motive for going to the Grill Road home. However, the testimony proffered by Jordan merely established that she knew through the defendant and the Barrows that Lynn Wright would take items in pawn for drugs and that Mrs. Barrow was missing some rings. This evidence is not only hearsay, but is irrelevant.
Although the North Carolina Rules of Evidence do not apply formally to sentencing hearings, N.C.G.S. § 8C-1, Rule 1101(b)(3) (1992), for a hearsay statement to be permitted in a sentencing proceeding, it must be relevant to a sentencing issue and bear indicia of reliability. State v. Price, 326 N.C. 56, 388 S.E.2d 84, sentence vacated on other grounds, 498 U.S. 802, 112 L. Ed. 2d 7 (1990); State v. Barts, 321 N.C. 170, 362 S.E.2d 235 (1987). The desired testimony of Debbie Jordan regarding the missing rings is not relevant to the (f)(4) mitigating circumstance that defendant played only a minor role in the murders because it fails totally to establish that the rings were the motivating factor which sent defendant and Barrow to the Grill Road home or, more to the point, induced them to shoot six people, killing three.
Defendant further contends that in not allowing the testimony, the trial court violated his due process rights to present evidence. We disagree. Although this Court has held that the rules of evidence may be relaxed during t
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