*1 CASES AND IN ARGUED DETERMINED THE SUPREME COURT
OF North Carolina
AT Raleigh OF STATE NORTH CAROLINA EVERETT RANDOLPH HUFF 372A87
No. (Filed 1989) July
1. § Criminal Law 92.4— consolidation of murder charges against
defendant —transactional connection
There was sufficient evidence aof transactional connec- tion to support joinder trial court’s first two degree charges against murder defendant for trial where the evidence tended show defendant his during buried infant son day and shot his mother-in-law before she had retired night, that same and that killings both resulted from defend- plan problems ant’s common resolve percep- created his tion that divorce from wife his his inevitable son would custody continuously be in the wife’s placed family exposed wife’s whom he as perverted. viewed 2d, Am Jur §§ Criminal Law 21. §
2. Criminal charges Law 92.4— consolidation of murder against defendant —defenses not hindered joinder for charges against trial of degree
first murder of his infant degree son first murder of mother-in-law ability his did not hinder defendant’s to pre- sent defenses. There was no that the danger jury cumulated THE IN COURT SUPREME 1N.C. *2 in the two cases of and deliberation premeditation
the evidence of his mother- degree him of the first murder order to convict and evidence of ample premeditation in-law there was where force de- Nor did consolidation deliberation both cases. trial defenses conflicting in the same presenting fendant into premedita- of his son and lack of insanity of as to the murder murder mother-in-law as of his tion deliberation to and defendant both presented where evidence shows that offered experts that defendant’s charges, to both defenses insanity to evidence which tended establish substantial ability and deliberate was premeditate that defendant’s to impaired. 2d, §§ Criminal Law 21.
Am Jur 66; § § Law 98— case —ac- capital Law Criminal 3. Constitutional permitted present to be at trial —waiver right cused’s right present at a The accused cannot waive to be trial, duty to defendant’s capital and the court has a insure the trial. presence throughout 2d, §§ 698. Am Criminal Law Jur 66; § 98— capital § Law case —ac- 4. Constitutional Law Criminal present be at trial —confrontation clause right cused’s I, Art. N. Con- of 23 of the C. The confrontation clause § nonwaiv- sole of a criminal defendant’s stitution is the source every capital at of his right present stage able to be state corollary court duty imposed trial on the trial and of insure presence. his 2d, §§ 721.
Am Jur Criminal Law 66; § § Law 98— case —vio- capital 5. Constitutional Law Criminal right present lation to be error rule of accused’s —harmless in reviewing standard for reversal violations proper right present a state to be constitutional beyond a reason- capital all trial is the “harmless stages Therefore, a new will be awarded able standard. trial doubt” the error proves violation unless the State such a deci- beyond prior doubt. Insofar as was harmless reasonable law are language sions our case inconsistent they are overruled. opinion, 2d, § New Trial 103.
Am Jur
STATE v. N.C. 1 66; 6. § Constitutional § Law Criminal Law capital 98— trial —vio- right lation of present accused’s to be error —harmless The trial court erred in defendant permitting to be absent during part presentation the prosecution’s evidence case, in defendant’s capital beyond but such error was harmless a reasonable doubt where the record shows that defendant became while distressed a detective was reading his confession which admitted that he killed his son and his mother-in- law; the trial court excused defendant from the courtroom at the request of defendant and defense counsel after an at- recess; was made calm tempt during defendant remained out of the courtroom during remainder *3 testimony detective’s and during testimony medical examiner’s son; an concerning autopsy defendant’s the trial court careful- ly informed the open court that defendant was absent at his own and request request at the of his attorneys; court reporter present and transcribed the which events absence; during occurred defendant’s attorneys defendant’s were and participated throughout court defendant’s absence to interests; protect his and the trial judge told counsel that they could confer with as to possibility defendant any return at time and that he would entertain their request to allow any defendant return at time. 2d, Jur §
Am Criminal Law 700. 74; § 7. Constitutional insanity § Law Criminal Law 5.1— de- fense-expert testimony by —rebuttal State —evidence from court-ordered psychiatric right examination —no violation of against self-incrimination
When a the insanity defendant relies on defense intro- status, expert testimony duces on his mental prosecution may testimony introduce expert prior derived from court- psychiatric ordered examinations for the purpose rebutting testimony without right free violating to be compelled from self-incrimination under the Fifth Amendment I, to the S.U. Constitution and Art. N. C. Constitu- § tion. Judicial balance fundamental fairness require have an opportunity psychiatric to rebut defendant’s testimony testimony with psychiatric of its own. 2d, §
Am Jur Criminal 79. Law N.C. 1 — insanity § expert 8. Criminal Law 5.1— defense rebuttal of testimony multiple examinations of defendant —
A fair for the State to opportunity rebut defendant’s ex- testimony may pert psychiatric include more than one examina- tion of defendant where sound reasons exist for more than one evaluation of defendant’s mental status. 2d, §
Am Jur Criminal Law 79. 48; § 9. § Constitutional Law Criminal Law 5.1— testimony con- cerning psychiatric court-ordered examination —no violation right to effective assistance of counsel
Defendant’s right effective assistance of counsel was not violated the admission of a psychiatric evaluation testimony team’s concerning information obtained during a second court-ordered psychiatric examination of defendant because that evaluation was ordered for the purpose of deter- mining defendant’s capacity at the time of the crimes where proceed sanity rather than his (1) defendant had the oppor- tunity lawyer to discuss with his whether to submit to the second examination and to discuss the scope of the examina- (2) tion, Jackson, under the decision of State v. 77 N.C. (1985), App. was on notice that placing his issue, sanity at the State was empowered to order its own examination and that the scope of that examination would *4 include the insanity basis to rebut his defense. Sixth Amend- Constitution; I, ment to the U. S. Art. 23 of the N. C. § Constitution. 2d, 752, 984, Am §§ Jur Criminal Law 985. § 10.Constitutional Law 28— due process —Fifth Amendment—
protection against government federal
Defendant’s claim that the trial court’s in instructions prosecution state court for state crimes violated the due process clause of the Fifth Amendment to the S.U. Con- stitution was without merit since the Fifth pro- Amendment tects only individuals due against process violations government. federal 2d, 806;
Am Jur § § Constitutional Law Criminal Law 825. 1N.C. § 11. Criminal 163— objection— Law instructions —absence of plain error rule
Where defendant did not object at trial to the instructions error, which he assigns now as his right appellate waived review of such except instructions under the error plain standard. 2d, 553, 562,
Am §§ Jur Appeal and Error 623. — § 12. Criminal Law 111.1— murder charges two —instructions joint guilt permitted determination
The trial court’s instructions in a trial of defendant on two of first charges degree reasonably murder could not have been understood the jury permit joint determination on the guilt two murder charges, although the trial court “victim,” on occasion referred to a single stated that the State has the burden of “proving the case” and “the decision unanimous,” in the case must be and referred to a of- single fense in giving pattern jury insanity, instructions on where mandates, whole, the court’s instructions and taken as a the verdict sheet jury submitted to the made clear that the jury was to consider each charge separately the determina- tion of guilt or innocence. 2d,
Am Jur Appeal §§ and Error 815. § 13. Criminal especially Law 135.8— aggravating heinous circum- guidelines stance-sufficient heinous,
The trial court’s submission of the “especially atrocious or cruel” aggravating circumstance a first degree murder case did not allow the jury unguided discretion what facts are determining sufficient to find that the circum- stance exists where the was instructed that it applies only to a “conscienceless or pitiless crime which is unnecessari- 15A-2000(e)(9). ly torturous to the victim.” N.C.G.S. § 2d, 815, 817; Am Appeal §§ Jur § Error Trial 608. § 14. Criminal degree Law 135.8— first murder espe- of infant — *5 cially aggravating heinous sufficiency of evidence circumstance —
The evidence was sufficient to support the court’s submis- heinous, sion of the especially atrocious or cruel aggravating circumstance a first murder where it degree case tended to show by nine-month-old victim died suffocation after IN THE COURT SUPREME
STATE v. defendant, buried' primary caregiver, the child’s father and alive, while for his life struggling him and that the child extreme experienced in the earthen and thus suffocating grave immediately before his death. psychological torture physical 485; 2d, § § Am Trial 608. Jur Homicide aggravating § 135.8— heinous circum- especially 15. Criminal Law age stance-consideration of victim’s could consider the of the nine- jury properly age victim in determining weight aggravating month-old the first murder of the victim was degree circumstance that heinous, atrocious or cruel. especially 2d, §§ Am Jur Homicide 48. — § meaning mitigating
16. Criminal Law 135.7— circumstances erroneous instruction cured using deserving”
Error the trial court in the term “best jury of the death as to the penalty instructing meaning “mitigating following circumstances” was cured instruc- tion the term “less using deserving.” 2d,
Am § Jur Homicide 562. — nonstatutory § 17. Criminal mitigating Law 135.9— circumstance peremptory —findings mitigating instruction of existence and value nonstatutory
The trial court’s instructions on peremptory mitigating degree circumstances a first murder case were not erroneous in to determine requiring both that supports nonstatutory the evidence the existence of the circum- stance mitigating and that the circumstance has value order to “find” such circumstance. 2d, §
Am Jur Homicide 498. § degree 18. Criminal Law 135.7— first murder —instructions on duty to recommend death sentence degree
The trial court in a first murder case did not err in that the must recommend a sentence instructing of death if it were mitigating found that circumstances (issue insufficient to outweigh aggravating circumstances three) if were aggravating and it found that circumstances
STATE v. HUFF (1989)] N.C. 1 [325
sufficiently substantial to call for the death when penalty con- (issue four). sidered with the mitigating circumstances 2d,
Am § Jur Homicide 513. §
19. Criminal Law 135.9— mitigating circumstances —burden of
proof unanimity —
Due process by is not violated requiring the defendant in a case to capital prove mitigating circumstances evidence; preponderance of the nor it is constitutional error to instruct the jury that it must reach agreement unanimous finding before mitigating circumstances. 2d,
Am Jur §§ Homicide 514. § 20. Criminal 135.7— capital Law case —nonunanimous sentence instructions —unanimous unanimity verdict not coerced verdict — judge’s unanimity trial following jury’s instructions return of a nonunanimous verdict life recommending imprison- ment in a first degree Friday murder case on afternoon did not coerce a unanimous verdict where sentencing the court n further instructed the jury before it retired to deliberate for Monday last time on that if the morning jury determined
“that a reasonable you amount of additional deliberations recommendation, will not be able to reach you a unanimous effect, should give Bailiff a note to that Bailiff you will bring back into the courtroom.” 2d, Am Jur §§ Trial 1055. 102.12, §§
21. Criminal Law 135.4— capital case —failure to reach unanimous sentence verdict —life imprisonment jury argument — prohibited
The trial court properly prohibited defense counsel from jury informing argument that the capital punishment statute authorizes trial court to life impose a sentence if to return unable a unanimous sentence verdict. 2d,
Am § Jur Homicide 513. § 22. Criminal Law 135.4— capital case —nonunanimous sentence verdict —further impose deliberations —refusal life sentence 15A-2000(b)
The trial court did not violate N.C.G.S. § failing impose a life sentence for degree a first murder when the jury Friday returned a nonunanimous verdict on after- THE IN SUPREME COURT
noon after two hours of deliberation or when the trial was Monday reconvened on after the morning had deliberated *7 forty-five an additional minutes where the jury considered murder, two of first charges degree ag- and a total of three gravating circumstances cir- forty-eight mitigating cumstances were submitted in the two cases. 2d,
Am §§ Jur Homicide 549 et seq. § 23. Criminal capital jury Law 102.6— argument jury case— — community as conscience of prosecutor’s The jury argument during sentencing of a phase capital trial that the is the voice and conscience community by its verdict in the guilt-innocence phase punishment and its decision was not improper. 2d,
Am § Jur Homicide 463. § 24. Criminal 135.9— capital Law case —mitigating circumstances —prosecutor’s definition not erroneous prosecutor’s jury argument defining mitigating a cir- cumstance as evidence that lessens severity or reduces the crime during sentencing phase of first degree murder case imply did not that the jury would have to find that evidence was sufficient to reduce the crime of first degree murder to some lesser included offense in order to find that it had value mitigating and was not erroneous. 2d,
Am § Jur Homicide 463. — § 25. Criminal 135.9 capital Law argument case— —differen- statutory tiation nonstatutory mitigating circumstances —absence of error The prosecutor’s jury argument statutory that the mit- igating circumstances submitted a first degree murder case had “been passed into law the legislature,” so that legislature had therefore provided for their consideration jury, nonstatutory and that the mitigating circumstances were “created urged” upon jury by defense counsel did not imply nonstatutory that the circumstances mitigating unworthy were of the jury’s consideration and improper. was not 2d,
Am § Jur Homicide 463. N.C. 1 § 26. Criminal capital Law 128.2— improper testimony— case — denial of mistrial The trial court did not err denying defendant’s motion for a mistrial in first degree when murder case defendant’s former girlfriend testified that card with the word “killed” it upon inscribed in black and red ink to approximate dripping blood placed had been in her mailbox while defendant was in jail trial where the awaiting immediately trial court sus- tained objection, granted defendant’s motion to strike, and appropriately jury. instructed the 2d,
Am Jur § Homicide 316. — § 27. Criminal Law capital juries 135.4— case separate not re- quired-death qualification jurors
The trial court err in did not denying defendant’s motion for separate juries for the guilt-innocence and penalty phases of his first degree murder trial and prohibit his motion to the State from “death qualifying” jurors. 2d,
Am Jur § Criminal Law 527. § 28. Criminal 5— insanity Law test of constitutional The insanity North Carolina law on is not unconstitutional. 2d, Am Jur §§ Criminal seq. Law et § 29. Criminal Law 5.1— insanity guilt issues —bifurcated required trial not
The trial court did err in not denying defendant’s motion for a bifurcated trial insanity issues of and guilt-innocence. 2d,
Am § Jur Criminal 73. Law § 30. Criminal jurors capital Law 135.3— excusal of for punish- ment views
The trial court did not err in excusing jurors cause for in a first murder degree trial because of their opposition capital punishment. 2d,
Am § Jur Homicide 466. § 31. Criminal Law 135.4— constitutionality penalty death statute statute, The North penalty Carolina death N.C.G.S. ISA- § 2000, is constitutional. 2d, § Am Jur Homicide 556. v. HUFF
STATE 1N.C. 135.8; capital § Warrant 13.1— § Indictment and Law 32. Criminal required not particulars —bill of factors —aggravating case motion not err in denying court did trial disclosing aggravating from the State for a bill of particulars rely seeking the death which it proposed upon factors penalty. 2d, §
Am Homicide 554. Jur penalty § murder of infant son —death Law 135.10— 33. Criminal disproportionate first imposed A on defendant sentence death was not disproportionate murder of his infant son degree from where the son died imposed in similar cases penalty alive; found buried defendant also being suffocation after commit- first murder of his mother-in-law degree guilty day; found as factors aggravating ted the same felony in- had convicted of previously that defendant been murder that the volving person the use violence heinous, or cruel. especially his son was atrocious 2d, § Am 554. Jur Homicide concurring. Chief Justice EXUM WEBB concurring. Justice Frye to sentence. dissenting
Justice as 7A-27(a) from pursuant to N.C.G.S. § APPEAL *9 a imposing entered thereon sentence judgments convictions and Crigger in the Huff and degree of for the murder first of death degree for murder in the imprisonment a of life the first sentence Strickland, J., Brewer, by at the 8 June 1987Criminal of entered Gail Court, the County. Heard in of Superior Session CUMBERLAND 13 December 1988. Court Supreme General, Attorney Bryant, H. Steven F. Lacy Thornburg, General, the State. Attorney Assistant for Gregory defendant-appellant. R. Parish and A. Weeks James for MEYER, Justice. murder, first-degree of of
Defendant was convicted two counts theory of and deliberation. premeditation them upon both of N.C. 1 Conviction on the first count was for the murder of defendant’s son, infant Huff. Crigger Conviction on the mother-in-law, count second was for murder Gail Strickland. The court submitted and the jury found aggravating two circumstances in murder of Crigger previously Huff: that been defendant had felony convicted of involving the use of violence to the person heinous, and that the murder especially was or atrocious cruel. The court submitted and the single found a cir- aggravating cumstance in the murder of Gail Strickland: that defendant had previously felony been convicted of a involving the use violence cases, the person. to In both twenty- court submitted the same possible four mitigating circumstances. The found same two in mitigating circumstances both felony cases: that capital “[t]he was committed while the defendant was under the influence of mental or emotional disturbance” and that was under “[defendant great deal stress the time offenses.” Upon jury’s recommendation, the trial court sentenced defendant to death for infant, Huff, the murder of the Crigger and to life imprisonment for murder of Gail Strickland. We find no error.
The State’s evidence tended to the following: show January 1On 1984 defendant and Debra Strickland were mar- Boston, son, Huff, ried in Massachusetts. Their Crigger Stephen eight days born later Fayetteville, in North Carolina. Since the child was premature, he was transferred to North Carolina in Hospital Chapel Memorial Hill where remained until end of February. Defendant and his wife lived in Greensboro mother, Strickland, baby’s her Gail until the from the discharge hospital, at which time they Fayetteville returned to live a house owned Mrs. Strickland the Montclair subdivision. Huff, In August Debra Air having enlisted the U.S. Force, Antonio, Fayetteville left for six weeks of training basic San left, mother, Texas. Three or four weeks before she her Gail Strickland, Fayetteville moved back to live with defendant and Crigger help and to baby care while Debra was away military duty. job Mrs. Strickland a surgical found a as nurse at a local hospital. Pate, co-worker, Dorothy
On October Gail Strickland’s drove to Strickland’s residence between 12:15 p.m. and 12:30 *10 why see she had not come to work at the hospital morning. that door, When one no answered Pate’s at the knock front she looked 12 v.
STATE 1. lying Strickland in the back and saw Gail the screen door through television, Pate operating. which was called in front of a on a sofa neck, name, Strickland’s no noticed blood on Gail got response, her in her number and to wait emergency then left to call the and County arrived. Deputy Sheriff’s car until a Cumberland at house 12:37 Sykes Ronald reached Strickland Deputy had arrived. The ambulance crew shortly after an ambulance p.m., already Strickland and had determined that had examined Gail leaning She her head sitting was dead. was found with back. she a pocketbook on the floor and a on open There was an wallet Sykes and then called for homicide detectives Deputy chair. While away Deputy from the house. keep went outside onlookers outside, Sykes He told who he was Sykes was defendant arrived. he been he had to the house because had told and said come something wrong. was autop- 26 Fred an pathologist performed
On October Ginn body. gunshot One wound to head had sy on Gail Strickland’s left her had ear lobe caused death. The bullet entered behind head, horizontally. of her traveled to the side almost right and had Bittle of Homicide ar- Sergeant Detective Robert Division on 25 October. In a p.m. rived at the Strickland house about neighborhood, his team had discovered Debra canvass Huff at Air Force Base in San Strickland was stationed Lackland Texas, Antonio, and had been Crigger staying and that day they The next located defendant at his with Gail Strickland. house, subdivision, with spoke also in the Montclair parents’ his mother-in-law had him. Defendant told detectives mad him disagreement gotten on October. She had had her closet gone through looking when he had she discovered that written; leave, him to letters Debra Huff had she had asked him to and he had left for his father’s house. helped pack, had 5 p.m. he had since or on He said not seen Gail Strickland Crigger staying He told friends. October. detectives October, the defendant under surveillance. kept On detectives They making him in the Montclair several walking neighborhood, saw store. neighborhood between house trips parents’ Bittle, October, Shortly after 7 Detective after p.m. Sr., Huff, father, Everett went a call from defendant’s receiving there, dining room table to his house. Defendant was seated at *11 IN THE COURT SUPREME (1989)] 1N.C.
[325 wall, with his back to the his head banging against it and crying, dead, hysterical “He’s He he’s dead!” was and in Emergency tears. medical technicians who were called to examine defendant found elevated, pressure his blood but no treatment was required. later, twenty About minutes defendant stood and told Detec- you.” tive Bittle: “I will show Bittle understood defendant to mean that he would show the officers the the baby’s body. location of Defendant led the investigative team house behind the and about yards 500-600 along some It p.m. railroad tracks. was about 8 and said, dark. getting pointed Defendant to a grave trail and “the minutes, is at the end.” The fruitlessly detectives looked for a few then pointed defendant out a spot covered over with leaves and He twigs. away cleared leaves and twigs from an oval-shaped recently area of dirt in turned the hard Two of ground. the officers down, began About digging. eighteen inches the officers found the body Crigger Huff. The infant’s left hand covered his face and mouth. The emergency medical team member present confirmed dead, that the child was and he that had been dead for some time. arrested, murders, was charged Defendant both jailed night. that later, days
Several the police searched the area around the Huff, they residence of Everett Sr. Hidden in a found doghouse, the rifle later determined to be one with Gail which Strickland They had been shot. also found a near spade the brush grave, which bury defendant said he had used to the child. 11 February jailer
On defendant told a that he wanted detective, to speak jailer to a and the contacted Detective Bruce Daws, the Chief Homicide came Investigator. jail, Daws to defendant, custody assumed took him to the homicide office and advised defendant rights, of Miranda which defendant waived in writing. Then defendant gave Detective Daws and Detective Bittle a he nineteen-page statement which the officers that told he Crigger had killed Huff Gail Strickland.
Detective Bittle lengthy read defendant’s statement into the statement, record the trial. explained he first had met Debra Strickland outside her house in the Mont- clair she subdivision. Since was Greensboro and came living weekends, Fayetteville only back to her go asked out They the next weekend. dating started and had sexual relations. v.
STATE weeks, few Debra seeing each other for a they After had been When she competition. part skating went Texas take returned, He she was asked pregnant. she told defendant his; was, they planned she if child said it her *12 Fayette- move back to January 1984 when Debra was to marry to abortion, money explaining for an ville. Defendant offered Debra baby,” but my being my it mind about that “I had doubt it. she r.efused related, married, were “things were defendant
After two she financially. pregnant thought she did When Debra was rough” work, with her into going to defendant talked about not have but and since college degree fringe Force since she had a Air family. to enlist were for the Debra did want benefits available first, joba first finally part, got For his defendant agreed. at but alley Pope Air bowling and later at the at pizza parlor “rough.” was relationship and also Force Base. Defendant Debra’s arguments their turned into stated that conversations Defendant men believed could have fathered child. about other defendant her, him when he He would not look at talked said that Debra him, like going like to with did not go did not out and and Faced marijuana. out his brother to drink beer smoke with himself, marry “why he did I her?” problems, with these asked family that their made to Debra’s Defendant described visit Strickland, was, defendant, mother, who according “living Gail visit, During grabbed with the housemate Debra a bisexual.” unperturbed, on the defendant con- Although behind. Debra it, asking, “Why you did let him do fronted her about that[?]” baby.” asked my “he be the father of Defendant stating, could “that Debbie’s ass.” Her grabbing Gail Strickland about bisexual and her mother’s explained mother to defendant that “[Debra they develop were partners dance and that had housemate] a uals,” approve “God of homosex- physical relationship.” Because don’t he was leaving Crigger, told Debra that incident, home. to this defend- accompanied Referring Debra them himself, stated, her killed he to wonder- got ant “No wonder husband family.” ing about his mother, Strickland, he that Debra’s Gail
Defendant stated He said she uneasy beginning. from the relationship had had an him, her, “Randy, he When she told of me.” confronted “disapproved not like him you. I I never have.” He she did thought don’t like N.C. 1 tattoos, “because of prison, appearance outward and getting high.” Before Debra left for basic training, defendant told her he that did if not know he could live with her mother after Debra went left,
into the Air Force. After Debra defendant believed Mrs. rules,” Strickland was trying to run him off. She “laid down the requiring defendant to tell her where he was going when he went out and to give her advance if notice he was going to have friends over, though she they did not like it when came over. Defendant claimed that she him accused of smoking marijuana with his friends house, false; in the but said that her accusation was he had been smoking marijuana outside the house.
Defendant stated people in the neighborhood had tried to tell him family: about Debra’s that her mother “screwed around husband,” weird, on her “they were there was [and] evil something about them and the house. No one liked them.” Defendant reported that he and Gail Strickland argued over *13 custody baby. When he told her he was out moving and him, was to going baby take the with baby she “The replied, stays. house, you If take him out I will call the police.” Defendant told her to call the police, that he was the parent custody. and had Then she again tried to deter him by saying she did not want baby at parents’ house because defendant’s brother (whom like) Furthermore, Jason she did not was there. she said out, if defendant moved she would followto be her grandbaby.” “near October,
Defendant stated that Tuesday, on he had gone Gail through Strickland’s closet looking for letters from Debra to mother, October, her but found none. The day, Wednesday, next defendant found letters from Debra to her mother in a file cabinet letters, baby’s room. After reading defendant concluded that Debra was being unfaithful to him and she planned divorce him marry and to someone else. Defendant thought continu- ously about the letters he as fed his Crigger breakfast that morn- and when ing, baby cry, my started to “his crying made mind race and things Why started to me. coming they are us treating like this? He is going to suffer down the if road we divorce. He filth, homosexuals, don’t need to be around such the incest.” house, where, baby Defendant drove with the to his “The parents’ mind, So, thought my came to no one loved him or us. I decided no one could have him.” key Defendant the shed got from his cabinet, shed, shovel, parents’ china unlocked the re- got a and IN THE COURT SUPREME v.
STATE awhile After defendant drove around key place. to its turned baby, with the Booba, hole. I got the car and dug
I took the shovel out of I dug him to where I and took Crigger, that’s what called him tree I talked with awhile. the hole. We sat He crunching I let him in the leaves awhile. play off, I get I him him didn’t up the leaves. and brushed picked myself I him. I didn’t care about guess, all the leaves off of him real and told anymore. up tight I him and held picked him; me. looking I him I loved he was him told good-bye. him, him, him lay I started to prayed. I I hugged kissed hole, lay I him I back. did jerked in the but hesitated and playing He with the dirt and playing in the hole. started that, I didn’t cut with the shovel. After the roots that was him put him more. I shoveled the dirt look at no him dig up I I was back but top. going the sod on cried. left, away him. I got I I threw the shovel from didn’t. the car and drove around. office, he went smoked “a post
Defendant stated that There, Strickland’s house. confronted joint,” and returned to Gail Strickland, in her closet told her he had looked Gail her. Strickland told him that she could not for Debra’s letters to him; him of her house with the trust she wanted to move out baby’s baby. packed Gail Strickland packed things; Defendant mother, told his parents’ Defendant went to his house and things. there, went thrift things “I out.” He stored his to a got kicked baby’s threw the rest shop things, where sold some of to his house. dumpster, parents’ in a and returned recalled, it dawned on me the night, Defendant “Later that *14 out; I going I lost ... to leave.” Defendant implications. had him, “I to with because know got gun said that he his dad’s take road,” the you put gun the meet on the and type people parents’ Then defendant left his parents’ the at his house. doghouse When he to Gail neighborhood got house and walked to the store. house, stated he someone else’s car Strickland’s defendant saw parents’ he did not return to his stop. front and On parked house, I I got “decided was to leave. again going defendant I the it in the car.” got gun put few and and things together Brittany he then drove to Place the Defendant stated that He Montclair up the car. walked parked Montclair subdivision IN THE COURT SUPREME neighbors one of Gail Strickland’s gun, seeing Road with the but numchucks, house a sec- past he walked Strickland’s playing store, time, to and got ond walked on a drink. up
Then stated that he walked to his mother-in-law’s house. knocked,
I to I went to the door and wanted to talk her. front I any but I ... went to the back get didn’t answer. around Johnny She was on couch. Carson sleeping screen door. So, eleven-thirty TV. it or twelve was on the must have been name, ‘Gail, I I you?’ pulled I her can to o’clock. called talk left, out shot her. I walked to the car and gun back drove around. that he returned saying
Defendant concluded his statement gun, finger- parents’ wiped house. There cleaned off, the box back gun put in the box and prints put back in the Then he Strickland’s house again returned once doghouse. its through purse, dumped where he went Gail Strickland’s contents floor, left foot. again on on Hudson,
Dr. East Carolina professor pathology at Page formerly Medical Examiner for the State University and the Chief Carolina, Huff. Dr. autopsy Crigger of North conducted the child’s was suffocation. the cause of the death opinion, Hudson’s alive. Crigger being was consistent with Huff buried finding mouth, nose, virtually Further revealed no sand in the findings led Dr. airway, intestinal The absence of sand Hud- or tract. upper first, might child possible son draw two conclusions: second, up; covered child being have been dead before great it quickly rather before could breathe might have died sand its nose mouth or swallow some into deal sand into or its esophagus. mental state introduced evidence of defendant’s
The defense the time of offense. Groce, in the Forensic Unit psychiatrist Dr. a staff James C. January Dix who examined defendant Hospital at Dorothea — mental illness suffered from a chronic testified that defendant he was to form a definite unable paranoid schizophrenia. Although crimes, he sanity at the time of the opinion about defendant’s think- impairing the mental illness was did believe that *15 THE IN SUPREME COURT probably the time of the that defendant had ing at offenses and psychotic had a break.
Dr. Groce concluded that several of defendant’s beliefs were not based fact but were delusions. These delusions were symp- Dr. toms of his illness. Defendant told Groce that he felt his mother- man, therefore, in-law was a lesbian. She was with a living lesbian, since she was a the man she lived with must be a homosex- awhile, ual. Defendant sure when was of that for but the man behind, living with his mother-in-law touched defendant’s wife on the thought defendant that must mean that the man was not a homosex- ual, He but a bisexual. also told Dr. Groce that he killed his son him protect “to from sexual abuse of the lesbians and bisexuals he who was afraid would have control of him and him and raise him, way mistreat and also because he knew was he could his son Dr. guarantee going thought to Heaven.” Groce that defendant had other delusions as well. Fisher,
Dr. Brad psychologist, clinical examined defendant crimes, days twice —on November about ten after the later, again about six months on 19 June 1985. He also concluded that defendant suffered paranoid schizophrenia typified by from delusional He testified that “in the where thinking. areas [defend- . . . thinking subjects had deluded his mother-in- ant] [on of] — law, son, his his wife and their interconnections” —that defendant severely “ability limited in his right wrong.” to differentiate He also concluded that defendant had had a stress-induced psychotic break. Rose, Selwyn Dr. psychiatrist, examined arrest, days time in nine
first after and interviewed him quarterly two-and-one-half-year for a after period that. 1985, he placed December defendant on medication to treat his illness, which he also as diagnosed paranoid schizophrenia. Dr. Rose delusions, many thought that of defendant’s beliefs were not based fact, symptoms of his thinking. Among disturbed the delusions were family identified defendant’s beliefs that the Strickland members were involved in all practices, kinds of sexual that because unloved, defendant was Crigger family, was also unloved him, that defendant’s wife was unfaithful Strickland Gail death, had driven her husband Mr. and that Strickland had him spoken grave from and had told defendant to avenge his death her. on the same killing Crigger’s birth date as *16 THE
IN SUPREME COURT v.. HUFF STATE (1989)] N.C.
[325 symbolic meaning and profound important father’s death had a his Dr. Rose believed that defendant shot mother-in- to defendant. He sexually thought perverted. he was evil and law because she him of ra- incapable that since defendant’s illness made testified he incapable premeditating was also thinking, tional He and mother-in-law. also testified deliberating the deaths his son In Dr. during psychotic killed both a break. single that defendant illness, mental severity of defendant’s opinion, Rose’s because he time the difference was unable at the of the crime to understand quality to the nature and right wrong between or understand of his actions. H. States Air Force Joseph McGoughan of United
Chaplain Huff’s that a call Strickland testified he had received from Debra Antonio, Texas. sergeant Air Force Base San platoon at Lackland his frequent to talk McGoughan had been asked to defendant about wife, with her training. calls to his which were telephone interfering baby came with the On the October defendant morning chaplain He told the chaplain. upset. talk with Defendant was he calls had found phone that he had made the to Debra because men her in of the men pictures negligee. of other with her One from to her father her father. He had also found letters Debra was father-daughter-type he “more interpreted which be than a seeing love.” He she had been other men and doubted thought the letters he was father. The had examined Crigger’s chaplain that reported. found of the incestuous defendant and had none overtones Sizemore, she neighbor, Aileen Gail testified that Strickland’s He the deaths. talked with about week before had defendant with his mother-in-law getting along had discussed his difficulties with wife. He her he did not want problems and his his told that baby gay was around hanging his be with “Gail because Gail defendant, “Randy, that is not Sizemore told people.” Although , . . convinced about it.” She recounted true . seemed to be [h]e “weird,” family was her the Strickland telling thought his had seen someone in Texas. She also seeing and that Debra was He and cried body discovered. had sobbed him after Gail’s was very much. and could not talk Mitchell, family, the Huff testified friend of
Eugene longtime He jail Saturday, 27 October. he had visited defendant respond, slow to depressed, had thought seemed seemed to father defendant had very happy different from be several weeks before.
STATE Huff, mother, Ramona testified that after Debra left defendant had been concerned about his marriage and had believed Debra was involved with another man. Defendant had baby’s told mother that he had with playing his seen Debra penis while changing diaper his and that incident had him. upset October, noon, Wednesday, On about defendant had come to of work place mother’s to talk with her. He told her that out,” “Gail threw me and Crigger Crigger staying *17 friends, her, in, “No, and when she take offered to them he told the baby stays.” his separate Defendant and mother left in cars house, for her house. While Gail driving Strickland’s Ramona Huff a saw man down outside the back when squatting porch, and Strickland’s, she circled back to see if stopped defendant had gone man was and her son was not there either. She found already him home when she That night arrived. defendant was watching television and mother had lain down on the sofa in a.m., room. When 4 got same he about she up awoke and him he asked where was He told he going. her was to going sleep Crigger left morning and the house. The next he returned “with dirt all over his clothes he slept where had with Crig- [from] ger.” Wednesday Randy She testified “from night on was Randy ... it was just like it wasn’t him.” registering with
On lay testify rebuttal State called five to witnesses to Ford, defendant’s mental state at the time of the offenses: Dan Brocki, Bittle, Mary Meyers, Shelly Ellen Detective Robert and Ford, Detective Jack Watts. Dan Chief Jailer with the Cumberland County Department, Sheriff’s oversaw in- hour-long defendant’s processing jail at the after his 26 Mary arrest on 1984. October Ellen Meyers, Balch a friend of defendant from the neighborhood, for a few to him stopped Meyers minutes offer on 25 ride October. and defendant had often talked personal prob- about defendant’s lems in the month or Meyers two before the Both Ford killings. and testified that in their opinions defendant knew what he doing was wrong when he Shelly killed Gail Strickland Huff. Crigger and Brocki, who had dated defendant summer of had talked to him twice a few minutes on 25 1984: the October first time when she saw him walking the roadside before she knew Mrs. Strickland was dead then ten and about o’clock that at the night gas station. She said he was like “pale and didn’t look he normal- looked,” ly early but she noticed no odd or irrational behavior. phoned lawyers defendant had her her and had told “that his 21
STATE v. 1 insanity spoken him but he had get plea, were off on trying he knew wasn’t and that he wanted right with God and three contacts Detective Robert Bittle had had penalty.” death thirty-minute 26 during with defendant October and October: October, in the car on 25 visual police p.m. interview about October, and morning of the defendant on the surveillance hour on the of October. night a four to four-and-one-half contact contact, Bittle was with the defend- the four-hour Detective During Huff, house, accompanied Everett Sr.’s defendant ant at him at the baby’s during in-processing jail. and was with grave October, on 25 and 26 Based on his observations of the defendant Bittle that the defendant knew the nature of Detective believed when he killed his child and his mother-in-law and he his acts wrong regard knew the difference between right also with Detective Bittle on those acts. Detective Jack Watts was interview in the car and dur- during police October of 26 Based on his observations of ing evening October. October, defendant on 25 and Detective Watts believed knew of his acts when he killed his child the nature his mother-in-law and that he also knew the difference between wrong regard to those acts. right *18 who had expert also called three witnesses prosecution Dix his mental state Hospital examined defendant at to determine Dorothy Humphrey, psychologist at the time of the offenses: Rollins, social worker Debbie Keith. Debbie psychiatrist Bob and gathered psychiatrist’s Keith testified that she information for Both and Rollins believed evaluating Humphrey use defendant. schizotypal disorder with features. personality defendant had a knew, medication they taking psychotropic As far as he was not him in 1986. Dr. Rollins did not believe they August when saw Hum- paranoid schizophrenic. or had been a that defendant was knew the probably that defendant phrey and Rollins both testified of his act when he buried his son and quality nature and as to his act right wrong he knew the difference between and Dr. Rollins shooting and of his mother-in-law. burying his son depressed. found that defendant was also minutes, forty-five less than two hours and deliberating After for premeditated guilty found the defendant Huff, son, and of Crigger of his infant deliberate murder mother-in-law, Gail murder of his and deliberate premeditated Strickland. IN THE SUPREME COURT
STATE Sams, Tracey sentencing phase, the State called During testify. She stated that defendant girlfriend, defendant’s former her, by driving, tried to kill into a car which she was shooting him in 1979. relationship after she broke off her November of defendant’s conviction judgment The State also introduced occupied a firearm into an vehicle. discharging presented during sentencing phase. Defendant also evidence friend, Oxendine, Linda defendant’s sister’s childhood testified that the Huffs’ neighborhood congregated she and other children at marijuana during house to drink beer and smoke defendant’s teen years. parents drug nothing Defendant’s knew about the use and did that, Terry they it. testified in the few stop Oxendine months Base, alley were at the at Air Force defend- together bowling Pope by good ant was a co-worker and was well liked the customers. Wright, supervisor pizza parlor Pope Marsha defendant’s at Base, Air Force Montooth, testified that defendant was a worker. good Charles junior high principal, school testified to de- appearance during junior high fendant’s sometimes neglected attendance, years, poor school to his and to his lack of parental early support. Defendant’s older sister related that his childhood violence; family was characterized their father had had a drink- until defendant was thirteen. ing problem
Guilt Phase I. error, In his first defendant contends that assignment in allowing charges joined trial court erred the two murder to be joinder charges for trial. contends that of these violated Defendant 15A-926(a) him deprived process guaranteed N.C.G.S. of due § by the fifth and fourteenth amendments of the United States Con- I, stitution and article sections of the North Carolina Constitution. We disagree.
In join, on a motion to the trial must first deter- ruling judge statutory mine if the of requirement a transactional connection Silva, 126, 449, 122, v. 282 E.g., is met. State 304 N.C. S.E. 2d (1981). 452 On of whether offenses are transac- appeal, question tionally they may fully joined related so that be for trial is a Id. question reviewable of law. 15A-926(a) provides:
N.C.G.S. § 1 N.C. may joined be . . . for trial when the Two or more offenses . . . on the act or transaction or on offenses are based same together transactions connected or con- a series acts or plan. a scheme or stituting parts single 15A-926(a) (1988). N.C.G.S. § transactionally are the trial concludes the offenses judge
Once
connected, he or
determine if the defendant
receive
she must
can
if
together.
on
are tried
hearing
charge
charges
a fair
each
Greene,
418, 421,
662,
(1978);
241 S.E. 2d
664
State v.
294 N.C.
508,
296,
Davis,
500,
301, death
v.
289
223 S.E. 2d
N.C.
(1976).
vacated,
809, 50
69
sentence
429
L.Ed. 2d
If consolida-
U.S.
ability
his
to
his
present
tion hinders or
accused of
deprives
defense,
Pointer v.
charges
should not be consolidated.
United
States,
(1894);
States,
396,
Dunaway
151
L.Ed. 208
United
U.S.
38
(D.C.
Greene,
418, 421,
1953);
294
[1] First, we agree with the trial court that support there joinder sufficient State v. for trial. Like the defendant two homicide charges McNeil, committed 375 S.E. 2d at N.C. at of a scheme purpose part single offenses for the same as both McNeil, between In we found a transactional connection plan. or satisfy robbery/murders that were committed to two case, rent and need for cash his other bills. pay was troubled serious tends to show that defendant evidence mother-in-law, problems: getting along and persistent Debbie, wife, Strickland, in with his relationship maintaining Gail De family. his child unloved feelings in his by a Debbie followed saw as inevitable a divorce from fendant would Crigger. Crigger son He believed custody battle over their *20 24
STATE v. 1 N.C. continuously to his custody exposed in his wife’s and placed be family he viewed as The evidence also perverted. wife’s whom to which problems that defendant saw these as interrelated shows custody he a unified solution. To the child the developed spare exposure and what he considered the taint from battle family, he That he went to Gail Crigger. night, Strickland killed McNeil, the thread connecting Strickland’s house and shot her. As scheme or running through these acts was defendant’s common to resolve the created his of his situation. plan problems perception Further, a transactional connection exists because the two crimes closely they in time appear parts are so related that be of Avery, State v. episode. a continuous criminal 302 276 N.C. (1981) (series two-day 699 during period S.E. 2d of crimes Clark, State v. from 301 270 S.E. 2d escape prison); N.C. (1980) (offenses afternoon); 425 on the one after other same (1978) (two Greene, 418, 241 State v. 294 S.E. 2d 662 sexual N.C. Davis, hours); within three assaults (four hours), death S.E. 2d 296 offenses within two and a half vacated, penalty U.S. 50 L.Ed. 2d The evidence day tends to show that defendant buried his child during he October and that shot his mother-in-law before she had retired night. that same
[2] Defendant also argues he was hindered ability First, his defenses. he that he was present argues prejudiced by the consolidation he would because have had a better chance for a conviction of murder second-degree first-degree instead of murder of charges Gail Strickland had two not been consolidated He separate for trial. contends was unable to “strong” premeditation evidence of and deliberation in the killing Huff Crigger premeditation from weak evidence of killing of Gail Strickland and so cumulated the evidence of premedita in the him tion and deliberation two cases order to convict murder Strickland. first-degree of Gail Second, defendant that a fair determination on the argues insanity issue of his the time of the Huff killing Crigger by joinder was hindered of the additional homicide charge to defend the He having together. two asserts presenting forced into unconscionable dilemma of dissimilar insanity main defenses: as Huff Crigger homicide premeditation lack of as to the homicide of Gail deliberation Strickland.
IN THE SUPREME COURT *21 (1989)] N.C.
[325
First,
We address both
we disagree
contentions.
with defend
ant’s assertion that the evidence of premeditation and deliberation
was
in the killing
weak
of Gail Strickland. “Premeditation” is de
beforehand,
time,
fined
“thought
as
for some length of
however
228, 230,
446,
short."
v. Quesinberry,
319 N.C.
354 S.E. 2d
(citations
(1987)
omitted).
A
acts
defendant
with “deliberation”
“
blood,’
if his act is
carried out while
is in a
‘cool state of
without legal provocation,
...
accomplish
and
to
some unlawful
purpose. The
to kill
intent
must arise
‘a
from fixed determination
”
(citations
previously formed
weighing
after
Id.
matter.’
omit
ted).
premeditation
Because
and deliberation are mental processes,
they
rarely
are
susceptible
by
of proof
direct evidence. Id. at
N.C.
340 S.E. 2d
cert.
479 U.S.
STATE v. denied two charges of the we find that consolidation Nor do insanity at the the issue of determination on defendant a fair his lack Huff or on the issue of killing Crigger time killing time of the Gail at the and deliberation premeditation single defenses conflicting by having present Strickland assertion, evidence shows that Contrary to defendant’s trial. Crigger homicide of insanity as to the present did not homicide as to the and deliberation premeditation Huff and lack of charges, defenses on both Defendant two presented Strickland. of Gail premeditation of lack of insanity and the defense the defense of witnesses offered substantial expert Defendant’s and deliberation. *22 insanity and that defend- to establish evidence which tended both De- was impaired. to deliberate ability to and premeditate ant’s occurred killings that the two witnesses testified expert fendant’s suffering defendant was psychosis, of that single episode during typified schizophrenia paranoid the mental condition of from delusions, the time of the offense did not know at that defendant were right Strickland Huff and Gail killing Crigger if the acts of the time of the impaired was thinking that his wrong, or defendant’s mental testified that specifically offenses. Dr. Rose also deliberating premeditating him of incapable condition made fairly were The issues of his son and mother-in-law. the deaths simply jury apparently jury’s for the consideration. presented the evidence evidence but chose to believe not to believe this chose contrary. by the State to the presented reasons, arguments defendant’s we hold that neither of For these defenses, alone of his presentation possible prejudice of combination, his judge that abused sufficient to show or in trial. charges of the consolidation allowing discretion violation, we now turn to defend- statutory Having found no charges two homicide of these that consolidation ant’s contention mere- violations. Defendant various constitutional for trial constitutes and the dissimilar of the two murders ly the facts asserts or in- guilt of his hindered a fair determination defenses to each the fifth and fourteenth amend- he violated which asserts nocence 18 and 19 and sections States Constitution ments of the United Defendant makes I the North Carolina Constitution. of article of the offenses of how consolidation explanation or argument no We thus decline any provisions. these violates one of for trial assertions. defendant’s to address
IN THE SUPREME COURT 1N.C.
II. error, In his second assignment defendant contends the trial court committed error in reversible defendant permitting to be during part absent of the presentation prosecution’s evidence defendant’s We capital agree case. that under article I, section North Constitution Carolina the trial court trial, permitting erred in defendant to be absent his during capital but find that the State shown has the error was harmless beyond a reasonable doubt.
These are the circumstances of defendant’s absence. During the prosecution’s case-in-chief Detective Bruce Daws was allowed to read to the statement of the nineteen-page defendant in which he admitted killing Huff and Gail Crigger Strickland. As Detective Daws read description argument of an Strickland, had had with Mrs. defendant banged on the defense table, “bitch,” counsel called Mrs. Strickland a stood up, attempted table, cry. to overturn the began defense counsel Court jurors recessed and the were out sent courtroom. De- defendant, fendant’s and the attempted counsel bailiff to calm the and court was then reconvened. As Detective Daws resumed reading defendant’s statement describing leading up events to defendant’s child, burying audibly.1 As the began weep wit- *23 (Detective following 1. The reading record reflects the Daws statement): house, Myron “I I turned around went back. went friend’s West, places go, neighborhoods. no one at Drove I was home. around used to Montclair, I drove back to Wind Place Tree behind drove back to some dirt ”—piles, crying saying (The loud, following.) witness out it, say please? Defendant: Don’t crying
(Defendant loud.) out say Please don’t it? Please don’t? Please don’t? Defendant: (Defendant crying again.) real out loud (Pause.) Please, Daws, it, Please, say please? Mr. don’t Mr. Defendant:
Daws, it, say please? don’t Tally approaching (Mr. bench, Britt and Ms. and after conference Court.) STATE v. 1N.C. out, “Please, read, repeating, defendant cried ness continued to approached don’t? Please don’t?” Counsel say don’t it? Please excused; bench; removed from the defendant was jury courtroom, to defendant’s and defense agreed and the trial court in defendant’s proceed to allow the trial request counsel’s that agreed jury The trial also to instruct judge absence.2 his request in defendant’s absence at proceeding the trial was ap- The counsel to attorneys’ request. judge his trial advised ready whenever defendant was to return and the bench proach any with the defend- they could have a recess at time to confer if he return. The was returned ant to determine wished to Defendant given. and the instruction requested courtroom testimony. the remainder of Detective Daws’ during remained absent and was reading Detective Daws continued defendant’s statement witness, when he had it. A second completed prosecution excused Hudson,t autopsy Crigger of his Page Dr. testified results testimony, body. requested Huff’s Dr. Hudson’s counsel During conference; jury, court excused the and noted a bench trial request. his own for the record that defendant remained absent at it recessed The returned and the trial resumed until was ten-day acknowledges Defendant period. a short time later for days when the reconvened ten later present that he was court argues of defendant’s evidence. Defendant presentation of Daws’ of the statement during reading the conclusion absence testimony Dr. Hudson’s was reversible error. during you going go gentlemen, I am to ask that with the Court: Ladies and Jury Bailiff to the Deliberation Room. Retired.) (Jury custody bailiffs.)
(The leaves courtroom Huff, Honor, consulting request with Mr. we Mr. Britt: Your after trial, proceed, portion in his That is his wish. we at least with this of the absence. request the record that it is at the Court: The Court notes for Defendant, specifically proceeding the Court is in his absence. Court being from the court- for the record that the Defendant is not removed *24 15A-1032, applicability “Removal of 2. We the of N.C.G.S. do address § (1988). here could be characterized Disruptive While defendant’s conduct Defendant” disruptive, the courtroom based the trial court did not excuse defendant from as response request disruptive of defendant and conduct but did so on his question attorneys. whether there can be “construc- Nor we address the of his do necessary by disruptive conduct. presence reason of defendant’s tive” made THE IN COURT 29 SUPREME 1N.C.
[325
The
clause of the North
confrontation
Carolina Constitution
in pertinent part:
every
“In all criminal
provides
prosecutions,
per
the
charged
son
with crime has the
...
to confront
accusers
right
I,
witnesses
. .”
testimony.
with other
.
N.C. Const. Art.
23§
(1984).
United
Although
Supreme
the
States
Court has stated that
the confrontation clause of the
constitution guarantees
federal
each
right
personal presence
criminal defendant
the fundamental
to
at
trial,
114,
all critical
the
v.
464
stages
e.g.,
Spain,
of
Rushen
U.S.
267,
117,
(1983),
78 L.Ed. 2d
272
state
right
our
constitutional
interpreted
confrontation has been
as
broader
being
scope,
the
guaranteeing
every accused to be
right
present
every
138,
of his
v.
S.E.
stage
Payne,
trial. State
320 N.C.
357
2d 612
(1987);
Braswell,
553,
(1985);
State v.
312
324
241
N.C.
S.E. 2d
326,
(1962);
v. Pope,
State
257 N.C.
In the first which we able addressing case were to find trial, capital issue defendant’s absence during Judge Battle3 rationale, history, right. stated and the source of the (Phil. Law) (1866) curiam). Blackwelder, (per N.C. He explained, impression among
that is, this State general profession been, always capital has that he has [the defendant] right present during such be at the bar at all times [to trial]; practice always conformity and has been in directly adjudicated, impression. point has never been Ire., 104, Craton, in the S. v. but case of 3. Prior to members of the other than the Justice were Court Chief officially Supreme “Judges known as Court.” *25 IN THE 30 SUPREME COURT v. HUFF
STATE (1989)] 1 N.C. [325 the right in favor of the existence of (1845),] implication positive we must it as to a strong regard equivalent is so decision. rule, wrote, development is “but a full Judge
Id. at 39. This Battle 7th the Declaration contained section of principles I, prosecu- to article section ‘That all Rights predecessor [a 23]: of the every right against tions man has a to be informed accusation him, and to confront the accusers with witnesses and other testi- such, mony’; it forever sacred and invio- ought kept and as be Id. late.” of de- requirement
Our cases teach us that this constitutional
only
defend-
presence
capital
protects
fendant’s
at his
trial
ant,
presence
interests as well: “Defendant’s
at his trial
public
but
felony ...
is
well as
capital
public
private
for a
a matter
as
policy requires
concern. Public
his attendance at such a trial.”
(1969)
Moore,
198, 209,
652,
v.
275
166 S.E.
659
State
N.C.
2d
omitted).
(citation
Among
public
protected
interests
is the
interest
human life. State
requirement
public’s
preserving
(1887) (“the
404, 406,
185,
2
186
rule
Kelly,
v.
97
S.E.
N.C.
is in
present
capital
must be so
felonies
accused]
[the
favorem
vitae . . . founded in the tenderness and care of the law for human
(1883) (“in
.”);
539,
accord,
Paylor,
life . .
State v.
89
541
N.C.
relaxed”).
life,
rule
never
The requirement
favor of
criminal defendant’s
at his
trial also
presence
capital
protects
system by
of fairness
integrity
preserving
appearance
by optimizing
finding
the conditions for
the truth.
[3]
Because
public
interests are
implicated
in the
capital
trial,
capital
the constitutional
of the accused to be
at his
right
present
safeguard
public
trial has been elaborated to
these
concerns. Our
repeatedly
has
stated that
the accused cannot waive the
Court
trial,
Payne,
to be
at a
State v.
320 N.C.
right
present
capital
(1987);
Moore,
198,
138, 357
612
v.
275
166
S.E. 2d
State
N.C.
(1969);
326,
S.E. 2d 652
State v.
257
STATE N.C. poses duty on the trial to insure judge presence throughout Payne, the trial. State v. 357 S.E. 2d *26 (1987); (1883); Jenkins, 612 v. 89 Paylor, State 539 State v. N.C. (Phil. Law) (1881); Blackwelder, 84 (1866); 812 v. N.C. State 61 38 N.C. (6 Ired.) Craton, State v. 28 N.C. 165 [4] Defendant has argued the requirement of defendant’s at his presence capital trial is rooted both in the state constitutional confrontation in line requirement separate and of North Carolina in cases rooted the custom and traditions of practice of this state. case, We Kelly, are aware that at least one ancient State v. 97 404, 406, 185, (1887), 2 N.C. S.E. 186 in has stated dictum that the requirement of defendant’s his presence capital at trial is dif ferent from and broader than the state constitutional provision. However, recently, more clearly Court has stated that “ rule’s source is the confrontation clause: ‘In the application of (the confrontation) this fundamental principle right it has been in capital felony held that cannot prisoner right waive his ” Ferebee, any to be present stage at of the trial.’ State v. 266 (1966) added) 606, 609, 666, N.C. 146 S.E. 2d 668 (emphasis (quoting O’Neal, (1929)). 548, 549, 860, State v. 197 N.C. 149 S.E. 860 In Blackwelder, of the in Ferebee in light 39, language 61 at N.C. clause, anchoring right confrontation statement Kelly cannot regarded be as authoritative. We hold that article I, section 23 is the sole source of criminal defendant’s non every waiveable state to be right present stage capital at of his corollary duty trial imposed on the trial court to insure presence. In our prior cases violations of involving right trial, to be at his present capital applied this Court has two dif- ferent standards of reversal: the error per reversible se standard and the error In harmless standard. the three cases we capital were able to find involving violations of defendant’s to be right very present, two old cases held that right violation of the se, present capital be at a trial was per reversible Court ordered a new trial in v. Dry, each case. State 152 67 N.C. (1910) (defendant S.E. 1000 given permission judge the trial trial); during jury absent himself selection in a murder capital (Phil. Law) (1866)(murder Blackwelder, State v. 61 N.C. 38 charge; court instructed defendant’s absence from the' court- during 32
STATE v. 1N.C. room).4 case, In (1987) v. Payne, a recent 357 S.E. murder; 2d admonitions (capital delivered defendant, counsel, absence and court reporter), Court analyzed the determine if error to the defendant had been harmed. case, required the Court the State to show that the error beyond defendant’s trial was harmless a reasonable doubt. Id. so, S.E. 2d at 613. The State failed to do and the new Court ordered a trial for defendant. Id.
[5] We have
reexamined our
previous
decisions and conclude that
standard of
proper
reversal
is the harmless error standard.
California,
We first review
Chapman
the federal cases. In
(1967),
U.S.
L.Ed. 2d
the United
Supreme
States
Court
rejected the argument
that errors of constitutional dimension
necessarily
reversal of
require
criminal convictions. Since Chapman,
*27
the Supreme Court has “reaffirmed the principle that an otherwise
valid conviction should not be set aside if the reviewing court
record,
may confidently say, on the whole
the constitutional
beyond
error was harmless
a reasonable
Delaware
doubt.”
v. Van
Arsdall,
673, 681,
674,
(1986),
475 U.S.
89 L.Ed. 2d
684
quoted
Clark,
570,
(1986).
576,
460,
in Rose v.
478
92
U.S.
L.Ed. 2d
469
“The harmless-error doctrine
recognizes
principle that the cen
tral purpose of a criminal trial
is to decide the
question
factual
of the defendant’s
or innocence and
guilt
promotes public respect
for the
process
criminal
on the
focusing
underlying fairness
virtually
trial rather
than on the
presence
inevitable
Arsdall,
681,
immaterial error.” Delaware v. Van
STATE 1N.C. 705, language 2d Insofar as our decisions and the they inconsistent with this are overruled. opinion, our case law are 15A-1443, showing preju- entitled “Existence and N.C.G.S. § (c) dice,” three with consists of subsections: subsection deals invited error, here, a non-waiveable is at issue not right and because is (b) in review applicable; subsection states the standard for reversal (a) Constitution; of violations of the United States and subsection states the standard for “errors to other relating rights arising While than under Constitution of the United States.”7 Assembly authority General has no to fix the standard for reversal Constitution, in review of it did violations federal so 15A-1443(b)in apparent attempt N.C.G.S. an to reflect the United § Supreme Chapman, States Court’s decision 386 U.S. 17 L.Ed. contrast, Assembly 2d 705. In express attempt General made no Constitution, fix to the standard for violations of the state but by implication, the standard to be appears prescribed subsection (a), “errors relating rights arising to other than under the Constitu- added.) However, (Emphasis tion the United States." under our “[o]nly may constitutional form of government, this Court authoritatively construe Constitution of North Carolina finality,” Lea Board Transportation, Co. N.C. 308 N.C. (1983), Court, 304 S.E. 2d and it is for this and not say for the legislature, what standard for reversal should be applied review of violations of our state According- Constitution. ly, already for the reasons discussed in opinion, proper standard for reversal in reviewing violations of defendant’s state constitutional to be at his right present capital trial is the “harmless provides:
7. N.C.G.S. 15A-1443 § (a) prejudiced relating rights arising A defendant is errors other than under the Constitution of the States when United there is a reasonable that, committed, possibility question had the error in not been a different appeal result would have been reached at the trial out of which arises. showing prejudice upon The burden of such under this subsection is Prejudice any defendant. also exists in instance in which it is deemed per exist as a matter of law or error is deemed reversible se. (b) rights A violation of the defendant’s under the Constitution of prejudicial appellate United States is unless the court it finds beyond upon harmless a reasonable doubt. The burden is State to demonstrate, doubt, beyond a reasonable the error was harmless. (c) prejudiced by granting A defendant of relief which he *29 by sought resulting has or error from his own conduct. N.C. 1 beyond opinion, standard in this a reasonable doubt” prescribed 15A-1443(a). apparently prescribed not the standard N.C.G.S. § [6] Applying this standard to the violation case, we find in the record that would lead us to believe that defendant nothing First, we note proceedings was his absence. that all prejudiced carefully court. The trial court informed the place open took request court that the defendant was absent at his own jury open attorneys. testimony of the State’s request and at the of his Second, everything offered in court. took open witnesses was present is reflected in the record. The court place reporter during transcribed the events which occurred Third, were in the record shows that defense counsel absence. to throughout protect court and defendant’s absence participated interests, they the trial told counsel could confer judge his and that any his return at time. possibility with the defendant as to the opportunity did not have the Although members Daws’ entire during to observe defendant’s demeanor Detective they during were defendant’s distress testimony, able to observe testimony. Detective Daws’ The trial court’s excusal the first half of counsel’s from the courtroom at defendant’s and defense of defendant recess indicates problem after an to cure the request attempt counsel did not believe that defendant’s distress that defendant and were he in court or his demeanor to remain pass, change, would testimony. The trial court’s for the balance of Detective Daws’ remain from the court action in absent permitting testimony, Dr. defendant’s and defense room Hudson’s during return, that defendant indicate that request counsel’s failure change or demeanor would they did not believe defendant’s distress testimony. argues, Dr. Neither do we. The State during Hudson’s merit, could have offered perhaps some that what defendant to the presenta in his emotional state could have been detrimental remain, case; attorneys’ that had he been his required tion diverted from the State’s witness’ attention would have been client; defendant would not testimony to their and that distraught against in defending able to assist his counsel have been nor Neither Detective Daws testimony of these two witnesses. merely testimony; Detective Daws surprise Dr. Hudson offered Dr. Hudson testified defendant’s own statement. read to autopsy report and the autopsy to his results. Both the statement trial. to the defendant before had been made available *30 COURT IN THE SUPREME 36 v. HUFF STATE (1989)] [325 error, the we believe that defendant’s absence Although the defendant strict rule that our implicated interests public preserved trial were at capital his every stage of be at present duty to assure perform undertook to judge The trial this trial. to the defend- every effort to be fair He made presence. defendant’s onlookers, jury, and to to all emphasize ant and to He proper safeguards. defendant was afforded that parties to calm opportunity the defendant the trial to allow recessed the himself; was absent that the defendant he twice instructed his counsel. of defendant and request but on the not on court order defendant’s absence the record reflected that He certain that made order. He stressed to and not on court request was at his own request entertain their to allow that he would defense counsel recess the any and that he would to return at time defendant return to the courtroom. any to allow defendant’s court at time considerations, we conclude analysis foregoing Based on beyond the error was harmless the State has shown of error is overruled. assignment Defendant’s a reasonable doubt. III. error, he contends that assignment third suppress testimony his motion to denying the trial court erred him at Dix team which examined evaluation psychiatric contends, impression in issues of first 1986. He Hospital August Court, violated his right that the admission of this evidence to this and his constitutional free from self-incrimination compulsory to be of counsel. to effective assistance right A. Fifth Amendment [7] The first issue raised by the defendant is whether his right under fifth amend self-incrimination compelled to be free from I, article section States Constitution and ment of United by the was violated admission of the North Carolina Constitution during made testimony as to statements of the treatment team’s defendant examination after psychiatric his second court-ordered insanity. testimony of expert had introduced filed notices After defendant had pertinent These are the facts: insanity rely on the defense 1985 of his intent to on November it, testimony on expert supporting and of his intent to introduce committed, on January 1986 the court ordered defendant motion, Hospital Dix the Forensic Unit of Dorothea prosecution’s N.C. 1 to determine his mental state at time of the offenses. Under order, January was examined in Dix Hospital a treatment team headed psychiatrist James C. Groce and including psychologist Dorothy Humphrey. later,
Seven months August because defense *31 counsel’s questions capacity proceed as to defendant’s to to trial month, set for that the court ordered defendant committed to the Forensic Unit at Dix a second time Hospital time —this for examina- tion as to his capacity proceed to trial to pursuant N.C.G.S. admission, 15A-1002.8 On defendant’s second the Dix Hospital § staff advised defendant he told them re- anything could be However, vealed at trial. signed by form defendant on his any second admission also provided that information relating his by only examination would be released the hospital on his written authorization. The treatment examining team him included Rollins, psychiatrist Dorothy Bob psychologist Humphrey, social worker Debbie Keith. trial,
At the defense introduced evidence of defendant’s mental time testimony state at the of the two offenses through Groce, three expert witnesses. Dr. who had examined defendant Dix, upon his first commitment to testified that defendant suffered from chronic mental illness which he had diagnosed as subchronic paranoid He schizophrenia. believed that when he had examined January defendant at Dix Hospital defendant’s illness had remission, partially been as result of the he medication had been Dr. taking. Groce was not able to form a definitive opinion sanity about defendant’s at the time of the crimes and identified First, why several reasons he symptoms could not. of defend- deaths; year ant’s illness could have in the changed since sec- ond, the antipsychotic medication defendant had been would taking illness; improved have his if he did have a thinking mental third, the absence of objective information from sources made it impossible compare subjective report against objec- tive reports of the same events. No who witness was available could describe defendant’s comments and behavior at the time of the deaths. Dr. Groce did believe that illness defendant’s mental Judge August 8. Giles Clark’s order of 19 1986 was not included in the record order, January appeal parties. on by submitted A third entered on 14 Jr., Brewer, Coy mistakenly Judge support assignment E. was included of error.
STATE v. sufficient to causing symptoms impair thinking his at the time of the deaths and that the medication had since improved his thinking. Fisher,
Dr. Brad a clinical psychologist, examined defendant days within ten of the crimes and again about six months later. He testified that suffered paranoid schizophrenia from typified delusional In the where thinking. areas defendant had mother-in-law, son, subjects deluded thinking his his —on his wife and their severely interconnections —defendant was limited ability his to differentiate from right wrong. Rose, Selwyn Dr. a psychiatrist, had examined defendant for the first time nine days after his arrest and had interviewed him for the quarterly two-and-one-half-year period before trial. December he had placed defendant on medication to treat illness, which he diagnosed paranoid had as Dr. schizophrenia. Rose testified that since defendant’s him illness made incapable of rational thinking, incapable was also of premeditating and deliberating deaths of his son and mother-in-law. Because of *32 illness, severity of defendant’s mental he was unable time of the crimes to understand the difference between right and wrong or to understand the nature and quality of his actions.
All experts three testified that defendant killed his son and his mother-in-law during psychotic a single break. testify.
Defendant did not To rebut expert testimony, defendant’s the prosecution called three members of the treatment team that had examined defendant at Dorothea Dix Hospital August 1986 during second court- ordered Dorothy commitment: psychologist Humphrey, psychiatrist Rollins, Bob and social worker Debbie Keith. On the basis of their examination of defendant in August-September both Hum- phrey and Rollins testified that defendant had a personality disorder Dr. schizotypal features. Rollins did not believe that defendant was or had been from suffering paranoid schizophrenia, as defend- ant’s had experts testified. Both testified that probably defendant knew the quality nature and of his act when he buried his son he knew the difference between right wrong as to his act of burying his son and of shooting his mother-in-law. Ms. had Humphrey administered but had discounted the results of the (MMPI) Multiphasic Personality Inventory Minnesota administered validity defendant because a scoring scale for 1N.C. responses they indicated were not accurate measures of his condi- tion. Dr. Rollins also found that defendant was depressed. Debbie Keith testified that she gathered had data for the psychiatrist’s use in evaluating the defendant.
The effect of this expert testimony by offered the prosecution was to rebut defendant’s evidence of insanity presented through defendant’s experts’ testimony. Smith,
Defendant contends that under Estelle v.
451 U.S.
(1981),
The Dorothea Dix admission form which signed not included the record on appeal before us. The witness Dr. Rollins was asked to read from the form on both direct and cross- examination, and he did so as follows: Sir,
Mr. VANSTORY: what is the procedure standard employed at Dorothea Dix for advising patients confi- dentiality?
The Witness patient is informed [Dr. Rollins]: the technician admitting patient of the applicable standard patient and the is asked sign acknowledgment at that time done, that has been additionally, it is done physician.
A I explained Mr. confidentiality. Huff the Q you did What tell him in that sir? regard, A I explained by that he had sent here attorney, been court, if I testify and that was called anything he told me could be revealed.
Q Is there a form in Randolph Everett Huff’s file indicating that he was talked to such technician?
STATE A Yes. There is a form for each admission.
Q say, What does the form sir? may A “Any by you information we obtain be revealed any questions court. do not to answer You have or reveal any may information. of our staff called Members be as witnesses your attorney Attorney. in court either or the District may may We or give opinion your court an about crime, responsibility alleged mental the time of the depend- try We ing upon may any available information. to answer questions by your attorney Attorney. raised or the District We sometimes are asked to make specific recommendations case, disposition about your court and future our Usually, medical treatment. with the findings capacity deal crime, proceed at the responsibility time of alleged opinion render an possible, among other unrelated issues.” [if] (sic) Q there place person And is for a being after so advised to acknowledge his of that? understanding Yes, A sir.
Q you Do see the signature Randolph Everett Huff? Yes, A sir. admission,
Mr. you say, VANSTORY:And when for each many you how admissions are talking about?
A Three.
Q are the What dates of them? 14th, January WITNESS:. . . The first 1986. 15th, The second is August January 1986. And third is 15, 1987. . . .
Q you. you All Let me this to right. put anywhere Do see on that or where it says form forms the clients are advised only information will be upon disclosed client’s written authorization?
IN THE SUPREME COURT says, A “. Yes. It . . have no unauthorized on or publicity your use of treatment records. Your treatment records are may only deemed confidential and be disclosed a written upon by you.” for release request
Q And that was related to Everett Huff on Randolph each of his admissions? Yes,
A sir. (1) Defendant contends that second did examining team not formally advise defendant his rights but instead advised him (2) trial, only anything that he told them could be revealed at that the form he him signed gathered informed that information during the examination was confidential and would be released (3) authorization, only on his written testimony their as to information defendant to them during related his second evalua- tion was obtained violation of his to be free right compelled self-incrimination. While we disagree with defendant’s characteriza- evidence, importantly tion more we disagree his conclusion. Smith,
We do not find 451 U.S. 68 L.Ed. 2d control- Smith, ling. defendant undergo was ordered to a psychiatric examination to determine to stand competency his trial first- He degree murder. was found tried competent, jury, capital hearing convicted. At the sentencing psychiatrist who competency had conducted the examination testified for examination, of Texas. on the Based court-ordered he competency society. pose stated that defendant would a future threat jury resolved the issue of future dangerousness against the defend- (as issues), ant well as two other which under Texas law made mandatory. the death On the United penalty appeal, Supreme States held testimony Court admission doctor’s violated privilege against fifth amendment self- compelled incrimination because was not court- defendant advised before the psychiatric ordered examination that he had a to remain right any be him silent statement made could used against a capital-sentencing proceeding. Smith, materially This different facts. In case on its issue; here, Smith, sanity unlike placed had insanity given defendant had notice of his intent assert Furthermore, rely expert testimony support defense and to it. THE COURT IN SUPREME *35 STATE v. HUFF (1989)] [325 from such Smith a case expressly distinguished the Court Supreme as this one: sanity examination analogous was the interview to a
Nor by of reason of by plea guilty occasioned a insanity of offense. When a defendant asserts at the time his insanity supporting psychiatric and introduces the defense only the effec- may the State of testimony, deprive his silence his on an issue controverting proof tive means it has of several Accordingly, into the Courts interjected case. that, circumstances, defendant have held under such a Appeals sanity a examination conducted required be to submit to can by prosecution’s psychiatrist. the Moreover, Smith, 2d at 370. Estelle v. 451 U.S. L.Ed. limited to account holding specifically Court’s Supreme defendant, neither “A criminal who for these factual differences: any to introduce attempts evaluation nor psychiatric initiates evidence, may to a compelled respond not be to psychiatric him against capital if his can be used at a psychiatrist statements 372 (emphasis Id. at 68 L.Ed. 2d at sentencing proceeding.” added). any bearing we if has conclude Smith Accordingly, case, no suggest is that its dicta that defendant has upon this it fifth in these circumstances. protection amendment circuit courts have considered the issue. A number of federal (D.C. 1984) 1104, 1111 Byers, See States v. 740 F. 2d Cir. United They uniformly, though therein. (plurality), and cases cited have reasons, admittedly for different held that no fifth amendment viola- undergo where compelled psychiatric tion occurs the defendant is to by insanity. State after pleading examination (now Justice) Scalia, for the D.C. Cir- Byers, Judge writing upon the four relied cuit examined rationales Appeals, Court (1) (2) waiver, by nature the federal circuit courts: nontestimonial (4) (3) evidence, only evidence admitted to show estoppel, (as insanity opposed guilt) privilege against is not covered The waiver rationale finds that a defendant self-incrimination. by voluntarily making protection “waives” the fifth amendment evi- an issue in the case. The nontestimonial psychiatric evaluation “real interview as psychiatric dence rationale characterizes which neither nor physical” or evidence a “communication” and, therefore, “testimony” privilege against unprotected im- estoppel rationale finds that defendant’s self-incrimination. THE IN SUPREME COURT N.C. 1 theory reliance plicit upon psychiatric that statements made or physical examinations are “real evidence” in to have order his testimony received expert’s hearsay rule creates despite an estoppel against objection to the Government’s reliance upon physical the “real or evidence” fifth theory overcome the amend- bar. The ment final rationale defines the scope privilege against narrowly, reaching only self-incrimination statements in- actually troduced show that committed offense but question, brought sanity. not statements on the issue *36 rationales, rely After to on of these declining any four the Circuit D.C. concluded that the advancing courts them intended them as “devices . . . for a result on policy demanded weaving grounds unobtrusively into the of the Id. (emphasis fabric law.” added). have, Circuit, They declared the fifth D.C. denied the amend claim primarily ment because of “the unreasonable debilitating and it would upon society’s inquiry effect have conduct of a fair into the defendant’s Id. reason the culpability.” rejecting fifth argument appears amendment to based the purely practical be to insanity. need rebut defendant’s evidence of experts’ Expert testimony is so it uniquely impressive upon jurors that needs to rebutted be evidence from This has been de experts. policy “ (one as the strike scribed need to a ‘fair state-individual balance’ values underlying Fifth Amendment set forth in Murphy Commission, 52, 55, 1594, 1596, v. 378 84 U.S. S.Ct. Waterfront (1964)),” id., 12 2 678[, L.Ed. as a matter of “fundamental 681] fairness,” id., and as a matter of Id. “judicial common sense.” As Pope: the court said indeed, if, situation, first,
It would be strange government a is to compelled psychiatric be to afford the defense ample and, and at government expense service evidence second if government yet is to have . . . proof, the burden of is to the opportunity it be denied to have its own corresponding examination, step which is the verifying perhaps most trustworthy means of to meet burden. attempting States, v. United United Pope quoted F. 2d at States v. 740 F. at 1113. Byers, 2d alone,
For in Byers this reason Circuit held that D.C. may when “a of constitu- insanity, defendant raises defense tionally subjected compulsory by court-appointed be examination ; . when he introduces government psychiatrists or . . into IN THE COURT SUPREME STATE v. defense, insanity testimony support psychiatric evidence . may . . be received testimony examining psychiatrists those 740 F. 2d 1115. at Byers, as well.” United States ap- has since Citing Supreme the United States Court Byers, reports based on defend- psychological the introduction proved purpose if for the report examination introduced ant’s mental Kentucky, Buchanan v. mental defense. rebutting denied, or reh’g L.Ed. 2d U.S. modification “if a 2d 807 The Court stated that U.S. 97 L.Ed. or presents psychiatric such an evaluation requests defendant evidence, least, then, may very prosecution rebut examination reports with evidence from the presentation 422-23, 97 355. Id. at L.Ed. 2d at requested.” that the defendant Buchanan, a mental attempting defendant was establish only testify. did not His witness was a social defense. Defendant after an reports completed worker read from psychological who On cross-examination following previous examination arrest. testimony by the social having to rebut the prosecutor attempted prepared on examination psychological report worker read from a involuntary following civil commitment joint after a motion for *37 being which was tried. the murder for defendant only The Buchanan the case at slightly facts in differ from here, Buchanan, The as in has his mental placed bar. defendant testimony in status. by introducing status on his mental expert issue way The no the unless it too prosecution has to rebut defense As may testimony on defendant’s mental status. expert introduce Buchanan, testimony reported experts’ in the here the obser- expert any did vations about defendant’s mental state but not describe statements defendant made about the crimes with which defendant charged. the made clear the Circuit’s
Accordingly, for reasons D.C. analysis by Supreme the Byers, approved United States Buchanan, we when relies on the hold that a defendant Court mental insanity testimony and introduces on his expert defense status, may expert testimony derived prosecution introduce for the prior psychiatric purpose from court-ordered examinations testimony without the fifth amend- implicating rebutting I, ment of States or article section the United Constitution of the North Carolina Constitution. 1N.C.
The North Carolina Court of Appeals addressed similar issues
Jackson,
491,
in State v.
(1985),
App.
examination as to defendant’s
at the
superior
time of the offense exceeded the
statutory authority.
court’s
The defendant did not raise a fifth amendment claim
on this issue.
Jackson,
Appeals properly
the Court of
gives
if
concluded that
a defendant
insanity
reasonable,
notice of his
only
intent
to assert
defense that
it is “not
necessary,
but
prosecution
permitted
be
psychiatric
to obtain” its own
498,
Otherwise,
examination of the defendant. Id. at
Sound reasons existed in this case for a second evaluation
ex-
Testimony from the
who
experts
of defendant’s mental status.
acknowledged
the first time
the limitations of
amined defendant
what
that examination. Dr. Groce was uncertain
effect
He
he
had had
defendant’s condition.
testified that
medication
confidently say if
the difference
could not
defendant knew
between
Huff
wrong
Crigger
when he killed
and Gail Strickland
right
objective
against
compare
lacked
which to
defend-
because
data
Humphrey
of the events.
discounted the results
reports
ant’s
Ms.
(MMPI)
Personality Inventory
ad-
Multiphasic
of the Minnesota
validity
scoring
scale for
defend-
ministered to defendant because
his
responses
they were not accurate measures of
ant’s
indicated
There
to believe that a
condition.
was also reason
second evaluation
illness
defining
parameters
be
of defendant’s
helpful
would
changed
the first
thinking
since
character of
had
since
guilt;
to
it did not extend
the admission of defendant’s statements
establish
sanity;
psychiatrist’s opinion
as
statements admitted
the basis
of defendant’s
testimony only
since the trial court
instructed
consider
sanity,
there
no
This rationale was
extent
it tended
establish
error.
Smith,
462-63,
implicitly rejected in
68 L.Ed.
at 368-69. United
U.S. at
2d
reason,
Byers,
reject
it as a
States v.
[325 Rose, Dix: Dr. evaluation at defendant’s who been expert, had seeing quarterly, stated his affidavit supporting counsel’s motion to to Dix “the Hospital commit defendant that stress of the trial and impending including other factors suicidal ideation, have led to an of acute deterioration his mental condition.” More information the parameters about of defendant’s illness could reliability expert’s have increased the about postdictions sanity time at the of the offenses. Given the sound case, generally, reasons for reevaluation we conclude that a opportunity may fair to rebut include more than one examina- tion of the defendant.
B. Sixth Amendment [9] Defendant also argues his right effective assistance of counsel under the sixth amendment to the Con United States I, stitution under article section of the North Con Carolina stitution was violated admission of the second treatment testimony team’s as to information his court- obtained second during ordered psychiatric examination because that for admission was of his purpose determining as capacity proceed, opposed sanity to his at the time of the crime. amendment,
The sixth made states applicable through to the amendment, the fourteenth provides all criminal prosecu- “[i]n enjoy tions the accused shall ... right have assistance Const, I, of counsel U.S. defense.” amend. VI. Article section Constitution, parallel provision the North con- Carolina tains language. similar Our state interpretation provision has generally tracked the United States Court’s inter- Supreme pretation provision. federal “right granted by
This to counsel the Sixth Amendment means person lawyer that a of a ‘at or help entitled after adversary judicial proceedings time that have against been initiated by way . . . charge, hearing, him whether preliminary formal indictment, information, Illinois, or arraignment.’ Kirby v. 406 U.S. (1972) Illinois, (plurality opinion); 688-698 Moore v. 434 U.S. (1977).” 454, 469-70, Smith, 226-229 Estelle v. 68 L.Ed. U.S. addition, 2d 373. the sixth insures amendment any against stage accused “need stand alone the State at informal, out, prosecution, in court or where formal or counsel’s absence from the accused’s to a fair trial.” might derogate right THE SUPREME COURT IN
STATE v.
*40
1157,
226-27,
Wade,
L.Ed. 2d at
388 U.S. at
v.
States
United
470,
Smith,
373.
68 L.Ed. 2d at
at
v.
451 U.S.
in Estelle
quoted
359,
454,
Smith,
2d
the United
68 L.Ed.
451 U.S.
Estelle v.
In
was
the sixth amendment
held that
Court also
Supreme
States
testimony
psychiatrist’s
of a
State’s introduction
by the
violated
had not
trial. The defendant
penalty phase
neither been
attorney had
in
and his
mental state
issue
his
placed
entered
had been
examination
psychiatric
that the order
informed
would
of the examination
scope
that
he have notice
nor did
dangerousness.
future
of defendant’s
determination
include a
the outcome
controls
asserts that Smith
defendant
Although
Instead,
case,
v. Ken-
we find that Buchanan
disagree.
we
in this
336,
402,
the principles
2d
also states
97 L.Ed.
tucky, 483 U.S.
in
analysis. The defendant
amendment
control our sixth
that
under
violated
to counsel had been
right
that his
argued
Buchanan
Smith,
2d
the admission
L.Ed.
Estelle v.
U.S.
However,
to counsel
right
held that no
the Court
report.
of this
occurred,
in
presented
that
the fact situation
violation had
in Buchanan.
that
critically
presented
different
from
was
Smith
Smith,
to discuss
opportunity
received the
defendant had not
“In
Buchanan v. Ken-
scope.”
the examination or its
with his counsel
Buchanan,
contrast,
356. In
ment under article of United States Constitution and section disagree. 27 We of the North Carolina Constitution. I,
Article
section 19 of the North
Carolina Constitution
the fifth and
fourteenth amendments
the United States Constitu-
tion
criminal
right
process
secure for the
due
(1963).
Patton,
359,
of law.
v.
260
132 S.E.
891
State
N.C.
2d
The
concept
due
affords the defendant certain
process
procedural
among
may
them the
he
be
protections,
guarantee that
con-
beyond
except
proof
every
victed
a reasonable doubt of
upon
fact
necessary to
crime with which
In
charged.
constitute the
358, 364,
(1970);
368,
Winship,
re
U.S.
2d
397
25 L.Ed.
375
(1985).
285, 292-94,
Mize,
562,
337 S.E. 2d
The
due process
protects
clause of the fifth amendment
individuals
process
from due
government,
violations
the federal
Louisiana
Resweber,
459, 467,
ex rel. Francis v.
329 U.S.
91 L.Ed.
(1947),and the fourteenth
through
process
amendment
its due
clause
states,
them
protects
against
process
due
Louisiana
violations
Resweber,
ex rel. Francis v.
329 U.S.
422.
capital
L.Ed.
trials, the
concept
process
due
also implicates
right
463, 473-74,
to be free from cruel
punishment.
and unusual
Id. at
(Burton, J.,
STATE 1N.C. life, As liberty, process part or without due law.” property, Constitution, States eight of the first amendments the United by the only violations against process it individuals due protects Resweber, ex Francis v. 329 Louisiana rel. government. federal However, 91 428. the federal government U.S. at L.Ed. at court no involvement in defendant’s state prosecution has had reason, on state crimes state indictments. For that jury instruction the fifth amendment claim that violates without is the federal Constitution is merit and overruled.10 jury that these instructions violate article Defendant contends I, I, 18 of the Article section section North Carolina Constitution. in pertinent part North provides 18 of the Carolina Constitution lands, “every injury goods, him his person that for an done remedy by have due course of law.” person, reputation or shall generally constitutional access provision guarantees This Bolick v. wrongs. Barmag Corp., for redress of civil See courts (1981), aff’d, App. 284 S.E. 2d N.C. does how this explain guarantee S.E. 2d Defendant violated, so we do not address claim. has been violate Defendant that instructions also contends these of the United process the due clause of the fourteenth amendment I, article section parallel provision, Constitution and its States tried being North Since defendant was Carolina Constitution. which on to various instructions charges, objects specifically two victim, case, to be single a or a decision single single refer to a he con- singular in the were misleading, made. These references tends, juror permitted to believe that a juror and could have led a that, argues on joint guilt. determination of Defendant to make occasion, “victim,” single although the trial referred to judge victims; he said the State the burden there were two has case,” there were two cases for the although of “proving and that he instructed the “decision prove; unanimous,” jury was although required the case must be decisions, assigns in each of two Defendant also make two one cases. insanity.11 He single joint error the of a instruction giving as process the fifth Defendant has violations of the due clause of 10. asserted XI, I, IV, VII, VIII, IX, X, following assignments in the of error: amendment *43 above, XII, reasons these preservation well as in all issues. For the stated as assignments error without merit. are also case, legally you the was 11. will consider evidence [I]n Defendant only you alleged the State if find that insane at time offenses 1N.C. points also in the at a jury clarifying identifies instructions which instruction appropriately could have been given.
[11] Defendant did
not
object
trial to the instructions which
result,
he
assigns
now
as error. As a
we
that he has
find
waived
his right
appellate
question
to
review of the
under the
except
Odom,
“plain error” standard set forth in
307 N.C.
(1983).12
[12] There a danger any trial which offenses are joined that the will convict cumulating charges or cumulating the evidence. The judge trial did not specifically jurors instruct However, to charge separately. consider each which instructions result; whole, he give did achieved that a they taken as make clear that in the determination of or guilt innocence the jury was to charge separately. consider each
theAt to beginning charge jury, the trial judge established the context in which juror each was to understand the subsequent instructions: he instructed them that the defendant had two pled guilty to counts of murder. first-degree pro- He ceeded instruct the as the verdicts it be permitted would to return on each of these two A counts. second time he stated that the “defendant been charges degree has accused of two first added.) murder.” He (Emphasis then referred to both cases and said, treated them as independent your duty He entities. “it is in each case to return one of the following verdicts.” (Emphasis added.) implication The was clear that one verdict in each case required. judge trial proceeded first-degree instruction on element, murder. He instructed the first killing an intentional by the defendant of the victim with malice. After giving general cases, instruction which both applied specifically referred to the Gail Strickland case and gave specific instruction which beyond proved has things reasonable doubt each of the which about already you.
I have instructed added.) (Emphasis doctrine, “plain may appellate “grave 12. Under the error” court review a accused,” error which right amounts to a denial of fundamental which (citation preserved
has been otherwise not for review. Id. at 300 S.E. at 378 2d omitted). *44 IN THE SUPREME COURT (1989)]
[325 (the only jury permit- in the death inferences a is applied shooting used). said, “In deadly your when is He consideration weapon ted By . . . .” refer- in which Gail Strickland is the victim of the case name, he it distinguished the Gail Strickland case from ring to Huff the victim the case in which was and indicated Crigger evidence of the Strickland case jury the should consider the Gail Huff from the evidence in the case. separately Crigger deliberation, In on the jury premeditation the instruction murder, judge fifth element of the trial irdicated that first-degree said, He “in separately. determining each case was to be considered proven in each case whether the state has the existence of these added.) conclusion, said, you “If find (Emphasis elements.” case, you may no intent in either not find this defendant specific added.) in that case” degree (Emphasis of first murder guilty insanity The then his instruction on the defense. judge gave trial pattern His instruction tracked the the instruction language insanity.13 The instruction is tailored for trial pattern must insane offense. It the defendant be single provides (in repeatedly alleged singular) at the time of the “offense” Initially, the trial judge adapted refers to a offense. single instructed the “in this case pattern jury: instruction and [in you will evidence that the defendant was insane singular] consider He then returned plural].” offenses alleged at the time of [in referred to a instruction which pattern to the language that the trial erred judge offense. The defendant contends single to alter failing as he did and by altering both instruction radically joined fit the trial of offenses. the instruction more instruction, insanity considered the context disagree. We whole, as a indicates that instructions insanity separate as to each instructed to consider defendant’s offense. the verdict the contents of
Finally, judge the trial described said, jury. sheet He verdicts will be a list of the alternative
On the verdict sheet cases, as follows: As to Count Number in each of the which are Huff, One, S. alleged Crigger in which the victim case murder, or first-degree guilty verdicts: following possible murder, .... As to or not guilty guilty second-degree 1986). April (Replacement 13. 304.10 N.C.P.I. —Crim. IN THE SUPREME COURT
STATE v. N.C. 1 Two, in alleged Count Number which the victim is S. Gail Strickland, the following possible guilty of first-degree verdicts: murder, murder, degree guilty guilty. or of second or *45 The format of verdict sheet and the trial instruction judge’s it describing are additional evidence that instructions as a jury charge whole made clear that the was to consider each separate- ly. The appeal record shows that verdict form lists each charge separately permitted and states the verdicts under each clearly This two charge. separate requires treatment that the charges separately. be addressed summary, the instructions and mandates of the trial court
in this case as a whole indicate that jury was consider separately. each charge we find no error. Accordingly, plain We guilt conclude that the phase defendant’s trial was fair and free of error. prejudicial
Sentencing Phase V. [13] In his fifth assignment of error defendant argues that the trial court erred in submitting aggravating circumstance 15A-2000(e)(9) heinous, cruel,” or “especially atrocious N.C.G.S. § (1988), in the murder of Huff. Crigger Defendant contends that the submission of this aggravating circumstance to the was 15A-2000(e)(9) error constitutional because N.C.G.S. as construed § by our Court and in applied jurors this case failed to inform ade exists, quately what facts are sufficient find that the circumstance unguided and therefore allowed them the prohibited discretion in capital cases the guarantees cruel and against punish unusual ment. Defendant’s is without argument merit. Fullwood, recently We considered the issue in State v. same (1988). 371, 399-400, case,
323 N.C.
373 S.E. 2d
In that
we
concluded that
sentencing
given
instruction
accorded with
heinous, atrocious,
cruel,”
our
of “especially
construction
or
that our construction
limited the
properly
exercise of the sentencer’s
approved by
discretion
the manner
Supreme Court Proffitt
Florida,
428 U.S.
We approved following sentencing instruction in 323 N.C. at 373 S.E. 2d at 535: “For this murder to have heinous, cruel, especially been atrocious or any brutality which was
STATE v. normally present that which is in it must have exceeded involved been a consciencelessness murder must have any This killing. unnecessarily torturous crime which or pitiless [sic] victim." virtually us is instruction in the case before sentencing Fullwood, the limiting and contains to the one approved
identical in Fullwood. approved circumstance aggravating construction as follows: in this case instructed The trial court heinous, However, atrocious that this murder be enough it is not defined. This murder just those terms have been or cruel as cruel, heinous, or atrocious especially must have been every especially murder so. heinous, atrocious especially
For this murder to have been cruel, in it must have brutality which was involved any or *46 normally any case. This present which is exceeded that crime pitiless and must have been a conscious murder [sic] victim. unnecessarily torturous to the which was 399-400, Fullwood, v. under State N.C. We thus hold that heinous, 535, “especially instruction on the 373 S.E. 2d at the atrocious, here informed properly circumstance or cruel” aggravating that are sufficient and of facts type quality of the jurors the exists. find that the circumstance
the aggravating
[14]
Defendant also
circumstance of
argues
that the trial
“especially
court erred
heinous,
in submitting
atrocious
or
its submission.
support
do not
the facts of the case
cruel” because
argument.
merit
in this
do we find
Neither
to submit an
is sufficient evidence
In
if there
determining
must consider
judge
the trial
jury,
circumstance to the
aggravating
v.
State. State
to the
in the
most favorable
light
the evidence
(1984).
482,
Moose,
Thus, we hold that evidence was for the trial sufficient heinous, court to the aggravating especially submit circumstance of atrocious, cruel. or
VI. [16] In defendant’s sixth assignment of error, he contends that the trial the jury court erred in instructing meaning as error, contends, of “mitigating circumstances.” This him denied law, laws, due of process protection under the equal right and his to be free from cruel unusual punishment and under appropriate state federal and constitutional provisions. disagree. We The defendant asserts that instruction confusing because in the paragraph first the trial court used the “best deserving” term of penalty the death in the it and second used the term paragraph “less deserving.” The trial court gave instruction:
A mitigating circumstance is fact or of facts which group do not constitute a excuse justification killing or for a or reduce murder, it to a lesser of crime degree than which first-degree may be considered as extenuating, reducing the moral culpability case, making it best deserving the extreme punish- ment than other murders. first-degree
A any circumstance is also or mitigating fact set of facts character, education, to the Defendant’s relating ment, age, environ- mentality aspects habit and other Defendant’s life, may which extenuating be considered reducing culpability moral less killing making or the Defendant deserving of punishment the extreme than per- death other sons who have committed aggravated first-degree murder. added.) (Emphasis they counsel acknowledge
Defense do not know whether accurately instruction was transcribed the court reporter case, or whether instruction was as it given reads. either contend, they these conflicting instructions on a material feature of the case entitle defendant new sentencing We hearing. do agree.
First, we consider standard for our review. Defendant did not object trial to these instructions or seek a correction. Where defendant has taken no action an during preserve trial *48 review, error for our he has the burden on to show that appeal 58 v. HUFF
STATE
1
N.C.
without his objec-
for our review
preserved
error was deemed
the
Oliver,
trial,
v.
was
error. State
plain
or
the error
at
that
tion
(1983).
326,
If
to object
304
defendant fails
S.E. 2d
309 N.C.
trial,
review
challenged
we
the instruction
instructions at
Odom,
v.
307 N.C.
under the
error doctrine. State
appeal
plain
on
655,
(1983).
doctrine,
the
error
our
plain
Defendant has not met sake, that is argument’s transcript correct Assuming, any we error he the trial find that made judge misspoke, Accordingly, which followed. we hold was cured instruction ground there is no conclude that reasonable Davis, prejudiced. misled or that defendant was See 511, 544, 227 S.E. 2d VII. [17] In his seventh assignment error, defendant contends that error its instruction on alleged peremptory the trial court’s nonstatutory mitigating circumstances14 violated fourteen of the United States Constitu and fourteenth amendments eighth of the parallel North Carolina Constitution. provisions tion and following representative peremptory instruction nonstatutory on by the court given mitigating instructions circumstances: court, fact, only gave peremptory mitigating twelve The trial instructions 14.
circumstances. *49 59
STATE v. (1989)] 1 N.C.
[325 find, you evidence, If unanimously, by preponderance the the cooperated Defendant with law enforcement officers 11, by making the statement February 1985 and all the true, evidence shows that this you is and if find that value, has mitigating you by would so indicate having your write, foreman “Yes” in the space after this mitigating circum- you stance on the form. If unanimously do not find this mitigating evidence, circumstance by a preponderance of the you would write, “No,” so indicate your having foreman in the space. twenty-four Of the potentially mitigating circumstances sub- mitted, jury the found two mitigating circumstances.15 Neither cir- cumstance was among nonstatutory those factors peremptorily instructed upon by the trial judge. suffices,
This Court has said that when all the evidence offered
true,
fact,
if
to establish a controverted
and no evidence is offered
contrary,
then
may
the court
give a peremptory instruction.
Johnson,
(1979).
47, 74,
597,
State v.
298 N.C.
257 S.E. 2d
617
A peremptory instruction tells the jury that
if it finds that
show,
fact exists as all the evidence tends to
it will answer the
question
it in
put to
the manner
directed
judge.
trial
Chisholm
Hall,
374, 376,
726,
v.
However,
N.C.
S.E.
2d
a peremptory instruction does not
deprive
jury of its right
reject
the evidence because of a lack of faith in its credibility.
id.,
Johnson,
74,
E.g.,
quoted in
v.
State
Similarly, we have said that
the jury
before
“finds” a
circumstance,
nonstatutory mitigating
it must make
preliminary
two
(1)
determinations:
that the evidence supports the existence of the
(2)
circumstance and
the circumstance has
value.
mitigating
Fullwood,
371, 396-97,
v.
State
323 N.C.
373 S.E. 2d
533-34
(1988). Only after
the jury has made those two determinations
form,
is it
for the
proper
foreman to
“yes”
answer
on the verdict
and so “find” the mitigating circumstance. Id.
two-part
This
require-
ment for the finding of a nonstatutory mitigating circumstance
contrast
position
to our
Kirkley,
N.C.
220-21,
(1983),
302 S.E. 2d
157-58
overruled on other grounds,
Shank,
(1988),
State v.
322 N.C.
Defendant contends
they
under
failed
Kirkley
were deficient
because
by the trial court
whether
circumstances
remove
consideration
the
jury’s
from
trial
found that
judge
Defendant asserts that since the
existed.
uncontroverted,
circumstances was
mitigating
the evidence of these
require
jury
both
find
the circumstance
it was error to
had
value.
mitigating
existed and to find that
circumstance
Fullwood,
holding
we
Our
disagree.
recent decision in
light
our
the effect of
instruction
Kirkley concerning
peremptory
statutory
not control the outcome
circumstances does
mitigating
nonstatutory mitigating
case
Our
in Fullwood on
opinion
at bar.
the decision here.
governs
circumstances
15A-2000(f)(9)
statutory
provision
“catchall”
N.C.G.S. §
396,
Fullwood,
v.
323 N.C.
circumstances. State
at
mitigating
“[a]ny
It is defined as
other
tions deficient because form, the recommendation could have confused sidered with The misapplication disagree. of the law. We and led it to a of the law. was a clear and correct statement instruction precluded that the contends sentencer Finally, defendant considering mitigating relevant evidence by this instruction from Eddings fourteenth amendments. eighth in violation (1982). 104, Oklahoma, 2d 1 has argument 455 U.S. 71 L.Ed. This v. STATE v. N.C. 1
no merit. The trial court submitted the twelve circumstances re
quested by
for the
to consider in mitigation. eighth and fourteenth amendments do not require that the sentenc
ing jury “find” each circumstance which the court
poten
submits as
tially
our
mitigating;
Constitution requires only that the sentencer
be permitted
any
to consider
relevant
evidence.
mitigating
See
(11th
Cir.),
Raulerson v.
Wainwright,
F. 2d
806-07
cert.
denied,
(1984);
Fullwood,
469 U.S.
We note that defendant failed to object to these peremptory
reason,
instructions at trial. For that
preserve
has failed to
doctrine,
the error for review except under the plain error
Oliver,
309 N.C.
VIII.
*51
[18,
error,
eighth
defendant’s
assignment
19]
of
he argues that
various aspects of the court’s instructions individually and in com
bination impaired
jury’s
fair consideration of evidence in mit
of the
igation
crime and so violated the eighth and fourteenth
amendments. This
previously
Court has
considered and rejected
First,
all of defendant’s contentions.
defendant attacks the court’s
instructions
that
the jury must recommend a sentence of death
if it found that
the mitigating circumstances were insufficient
(issue three)
outweigh
aggravating circumstances
and if it found
that
the aggravating circumstances were sufficiently substantial
to call for the death
when
penalty
considered with the mitigating
(issue four).
circumstances
He contends that it was error to charge
jury
it
duty
was its
to recommend a death sentence if
issue four was
affirmatively.
answered
argument
This
has been
rejected
by
repeatedly
this Court. State v.
308
McDougall,
N.C.
1, 26,
308, 323-24,
denied,
865,
301 S.E. 2d
cert.
464 U.S.
78 L.Ed.
(1983);
Pinch,
1, 32-34,
203,
2d 173
State v.
306 N.C.
292 S.E. 2d
(1982);
Williams,
656,
243,
227
State v.
305
292
N.C.
S.E. 2d
cert.
denied,
1056,
(1982),
denied,
459 U.S.
622
L.Ed. 2d
reh’g
(1982).
Second,
U.S.
STATE v. 1N.C. jury’s unconstitutionally limited of the evidence preponderance three,16 thus issue circumstances mitigating consideration held This Court has on issue four.17 response jury’s tainted the defendant requiring violated is not process that due of the evidence. by the preponderance circumstances prove mitigating 160; see State 302 S.E. 2d at Kirkley, v. N.C. State (1987). 179, 216, Brown, This Court 358 S.E. 2d v. that it was constitu- argument second rejected has also must reach unanimous it jury to instruct tional error under issue two. circumstances finding mitigating before agreement 68, 108, 74-75 372 S.E. 2d 323 N.C. McLaughlin, error is overruled. assignment this Accordingly, IX. the trial [20] In his ninth court’s instructions, assignment taken as a error, defendant contends whole and in context, a unanimous sentence. returning into jury coerced the resulted contends the circumstances that defendant These are as to the two hours of deliberation verdict. After in a coerced sentence, verdicts. to deliver its returned to the courtroom jury life im- sentenced to that defendant be recommended jury Strickland, exchange killing for the of Gail prisonment followed: of the the unanimous recommendation Is this CLERK: victim, Strickland? Gail
as to unanimous, (Shook It’s not negatively.) head FOREMAN: it had to be unanimous. don’t believe but —I Yes, must be that the recommendation COURT: be unanimous and the issues must answers to each of *52 unanimous. must be jury of the recommendation unanimously you find form asks: “Do three on the recommendation 16. Issue mitigating found beyond by you circumstance or circumstances the doubt the a reasonable are, is, outweigh aggraviting circumstance or insufficient to [sic] or by you?” circumstances found unanimously you find form asks: “Do on the recommendation 17. Issue four aggravating circumstance or circumstances beyond that the a reasonable doubt are, is, sufficiently imposition of the by you to call for the substantial or found circumstances mitigating circumstance or penalty with the when considered death by you?” found N.C. 1 jury Is the recommendation of the not a unanimous recommendation? Yes, Honor, your it is. It was our understanding, FOREMAN: if we didn’t have a unanimous of the recommendation
death that the penalty, prison. alternate would be life penalty Well, it is the to jury’s responsibility deliberate COURT: to attempt to unanimous as to punish- reach recommendation so, ment in the And if point, jury’s case. at this recommen- recommendation, dation my is not a unanimous would be it responsibility you ask that Jury to retire to the Deliberation your Room and to continue deliberations to see if a unanimous recommendation can be reached. you very
Thank you jury much. If would return to the room. Jury (3:48 Courtroom.) P.M. Left only
The trial court and gave foregoing instruction denied defense to counsel’s motions instruct that a life sentence would if were imposed jury be to reach a unable unanimous decision or, alternatively, impose life sentences both cases. later,
About forty-five minutes at 4:30 p.m., jury after had been into the brought back courtroom to be recessed for the weekend, the judge trial a second time asked the if foreman verdict, had been in their jurors unanimous earlier foreman indicated that verdict not been again had unanimous. trial judge repeated jurors’ his instruction that the sentences must be unanimous; the foreman told the judge jurors had been unanimity, confused over the of requirement jurors all indicated to the judge that the additional instructions had that the clarified Then, had sentence to be unanimous.18 on defense counsel’s re- Okay, gentlemen. you day, 18. COURT: ladies and Before I for the release couple inquiries couple you. I of need make a to discuss a matters with First, clarification, purpose inquire foreperson I would jury, whether at the time the returned to courtroom with verdict, purported was the unanimous its “No” answer Issue Number either Four of the two eases? Foreman: I Could check?
(Pause) answer, Four, you Okay. Before let me Court: —Issue Number course, you unanimously beyond reads: “Do find a reasonable doubt *53 THE SUPREME COURT IN
STATE v. 1N.C. the deliberative instruction on an additional gave trial court the quest, process: jury together the to deliberate responsibility
While it is the recom- a unanimous reaching with a view to reasonably and mendation, violence to individual done without if that can be are, is, by you or or circumstances found aggravating circumstance
the penalty imposition when sufficiently of the death to call for substantial by you?” mitigating found with the circumstances considered at asking, on each of the form question I am since [sic] The that case, written, time, word, “No,” inquiring in either I am that was —jury of the it the unanimous determination No, (Shaking negatively.) sir. head Foreman: jurors agreeing that “No” should be twelve —with all Court: question? to that answer No, sir. FOREMAN: cases, recommen- was it the unanimous As to either of the two COURT: punishment? appropriate jury imprisonment be the that life
dation of No, sir. FOREMAN: clarification, your your you proceed in purposes in —as For COURT: Four, deliberations, for the issue in either ease as to Issue Number answered, “Yes,” jurors the unanimous—all twelve that must be be answered, “No,” twelve it to be all agreeing to the issues. For —answer appropriate
jurors agree answer. also that must Now, penalty in additionally, jury for the to recommend death case, jury. of the For be the unanimous recommendation either that must case, imprisonment, in either that must be jury life the the unanimous recommendation to recommend jury. of the may penalty unless jurors in either case The not recommend death with all twelve is the unanimous recommendation appropriate to the issues that would agreeing, support answers consistent unanimously with that were also reached that recommendation jurors agreeing. all twelve affirmatively imprisonment jury may life in either recommend jury, supported unanimous recommendation of case unless that is the instructions, which, my consistent with unanimous answers to the issues imprisonment. support recommendation of life an affirmative would case, jury may not recommend the emphasize that in either I do jurors. of all of the penalty the unanimous recommendation death without Now, jury? you any questions point, on behalf of do have No, say about we were a little bit confused sir. I would Foreman: be unanimous. the fact that it had to THE IN SUPREME COURT
STATE v. HUFF (1989)]
[325 judgement, no should their sincere juror surrender and [sic] weight honest convictions as to the or effect of evidence or the in appropriate simply recommendation the case for the purpose unanimity of obtaining this case. the jury
Then was recessed for the weekend. On Monday morning the court reconvened. Defense counsel requested repeat jurors that the court its instruction that no should surrender their unanimity, conscientious convictions to achieve but so, the trial court declined to do stating given that it had immediately instruction before requested the weekend recess. that, Defense counsel also renewed their request jury since the verdict, yet had returned a order jury court deliberations and impose imprisonment, to cease life which the also court declined Instead, jury do. court asked the to continue its deliberations further jury instructed as follows: you
At such time as have recommen- reached unanimous dation as to punishment you the two cases that are consider- you ing, give should a note to that effect Bailiff .... At such that you time as determine amount reasonable deliberations, additional will not be to reach you able unanimous recommendation punishment, you as to should give effect, the Bailiff a note that and the Bailiff will bring you back into the courtroom. added.) room,
(Emphasis jury retired to deliberation in less hour than an returned with a verdict death in the murder of Crigger Huff and a verdict life imprisonment murder of Gail Strickland. time, certainly I can I COURT: And understand that. At this have
adequately point? that clarified mind, my yes, In sir. Foreman:
(Jurors head.) nodding so, jurors? please Court: Would that be true of all If raise your hand? (All hand.) jurors twelve raise their you Okay. very Thank much.
COURT: Okay. my point, request understanding, It is the that it day Monday recess for o’clock that we reconvene at ten correct, morning. Is Mr. Foreman? Yes, sir.
Foreman:
1N.C.
Defendant contends that the judge’s unanimity
im-
instruction
mediately
following
jury’s return of a nonunanimous verdict
coerced the return of a unanimous verdict. He contends that
instruction in
jurors
context
told the
they
effect
could
they
not return if
were
they
unable to agree, that
could not return
verdict,
with a nonunanimous
and that their only two alternatives
were to return with a unanimous life sentence or with a unanimous
death sentence.
Smith,
(1987),
320 N.C.
concluded that
the judge’s
instruction given after the
jury asked what would
if
happen
it could not reach a unanimous
probably
verdict
in
resulted
a coerced
If
jury
verdict.19
a
asks
verdict,
what will
if
happen
it fails to reach a unanimous
the trial
court “must
inform the jurors
inability
that
their
to reach a
unanimous verdict should not be their concern but should simply
be
the
reported to
court.” Id. at
but
after
jurors.
consideration of the
evidence
fellow
deliberations,
your
you
In the course of
each of
should not hesitate to re-
your
erroneous,
your
change
opinion
examine
own views and
if it is
but
you
your
none of
should
weight
surrender
honest convictions as to the
[sic], solely
opinion
your
effect the evidence
jurors,
because of the
fellow
purpose
returning
or for the mere
a recommendation.
420-21,
Id. at
STATE v. 1N.C. following jury’s initial return of the verdicts was cured two subsequent Monday instructions. On morning, trial court gave instruction you recommended Smith: “If determine that with a reasonable amount of you additional deliberations will recommendation, not be able to reach a unanimous you should effect, give the Bailiff note to that and the Bailiff will bring you back into the courtroom.” The Smith instruction was given and, before the jury retired to deliberate for the time last reason, been, asserts, little, that could not have as defendant “too too late.” The effect of this instruction was to make clear to the reason, jurors they were free to For this disagree. we conclude trial court’s instructions did not result in a coerced verdict. [21] Next, defendant contends that the trial court erred in pro hibiting defendant from informing jury in that the argument capital punishment statute authorizes the trial court impose a life sentence if is unable return a unanimous verdict. We find no error. 84-14 provides
N.C.G.S. trials whole case § “[i]n as well of may law as of fact be argued jury.” N.C.G.S. (now Justice) that, 84-14 Justice Chief Exum explained § Miller, of this origins provision are in State v. obscure but *56 (1876) 73,
75 74 N.C. Justice twenty Reade said: “Some five years ago a circuit judge lawyer restrained a from arguing the law to the jury, suggesting that the argument of the law court, ought to be addressed to the as the jury had to take that, the from law the court. Umbrage taken at and the Legislature passed an act allowing argue counsel to both the law and the facts to the jury.” (1976). McMorris, 286, 287, 553, v.
State
290
225
N.C.
S.E. 2d
554
Subsequent cases
84-14
construing N.C.G.S.
have delineated
§
the scope
may
of the law that
argue
jury.
counsel
to the
Counsel
case;
may
only
argue
the law that is applicable to the facts in the
(1956).
id.;
407, 412,
402,
State v.
244
Crisp,
94
N.C.
S.E. 2d
406
The penalty prescribed for
part
criminal behavior is
of the law
McMorris,
287,
of the case. State v.
STATE N.C. 1 for the crime statutory punishment the of the Informing jury felony salutary impressing the purpose cases “serves in serious 288, duty.” its Id. at S.E. 2d jury the gravity the upon advising jury imprisonment penalty, If is an authorized at 554. encourages jury it is a conviction possible consequence only it the matter its close attention and to decide after “give to A to Id. court’s failure permit and careful consideration.” trial due statutory of the jury argument counsel to advise the through defense charged for the offense is error. fixing punishment provision 480, 833, Irick, 504, accord, Id.; v. 291 N.C. 231 S.E. 2d State crimes, The statute for N.C.G.S. fixing penalty capital (1988), jury capital trials sentencing 15A-2000 authorizes § either sentencing return one of two recommendations: death to judge’s duty impose The trial is to the recom- imprisonment. or life sentence. Id. 15A-2000 also authorizes defense mended N.C.G.S. § argue sentencing phase capital counsel at the trial imprisonment life death. penalties two authorized N.C.G.S. 15A-2000(a)(4) provides: “The State and the defendant or counsel § or permitted present argument against shall be for sentence of death.” McMorris,
Defendant that this v. contends Court 286, 553, may 225 S.E. in his 2d stated counsel argument N.C. statutory read jury any provision fixing punishment to the charged. the offense Defendant is mistaken. The in State language Britt, 273, (1974), 204 S.E. N.C. 2d quoted McMorris, in State v. 225 S.E. 2d at is not Britt, broad and but rather narrow and concrete. In sweeping, in his may, jury, we stated that to the argument “[c]ounsel case, any read or to the or other state a statute rule of case, statutory relevant including provision law such fixing (cita- added) charged.” for the Id. punishment (emphasis offense omitted). case, permitted tions the instant trial court defense counsel to do what we Britt: to state to the required statutory relevant in a penalty provision jury’s capital task return of a or a sentencing death sentence sentence proceeding —the *57 of life The trial court imprisonment. properly prohibited defense of jury provisions counsel from the the default informing sentencing The default the capital provision authorizing statute. impose jury trial court to a life sentence if the cannot reach the relevant to agreement penalty jury’s unanimous is not 69 1N.C. task, and the court trial is not required to allow defense counsel argue jury. to it to the
This construction of the scope
jury
argument under N.C.G.S.
84-14 is theoretically consistent with our position that the courts
§
15A-2000(b)
should not instruct
that N.C.G.S.
authorizes the trial
§
court to
a life
impose
sentence if the jury cannot reach unanimous
Smith,
404,
agreement on the proper sentence. State v.
320 N.C.
421,
329,
(1987);
669,
358 S.E. 2d
338-39
State v.
312
Young,
N.C.
685,
181,
(1985);
Moose,
482,
325 S.E. 2d
191
State v.
310 N.C.
502,
507,
(1984);
Williams,
313 S.E.
47,
2d
520
State v.
308 N.C.
73,
335, 351-52,
denied,
865,
301 S.E. 2d
cert.
464 U.S.
78 L.Ed.
177,
denied,
1004,
reh’g
(1983);
2d
464 U.S.
Accordingly, we have held that if jury inquires about nonunanimity, is to be instructed that if it is unable to decision, come to an unanimous sentencing it is report court,20 trial and the trial court is not to it instruct brief, 20. In urges the Court to overrule its decision in Smith. jury’s He attending maintains that the confusion initial nonunanimous verdict by instructing would be consequences nonunanimity eliminated
STATE v. HUFF
(1989)]
1N.C.
[325
Smith,
nonunanimity.
v.
consequences
State
N.C.
422,
X. [23] defendant’s tenth assignment error, he contends that preju to make permitting prosecutor trial court erred in defendant, crime, community dicial comments about De jury. prosecutor’s penalty phase argument during urged when the prosecutor occasions objected fendant on several is community. following excerpt speak for illustrative: are North You
Today, you people speak Carolina. By your verdict community. of our the moral conscience , you . you . . have indicated phase guilt-innocence] [the convinced, satisfied, totally that this Defendant completely are murder, today, you out a sent degree of first guilty message— Objection.
Mr. BRITT:
COURT: Overruled. v. HUFF
STATE N.C. 1 it should Mr. —and the State contends VANSTORY: — message a thunderous be Mr. Britt: Objection.
COURT: Overruled. earshot, “No, every within person Mr. VANSTORY: —to Huff, Randy you we will not tolerate what did. We think it you We We want the world to know it. think are is bad. provided of the ultimate law.” deserving penalty the prosecutor argued implication Defendant maintains that community to the state obligation had an to return a sentence of death. *60 in v. recently rejected
We
a similar contention
State
have
Brown,
179,
1,
denied,
970,
320
358 S.E. 2d
cert.
484 U.S.
N.C.
(1987),
excepted
portions
XI.
[24]
In defendant’s eleventh
assignment
of
error, he
contends that
prosecutor
erred in
the
to state the
permitting
trial court
incorrectly
regard mitigating
during
law with
circumstances
jury.
prosecutor
mitigating
to the
The
defined a
closing argument
severity
evidence that lessens or reduces the
of
circumstance as
the crime. Defendant asserts that this statement directs the
value,
in
mitigating
that
order to find that certain evidence had
it
have to find that the evidence was sufficient to reduce
would
of
murder to some lesser included offense.
first-degree
the crime
prosecutor’s
This assertion is without merit.
definition
miti-
merely
charge
an
shorthand statement of the
acceptable
N.C. 1
gating
that
subsequently
circumstances
the trial court
gave
already
We
jury.
have
concluded
no plain
error exists in that
Moreover,
portion
prosecutor
could
charge.
properly
that the
argue
weight
any mitigating circumstance was for the
v.
jury’s determination. State
Craig,
N.C.
S.E. 2d
denied,
cert.
464 U.S.
XII. [26] Defendant brings forward one further argument which he erroneously as a court preservation briefed issue: that the trial erred his motion for a mistrial denying during sentencing The phase prosecutor girl his trial. called defendant’s former friend, her, who testified that defendant had and later assaulted
74
1N.C.
in her
The
also testified
girlfriend
had shot at her while she was
car.
in her
threatening
she carried
letters from defendant
car.
objection
The
court sustained defendant’s
to this latter
trial
Thereafter,
testimony.
marked for identification a
prosecutor
it in black and red
upon
card with the word “killed” inscribed
ink
blood. The
then asked the
approximate dripping
prosecutor
card,
replied
how she came to receive the
to which she
girlfriend
it
in her
while defendant was
placed
had been
mailbox
motion to strike
jail awaiting
objected,
trial. Defendant
and his
jury
The trial court instructed the
not to consider
was allowed.
this evidence. Defendant then moved for the mistrial that is
While
that the trial
assignment
conceding
basis of this
of error.
mistrial,
in denying
did not abuse his discretion
the motion for
judge
defendant now contends that the
effect of the evidence
prejudicial
could not
corrected
the trial court’s instruction to the
be
further
in this capital-sentencing proceeding,
contends that
granted.
disagree.
the mistrial should have been
We
testimony
The
cut
in mid-sentence
girlfriend’s improper
was
off
objection.
objection
was sustained. Defendant
asserts that the
must have known that the card could
prosecutor
he
when it
jail
placed
not be tied to defendant since
was
mailbox,
girlfriend’s
in the
but
has failed to show how he was
immediately
objec-
The trial court
sustained defendant’s
prejudiced.
tion,
to strike
granted
appropriately
motion
instructed
deny
jury.
It is not error for a trial court to
a defendant’s
where the
improper questioning
motion for mistrial for
trial court
objections
has sustained the defendant’s
and instructed the
243,
consider the
State v.
question.
Bright,
not to
N.C.
S.E. 2d
Preservation
Issues
poses.
[27]
Defendant
First, defendant contends that the trial court erred in de
brings
forward
six
issues for
preservation pur
juries
his motion for
for the
nying
separate
guilt-innocence and
penalty phases
prohibit
of his trial and his motion to
the State
jurors.
from “death
This
has
resolved
qualifying”
previously
Court
contrary
position.
Taylor,
these contentions
to defendant’s
(1981),
denied,
283 S.E.
cert.
463 U.S.
2d
denied,
77 L.Ed. 2d
(1983);
[28] Second, defendant contends that the trial court erred in deny his ing motion declare the North insanity Carolina law on This previously unconstitutional. issue has been against decided Mancuso, 464, (1988); v. defendant. State 321 364 N.C. S.E. 359 2d (1987). 152, v. Evangelista, State 319 N.C. S.E. 353 2d 375 [29] Third, defendant contends that the trial court erred in deny his motion for a ing insanity bifurcated trial on the issues of guilt-innocence. previously This Court has decided this issue adverse Mancuso, 464, toly defendant. State v. 321 364 N.C. S.E. 2d 359. [30] Fourth, defendant contends that the trial court erroneously jurors excused for cause because of their opposition punish to capital ment. This argument was decided against position defendant’s Oliver, 326, (1983). 309 State 307 2d 304 N.C. S.E.
statute,
[31]
Fifth, defendant contends that the North Carolina
N.C.G.S.
§
15A-2000,
unconstitutional.
We
have previously
death
penalty
considered this
adversely
contention and have decided it
to de
Gladden,
398,
673,
fendant. State v.
340
N.C.
S.E.
cert.
2d
denied,
(1986);
Rook,
U.S.
L.Ed. 2d 166
State v.
(1981),
denied,
N.C.
Statutory Review no Having prejudicial found error in guilt-innocence phase trial, the sentencing phase or we now turn to our statutorily mandated review of the judgment sentence death 15A-2000(d)(2)(1988). imposed upon defendant. N.C.G.S. doing § so, we must determine supports jury’s whether record findings of the aggravating upon circumstances which the sentenc- death, court ing based its sentence of whether the sentence of was imposed any death under the influence or passion, prejudice, *63 COURT IN THE SUPREME
76 v. HUFF STATE (1989)] 1 N.C. [325 factor, ex death is the sentence of whether arbitrary and other cases, in similar imposed the penalty disproportionate or cessive Id.; v. State the defendant. crime and both the considering stetler, Huff denied, (1984), 110, 92, 117, cert. 126 322 S.E. 2d 312 N.C. (1985). 1009, 2d 169 85 L.Ed. 471 U.S. record, transcript reviewed thoroughly We have that the record already determined We have in this case. the briefs de- circumstances aggravating the submission supports violence to felony of a convicted been previously fendant had 15A-2000(e)(3)(1988), that the murder N.C.G.S. person, § cruel, heinous, or N.C.G.S. atrocious especially son was of defendant’s (1988). 15A-2000(e)(9) Further, reveals no indication the record § that the influence of passion, under the imposed was death sentence arbitrary factor. any other or prejudice, imposed [33] We in this case is finally consider, proportionate therefore, whether the death the penalty imposed sentence this review as follows: We have defined cases. similar essence, review is to com- proportionality our task on In are in the which pool with other cases the case at bar pare defendant, crime and the regard similar roughly as, crime was com- in which the the manner example, such for character, physical background, and defendant’s mitted If, we comparison, such a making after and mental condition. sentences consistently returning death have been juries find that cases, concluding basis for strong we will have a in the similar review is not excessive in the case under sentence that a death hand, juries if we find that On the other disproportionate. or in the similar life sentences consistently returning been have cases, a death concluding strong we will have a basis dispropor- is excessive or under review in the case sentence tionate. (1984), 493, 632, 648, Lawson, 503 314 S.E. 2d 310 N.C.
State v.
(1985).
1120,
denied,
267
86 L.Ed. 2d
471 U.S.
cert.
review,
uses as
this Court
conducting
proportionality
In
1
since
capital
tried
cases
all cases
as
of similar cases
pool
its
life
a death or a
has recommended
1977 in which a
June
to N.C.G.S.
imposed pursuant
life
or in which a
sentence
sentence
335,
15A-2000(b).
Williams,
301 S.E. 2d
N.C.
§
cert.
denied,
denied,
464 U.S.
reh’g
78 L.Ed. 2d
464 U.S.
N.C.
(1983).
1004,
This Court
upheld
has
death sentence in cases where the
heinous, atrocious,
juries have found
murders were especially
that the
688,
(1987),
320
or cruel.
State v.
S.E. 2d 667
Spruill,
N.C.
360
—
denied,
—,
(1988),
cert.
U.S.
78 IN SUPREME
STATE v. 1 N.C. State head an iron edly pan); over the hit his mother-in-law denied, (1981), Rook, cert. 201, 455 v. 283 2d 732 304 S.E. N.C. (1982) (defendant 1038, with tire 155 beat victim U.S. 72 L.Ed. 2d car, tool, knife, her, body her with a raped her with ran over cut field); v. Craig, 308 lonely N.C. her to die in a and left denied, 908, 446, 740, cert. 2d 247 464 U.S. L.Ed. 302 S.E. 2d (1983) (brutal utterly heavily intoxicated woman who was slaying of defenseless).
Moreover,
penalty
death
cases
includes affirmed
pool
de
which the
as an
circumstance
aggravating
found
felony
involving
been convicted of a
previously
fendant had
Brown,
See State
320 N.C.
person.
use
of violence to another
denied,
179,
970,
cert.
2d
484 U.S.
L.Ed. 2d
358 S.E.
(1987)(this
death sentence where
supported
circumstance
aggravating
Robbins, home);
State v.
356 S.E.
victim shot
(1987)
denied,
cert.
(multiple
484 U.S.
2d
2d
L.Ed.
*65
249,
(1981),
Taylor,
State v.
283 S.E.
304 N.C.
2d 761
killings);
denied,
denied,
1213,
1398,
reh’g
cert.
463
463
L.Ed. 2d
U.S.
77
(female
(1983)
1249,
by defend
U.S.
Finally, recently as we stated:
This Court
found the
has
death sentence disproportionate
Benson,
318,
in seven cases. State v.
323
372
N.C.
S.E. 2d
(1988);
Stokes,
1,
(1987);
517
State v.
319 N.C.
State v. 324 N.C. 375 S.E. 2d Allen, case 367 S.E. 2d (1988), us, like the case before infant killing involved an child parent, life defendant received a sentence. Allen, Unlike this case involves two murders. first-degree comparison Our of this and this crime defend- *66 ants and crimes in compels cases similar facts this Court to conclude that the sentence his imposed upon death conviction first-degree of the murder of his infant son is not excessive or disproportionate and must be affirmed.
We hold that defendant received a fair and sentencing trial proceeding, free from The sentence of death was prejudicial error. imposed any not under the influence passion, prejudice, of or other arbitrary factor. death sentence is disproportionate Defendant’s the penalty imposed to in in the Accordingly, similar cases. both trial, and of find guilt-innocence sentencing phases we No error.
80 v. HUFF
STATE
N.C. 1
EXUM concurring.
Justice
Chief
in the
all issues
majority’s
the
treatment of
I concur with
of this trial.
sentencing phases
and
guilt
the
addressing
the
were
for
sentencing
If in the
Court
phase
issue,
unanimity instruction
time the
circumstance
mitigating
first
I
these instructions
agree
position
with defendant’s
would
to
federal
as
Amendment
the
constitution
Eighth
violate the
—,
v.
interpreted
Maryland,
in Mills
U.S.
amendment was
(1988),
my dissenting
2d
the reasons stated
100 L.Ed.
(1988),
v.
S.E. 2d 12
McKoy,
in State
N.C.
opinions
—
(1989),
—,
I concur in the result reached but to reasoning that it was error for the court allow defendant trial. during stage to from the courtroom one be removed held I hold that majority has this was harmless error. would it was not error. capital a defendant
I believe it should be obvious that by the any case be a trial stop case or other cannot allowed to I it would the defendant used this case. believe disruptive tactics place be to on this actual reason than rationaliz- better decision ing ground. it on some other rule there is an exception
I believe we should hold to be in a case cannot waive capital right that a defendant exception This should present stages proceedings. at all if so cannot disruptive be that a defendant becomes trial may Apply- removed from the courtroom. continue defendant be case, there no error. ing this would be exception Frye dissenting Justice as to sentence. phase guilt
I concur in the result reached as regard- find to the result reached necessary trial but it to dissent as phase. sentencing phase, As to the ing sentencing miti- unanimity proof two requirements contended that the *67 81 THE IN SUPREME COURT v. LAWS STATE N.C. 81 the evidence unconstitu by a preponderance circumstances
gating mitigating circumstances tionally jury’s limited the consideration Three, on Issue Four. jury’s response and thus tainted Issue unanimity argument majority rejects regarding 108, 372 authority McLaughlin, State v. N.C. on the (1988). my dissenting For the reasons stated S.E. 2d 74-75 I the United States McLaughlin, to believe that opinion continue —, 100 Maryland, in Mills v. 486 U.S. Supreme Court’s decision (1988), sen 384. to the North death applicable L.Ed. 2d Carolina Supreme States I also note that the United tencing procedure. majority in the case relied has certiorari granted Court McLaughlin. McKoy, of this Court — —, (1988), 103 L.Ed. granted, cert. U.S. 2d S.E. 2d v. WAYNE ALAN LAWS STATE OF NORTH CAROLINA No. 653A85 (Filed 1989) July parte 66— ex com- judge’s § Law
1. Constitutional murder — error jurors munications with —no present to be rights A murder defendant’s constitutional the trial violated where of his trial were not stages at all selection, day sent home during jury the end of the judge, at and indicated prospective jurors who were still all those who dismissed talk with those had been privately he would service; that the trial or where the record indicates from any individual routinely problems about inquired court had needed to know about have that court jurors might discussed expressed by jurors or were problems no such with the court. 912; 2d, Jury § §§ 194. Criminal Law
Am Jur acting in concert —evidence § 9.3— 2. Criminal Law murder — sufficient phase guilt-innocence err in the
The trial court did not it could instructing murder prosecution of a committed having personally only find guilty theory acting in con- the separate murders also on but notes by the room Court.