State v. Goodman

CASES ARGUED AND DETERMINED IN THE COURT SUPREME OF North Carolina

AT Raleigh

SPRING TERM 1979 STATE OF NORTH CAROLINA BUCK JUNIOR GOODMAN

46No. (Filed 1979) September § 1. Homicide 28.6— defense required of intoxication —instruction not degree The trial court in first required murder case was charge intoxication, jury upon defense though there was evidence that crime, drinking prior defendant had been to commissionof the since there was no evidence which capacity showed that plan defendant’s to think and was af- fected drunkenness. §§ degree 2. Homicide 31— premeditation first murder —issues jury felony-murder requiring specify deliberation and basis of verdict —use — proper of written verdict Where an indictment for murder and the support evidence at trial would theory guilty upon premeditation verdict upon and deliberation or rule, felony-murder application appropriate of the it was for the trial court to require specify theory they in its verdict the found guilty degree defendant sentenced; moreover, of first properly so that defendant could be 15A-1237 authorizes the use of written verdict set- instructions, ting permissible judge out the verdicts recited in his case, guilty by felony-murder this guilty reason of the rule or reason of deliberation, premeditation by using procedure the trial court did inadvertently express not confuse the opinion an as to defendant’s guilt. § inquiry clarify jury’s 3. Criminal Law 126.2— verdict —no coercion of verdict trial in a first murder case did not err in questioning clarity purposes about their verdict for sending rather than them deliberations, back questions for further and the court’s did not COURT IN THE SUPREME Goodman jury asked the whether defendant where the clerk suggest verdict a desired guilty by premeditation and deliberation or degree murder guilty was of first rule; jury felony-murder answered the foreman degree the of first murder ambiguity simply and yes; questions asked to resolve that were and the court’s verdict. for the basis to determine the 138.4; premeditation degree § 31.1— first § Homicide 4. Law Criminal murder — —separate punishment for felony-murder rule as basis and and deliberation proper underlying felonies upon guilty degree murder based found first was Where defendant rule, felony-murder the trial court the premeditation deliberation and and felony-murder impose ad- of the homicide verdict disregard the basis could underlying rob- crimes of armed punishment upon defendant for the ditional bery kidnapping. sentencing hearing aggravating degree § 135.4— first 5. Criminal Law murder — — prior felony conviction circumstance of sentencing during the instruct the the trial court to In order for 15A-2000(e)(3),there of G.S. aggravating the circumstance phase of trial on felony, felony for of a defendant had been convicted must be evidence that person,” the “use or threat of violence he was convicted involved which was which oc- upon this conviction was based conduct and the conduct felony charge capital which the arose. prior the events out of curred sentencing hearing aggravating degree § 135.4— first 6. Criminal Law murder — — kidnapping robbery or circumstance of sentencing phase aggravating cir- during of trial on the Instruction 15A-2000(e)(5), felony capital “was committed while that the cumstance of G.S. any robbery . . . . . . engaged ... in the commission of was [or] the defendant only felony, appropriate when defendant is kidnapping” or other enumerated theory premeditation degree first murder convicted of deliberation. —sentencing hearing aggravating degree § murder 7. Criminal Law 135.4— first — heinous, especially crime atrocious or cruel circumstance of sentencing during In for the trial court to instruct order 15A-2000(e)(9), aggravating circumstance of that the phase of trial on the heinous, atrocious, cruel,” especially must “capital was or there be brutality question in the murder in exceeded that that the involved evidence normally any killing. properly present The trial court instructed on this cir- several where the evidence revealed that decedent shot times cumstance knife; living, repeatedly placed he was with a still in the trunk of and then cut hours; struggle escape from a car where he remained several heard; decedent, trunk, still in the was then driven into another trunk could be car; placed upon ground county where he was taken from the and he was resting upon through and then shot twice the head. with his head rock —sentencing hearing aggravating § 8. 135.4— first Criminal Law — eliminating circumstance of witness jury during sentencing court to instruct the In order for the trial 15A-2000(e)(4), phase circumstance of G.S. of trial on there SPRING TERM 1979 must be pur- evidence from which the can infer that at least one of the poses motivating killing subsequent was defendant’s desire to avoid detec- crime, apprehension tion and for his and the enough mere fact of death is not to invoke this factor. Evidence this case was sufficient for the to infer prevent that defendant killed his victim to avoid his arrest where there was cut, testimony killed, that after the victim was shot and but before he was police that he stated “was afraid if the found Lester that he would had . companion tell what been done him . defendant and his in crime victim; planned bury point they then and at some later decided to shoot place body him and mangled by him on a railroad track where his would passing train. § degree —sentencing hearing 9.Criminal Law 135.4— aggra- first murder —two vating circumstances on submitted same evidence —error degree prosecution instructing The trial court a first murder erred in jury during sentencing phase the aggravating pursuant the on circumstances 15A-2000(e)(4) felony to G.S. purpose —that committed for the — 15A-2000(e)(7) avoiding preventing or pursuant lawful arrest —and to G.S. disrupt that the was committed to or hinder the lawful exercise of laws, governmental function enforcement of since court submitted evidence; the two prejudicial issues on the same and such error was to defend- light questionable credibility highly quality ant in of the of the State's primary evidence. 86.1, §§ illegally 10. Criminal admissibility Law 135.4— seized for im- bullets — peachment purposes The trial allowing illegally court erred in the State to introduce seized .380 sentencing hearing purpose caliber at impeaching bullets for the proper defendant since there was no foundation laid for introduction evidence. § 11. Law degree —sentencing hearing Criminal 135.4— first —intoxication mitigating as factor by When a criminal impaired defendant contends that his faculties were intoxication, degree such must be to a intoxication that it affects defendant’s ability required to understand and control his actions before the court to in- mitigating pursuant struct on such intoxication as a factor to G.S. 15A-2000(f)(6). § 12. Criminal Law 135.4— sentencing hearing mitigating first murder— — duty point of court to out factors — 15A-2000(f)(9) jury may providing G.S. mitigating as a consider “any arising factor jury other from circumstance the evidence which the mitigating require point every deems to have value” does not the court to arising conceivably might factor from the evidence which be considered provision. under that § 13. Criminal Law 135— death sentence —discretion of There was no merit to defendant’s contention trial erred that the they

failing might to instruct the recommend a sentence of life im-’ IN THE SUPREME COURT Goodman

State v. outweighed they though circumstances prisonment found even permit mitigation, an instruction would since such those impose the sanction of procedure legislature disregard the outlined at their whim. death own appeal severity § 138— of sentence —consideration Law 14. Criminal 15A-2000(d)(2) authority to Supreme Though gives the Court im- disproportionate to the sentences if it is determine review sentence to cases, only employed in cases function should be posed such review in similar be without have been found to phases trial of defendant where both of the error. participate in decision of this the consideration or Justice Brock did not case. joins concurring opinion of concurring in the Justice Justice Huskins Carlton. concurring.

Justice Carlton J., Braswell, October from APPEAL Session, Superior Court. Criminal Regular CUMBERLAND in- tried on bills of defendant was pleas guilty of not Upon (3) (2) (1)murder, robbery and armed him with charging dictment was Lester of all three offenses alleged victim kidnapping. Collins. by Annie provided defendant was against evidence

Principal (Lois) a of im- grant who under Shamback testified Goins Lois her “truthful 15A-1052. In return for munity to pursuant defendant, the state D. Goins and testimony” against Charles murder, rob- relating her to charges against dismiss agreed to (Charles D. was Goins bery Lester Collins. kidnapping trial.) testimony is sum- Her the date of defendant’s tried to prior as follows: pertinent part marized in 1978) (October 23 she was trial At the time of defendant’s six She married months. years approximately and had been age prior marriage. were born to her Charles had two children that (Charles) her was married to brother and Collins Goins was her Dix 2 was a at Dorothea July patient 1977 her sister sister. On Hospital. with defendant July young 2 1977 she and her son lived On Lumberton, married to each N.C. She and defendant were not

at 18 months to together approximately prior had lived other but TERM SPRING week, said date. Charles had been staying with them for about Fayetteville. his home being near she,

Late in the afternoon of said date defendant and Charles Fayetteville went in her white Fairlane. Ford Their destination was Charles’ they home but aat bar in stopped East in, Fayetteville, went and defendant and Charles “had few they beers”. When they returned to the car discovered that a C.B. and scanner belonging to defendant had been taken from the they car while were in the bar. Defendant had reason to believe that Magaline Tyler’s brother was one of the persons who stole C.B. scanner and insisted on going to her house which was not far from the bar. defendant, bar,

When Lois and Charles left the defendant was driving. After driving short distance in the neighborhood, defendant and Charles got out of the car and told Lois to circle the area they while person looked for the or persons who stole minutes, the equipment from the car. After circling for some 30 Lois Tyler’s drove the car Magaline home. Defendant came out him, of the house and Collins was following asking defendant first, refused, take him home. At but kept Collins eventually asking and defendant said he would take him home. Collins had been drinking. wheel,

Defendant under the got got Collins in the backseat and Lois and Charles rode on the front seat. Defendant quite was angry about being C.B. scanner stolen and also angry with Lois for so circling long.

Defendant then drove the car down Cedar Creek Road east Fayetteville to Lois’ mother’s home which was also Charles’ there, they home. When arrived Charles went into the house to get some clothes. Collins remained in the backseat of the car and carry wanted defendant to him back Fayetteville.

The four of them left the Goins home and were situated in the car in the same positions they as when They arrived there. proceeded to drive down Cedar Creek and Road while riding Charles leaned over and whispered something to defendant. road, Defendant then turned the automobile the end of it and turned a down dirt went to around the direction of Cedar Creek It “way Road. was then after dark”. COURT IN THE SUPREME Goodman and out. He got dirt road the car on the stopped

Defendant got a as Collins out had and get gun out. Defendant told Collins car, with the side of his head hit Collins on the of the defendant but defend- anything, he hadn’t done told defendant gun. Collins face. blood from Collins’ again gun, bringing ant hit him with the and car while defendant Collins and Lois remained in the Charles the car. went behind car, saw Col- rear of the Lois men reached the

When the two heard three shots fired. and then advancing on defendant lins fired, what Collins was Lois not see shots were could Before the defendant, body toward” defendant. “just going doing to fired, out of the car and got Charles shots were After the and saw that “moaning” it. could hear back of Lois went to the car and saw Charles She out of the ground. got was on the Collins ground was a who on standing beside Collins and defendant tell that Col- of the car. She could from the trunk short distance and then took Collins was wet. Defendant Charles clothing lins’ They what to the car. then discussed in the trunk of and him put do with Collins. they bury a where could place he knew said that

Defendant to find him. police time long take a for and it would Collins Lois to drive Defendant then told that time. was alive at Collins left side. was cut on his he the car because instruction, to Lumberton Lois drove the car At defendant’s and was “beg- in the trunk was still home. Collins to defendant’s Collins except the car occupants life”. All of for his ging pool There was a home. into defendant’s and went out got got washrag car. Lois driver’s side of the blood on that, defendant doing she was car. While off the the blood washed carry out defendant’s which to with shovel looking was bury Collins. plan Charles’ trunk, let him out of the defendant begged

When Collins as well shut might that he told him both and Charles request anyway. At defendant’s die going he up because it. His shirt placed bandage his wound up Lois cleaned washed which Lois blood it after he took off it and had blood on pants. of his the back off SPRING TERM 1979

atWhile defendant’s wiped home Charles off of a blood knife minutes, that he had. After staying at the home thirty for about they all left with driving Lois and Collins remaining the trunk. After Lois drove distance County, some into Robeson defendant decided that he would drive. He stated that he had changed his mind about burying Collins and knew where carry he wanted to him. they

With proceeded defendant driving the village of Buie County. Robeson At that point drove on to service adjacent road to the Seaboard Coastline Railroad and proceeded distance, north. After travelling that road for reasonable defendant turned the car and around stopped. Defendant got out and opened trunk of the car after which Charles and got Lois out. Defendant cursed Collins and told him get out. Defendant and Charles then took Collins out of the trunk and laid him on some rocks. gun Defendant had a which he pointed then down at Collins’ head and fired two shots. Lois had reentered the car at the time the shots were fired immediately but got out and had Charles the gun at time. Charles had also Collins’ billfold.

Defendant and Charles then took Collins his arms and dragged him onto the railroad track. Defendant stated that a train would come along away “do with him where the police would have hard time recognizing who he was”.

Thereafter, defendant, Lois and got Charles back into the car with defendant driving. Charles had the gun and said that “it was a good shooting gun”. little Defendant stated that he shot Collins eyes between his and that Charles shot him in the back head.

Defendant, Lois and Charles proceeded then to ride around in County, Robeson it as soon as was light they went to the

home some of defendant’s they relatives where cleaned blood from the trunk of the car. they Thereafter went to bed at a day relative’s home and in the Fayetteville. later returned to On cross-examination Lois testified that defendant worked until noon on 2 July 1977. When he came after home work she noticed that he had drinking. been Defendant and another man Defendant, Charles, brought a six-pack of beer to the home. IN THE SUPREME COURT v. Goodman at drank more beer the Defendant drank the beer. other man a little later. Fayetteville consumed some more and in East

bar to show: by tended the state presented evidence Other farm on the lived and worked July 2 1977 On Collins Fayetteville on Cedar 1.5 miles from Henry Clark approximately day, Mr. paid Clark Col- p.m. At 1:00 on that around Road. Creek he had $97 work which done. $95 for lins or blood pool women saw a on night 11:30 that two At around The next morn- Road. from Creek some feet Cedar a dirt road arrival at Upon about the blood. were notified ing police blood, scene, they spent casings, three found in addition to the bullets, near matches and a box of knife spent two to, or similar to belonging as one knife was identified blood. Goins, to, father of Lois The home of Leon Collins. belonging one Charles, the blood was in the area where general was located and found. Maynor 1977 Miller was driv- July a.m.

At 3:00 around north adjacent the railroad service road his car on the ing by economy three occupied car light colored passed Buie. He body on a human shortly thereafter he observed and persons due at pass Amtrak train was that an Knowing railroad track. hour, body. determining Upon he went to about dead, He body track. then he off the dragged was person Pembroke, what he had reported police station went he was met Depu- the scene where returned to found and then Sheriff Garth Locklear. ty body General Southeastern A unit rescue removed Andrews, a pathologist, Dr. where Bob in Lumberton

Hospital Dr. Andrews later autopsy morning. an performed face, neck, back, forehead, cuts to Collins’ extensive discovered chest, wounds gunshot and hands. He found arms thigh, also neck, a bullet from the He removed leg thigh. groin, Collins’ Dr. In Andrews’ one from his brain. neck and another victim’s victim’s head but shot to the was caused death opinion, opinion further death. It his have caused shot could either shot, died from the he could have had been that if the victim milligrams revealed 140 A blood of the victim’s cuts. test blood, .14 on a equivalent milliliters of per hundred alcohol breathalyzer machine. TERM 1979 SPRING testimony

Defendant’s evidence consisted of the of Charles testimony substantially Goins. Charles’ consistent with ver- sion of events major testified to Lois with exception. one He Collins; stated that he was the who person shot that he cut sister; did so because Collins mistreated and that defendant murder, had nothing to do with the “wasn’t with” him and Lois when the killing occurred “hadn’t nothing”. done

On cross-examination Charles testified that he had been con- victed breaking larceny, and entering, deadly assault with a influence, weapon, under the driving from driv- escaping prison, ing while permanently license revoked and assault inflicting injury. serious “I carry He further testified that a knife and keep me, pretty somebody it If I sharp. messes with will cut them. It don’t somebody.” take much for me to cut

The jury returned a verdict finding guilty defendant of first- and premeditation and deliberation the They murder rule. also found him guilty robbery of armed and kidnapping.

The court then recessed the trial Monday until the following when were resumed proceedings before the same pursuant to 15A-2000 et to determine if seq. defendant’s sentence on the murder conviction would be death or life imprisonment. The follows; state presented evidence summarized as Tyler Tyler Gertrude testified she that was at the home on 1977; Collins, July 2 evening of that while there she saw Charles, defendant; Lois and that Collins had drinking been wine home”; and he asked to “run him defendant that defendant ap- peared not to hear Collins and later he him again; asked that “Yeah, then you defendant told Collins I’ll you run I’ll run home. hell, too, it”; while I’m at and that Collins got then into the car with they away. defendant and rode Counsel stipulated January 31 on 1967 defendant was convicted in the Superior County Court for Robeson of three counts of armed robbery resulting from a single January occurrence on 4 1966.

Defendant testified as witness for himself at the sentencing of phase the trial. His version 2 July events occurring on testimony combines elements of Lois and Charles. The testimony gist defendant’s is that he was in car with them IN THE SUPREME COURT Goodman

State v. he but that place, of Collins took cutting shooting when the unsuccessfully in the killing attempted participate did not hurting from Collins. Charles prevent show- a court docket introduced into evidence Defendant also allowed to Charles Goins was defendant’s trial prior ing accessory after offense plead guilty, and did plead guilty, a prison “in cases” and received these fact of murder years. sentence of six rebuttal, who way presented police state officer

By in ques- automobile July 1977 he searched the testified on Remington- found a box of glove compartment tion —29 unfired bullets. .380 Peters ammunition and answered were submitted to Issues as to punishment jury as follows: of one you beyond presence a reasonable doubt the 1. Do find circumstances? following aggravated or more of previously been convicted of a. defendant had The felony use or threat of violence involving felony of rob- counts of the armed person, to-wit: three January County bery Superior Court Robeson 4, January 1966. committed on for offenses Yes Answer: was felony murder in first degree

b. capital The or purpose avoiding preventing for the committed lawful arrest. Yes

Answer: felony was while the Defendant capital c. The committed or to commit engaged attempt was the commission of robbery or either or both. kidnapping, Yes Answer: felony was hinder capital disrupt

d. The committed to or criminal lawful exercise the enforcement of the law, to-wit: the arrest of Defendant the offense robbery or either or both. kidnapping, Answer: Yes SPRING TERM 1979 Goodman

State v. heinous, atrocious, felony e. The capital especially or cruel. Yes

Answer: you 2. Do find that one more of the following mitigating circumstances existed at the time the murder was commit- ted?

a. The defendant was an accomplice accessory in or

capital committed person par- another and his relatively ticipation was minor.

Answer: No b. The of the capacity to appreciate

criminality of his conduct or to conform conduct to law requirements of was impaired. No Answer: you

c. Do find other circumstance arising from evidence which the jury deems to have mitigating value. Yes

Answer: you beyond 3. Do find a reasonable that the mitigating doubt circumstances are insufficient outweigh the aggravating circumstance?

Answer: Yes you beyond 4. Do find a reasonable ag- doubt circumstance is gravating sufficiently substantial to call for the of the death imposition penalty?

Answer: Yes recommended sentence death be imposed on the defendant. Pursuant thereto the imposed the death sentence. robbery

As to the armed and charges, the court kidnapping case, a imposed life in sentence each in kidnap- sentence case ping begin to at expiration robbery of sentence in the armed case. IN THE SUPREME COURT

12 v. Goodman

State Edmisten, Attorney L. Assistant General Attorney Rufus Wood, B. the State. Thomas General for defendant-appellant. D. Downing Harold for BRITT, Justice. seq., et was tried two to G.S. 15A-2000 this case Pursuant (1) or innocence of defendant and

phases: guilt to determine the (2) his first-degree following for to determine sentence assigned will We discuss the errors charge. conviction phase. under each - I Determination

Phase Guilt ^[1] connection By his first with the assignment charge of of error defendant contends first-degree murder, that, in the effect volun failing concerning to instruct the erred intent, and tary upon premeditation elements intoxication We find merit in this assignment. no deliberation. voluntary a is not legal well settled that drunkenness “It is crime; intent, premeditation a specific but where

excuse deliberation, a degree is a crime or essential to constitute and Thus, crime, may its existence. negative fact of intoxication not, se, voluntary an excuse for per drunkenness while and, act, may there degree prevent it be sufficient to criminal fore, intent, as the such intent specific the existence of disprove 6, 43, 3d, p. and 4 Index Criminal Law Strong’s kill.” N.C. § first-degree murder second- cited therein. To reduce cases great intoxication must be so murder the defendant’s degree pur a deliberate “utterly premeditated unable” form and he is 560, 62, 72, S.E. 2d 567 v. 274 N.C. 161 kill. State pose Propst, 597, also, (1968); 286 213 S.E. 2d 238 McLaughlin, see State v. N.C. 3206, vacated, 903, (1975), 428 49 U.S. 96 S.Ct. death sentence (1976); Bunn, 444, 2d 283 196 S.E. 777 1208 v. L.Ed. 2d State N.C. (1972). 674, (1973); Wilson, 22 2d 280 N.C. S.E. State depends can coexist premeditation Whether intoxication inebriety pas- effect mind and its upon sions; premedita- inference of absence of deliberation no v. Hamby, as a law from intoxication. arises matter of tion (1970), grounds, 174 S.E. vacated on other 276 N.C. 2d TERM 1979 SPRING 13 Goodman State v. 937, (1972). 2862, then, U.S. 92 Ordinarily, S.Ct. 33 2d 754 L.Ed. its degree of intoxication and effect elements upon premeditation is an deliberation issue for unless evidence is insufficient warrant the issue submission of them. Id. the evidence at the offered first of the trial in phase was, however, this case insufficient to raise the issue of intoxica- deliberation, tion to a degree precluding premeditation and the trial court did not err in refusing to State charge thereon. Fowler, 90, McLaughlin, supra-, State v. 285 203 S.E. N.C. 2d 803 (1974), 904, 3212, vacated on other 428 grounds, U.S. 96 S.Ct. 49 (1976); Cureton, L.Ed. 2d 1212 State v. 218 11 S.E. 2d N.C. (1940). 469

In McLaughlin ample there was evidence that the defendant had drinking, been but four witnesses who that testified defend- ant had drinking been and at prior to the time incident in question also testified that defendant was In not drunk. upholding defense, the trial court’s refusal to instruct on as a intoxication the court said that there was no “evidence that defendant’s mind was so intoxicated and his reason so that overthrown defendant could a specific to kill.” form intent 286 597 at 609. N.C. In Fowler the again upheld the trial court’s refusal to intoxication, instruct defense of there was noting evidence only of defendant’s but drinking evidence of was drunkenness his own exculpatory statement. In Cureton there was evidence that drinking incident,

at the time of the but the record was “devoid of sug- gestion processes that defendant’s mental deranged.” were testimony N.C. at 496. such Holding that absent there was no intoxication, said, duty to instruct on the defense the court “there some must be evidence tending to show that defend- ant’s mental were processes so overcome the excessive use of least, liquor or had other intoxicants that he at temporarily, lost think capacity Id. at 495. plan.” We believe that the on this point decision in this case is con- trolled the cases which we have cited and discussed. Admitted- ly, there is evidence this record which tends establish defendant had been Lois drinking. testified that defendant had work, been when he came from that she drinking home but did much, not know beer six-pack how that he shared with two IN THE SUPREME COURT v. Goodman murder, he had “some and that of the men the afternoon other on thirty minutes than they stopped which for less at a at beer” bar that She also testified into car with them. got decedent the before she, brother, and defendant when her was in the car there beer did “not remember but that she riding victim were together, the Her driving.” was drinking was while he Buck if [defendant] were capacities defendant’s mental testimony show fails to that con- which To the any way the beer he consumed. affected driving, capable was of trary, testimony shows that defendant her drove, aon search group she led the her directions when gave a CB scanner stolen from looking for and through neighborhood car, the disposing of and scheme planning his participated defendant, that body. testimony Her tends to show victim’s was of capable been drinking, the fact that he had despite specific intent and could form the and deliberation premeditation murder. first-degree an element of kill which is essential to who reference to defendant’s The other state’s witness made in a was “not drunken con- clearly stated defendant drinking .that first no evidence at the presented dition.” Defendant himself show he was which that intoxicated. of the trial tended phase he did not only in his behalf testified that presented witness this day which the murder occurred. On see defendant on the was the required charge that the court evidence we hold was evidence defense of intoxication. There no jury upon was af- capacity plan which showed that defendant’s to think fected drunkenness.

By assignment of error defendant contends second jury to in its verdict the required specify improperly they first- theory guilty which found defendant of legal upon manner in argues judge, He that the trial degree murder. inadvertently ex- procedure jury, which he explained Further, argues an as to defendant’s he opinion guilt. pressed theory premeditation and delibera- on both the instructing jury. theory felony-murder confusing tion and the jury, we examining given the specific charge Before [2] think it clarify ra two which principles restate appropriate require the trial court’s decision to underlying tionale theory they found jury specify in its verdict (1) murder. Where the conviction guilty first-degree SPRING TERM 1979 aof defendant for first-degree felony- is based upon malice, murder rule and there is proof no premeditation deliberation, proof that the murder was committed in the perpetration felony of the is an “essential indispensable ele- ment in the state’s proof,” and a verdict of guilty underly- felony ing cannot provide a basis for punishment. additional (2) (1972). Thompson, N.C. S.E. 2d 666 Where the conviction of a defendant for first-degree murder is based upon malice, proof deliberation, premeditation and proof of an — underlying felony although be part of the same con- tinuous transaction —is not an essential element of the state’s case, homicide and the defendant may therefore sentenced upon both the murder conviction and felony the conviction. State Tatum, 73, (1976). v. 291 N.C. 229 S.E. 2d 562

In the murder, case at hand defendant was indicted for robbery, armed and kidnapping. The murder indictment was drawn in the manner prescribed by G.S. 15-144and would support a guilty verdict based the theory of premeditation and deliberation or upon the application felony-murder of the rule. Bush, 159, 333, State v. N.C. S.E. 2d death sentence vacated, 809, 46, (1976); 429 U.S. 97 S.Ct. 50 L.Ed. 2d 69 State v. Moore, (1974); 284 N.C. 202 S.E. 2d 169 State Thompson, supra. The evidence at trial was justify sufficient to submission of the charge of first-degree theory. murder under either There was also sufficient evidence to submit to the the issue of defend- guilt ant’s or innocence robbery of the armed and kidnapping charges. If defendant were found guilty of first-degree murder rule, solely by felony-murder virtue of the the court would be precluded from imposing upon him additional punishment for the felony; underlying if defendant were found guilty of first-degree deliberation, murder pursuant premeditation and if the jury also found him guilty on one or more other charges, Thus, the court would not be precluded. so it was appropriate that the court determine the basis of the jury’s verdict so that defendant might be properly sentenced. addition,

In G.S. 15A-1237authorizes the use of a written ver- jury’s dict. The verdict “must be in writing, signed by the foreman, and made a part of the record of the case.” "G.S. 15A-1237(a). This section is intended to aid the trial court in avoiding the taking of verdicts which by are flawed the inadver- IN THE SUPREME COURT v. Goodman “It is element verdict itself. some essential of the tent omission of setting given will be a verdict form the contemplated by instruc- judge recited verdicts the permissible out the 15A-1237. As the this Commentary, G.S. court Official tions.” were ver- jury, guilty the there two explained permissible case murder, reason of first-degree guilty charge dicts to felony-murder premeditation rule or reason of guilty jury’s general, specifying verdict were deliberation. If the found, way would have no theory upon guilt was court theory used not have proper and would knowing what case, If, as the in this judgment. required for passing basis theory, could sentence the court jury’s specified verdict written required specific We believe the use of appropriately. is with of G.S. 15A-1237 verdict in this case consistent the intent difficulty which and that it the trial court to avoid the enabled seeks to alleviate. provision used the trial court Having procedure decided use, was good and that there reason its appropriate court, using procedure, whether the remaining question as inadvertently opinion an expressed confused carefully We scrutinized this aspect defendant’s have guilt. no jury, prejudicial instructions to the we perceive court’s error. assigned following excerpt has error to the from

Defendant charge: the you I if jury, you of the instruct should

Members we guilty degree, find of murder in the first the defendant case, you in are theories also this because there two require law, to that of which and of the write down applications two you you guilty. the If it should be that have found defendant beyond a both guilty have him reasonable doubt of found by premeditation murder in the first deliberation degree by felony first murder guilty of in the degree rule, you so as request write in both of those we would only all your verdict. of the while there can be Remembering conviction, any, in one and one ultimate if of murder charge are not verdicts of degree. separate the first There two your first but in murder in the return of verdict degree, form, all, guilty if he be at would then as this elaborated SPRING TERM 1979 matter law let your of all know particulars your of specific By verdict. having you, so instructed I not mean do to infer manner, whatsoever, any your what verdict should be to any this or charge of other in the charges case. Below your space for verdict a space is the date and line for the foreman to sign. July Since the first of year, this it is the requirement of our law that verdicts shall writing be in shall by be signed the foreman of the jury. The other members of are required sign. Apparently, his argument is that linking the two theories “or,” with the word “and” rather than implied defendant was guilty of first-degree murder. This argument finds no when support portion of the charge is examined in context with the remainder.

When the judge began instruction on the murder charge, he said: law and the

Under evidence in this case on this charge, your duty it to return one of the three following say, verdicts: that is to guilty of murder in the first degree Now, guilty murder in the degree second guilty. or not you as come to consider whether or not he is guilty or not guilty of murder in the first degree, there are two separate theories which the proceeded State has and under offered; which evidence has been and those theories are whether or not the guilty of murder the first degree premeditation and deliberation or whether or not be guilty he of murder the first murder rule or lesser guilty. included offense or not I will discuss this I aspect you of it with further as come at the close of you your the trial to discuss with actual return of a written verdict and the form which will be handed to you. theories, then judge on each charged two making that, alternative,” clear

it jury might find defendant “[i]n guilty upon either of them alone or both them We together. do not believe jury, this instruction confused any nor do we find expression by opinion of charge. court Twice during this portion of the jury they instructions the told the judge that instruction, manner, were not to infer from the “in what- SUPREME COURT IN THE soever,” of error is assignment be. This their verdict should what overruled.

[3] court By his third improperly accepted assignment of an incomplete error defendant jury verdict contends the at the con that the trial argues of the trial. He phase the first clusion of ver desired suggested of the asked questions court should have is that the court His contention dict to them. re them and the issues submitted upon reinstructed deliberations. jury room for further them to return quired not agree. We do and reconvened its deliberations When the concluded verdict, oc- following exchange render

open curred: jury, the defendant. of the look Members CLERK: murder the first say guilty Buck Goodman is Junior

You deliberation, guilty by degree premeditation by felony rule. Is that murder degree in the first murder your verdict?

FOREMAN: Yes. say you all?

CLERK: So affirmative. answers you jury, saying are clarity, of the members COURT: For guilty he is your verdict that you returning as are law? propositions of those murder both in the first degree. FOREMAN: Murder deliberation, guilty By premeditation COURT: rule under murder degree first in the jury? that the verdict of of law? Is principles both first in the It was murder FOREMAN: you also understanding was our and it premeditation, also. other in there us to put wanted you a reasonable beyond was what found If that COURT: doubt. did. which we FOREMAN: If we reached premeditation, TERM SPRING 1979 19 clarity, I COURT:For am to understand the verdict jury of the in this charge guilty is that the defendant is of by degree murder the first premeditation delibera- tion?

FOREMAN:Yes sir. clarity,

COURT:For I am to understand that the verdict jury of the felony of guilty murder in the first degree your

murder rule finding guilty addition to in the first premeditation and delibera- tion?

FOREMAN:Yes. COURT: Is that verdict jury of the this charge so say you all?

JURY: Yes. The record also discloses following: polls jury guilty

The clerk if the verdict of MURDER IN THE FIRST DEGREE BY PREMEDITATION AND AND DELIBERATION IN GUILTY OF MURDER THE FIRST DEGREE BY THE FELONY MURDER IS RULE THEIR OWN INDIVIDUAL VER- AND IF DICT EACH JUROR STILL ASSENTS THERETO. ALL JURORS ANSWER IN THE AFFIRMATIVE.

We hold that was exchange not improper that the not was return the required jury to the jury room for ad- ditional may deliberation. The court jury make inquiry verdict, ascertain the meaning thereby of its any eliminating am- State, 533, biguity uncertainty. Davis v. 273 160 S.E. N.C. 2d (1968). 697 In doing so the judge must not suggest Godwin, what he believes to be the proper verdict. State v. 260 580, (1963); Gatlin, N.C. 133 S.E. 2d 166 State N.C. (1954). S.E. 2d 880

In this case was the court attempting to dispel ambiguity which was created response foreman’s to the clerk’s first question. judge made certain that understood that his questions to respond clarity” they were asked “for and that were

affirmatively he unless question asked the issue they about which he questioned them was one which had them- already beyond selves resolved a reasonable doubt. There was no need to return them to the room for further deliberation as they already they had indicated that guilty found defendant IN THE SUPREME COURT v. Goodman questions of the court’s The thrust

first-degree murder. verdict, necessary a basis for the determining the directed at This already we have commented. upon which determination is overruled. of error assignment he contends that of error defendant By assignment his ninth

[4] was and kidnapping for the offenses of sentenced improperly murder convic as with the robbery merged those offenses armed said, felony occurs already merger no of the As have we tion. theory is of upon conviction based when the homicide v. De Thompson, supra. and State deliberation. premeditation by and delibera virtue of guilty premeditation was found fendant Thus, felony-murder by rule. application as as of tion well felony-murder basis the homicide ver disregard the of court could upon defendant punishment and additional impose dict Tatum, robbery supra. v. State kidnapping. crimes of armed of error is overruled. assignment This stated, in the deter- guilt we find no error For the reasons judgments of trial and the entered on mination defendant’s phase robbery charges. and armed the kidnapping — II Phase Sentence Determination By of error defendant contends that assignment his fourth (G.S. is seq.) 15A 15A-2000 et un- Chapter 100 of G.S. Article a of precept In well-established ap- accord with constitutional. review, constitutional deciding this court refrains from pellate a basis case upon when there an alternative questions 495, Jones, 296 251 S.E. v. 2d may be decided. State N.C. properly (1975); (1979); Crabtree, v. 286 212 S.E. 103 2d 425 State N.C. (1955). Jones, 563, 89 S.E. 129 of 2d Because our N.C. case, it is phase in the determination of decision necessary sentence constitutionality G.S. 15A-2000 we rule in the at We conclude that there was error in- seq. et this time. the trial. sentencing phase at given structions by statute enacted penalty scheme our death general adjudication Assembly Upon is: conviction or General felony, the court conducts guilt capital of a defendant whether the defend- proceeding determine separate sentencing imprisonment. death or life ant should be sentenced to 15A-2000(a)(l). judge Instructions determined the trial in his given charge the evidence are warranted SPRING TERM 1979 prior to its determining deliberation in The judge the sentence. should instruct that the must any consider cir- aggravating cumstance or circumstances or mitigating circumstance or cir- (f) 15A-2000(e) cumstances enumerated in G.S. which are evidence, supported and he should furnish to the written list of issues relating to such mitigating evidence, circumstance or circumstances. After hearing court, arguments of counsel instructions of the jury must (1) deliberate and render a sentence recommendation based upon any whether sufficient aggravating circumstance or circumstances (2) exist, as enumerated in the statute whether sufficient circumstance mitigating or circumstances as enumerated in the statute which outweigh the aggravating circumstance or cir- (3) found, exist, considerations, cumstances and based on these whether the defendant should be sentenced or im- to death to life 15A-2000(b). prisonment. G.S. 15A-2000(d)

G.S. provides: (d) Review of Judgment and Sentence.—

(1) The judgment of conviction and sentence of death subject

shall be automatic review the Supreme Court of North Carolina pursuant pro- cedures established the of Appellate Rules review, Procedure. In its the Supreme Court shall consider punishment the as any well as imposed errors assigned appeal.

(2) The sentence of death shall be overturned and a

sentence of life imprisonment imposed lieu thereof Supreme Court upon finding that the record does not support jury’s findings of any aggravating circumstance or circumstances upon which the sentencing court based its death, sentence of upon or a finding that sentence of death was under in- imposed fluence of passion, prejudice, or ar- other factor, bitrary a finding that the sentence of death is excessive or disproportionate to the cases, penalty imposed in similar considering both the crime and the Supreme defendant. The Court may suspend consideration penalty of death cases IN THE SUPREME COURT Goodman is as the determines it

until such time court under required make the comparisons prepared of this section. provisions (3) judgment of death and the If the sentence error in the appeal are reversed on

trial court Supreme sentencing proceeding, post-verdict sentencing hearing new shall order Court conformity procedures with the be conducted this Article. (d)(3) 15A-2000(d)(l) empower this G.S. and together,

Read sentencing in the trial and assigned errors review court found, must order the court When error phases. prejudicial sentencing hearing. new hand, were arguments after evidence case at

In the submitted issues sentencing phase, at presented 15A-2000 enumerated in G.S. circumstances aggravating upon (e)(3), (e)(9). (e)(7), (e)(4),(e)(5), erred in sub- We think the court (e)(4) (e)(7) and that subsections under both issues mitting hear- sentencing receive a new defendant should because thereof ag- issues various on which provisions will examine the ing. We were submitted. circumstances gravating

1. ^[5] 15A-2000(e)(3) states that one factors fact penalty the death the may justify the imposition felony a in previously been convicted of that “defendant had the This to the section person.” of violence the use or threat volving (1) had been con that defendant that there evidence requires (2) felony which he was convicted felony, a the for that victed of (3) and that person,” the involved the “use or threat violence was based conduct which this conviction the conduct felony capital out of which the to the events prior which occurred evidence, be improper such it would arose. If there is no charge jury on this subsection. for court to instruct the the 867, denied, Rust, 528, cert. 250 N.W. 2d v. 197 Neb. In State (1977), 912, 313, 54 L.Ed. 2d 198 defendant con 434 98 S.Ct. U.S. authority’s finding that he had sentencing tended the use felony a the or threat “involving convicted of previously been was inconsistent with a person” finding the of violence to SPRING 1979 23 TERM v. State Goodman Ell, this factor was not in the case of State v. 196 present Neb. (1976). 800, 246 N.W. 2d 594 In Rust the state offered as evidence felony record of defendant’s 1969 conviction for assault with in harm; bodily tent to great do in Ell the state’s evidence showed only that had defendant been charged with similar offense. contention, Overruling Rust’s the Nebraska court held that the state must present of actual “proof guilt” to sustain a finding that this aggravating circumstance was present. When the state’s evidence only showed that a defendant had charged been awith crime, felony as opposed to a for conviction it was not incon sistent to find that factor set out in this provi had sion been “Clearly shown to exist. language of that subsection excludes possibility of considering mere arrests or State, accusations as factors v. aggravation.” Provence 337 So. (Fla. 1976) denied, 969, 2929, 2d 783 cert. 431 U.S. 97 53 S.Ct. (1977). 2d L.Ed. 1065 It is improper jury upon to instruct (e)(3) factor enumerated subsection when there is no evidence Also, felony which tends to felony show conviction. which the defendant has been convicted must be involving one cannot, threat or use violence It person. under this pro vision, be a crime against property. Finally, we believe that “previously convicted” language (e)(3) legislature used in subsection refers to “criminal ac tivity conducted prior the events out of which the charge Stewart, 497, 197 arose.” Neb. 250 N.W. 2d 849 (1977); also, Rust, Holtan, see State v. State v. 197 supra; Neb. 544, 876, denied, 912, 250 2d N.W. cert. 434 U.S. 54 S.Ct. (1977). L.Ed. 2d 198 To decide otherwise would lead to un 15A-2000(e)(5) statute, necessary duplication within for G.S. enumerates those felonies which simultaneously occur with the felony which the capital worthy deems legislature of considera therefore, tion It would jury. be improper, to instruct jury that encompassed this subsection conduct which occurred contemporaneously with or the capital after with which the defendant is charged.

In the sub judice stipulated case sentencing at the phase January that he had been convicted on of three robbery counts of armed arising from which single incident oc- definition, 4 January robbery, curred on 1966. Armed involves the use or threat to the of violence of the person victim. Defend- THE COURT IN SUPREME v. Goodman

State crime, which his upon conduct the was this ant convicted of which upon the incident did arise out of was based conviction refrained The felony properly was trial charged. the capital this under they might consider jury the instructing from robbery and defendant for armed of the convictions enumeration same events upon were the which based convictions kidnapping, in this Lester The evidence in the murder Collins. of culminating subsec- upon instruction this clearly justify was sufficient to case tion, the thereon. instructed court properly the

2. ^[6] G.S. 15A-2000(e)(5) states that the may consider as an ag fact that the death the justifying penalty gravating circumstance was en felony while the defendant “was committed capital . robbery . . . . . kidnap ... in the of commission gaged [or] added) In felony. . . .” other enumerated or ping (emphasis (1979), 86, 257 2d 551 we have limited the 298 N.C. S.E. Cherry, felony murder cases. This section subsection application comment, is additional it otherwise only brief needs differs from reasonably This subsection ambiguity. free from discussed, (e)(3), jury’s in that it guides we previously which takes of the defendant upon deliberation criminal conduct in which transaction as the one during “while” or same place section, we felony as have previous occurs. capital said, Under rule set forth in already deals with conduct. prior only when Cherry, appropriate instruction on this provision theory murder first-degree convicted for defendant is premeditation deliberation. case, theory was guilty upon found

In instant as well as virtue and deliberation premeditation Collins ample rule. There was evidence that Lester murder of a and armed kidnapping the course rob- during was murdered bery, submitting and the court therefore correct (e)(5). circumstance defined in subsection the aggravating

3. ^[7] 15A-2000(e)(9) states that the may consider as an ag justifying imposition the death gravating circumstance heinous, felony was penalty “capital especially the fact that is, atrocious, every While recognize cruel.” we at 1979 SPRING TERM 25 v. State Goodman heinous, atrocious, cruel, arguably, least we do not believe every By that this is subsection intended to apply homicide. “especially” word using legislature indicated that there be brutality must evidence that involved in in question normally must exceed that present killing before be the Stewart, would instructed this subsection. State v. Rust, Simants, State v. supra; v. 197 supra; State Neb. 549, 881, denied, 878, 231, 250 N.W. 2d cert. 434 U.S. 98 S.Ct. 54 (1977). L.Ed. 2d 158 provision The Florida this concerning aggravating is factor Supreme identical to ours. Florida’s Court has said that pro this vision directed at “the conscienceless or crime pitiless which is Dixon, unnecessarily torturous State to the victim.” v. 283 So. 2d (Fla. 1973), denied, 943, 1950, 1 94 cert. 416 U.S. 40 S.Ct. L.Ed. 2d (1974); also, (Fla. 1975), Alford, 295 see v. State 307 433 So. 2d denied, (1976). 912, 3227, 428 U.S. cert. 96 49 S.Ct. 2d 1221 L.Ed. Nebraska has adopted also the Florida of this construction subsec tion. Both Florida and Nebraska have limited application this subsection to acts done the victim during commission Rust, State, capital of the itself. Riley v. supra; (Fla.. 1979). 366 So. 2d 19 We too believe this is ap an propriate construction of the language of this provision. Under (e)(9) construction, subsection will not become “catch all” provision always which can employed where cases there is State, no evidence of other circumstances. Harris v. 718, (1976), denied, 237 230 S.E. Ga. 2d 1 cert. 431 U.S. (1977). 2642, 53 L.Ed. 2d S.Ct. In the case before us the court instructed as follows in his 15A-2000(e)(9): discussion of G.S. heinous,

You are instructed that the words “especially atrocious extremely or cruel” means or especially or par- ticularly heinous or atrocious or cruel. You’re instructed that extremely “heinous” means wicked or shockingly evil. wickedness, Atrocious means marked or given extreme brutality cruelty, marked extreme violence or savagely fierce. It means outrageously wicked and vile. “Cruel” means inflict a designed utterly high degree pain, indifferent enjoyment to or of the others. suffering of IN THE SUPREME COURT the construc- is in accord with this instruction We hold its sub- have adopted which we subsection tion of this in this the evidence light proper mission to times was shot several that decedent reveals case. The evidence he was in placed a knife. Still living, with repeatedly and then cut His several hours. he remained for a car where the trunk of Decedent, still could be heard. from the trunk escape struggle trunk, county where he was another then driven into in was with his head ground was placed the car. He taken from This the head. through shot twice a rock then resting upon brutality. extremely vicious murder is marked 4. ^[8] 15A-2000(e)(4) states that the jury may consider as an ag of the death imposition justifying circumstance gravating felony was for the committed capital the fact that “the penalty .” . . This pro a lawful arrest. preventing avoiding of purpose face, vision, also be construed but it must unambiguoús, its circumstance on this aggravating that instructions so properly in cases. In a broad sense only appropriate given will victim, aiding the effect of having thus every murder silences the his arrest. It is not prevention avoidance or the criminal in the however, every say, “purpose” case this accurate to killing. motivates the statute, which is identical to

This the Florida provision Riley in this was examined respect, statute North Carolina’s State, in the course of an a case in which stcpra, a witness robbery employment at his shot place armed a gave was not officer. The Florida police crime who analysis provision: us limit this factor to cases where urges

Appellant is killed. He sug- or other official apprehending officer police so, every unless we do could be gests witness, as an to eliminate a attempt causing characterized The state argues automatic cumulation of factors. another case, narrowly, only evidence in this from the more an identifica- killing motive for the to eliminate possible tion witness. SPRING TERM 1979 view,

The record supports state’s as the facts admit victim, only one interpretation. who well knew and identify could appellant, was immobilized and rendered helpless. He was then executed one the perpetrators after expressed concern subsequent Plainly ap- identification. pellant killed to avoid identification and Appellant arrest. concedes this view of the evidence in his brief.

Since the facts show this to be an execution-type killing arrest, to avoid lawful necessarily we reach the broader issue of whether the language of the applicable provision encom- passes the murder aof witness to a crime as well as law en- personnel. caution, forcement We hold that it does. We however, that the mere fact of a death is not enough to in- voke this factor when the victim is not law enforcement official. Proof of the requisite intent to avoid arrest and very Here, detection must be strong in these cases. of (Notes course, it was. 22. So. 2d at and citations omit- added.) ted, emphasis We believe that the given construction subsection add, caution, Florida substantially court is by way correct. We that even the killing of a police officer or law other enforcement If, official will automatically trigger this provision. for exam- a ple, deranged person randomly began firing weapon into officer, crowd people fortuitously killed a law it would not necessarily be true that this factor was present. Absent the ex- thereon, istence of other evidence supporting instruction it would be improper jury to instruct they find might that one of the purposes for which the officer was killed under these cir- cumstances was to prevent avoid or the defendant’s arrest. Before trial court can jury instruct on this aggravating circumstance there must be evidence from which can in- fer that at least one of the purposes motivating the killing was defendant’s desire to avoid subsequent detection and apprehen- sion for his crime. We repeat that “the mere fact of a death is not enough to invoke this factor.” Id.

In this case there was evidence from which the could in- fer that defendant killed Lester Collins prevent to avoid or his ar- cut, testimony rest. There was that after Collins was shot and but killed, before he was defendant stated that he “was afraid if the IN THE SUPREME COURT Lester he would tell what had been done to him. police found bury . . then planned Defendant and Charles Goins Collins. they him and him a place At some later decided to shoot point body by a railroad track where his would be mangled passing train. On this factual basis the court was in instructing correct (e)(4). subsection

5. ^[9] Finally, we direct our attention to G.S. 15A-2000(e)(7). This may that the as an provides aggravating subsection consider “capital circumstance fact that the committed to any governmental or hinder the lawful exercise of func disrupt subsection, laws.” This like tion or the enforcement of subsection (e)(4), broadly might application construed so that its would be proper against homicide found to have been committed official, purpose for the a lawful public avoiding preventing arrest, custody. See State v. escaping or for from purpose Rust, 875. at supra p. difficulty going We can envision the this court to en- (e)(4) (e)(7). construing applying

counter in subsections We difficulty having can also envision the the trial courts are and will have in which of the subsections would be deciding applicable to say in a case. particular the evidence Suffice it to for the pur- hand, the case at the trial erred in poses submitting circumstances pursuant issues of to both subsections. (e)(4), under submitting In the issue the court reviewed the question evidence defendant, Lois, to show that on the while tending night and Collins were Rural Paved Charles Road County, 2007 that Collins was shot received Cumberland body; that defendant and then some cuts to Charles made they statements to the effect that did not want to be arrested for they and that therefore to take anything; proposed Collins to County tell Robeson so that he could not on them. court then jury they beyond if instructed the that found those to be the facts doubt, a reasonable and believed that to be an cir- aggravating cumstance, they “yes”. then should answer the issue (e)(7),

In the issue under the trial submitting court reviewed substantially the same evidence. The instructed court then they beyond if to be the a found those facts reasonable SPRING TERM 1979 29 circumstance, doubt and believed that to be an then aggravating they “yes”. answer should the issue

We think the submission of the two issues on the same was improper. unnecessary evidence This amounted an duplica- statute, tion of the circumstances enumerated in the resulting an automatic cumulation circumstances against defendant. We now address the question whether the error was prejudicial.

Due to the brief time the statute in question has been in ef- fect, we have precedent no of this court us in guide answering However, question. question on the of admitting incompetent evidence, we have held that the test of harmless error whether there ais reasonable possibility that the evidence complained of Thacker, might have contributed conviction. State v. 447, (1972); Fletcher, 189 S.E. N.C. 2d 145 State v. N.C. (1971). S.E. 2d 405 We believe similar test should be when one applied of the 15A-2000(e) aggravating circumstances listed G.S. is erroneous- ly submitted court and answered against defendant. It follows that in cases us coming presenting before question we must question answer the based on the evidence in the particular case. course, way

Of we have no if knowing submission of the erroneous issue in the case at hand the scales in tipped favor of finding were aggravating circumstances “suffi- ciently justify substantial” to imposition penalty. of the death We note that answered the issues submitted on five ag- gravating against only circumstances defendant and one issue on Ordinarily, circumstances in his mitigating favor. this might cause us to conclude that erroneous submission of the of one issues on aggravating circumstances jury’s could not have influenced the ultimate decision that defendant should receive the death penalty. However, due highly questionable quality credibili- evidence, ty of the state’s we think primary there is reasonable may possibility submission of the issue have erroneous made jury’s Obviously, the difference in the decision. the terrible defendant, crimes in question were committed Charles Goins Lois Goins or combination of two or all them. Through IN THE SUPREME COURT and key for the state became the witness bargaining Lois plea favorable to her testimony to defendant and damaging gave rec- character was Charles’ impeached brother Her Charles. already Having defendant’s. be no better than ord was shown to crimes, in six-year participation his sentence for received that he was the chief testified for defendant stated Charles to kill Certainly there was more reason for Charles Col- culprit. animosity by family against the Goins Collins lins: there who was mistreatment of his wife also alleged because of sister. Charles’ case, and in particular all the evidence in the

Considering of testimony, credibility we hold that the low Lois’ quality Therefore, prejudicial. the erroneous issue was submission of sentencing phase. have a new trial on the defendant should ad- assignment this of error we think one leaving Before imply needs to be made. We do not intend to ditional comment 15A-2000 that the circumstances enumerated aggravating (e) can or that more than one of them never overlap can never arise incident. We realize that some cases the single from will inferences which the support might same evidence from the enumerated cir- find that more than one of duality normally This will where the cumstances is occur present. examined rather than where the state being defendant’s motive factual element of In such upon specific aggravation. relies trial cases it will be difficult for the court to decide factors for their consideration. We presented should be stake, in cases in which a life is at if person’s believe that error favor, any, be made in the defendant’s and that there should statutory should not be instructed one of the cir- in a case. cumstances doubtful

[*] ^{[*] [*]} aforestated, that, In view the fact for the reason there case, we will sentencing phase must be a retrial of the briefly remaining assignments defendant’s comment but error. ^[10] allowing By his fifth the state to introduce assignment defendant contends illegally seized the court erred .380 caliber for the sentencing hearing purpose impeaching

bullets at the the rules set forth in Harris v. acknowledges him. Defendant 31 1979 SPRING TERM State v. Goodman (1971), 222, 643, York, 28 L.Ed. 2d 401 U.S. 91 S.Ct. New 354, States, 98 L.Ed. 503 347 U.S. v. United S.Ct. Walder (1954), im- of seized evidence for illegally the admission permit admitted in He contends that the evidence purposes. peachment testimony im- his and was therefore impeach this case did not admitted. properly responded clear the record that defendant

It is from cross-examination that he “never prosecutor from the question any a .38.” clear that .380 Winchester- had bullets for It not by the state is subsequently Western ammunition introduced which can be used in a .38 Absent such founda- pistol. ammunition testimony, introduction of this this evidence does not tion for the The state impeach response prior question. defendant’s bullets, only denied .38 but that argues having that he bullets Under the having any also denied whatsoever. state’s any defendant had ammunition argument proof type that of would interpretation this broad denial. The state’s of impeach testimony only slight defendant’s finds in the record and support is in he direct conflict with defendant’s statement “did not say any any never had bullets type weapon.” [he]

On the record before us we do not believe there was ade- .380 foundation to the introduction of the caliber quate support testimony. impeach bullets into evidence to defendant’s Because determined, reasons, already we have for other that there must necessary be a the sentencing phase, retrial of it is not that we decide whether this error alone would be so as to re- prejudicial quire a new hearing.

By assignment his sixth of error defendant contends that the respects instructing jury upon court erred two intoxica- tion as a factor. Defendant’s first is that the mitigating argument 15A-200Q(f)(6)by a finding mitigation court limited under G.S. to find that defendant was drunk before find- requiring this circumstance Defendant’s second ing present. argument hereunder is failed in- that the court to instruct the toxication, slight, might mitigating however considered as 15A-2000(f)(9). circumstance under G.S. address We shall these arguments separately.

[11] 15A-2000(f)(6) provides that the may consider as a “capacity factor the fact that the of the defendant to mitigating IN THE SUPREME COURT criminality his appreciate conduct or to conform his con- duct law was requirements impaired.” With reference to provision court instructed the as follows:

. . . shall take 2.b. which reads: “The up capacity of the [Y]ou criminality defendant to his appreciate conduct or to requirements conform conduct to the of the law was im- I you that paired.” instruct the defendant has offered evidence tends to show that he drank approximately or more beers the time he eight got from home from work on 2, 1977, Saturday, July 3 approximately until a.m. on the 3, Sunday July when was morning he out on the road County. the railroad tracks in Robeson The defendant con- beer, drinking tends that from his he became drunk or intox- icated and that this condition him impaired having from mental physical capacity appreciate criminality to his conduct or to conform to the the law. requirements of

The State contends that the defendant knew what he doing was that his was capacity impaired. Generally, voluntary intoxication is not a legal excuse However, you for crime. if believe that he had been drinking and was drunk or intoxicated and that this impaired his men- tal and physical capacity criminality to appreciate of his conduct, or to conform his conduct to the requirements of the law, you “yes”. then should answer this question 2.b. On the you hand if other do not find your duty so it would be answer 2.b. “no”. (f)(6)

We think the instruction adequately explains subsection in context with the evidence in this case. many

Because there are a great might factors which impair the defendant’s capacity appreciate criminality of his con- law, duct or to conform it to the requirements of the language of necessarily this is subsection broad. Adequate instruction under provision must be linked to the factor or impairing factors raised the evidence. In only instant case the such factor defendant’s consumption of alcohol. We do not think that intended, subsection, legislature under this might intoxication, find however slight, to be a mitigating circumstance. true, murderer, If every this were conceivably, would consume SPRING TERM 1979 strong drink taking before his victim’s life. the degree Nor is intoxication so it great precludes the defendant from being found guilty crime. When the defendant contends that his intoxication, impaired by faculties were such intoxication must be ability that it affects defendant’s to understand and (f)(6) control his actions before subsection We applicable. think the instruction now under consideration makes it clear that this state of required. intoxication is

[12] 15A-2000(f)(9) provides that the jury may consider as a “[a]ny factor mitigating other circumstance from arising evidence which the deems to have value.” We mitigating are mindful that a death penalty may statute jury’s not restrict consideration of any factor relevant to the circumstances of the —Ohio, crime or the character of the defendant. Lockett U.S. —, (1978). so, S.Ct. L.Ed. 2d 973 Even we do not believe the court is every required point to factor arising from the evidence which conceivably might be considered under provision. this In the instant case the court instructed as follows: 2.b.,

Again, you regardless you how shall find as to go would and up you take 2.c. which reads: “Do find other arising circumstance from the jury evidence which the deems to have mitigating value?” The defendant contends you that at least should find the following circumstances to have mitigating value.

First, he contends that the evidence that Charles Goins years received sentence of six accessory for the offense of after the fact of murder in the degree first is a mitigating hand, circumstance. On the other the State contends that the evidence shows that pled guilty Charles Goins to the offense accessory after the fact of murder in the first Goodman, Buck Junior and that this was the offense charged against Charles Goins in the bill of information which was the charging instrument against Charles and Goins which he plea entered his guilty.

Second, the defendant contends has a that he limited education and experience that he stopped school in the 6th grade without completing the same. SUPREME COURT IN THE v. Goodman protect Third, attempting he was that contends he Goins, loved, was the who Lois wit: Annie he girl children; and one of mother of

Fourth, which any other circumstance he contends mitigating value is a the evidence find from jury, you, the you. considered to be ought circumstance cir- mitigating that there are other you believe simply If value, then mitigating which have this case in cumstances hand, you if are “yes”. On other answer 2.c. you would satisfied, 2.c. “no”. to answer your duty it would not so evidence of the some elements highlights This instruction clearly attention of brought to the have been might intoxication, to defendant’s court did not refer jury. Although considering that way from no prevents the instruction adequate. we charge believe the For this reason circumstance. and search the evidence through to sift required is not The court find to jury might which the every circumstance possible out value. mitigating have

trial ^[13] court erred By his seventh failing assignment to instruct of error defendant contends they might they though even imprisonment sentence life recommend outweighed mitiga those circumstances aggravating found will without such instruction argument His is that tion. against each types factors mathematically two balance the whenever penalty will the death impose other agree do not ones. We mitigating outnumber circumstances its decision on this will reach is the manner in which which defendant that the instruction for question or important by is statute. required contends our of process the deliberative the emphasized

It must be that counting process. is a mere by G.S. 15A-2000 not jury envisioned Stewart, Dixon, The is v. supra; supra. v. State State within heavy subjectively, of responsibility with the charged statute, by assessing appropriateness set out parameters defendant for a upon particular penalty the death imposing and circumstance cannot crime. Nuances character oí particular formula. mathematical weighed precise be TERM SPRING Goodman time, At the same we believe that it be improper would in- they may, struct as defendant suggests, disregard the procedure by legislature outlined and impose the sanction of death at their own whim. To do so would to revert ato system by pervaded arbitrariness caprice. exercise of such unbridled discretion under the court’s instruc- contrary tion would be to the rules Furman and the cases which have it. followed For these reasons defendant’s seventh assignment of error is overruled.

[14] By his final assignment of error defendant contends that this court should review the sentence in this case to determine if it is disproportionate to the sentences imposed in similar cases. We recognize authority this is given to us G.S. 15A-2000 (d)(2).However, we believe review function should be employed only in cases where both phases of the trial of defend ant have been found to Only be without error. then can we have before us the true decision of the to which we feel great deference should be accorded. For this we reason express no opin ion propriety of sentence in this case. error,

In connection with one assignments of his issue, criticizes the wording namely: of the third you Do find beyond a reasonable doubt that the mitigating circumstances are insufficient outweigh the aggravating circumstances? Since a new trial on the sentencing phase being awarded on other grounds, we do pass upon validity of defendant’s criticism. say, Suffice it to trial judge able followed the statute in form- this issue. ing

Nevertheless, retrial, at the we following believe the wording you would be more appropriate: beyond Do find a reasonable doubt that by you circumstances found outweigh the mitigating you? circumstances found stated, For the reasons the verdict rendered at the sentenc- trial, ing phase defendant’s and the judgment death thereon, vacated, predicated are and this cause is remanded to superior for a new trial on the sentencing phase. New trial sentencing phase. COURT IN THE SUPREME v. Goodman

State consideration in the not participate BROCK did Justice case. of this decision concurring.

Justice HUSKINS Goodman, and Cherry in majority opinion I support time, opinion concurring I in the join the same At Johnson. think, results analyzes I correctly, Justice Carlton three cases. in these reached concurring.

Justice CARLTON the in- involving three decisions today hands down The Court statutes, case, v. this penalty of our death terpretation (1979) Johnson, 86, S.E. 2d 551 and State Cherry, 298 N.C. (1979). my participa- late light In 2d 597 257 S.E. 298 N.C. requested cases—a participation these in the consideration tion —, of the issues the gravity of the members Court by the other addressed, interpreted too my these decisions concern lest add concurrence. it this broadly, I think worthwhile records and briefs submitted carefully reading the After counsel, I conclude arguments tape, oral listening to the is more justice, criminal there no in the world again once punishment. capital than that of issue nor difficult delicate question on the disagree strongly people intelligent Sincere and and federal state All three branches of both penalty. of the death United it for centuries. The with have government struggled issue, about equivocated has at times Supreme States Court Our lower courts. uncertainty and confusion creating constituency and numerous to its legislature, response decisions, several oc- law on capital punishment has amended our Prosecutors, attorneys, wrestle judges and trial defense casions. daily fortunate, It is un- uncertainty brings. each revision resulting

with the inevitable, by legislative charted course albeit an which touches one on issue an uncertain judicial action uncer- The beneficial result of emotions. human deepest the tainty, however, take a whether State shall deciding is that life, care. greatest possible with proceed we human pro- presently North Carolina law can be certain: this we Of cases of first in certain aggravated penalty vides the death has ruled that States Court Supreme The United murder. SPRING TERM 1979 37 capital punishment statutes similar to ours pass constitutional 153, 2909, v. muster. See 428 Gregg Georgia, U.S. 96 S.Ct. 49 (1976); Florida, 2960, L.Ed. 2d 859 v. U.S. S.Ct. Proffitt (1976). 49 L.Ed. 2d 913 today The three decisions filed are our first interpretations recently of most capital enacted punish- 15A-2000, ment statutes in North G.S. My Carolina. et seq. con- cern is that the may collective result of these decisions seen as by a step indirectly this Court to abolish capital punishment I North do Carolina. not consider that to be our purpose. We should not. attempt I usurp legislative process. write this footnote to the excellent of opinions majority primarily to highlight by the narrow results reached the three opinions filed Also, today. I think an overview of the three opinions will provide a helpful guide to the courts. lower

I. v. State Goodman

A. Goodman, In defendant was found guilty of first premeditation and the felony- deliberation murder rule. He was also found guilty robbery armed and kid- At napping. the sentencing stage, beyond found statutory reasonable doubt these aggravating circumstances: (1) Defendant had been previously felony convicted of in-

volving the use or threat violence person. G.S. 15A-2000(e)(3). (2) felony The capital was committed the purpose 15A-2000(e)(4). or avoiding preventing lawful arrest. G.S. (3) felony The was capital committed while the defendant was in the engaged commission of attempt or to commit a 15A-2000(e)(5).

robbery or G.S. kidnapping. (4) The capital felony was committed or disrupt hinder the (arrest lawful exercise of the laws enforcement of offenses). robbery defendant for the or kidnapping 15A-2000(e)(7). (5) heinous, atrocious, The was capital especially 15A-2000(e)(9). cruel. G.S. factors, With respect mitigating did not find: COURT IN THE SUPREME Goodman (1) accessory accomplice in or was an The defendant par- and his person another felony committed capital 15A-2000(f)(4). relatively minor. G.S.

ticipation (2) criminali- to appreciate the defendant capacity require- his conduct to to conform

ty of his conduct or 15A-2000(f)(6). G.S. impaired. law ment of did deem: jury The

(3) had from evidence arising the circumstances Other 15A-2000(f)(9). value. G.S. mitigating that the beyond a doubt reasonable jury then found the outweigh ag- to were insufficient circumstances mitigating sufficiently were and that the latter circumstances gravating penalty. the death imposition for the to call substantial B. it, one opinion presents Goodman majority As I read the when hearing granted sentencing A new must holding: narrow circumstance an aggravating submits improperly the trial G.S. pursuant to hearing conducted jury sentencing the to 15A-2000, the to present that circumstance the finds the prejudice of defendant. that, the facts of holds under majority

Specifically, by G.S. case, contemplated circumstances aggravating (e)(4) 15A-2000(e)(7) I to jury. not both be submitted should in which the few situations I think of can simply add would 15A-2000(e)(7), find, to G.S. pursuant would not the lawful ex- to hinder disrupt or felony was committed “capital if of law” function or the enforcement any governmental ercise an In to prevent to them. order submitted were circumstance circumstances, which our aggravating accumulation automatic intend, trial I think that obviously should did not legislature jury. rarely this circumstance submit would judges it, today attempts also majority I understand As guidelines: following establish case, (1) error prejudicial particular on the Based facts occurs circumstance an aggravating submitting (b) erroneous, (a) finds that cir- submission when TERM 1979 SPRING v. Goodman (c) exist,

cumstance to there is a reasonable possibility the er- roneously submitted circumstance might have contributed to the decision. (2) The circumstance provided G.S.

15A-2000(e)(3),which provides for aggravation where “defendant had previously been felony . convicted of . . involving violence (a) the person” contemplates that defendant shall have been convicted, indicted, merely charged felony of a as a result of conduct occurring prior to the events out of which the capital (b) felony charge arose and for which defendant was convicted involved the “use or threat of violence to the person,” i.e., conviction for crime against may property not be submitted under this subsection. (3) The aggravating circumstance contemplated

15A-2000(e)(5), provides that “the capital felony was com- of, mitted ... commit, in the commission or an . . . attempt arson, any robbery, rape, burglary, kidnapping, or aircraft piracy or the bomb,” unlawful ... throwing aof destructive device or may be appropriately submitted jury only to the when the de- fendant is convicted of first murder upon theory the premeditation and deliberation. Put way, another if the defendant rule, only is convicted on the felony-murder basis of the this cir- may cumstance not be submitted the as an aggravating circumstance.

(4) In order to avoid the aggravating circumstance con- 15A-2000(e)(9), templated G.S. which provides for a crime heinous, atrocious, cruel,” “especially from becoming “catch- all” division always which could be employed in cases where there circumstances, is no evidence of other aggravating must explain that the expression the trial judge “heinous, atrocious, or cruel” an- ticipates an especially brutal murder brutality where the exceeds that normally any present killing. brutality Such shall be limited to acts done to the victim during the commission of the Here, capital felony itself. majority the expressly approved the instructions of the trial judge with respect to this aggravating circumstance and quoted the Florida court’s as definition pitiless “conscienceless or crime which unnecessarily torturous Dixon, 1973). 1, (Fla., to the victim.” v. State 283 So. 2d See also Florida, v. supra at 255-56. Proffitt IN THE SUPREME COURT v. Goodman (5) 15A-2000 provided circumstance The arrest, con- (e)(4), a lawful to avoid committed capital this ag- the victim. Before merely killing more than templates jury, may be submitted to circumstance gravating motivating least one of the that at must establish evidence fac- ap- to avoid was defendant’s desire killing tors to the leading way, mere fact another his crime. Put for prehension There must be invoke this factor. will not alone victim’s death arrest and detection. intent to avoid manifest some evidence of (6) intend, mitigating providing The did not legislature 15A-2000(f)(6),where defend- by G.S. contemplated circumstance criminality his conduct or to “to appreciate ant’s capacity was impaired,” of law requirements his conduct conform intoxication, cir- mitigating should be a slight, however faculties are contends that his the defendant cumstance. When intoxication, such a intoxication must be to impaired and con- ability to understand defendant’s it affects degree that trol actions.

(7) 15A-2000(f)(9), “[a]ny other provides Under G.S. jury deems which the the evidence arising circumstance from value,” jury’s can be no restriction on the there mitigating have circumstances of the relevant factor consideration However, instructing of the defendant. crime or the character through the required “is not to sift jury, judge the trial every circumstance which the possible and search out evidence Goodman, value.” State mitigating to have find might (1979). 569, 257 S.E. 2d supra at (8) not instruct the court should trial though even it imprisonment of life a sentence might recommend mitigation. outweigh circumstances to those finds aggravating days a return to the unfettered discretion would be To allow such 2726, 33 L.Ed. 408 U.S. S.Ct. Georgia, Furman v. to prior (1972). 2d 346 (9) by 15A-2000 this G.S. function Court given The review (d)(2) phases cases where both of only those employed to be without error. have been found to be a defendant the trial of enumerated majority has addressed the guidelines While the above, hearing here sentencing a new remanding for we are SPRING TERM 1979 by one because of error judge trial respect with sub- one of mission of circumstances found present jury. The Court that error found was not harmless. With this portion I fully Practically, Court’s do not I holding, agree. consider the error harmless one. The found four other ag- circumstances gravating present including finding this heinous, atrocious, felony was capital especially or cruel. It found only I one mitigating ordinarily circumstance. would in a situation like probably this find that assigned error was harmless However, beyond a reasonable doubt. first these cases inter- death preting our statutes and in more an than abundance of cau- tion, I join majority the basis of the facts presented case.

II. Cherry State v.

A. Cherry, In guilty defendant was found first degree felony-murder under the rule. The evidence established that he was in process robbing store when the murder was com- mitted. the sentencing At stage, statutory found these aggravating circumstances:

(1) Defendant been previously felony had of a convicted in-

volving the use or threat violence to the G.S. person. 15A-2000(e)(3). (2) The capital was committed while the defendant

was engaged robbery. in the commission of G.S. 15A-2000 (e)(5). (3) The murder was committed for G.S. pecuniary gain. 15A-2000(e)(6). answered negatively following questions posed with respect aggravating circumstances:

(1) heinous, atrocious, theWas murder especially or cruel? 15A-2000(e)(9). G.S. (2) Did the knowingly great create a risk of death more than person one means a weapon device normally

which would be hazardous to the lives of more 15A-2000(e)(10). person? than one IN THE SUPREME COURT Goodman State v. cir- mitigating the four submitted jury found none of The cumstances:

(1) while the felony was committed capital The of mental emotional disturb-

was under influence 15A-2000(f)(2). G.S. ance. (2) the criminali- appreciate The the defendant to capacity of to the re- or to conform his conduct

ty conduct 15A-2000(f)(6). G.S. impaired. law was quirements of (3) crime. time of the G.S. of the defendant at the age

15A-2000(f)(7). (4) evidence which Any from the arising other circumstance value. G.S. have mitigating deems 15A-2000(f)(9). Cherry in is narrow. ma- Specifically, Again, holding necessary when the sentencing hearing new is jority holds that erroneously sentencing at the trial submits concerning the aggravating trial circumstance phase of the 15A-2000(e)(5), felony when that to G.S. underlying pursuant offense felony already been used to establish the underlying has felony trial. The rule would not guilt phase as a at the capital Goodman, course, as when the defendant convicted apply, as a result of and delibera- premeditation of first rule. This formalizes the felony-murder as the tion as well discussed supra. in Goodman guideline presented harmless, I assigned whether the error respect With in the discussion join for the limited reasons stated majority However, Goodman, same also for the reasons supra. Goodman, say error will unwilling I am such stated Here, jury found two error. always prejudicial constitute circumstances. mitigating circumstances no aggravating other majority underlying I that the join finding with at an circumstance not be considered as should However, I felony murder. am concerned for the sentencing stage broadly. We are too holding construed might defend- jury is to the crime for which the ignore that the holding be, felony may Obviously, underlying ant was convicted. be, sentencing phase. in the should considered TERM 1979 SPRING 15A-2000(a)(3) provides part unnecessary that it is to resubmit evidence at the sentencing stage which was presented during the guilt phase jury determination unless new impaneled, is “but all such evidence is competent jury’s in passing consideration for added.) therefore, clear, on punishment." (Emphasis It is that the jury may robbery felony consider the underlying or other sentencing phase. What holding prohibits our here is simply that the underlying jury cannot be ag- submitted to the as an gravating circumstance. This clearly is so for the reasons ex- plained in the majority It opinion: would be unfair patently defendant degree convicted of first virtue of the felony-murder rule to start with one aggravating circumstance against him while a defendant convicted basis of premeditation and deliberation would start no aggravating with however, circumstances against Again, him. we ought to note that the legislature has special attached significance to murder com- mitted in the course of robbery commission of and other felonies surely and the allowed to consider that in making fact their sentencing recommendation.

III. State v. Johnson

A. Johnson, In pleaded defendant guilty to murder in the first was committed in majori- the course of a The rape. ty opinion notes that there was ample premeditation evidence of found, doubt, beyond and deliberation. The a reasonable following aggravating circumstances:

(1) The capital felony was committed while of, commit, was in the engaged commission or attempt 15A-2000(e)(5). rape. (2) heinous, atrocious, capital felony especially The 15A-2000(e)(9). cruel. G.S. The then mitigating found that cir- following existed: cumstances

(1) history prior The defendant had no criminal significant 15A-2000(f)(l). activity. G.S. IN THE COURT SUPREME v. Goodman

(2) while the defendant felony was committed The capital disturb- of mental or emotional influence

was under the 15A-2000(f)(2). ance. G.S. circumstances following mitigating not find the did it: which were submitted

(1) the criminali- to appreciate the defendant capacity The of to re- conduct the or to conform his

ty of his conduct 15A-2000(f)(6). impaired. G.S. of law was quirements (2) the evidence which Any arising from other circumstances 15A-2000(f) value. G.S. jury mitigating deems to have the (9). circumstances were mitigating found that the The then and, circumstances the outweigh aggravating to insufficient doubt, circumstances the beyond a reasonable the death sufficiently call for imposition substantial to were penalty.

B. majority opinion following: establishes (1) relies in which the defendant on In some cases 15A-2000(f)(6), by contemplated G.S. circumstance mitigating in his to the on this must include instructions judge trial following: statute the defendant’s

a. the difference between An explanation impairment of his wrong to know from capacity right is, criminality of his conduct. That capacity appreciate to wrong, conduct was might have known that his while defendant i.e., fully com- to to appreciate, not have been able he might Moreover, fully wrongfulness. its while sensible of prehend, or his conduct wrongfulness so appreciate his to capacity obliterated, totally have been im- might been it not have might i.e., lessened or diminished. paired, find this mitigating

b. An should explanation his con- to conform capacity it believed that defendant’s factor if conduct, law, i.e., illegal refrain from capacity duct to the wholly must This mean that defendant does not impaired. only capacity It means that such as to conform. capacity lack all TERM SPRING he otherwise have had in the of his might absence mental defect is or diminished lessened because of the defect.

I do not believe that these instructions are in those required in which the instances attempts invoke 15A-2000(f)(6) mitigating circumstance provided it, basis defendant’s As I intoxication. understand this holding only to mental applicable impairments and diseases such as readily conditions not schizophrenia, understood the average layman.

(2) If a timely defendant makes a a listing request writing mitigating pursuant circumstances to G.S. 15A-2000(f)(9) which are supported the evidence and if these are reasonably circumstances such that the could deem them value, to have mitigating the trial judge put must such cir- cumstances on the written jury. list submitted will It so, however, be prejudicial error for the judge fail to if do defendant fails request judge to submit them.

(3) The burden jury the the the persuading on issue of ex- any istence of mitigating circumstance is the defendant and upon the by standard of shall be proof a preponderance of the evidence. Where, however, case, believed, all of the in evidence the if tends exist, that a particular show mitigating circumstance does the is defendant entitled to a peremptory instruction on that cir- instruction, cumstance. In order to be entitled an to such however, timely defendant must request it. (4) The State and may the defendant a not enter plea into whereby bargain may plead guilty first in return a murder for life sentence and thus avoid a potential by death sentence a imposed convened under 15A-2000. G.S. (5) it, court, If the defendant requests the trial in addition to other instructions approved respect with aggravating cir- 15A-2000(f)(9), cumstance contemplated G.S. should instruct the heinous, every that not is necessarily “especially atrocious, or cruel” in the sense these in words are used statute. summary, majority

In opinion for a remands new sentenc- ing hearing fully because of the trial court’s failure to explain one 15A-2000(f). of the mitigating circumstances enumerated I IN THE SUPREME COURT v. Goodman judge instruction of a trial required

can think of no more difficult human In the with the mind. dealing than statute explaining felt more judge this able trial guidance, perhaps absence of I rely can language. appreciate on the legislative confident However, abundantly it which he was confronted. with problem mind mandated the state our has legislature clear that shall be serious consideration given of the defendant It imposed. death should be penalty whether the determining for the incumbent this Court to devise therefore becomes jurors an explanation understandable judges’ guidance trial excellent Exum has an presented intent. Justice legislative majority and it should analysis opinion subsection in the of this in the future. a workable for our trial courts guide to be may justifiably impaired capacity consider Some frankly I death statutes. penalty subsection our important most society uphold concept capital punish- could doubt that our While Carolina chooses not to consider ment without it. North determining with impairment respect mere mental final, in a so we must ensure that punishment defendant’s guilt, consideration to defendant’s mental condi- give proper today in holding the evidence. The presented tion as Court’s way long guaranteeing toward that consideration. goes Johnson

Conclusion is, today as has repeatedly Each decision handed down been stated, is based on based its own facts. One decision particular with to a cir- respect mitigating erroneous trial court instructions two based on which was submitted and are properly cumstance an These submission of circumstance. improper However, collectively, as I when viewed holdings. are narrow here, we find guidelines, par- have to do numerous attempted Goodman, far ticularly beyond the narrow results range formally I narrow holding reached. While concur with the further enumerated generally support Goodman and I I must caution that believe some of the latter are not guidelines, today’s necessary case. I in- to the decision in this therefore view beyond go of G.S. 15A-2000 which the narrow terpretations only, subject as formats to closer in- holdings required tentative appropriate in the factual circumstance. vestigation

Case Details

Case Name: State v. Goodman

Court Name: Supreme Court of North Carolina

Date Published: Sep 4, 1979

Citation: 257 S.E.2d 569

Docket Number: 46

Court Abbreviation: N.C.