*1 COURT IN THE SUPREME v. LOCKLEAR (2009)] [363 LOCKLEAR, JR. v. DANE NORTH CAROLINA STATE OF No. 578A05 August 2009) (Filed 28 prior or bad acts —murder—similar crimes 1. Evidence— joinder admissibility offense — distinct from — prosecution a abuse discretion in court did not its The trial prior a murder. by admitting evidence of murder first-degree necessarily de- joinder does not about of offenses The decision connection between presence of a transactional termine the admissibility of evidence. does not determine offenses and and the 32 Here, between murders there were similarities goes period is not too remote month between the offenses admissibility. rather weight of the evidence than admis- prior bad acts — defendant’s 2. Evidence— crimes or prior explanation felon and sion — convicted murder — events — motive prosecution plain first-degree in a murder
There was no error from defendant which where a statement was admitted prior being in a being a convicted felon and involved admitted integral part of objected to were an murder. The statements motive, were explanation of events and relevant have found him did show that the would and defendant not its admission constituted the statement or that guilty without miscarriage justice. resulting in a a error fundamental drug-related—other prior or bad 3. Evidence— crimes acts — plain error evidence —no defendant, plain light against there no In evidence prosecution in the admission of first-degree in a murder error drug- involved in that he had been statement from defendant activities. related Law— Confrontation Clause — forensic
4. Constitutional prejudicial reports — not reports pathologist from
The admission of forensics testify Clause did not violated Confrontation dentist who was unavailable did that either witness where the State not show them. opportunity had prior cross-examine or that defendant have influenced verdict However, evidence would not IN THE SUPREME
STATE v. *2 light of the other evidence and because the defendant was also guilty felony found under (where autopsy murder rule played role). no by
5. Evidence— letter received inmate — not authenticated— admissibility credibility to show
An purportedly unauthenticated letter in which defendant an story asked incarcerated change witness to her was otherwise irrelevant but admissible on response redirect examination in credibility. defendant’s attack on the inmate’s The letter showed willingness her cooperate. to come forward and Even assuming error, such prejudicial. error was not second-degree
6. Homicide— murder — lesser-included of- fense — instruction denied
The trial court did not err in first-degree prosecu- murder by tion not giving requested instruction on second-degree murder as a lesser-included offense where there was clear evi- dence supporting each first-degree murder, element of defendant did rage incapable not show that rendered him ability deliberate thought only and the to reason. The evidence of rage was from Moreover, defendant’s own argu- statements. ment concerning premeditation and bearing deliberation has no felony on his conviction under the murder rule. felony
7. merger Homicide— with assault — further murder — felony of arson by felony trial court did not submitting err murder to the jury where defendant argued killing that the merged should have with the underlying assault, but there was also the underlying felony of arson.
8. Constitutional Law— effective assistance of counsel—
conflict defending interest — counsel ineffectiveness allegation
Defendant did not show ineffective assistance of counsel due alleged to an pretrial conflict of interest where a hearing was held concerning the withdrawal experts of two from the case. Defendant cannot fault defense counsel for privileged informa- by tion parties, protected product disclosed third work was not revealed, delays solely per- were not the result of deficient formance counsel. IN THE SUPREME
STATE v. judge’s Criminal Law— comments — recusal—denied 9. of a to recuse where There was no error the denial motion past with judge’s single reference to his interaction any against personal prejudice bias did not or demonstrate defendant, based on and there no evidence a decision emotion rather than evidence. capital Sentencing— retardation
10. —instructions—mental capital sentencing proceeding The trial court erred in a requested instruction that he would be giving parole if the mental retarda- sentenced to life without found may finding average tion. The not understand what men- *3 tal will mean for a defendant. retardation dissenting.
Justice MARTIN BRADYdissenting.
Justice joins dissenting opinion. Justice NEWBY in the Appeal pursuant from a right 7A-27(a) judg- § as of to N.C.G.S. imposing Judge Floyd, of Robert F. ment a sentence death entered Superior Court, County, upon jury 13 June Robeson Jr. on January finding guilty first-degree of murder. On verdict defendant bypass Supreme the Court allowed defendant’s motion the Appeals appeal judgments. of as to his of additional Heard in Court September Supreme Court 8 2008. Roy Attorney General, by Crumpler, Cooper, William B. Joan M. Cunningham, Amy Kunstling, Attorneys and C. Assistant General, State.
Staples Appellate Defender, Hughes, S. Constance E. Appellate Defender; Widenhouse, Assistant and Janet Moorefor defendant-appellant.
TIMMONS-GOODSON,Justice. Locklear, Jr. was indicted count each of
Defendant Dane for one larceny, burning personal property, first-degree murder, felonious first-degree capitally, The tried and on 1 arson. case was June finding guilty of the first- returned verdicts malice, pre- degree Singh murder Frances Persad on basis of felony meditation, deliberation, under murder and also rule weapon injury deadly inflicting with a serious on the bases of assault STATE v. LOCKLEAR and arson. The guilty also found defendant of misdemeanor lar- ceny, burning personal property, first-degree Following arson. hearing, mental retardation found defendant was not men- tally capital proceeded, retarded. The sentencing hearing after which recommended a sentence of death. appealed capital Court, his conviction to this and we bypass allowed Appeals his motion to the Court of as to his other convictions. trial, We find no error in defendant’s but we vacate his death sentence and remand for a new sentencing hearing.
FACTUAL BACKGROUND presented The State early evidence that in morning hours of February responded firefighters reports aof fire at the res- Singh idence of Frances Persad at 52 Beck Street in Springs, Red they North Carolina. When scene, firefighters arrived at the found the engulfed home in flames. extinguishing fire, After firefighters dis- body covered the charred lying Persad on the floor of the front one-by-four A board, lay bedroom. body. bloodied slat, a bed next to her vehicle, Persad’s Mustang, a red Ford was not at the home. The shotgun normally kept that Persad in her bedroom missing. was also subsequent criminal investigation revealed the fire was inten- tionally set and that Persad died poisoning. from carbon monoxide injuries Persad also sharp-force sustained blunt-force to her head and injuries to her Investigators neck. soon focused their attention on *4 defendant, patient whom Persad had befriended while he was a Regional Southeastern Medical Center. Persad worked at the medical psychiatric nurse, center as a friendship and her initial with defend- developed ant relationship. had into a sexual days later, surveyor Several on 1 working March a land in a County rural wooded area in Robeson discovered Ms. red Persad’s Mustang. Ford The wooded area was near a canal with a dirt road it, beside known as “Canal Mustang Road.” The was burned down to family bare metal and was smoking. still Defendant’s extended Upon area, police resided in the searching area. found defendant nearby hiding in a house.
Heather Justice testified on behalf of the State. Justice stated acquaintance defendant an boyfriend, was of her former John Campbell. “very Campbell Justice testified defendant sold a large weapon,” gun, pieces black “a exchange little over 200 “$200.” dope” worth Other witnesses established that this was the THE IN SUPREME that Justice further testified to Persad. shotgun belonging same Sunday early at her residence one Campbell arrived and defendant driving Mustang, a red February was of 2000. Defendant morning in of the vehicle. passengér seat Campbell sitting was in the defendant could and asked whether Campbell into the house came residence, Justice As defendant entered the bathroom. use his hands and clothes. have fresh blood on appeared to noticed he Campbell bathroom, Justice asked went into the defendant After people bringing on, did he do—what was going what “what was approximately ten min- left my house for.” Defendant with blood in utes later. statements defendant into evidence several
The State introduced killing he confessed to officers in which gave to law enforcement audiotaped, the second was video- was while One statement Persad. County Ricky Britt of the Robeson Detective taped. Defendant told law enforcement officers several other Office and Sheriff’s February 2000 after com- up evening on the of 26 picked him Persad in her red hospital. them at the Persad drove pleting a second shift drinking in bed and Persad were her home. Defendant Mustang to they argue. Although began when together after sexual intercourse subject disagreement, of their recall the exact could not defendant he had angry with him because that Persad was defendant stated days argument her a few earlier. shotgun from taken house told “screaming” at him. Defendant “upset” him, Persad was grabbed had thing is that Britt that “the next Detective knew] [he] [he beating with began . . . her was in her room and a two four that [] telephone attempted defendant, to reach According to Persad it.” want die.” said she “didn’t beat her down. She to call but he with the board until Persad in the head continued to beat heartbeat, but “knew she He checked her he believed she was dead! had “a lot of blood” on profusely, and defendant gone.” She bled fire and fled the and couch on then set the curtains him. Defendant attempted to river, where he Mustang to a home. He drove Persad’s eventually body clothes. Defendant from his wash the blood Mustang. and burned the area near Canal Road drove to a rural murder, confessed to confessing Persad’s While years told earlier. Defendant occurred several killing second *5 Cynthia Wheeler, young woman named Britt he killed Detective at Pembroke University of North Carolina at the who was a student time, in of 1997.At that inves- disappearance June at the time of her near the canal the same location Wheeler’s vehicle at tigators found STATE v. Mustang, where Persad’s vehicle was discovered. Like Persad’s Wheeler’s vehicle was burned down to bare metal. The skeletal body along later remains of Wheeler’s were found several months away canal, approximately one to two from where same miles located. Defendant told Detective Britt Wheeler’s burned vehicle was engaged vehicle, that he and Wheeler in sexual intercourse in her but angry that Wheeler became when she discovered defendant was not wearing face, a condom. Wheeler scratched defendant’s which “upset” face, him. Defendant beat Wheeler in the then allowed her to dress. Wheeler told defendant she intended to tell law enforcement raped her, away. began officers that defendant then to run Defendant her, him, caught “[p]lease then beat and choked her. Wheeler told point, “gone don’t do this.” At some defendant realized he had too far” up.” pulse and “tried to wake her He checked her and heartbeat. dead, dumped body When he realized Wheeler was in he her along wooded area the canal and burned her vehicle. guilty first-degree found defendant of the murder of premeditation deliberation,
Frances Persad on the basis of as felony rule, deadly well as under the murder with both assault with a weapon injury inflicting underlying serious and arson as felonies. The proceeded case to sentencing. presented evidence mental retardation at the sen- Timothy Hancock, Dr.
tencing hearing. psychologist, a clinical testi- expert impairment an in Dr. cognitive fied as or mental retardation. Hancock testified considered defendant’s case “a slam dunk for he pro retardation” and that it was one of the few bono cases his clinic accepted every year strength findings.” “based on merit and the IQ Dr. Hancock a full scale score of 68 testified defendant obtained Intelligence (“WAIS”) on the Wechsler Adult Scale test adminis- January Dr. testing tered to defendant 2005. Hancock’s also adaptive functioning significantly showed defendant’s deficient skills, skills, self-care, skills, work and com- social communication munity that, opinion, use. Dr. Hancock stated his defendant was Carolina General Statutes. retarded as defined North In testing
Dr. Hancock also testified to earlier of defendant. IQ September 2004 defendant obtained a full scale score of 69 under IQ psychologist, Dr. a WAIS test administered another clinical adaptive had Brad Fisher. Dr. Fisher determined that defendant self-care, community use, academics, deficits in and work functional mentally retarded. skills. Dr. Fisher concluded defendant was *6 IN THE SUPREME v. LOCKLEAR (2009)] N.C. 438 [363 Hancock, records confirmed According to Dr. defendant’s school In impairment in the functional academics area. significant had he IQ years old, had an score of was fourteen when defendant IQ IQ test and an score of 69 on the Stanford-Binet 65 on the Slosson IQ age defendant had a mental test. The Slosson test results showed “educably years placed was of nine at the time. Defendant [sic] mentally handicapped” in 1984. Dr. Hancock stated this was classes dropped mentally “the educational version of retarded.” age school at the of sixteen when his mother died. out of presented The evidence of defendant’s records from State Health, as his medical rec- Regional Southeastern Mental as well Department Although defendant had ords from the of Correction. personality disorder, previously diagnosed been with antisocial post-traumatic disorder, depression, cocaine, alcohol, and stress marijuana dependence, functioning diagnosed was his intellectual presented as borderline and not retarded. The State also evidence prison kept books and letters in his cell. Rec- that defendant several Department diagnoses ords from the of Correction showed of defend- “malingering.” ant’s issue,
During charge conference for the mental retardation jurors that, requested the trial instruct defense counsel court to mentally they retarded, should find defendant he would be sentenced imprisonment parole. argued to life without Defense counsel “not to you way that, know, knowing would have no what include mentally happen retarded, would to a defendant if he’s found whether they going go happen So, he’s to free or what’s to to him. need to you going know, going prison know that he’s he is still to be in for to— parole. repeated request: life without Defense counsel says provides it the law that no defendant who is men- .Where tally death, I retarded shall be sentenced to and ask the Court to paraphrase also include an additional sentence or after that that mentally upon retarded, that a defendant is he will be finding parole. said, explained sentenced to life without As I I that so the jail going Mr. to be in life would know that Locklear is they parole. otherwise, going without Because don’t know what’s happen they if to to him should find that he’s retarded. they him, your going happen Honor, If don’t know what’s may they retarded, you know, if cause a concern find him happen him, going go. what’s to where is he
STATE v. unnecessary. prosecutor argued The follow- the instruction ing colloquy then occurred: bench, any-
THE COURT:As we discussed at the is there *7 prevent argu- thing to counsel for either the State or defendant type punishment law it to what would ing the as relates imposed upon finding be of either mental retardation or no mental retardation? any I’m aware of not restriction.
[PROSECUTOR]: you’re So, arguing THE COURT: not that the defendant can- jury— argue not to the argue He can it.
[PROSECUTOR]: you mentally retarded, THE —if him then he COURT: find will be in accordance with the law of the state of North sentenced parole? prison Carolina to life in without That’s consistent. [PROSECUTOR]: say I beg sort of to differ. To [DEFENSE COUNSEL]: explain to death to the he’s not to be sentenced doesn’t going happen get argument what’s to to him. And if I in an say, well, you retarded, gets sentence, here if find he’s life says different, something the instruction that that doesn’t comes include that in there— big things.
THE COURT: There’s two different Yes, sir. [DEFENSECOUNSEL]: something
THE One is different and one doesn’t COURT: it in— include say Well, something if I that’s not
[DEFENSE COUNSEL]: instructions, jury going in the then what’s the to think? included They you law, said, and this listen to the Court’s instructions of happen him, know, going what instruction —what’s to to that’s question. they know, big and that’s the And that will be don’t question big question, and that’s a reasonable for them to retarded, happen him. have, well, going if I find him what’s requested instruction. The trial court denied defendant’s Following retarded. The presentation found defendant was mitigating aggravating circum- of evidence on stances, the recommended a sentence of death. IN THE SUPREME v. LOCKLEAR specific provided needed to discuss facts will be as
Additional assignments of error. pertaining to defendant’s issues PHASE GUILT-INNOCENCE Evidentiary question on the two murders [1] argues the trial court erred in allowing State Cynthia killed Wheeler 1997. introduce evidence that defendant murdering with both Persad and Although charged defendant was joined Defendant asserts that Wheeler, were not for trial. the offenses circum underlying indicates the factual the severance of the cases joinder surrounding the murders were too dissimilar to allow stances defendant, dissimilarity, contends militates of the offenses. This murder. Defendant against introduction of the evidence Wheeler’s legit was introduced for no argues the evidence of Wheeler’smurder propensity kill purpose than to demonstrate his imate other unduly prejudiced him, Persad, and that introduction of the evidence *8 requiring a new trial. prior that admission of evidence of a offense
Defendant concedes
joinder
See,
from
of offenses.
404(b)
under Rule of Evidence
differs
423,
662,
e.g.,
Greene,
418,
(1978)
294 N.C.
241 S.E.2d
665
State v.
may
properly joined
separate
is a
(noting that whether offenses
be
may
properly
from
be
question from whether evidence
one case
join
Although the decision to
other).
admitted at the trial of the
considerations similar to those
offenses for trial often involves
prior
determining whether to admit evidence of a
reviewed when
join
join
404(b),
under Rule
the decision to
or not
offenses
offense
admissibility
404(b).
of evidence under Rule
State
does not determine
308-11,
66,
Cummings,
298,
(1990) (hold-
N.C.
389 S.E.2d
72-73
v.
326
joined
trial,
trial
ing that, although the offenses were not
for
court
properly
murder at the trial of the other
admitted evidence of one
Corbett,
382, 388-89,
404(b));
309 N.C.
307 S.E.2d
under Rule
State
offenses,
joinder
although
of the
139,
(1983) (determining
144
prejudicial
part
improper, was not
in
because
of each of
“[e]vidence
separate
in the
trials of
these offenses would have been admissible
identity
Moreover,
prove
assailant”).
the others in order to
join
discretionary
two or more offenses for trial is
the decision to
necessarily
a transactional connection
does not
indicate the lack of
15A-926(a) (2007); State v.
§
between the offenses. See N.C.G.S.
Chapman,
330, 342-43,
661,
(1995) (noting
464 S.E.2d
668
342 N.C.
having a
to consolidate for trial offenses
transac-
that the decision
court),
the trial
cert.
tional
is within the discretion of
connection
447
THE
IN
SUPREME
STATE v. LOCKLEAR
438
N.C.
1023,
Thus, although denied,
Id.
Rule
Rule
is “a clear
rule of
§
crimes, wrongs or
inclusion of relevant evidence of other
acts
defendant, subject
exception
if
requiring
to but one
its exclusion
its
only probative
propensity
has the
value is
show that
defendant
disposition
nature of the crime
or
to commit an offense
Coffey,
charged.”
278-79,
389 S.E.2d
State v.
by the
(1990).Thus,
long
wrongs
as
as the evidence of other crimes or
“
purpose
than to show
‘is relevant
some
other
[the]
”
crime,
propensity’
charged
commit the
such evi
...
defendant's]
Id.
at 54
404(b).
under Rule
389 S.E.2d
dence
admissible
Bagley,
(1987),
(quoting State v.
denied,
(1988)).
U.S.
Here, following the trial court noted the similarities between the murders: argument the females; that an arose between victims are]
[Both intercourse, or during and each of victims sexual Defendant the That the at or the time of sexual intercourse. Defendant around point them beat with both his hands and some them —struck I he during argument. with his do note that further tes- hands oral video tified his statement further indicated—the and two-by-four. And I statement, he further hit Ms. with a [Persad] pulse victims, or instances checked think in both they fact, were, dead, if or then he to see deceased checked dispose made efforts to of the bodies. IN THE SUPREME COURT
STATE v. LOCKLEAR body took the hood In Ms. Wheeler’s case he on the of a vehi- disposed cle to—off of Canal Road and of it in woods. And in instances, Ms. case he set house afire. Both accord- [Persad’s] ing statement, just control, his lost he indicated he had effect, vehicles, they blacked out. As to both the victim’s were or near within burnt off Canal Road 100to 200 feet each other. Cynthia death That the WTieeler or about occurred on June of 1997. the death That occurred or about [Frances Persad] February 27, year proximity 2000. That the time between alleged the amount two—or of time between the two deaths probative is as and murders not so remote to diminish the value. arguments The trial further court noted that between defend- ant victims alleged and the arose as a result of misconduct on the part of defendant. trial court ruled the evidence of Wheeler’s purposes death was admissible for of showing defendant’s knowl- plan, edge, opportunity, intent, operandi, modus and motive to kill Persad. pro- The trial court also determined the evidence more prejudicial. bative than
Although argues temporally defendant murders are factually another, from findings distinct one the trial court’s indicate significant similarities between the deaths of the victim and Wheeler. thirty-two lapse As for the month the deaths, time between “re significant prior moteness in time less when the conduct is used to motive, intent, accident; show or knowledge, lack of remoteness generally only weight time affects given evidence, to be such admissibility.” its Stager, 278, 307, 876, State v. 329 N.C. 406 S.E.2d Smoak, (1991) (citing State v. 195 S.E. (1938)); Peterson, 587, 600-03, see also State v. 361 N.C. 652 S.E.2d that, 226-27 (2007)) (holding significant when there were simi larities between the death of the defendant’s wife and the death of a years woman sixteen earlier with whom the had a close personal relationship, the did trial court not abuse its discretion prior death, admitting evidence of the even though the defendant was — criminally charged never death), denied, with the earlier cert. U.S. -, L. Ed. 2d 377 argues if that, admissible, even the evidence was ex-
cessively prejudicial, requiring its exclusion Rule of under Evidence 403. We a trial review court’s decision to admit or exclude evidence Whaley, under Rule 403 abuse of discretion. State v. (citing Peterson, 390 (2008) 602-03, 361 N.C. at “ 227). only
652 S.E.2d at We reverse the trial court when ‘the court’s *10 449 THE SUPREME COURT
IN STATE v. arbitrary that it manifestly unsupported by or is so ruling is reason ” (quoting decision.’ Id. have been the result of a reasoned could not 602-03, (citations 227 and internal Peterson, N.C. at 652 S.E.2d at “ review, we consider not whether quotation omitted)). marks ‘In our court, whether the trial court’s might disagree we with the trial but ” Peterson, fairly supported by (quoting record.’ Id. actions are quotation (citations at 227 and internal 361 N.C. at S.E.2d its discretion omitted)). hold the trial court did not abuse marks We admitting in evidence of the Wheeler murder. in which he error to four other instances assigns erroneously prior of other trial court admitted evidence
asserts the objectionable (1) video- evidence includes: defendant’s bad acts. felon; taped being (2) he a convicted in which mentions statement audiotaped in he identifies certain statement which testimony by a drugs; (3) he witness mobile home as one where sold exchange in for shotgun he took from Persad that defendant sold the testimony attempted that a visitor illegal drugs; (4) a detective marijuana being was to while he to cocaine and defendant smuggle his the evidence of held at the sheriff’s office. Defendant contends any drug-related was irrelevant criminal record and activities unfairly prejudicial. Defendant asserts material issue at trial and errors warrants a new prejudicial effect these cumulative disagree. trial. We object to introduction much
To
extent
failed
defendant
inadmissible,
objected on
he
was
or
of the evidence
now contends
appeal,
his
argued
now
he has waived
grounds other than those
plain
error. We reverse for
right
appellate
review other than
Garcell,
only
cases,
plain
exceptional
most
see State
error
(quoting State v.
10, 35-36,
(2009)
only
we
Raines,
(2007)),
S.E.2d
when
resulting
one
are convinced that the error was either
fundamental
jury’s
justice or
have
miscarriage
in a
one that would
altered
35-36,
We each of the four instances in turn. now examine videotaped statement which instance arises from defendant’s statement, describes Wheeler. In the defendant killing confesses to when angry during with him sexual intercourse how Wheeler became promised to wearing a as he had she he was not condom discovered “upset” him. her in the face, his which He beat do. Wheeler scratched stopped car, then and allowed her face the back seat of the but vehicle, told she was leaving Wheeler dress. As she
STATE v. (2009)] N.C. 438 [363 going raped tell law to enforcement that defendant her. She then ran away. angered defendant, Wheeler’sthreat and concerned because he that, college already believed as she awas student and he was a con- felon, victed law enforcement “would not believe over her.” [him] [2] Defendant contends evidence that he was a convicted felon improperly prior admitted because evidence of convictions is testify. inadmissible when the defendant does See N.C.G.S. 8C-1,. (2007) (permitting prior § Rule 609 admission of evidence of convictions when testifies); Badgett, the defendant State v. (stating that “it to is error admit prior evidence of the defendant’s conviction when the defendant — testify” (citations does not omitted)), denied, —, cert. U.S. L. trial, however, Ed. only objected 2d At defendant to the ground evidence on the it 404(b). violated Rule Defendant there plain fore limited to review argument. error of this We conclude has defendant failed to show that the would have found him not guilty murdering videotape Persad absent his statement in the he was a convicted felon or that admission of this evidence consti tuted fundamental resulting miscarriage justice. error in a asserts, trial,
Defendant further as he did that admission of the evidence violated Rule of 404(b). Evidence The trial court over- objection. ruled argues only the evidence related to the case Wheeler and was irrelevant to the murder of We agree. Persad. do not Defendant’s status as a convicted felon was part explanation an integral of his regarding sequence of events and his motive in killing Wheeler. Wheeler threatened to accuse him rape, law defendant believed enforcement would discount his prior version of events because of his conviction. Wheeler’s threat angered defendant, whereupon and concerned he chased her down evidence, probative and killed her. This in turn, was of defendant’s murder of Persad insofar as it pos- tended to show both defendant’s sible in killing prevent motive Persad —to reporting her from shotgun police operandi. theft of her to his modus We more- —and that, over if erroneously admitted, conclude even such admission prejudice did not defendant.
[3] next three instances of admission of evidence which has assigned drug-related error concern his involvement in above, As activities. noted this evidence included that defendant drugs, once sold sold shotgun that he belonging to Persad for drugs, and that one of visitors his while he was at the sheriff’s office
IN THE SUPREME v. LOCKLEAR marijuana by hiding to him attempted cocaine and smuggle object however, did not Defendant, either drugs in some food. any evidence, for his grounds or failed to state admission preserve assignments these objection. has He therefore failed Garcell, 363 N.C. at plain than for error. See error for review other defendant, we con- light against 634. of the evidence 678 S.E.2d at In drug-related of the evidence of defendant’s clude that admission *12 jury’s the verdict. We would not have influenced therefore activities of assignments error. overrule these admitting opinion evidence issue of
Crawford [4] Defendant argues the trial court erred in admitting opinion testi by mony non-testifying a to the of Wheeler’s death rendered as cause opinion testimony non-testifying from a dentist about pathologist and identity agree we that admission Although the of Wheeler’s remains. testimony and was therefore of the the dictates violated Crawford beyond a doubt. erroneous, we find error harmless reasonable such Butts, M.D., the Chief Medical The John D. State tendered Carolina, expert an in the field of forensic Examiner for North as 101,which Dr. Butts Dr. to State’s Exhibit pathology. Butts testified as report Cynthia copy autopsy Wheeler. The identified as a of an Chancellor, M.D., a autopsy report prepared by Karen forensic was body in performed autopsy 1997. who the on Wheeler’s pathologist report prepared by autopsy the that, according Dr. to Butts testified injuries was blunt force Chancellor, the of Wheeler’s death Dr. cause a to the foren- Dr. Butts also testified results to the chest head. Burkes, analysis by Jeffrey Dr. a consultant on performed sic dental Dentistry. University faculty North Carolina School of the report. analysis autopsy Dr. included in the The forensic dental to the skele- that, by comparing Wheeler’s dental records Butts stated body positively the as that of remains, Dr. identified tal Burkes Dr. testified. Dr. Chancellor nor Burkes Wheeler. Neither testimony regarding objected Dr. Butts’s Defense counsel autopsy report, on autopsy, well as admission of the Wheeler’s as that, alia, of the evidence violated grounds inter admission against to confront the witnesses right Sixth Amendment objections. argues the him. trial court overruled the by testimony non-testifying wit- admitting opinion trial court erred identity of her of Wheeler’s death nesses as to the cause evidence did that admission agree, We but determine remains. prejudice defendant. STATE v. The Confrontation Clause of the Sixth bars Amendment ad mission of testimonial evidence unless declarant unavailable testify prior opportunity and the has had accused to cross- 68, examine the Washington, 36, declarant. 541 U.S. Crawford L. (2004); Lewis, 541, 158 Ed. 2d State v. autopsy report S.E.2d The State argues was not therefore, by “testimonial” and is not barred the Confrontation However, Supreme rejected Clause. squarely United States Court argument Massachusetts, this - U.S. -, case of recent Melendez-Diaz v. There,
129 S. Ct. -L. Ed. 2d - (2009). objected grounds the introduction of a Crawford analysis performed analyst. forensic non-testifying The evi dence at issue identified seized substance law enforcement- officers and linked to defendant as cocaine. The Court determined analyses qualify statements, that forensic as “testimonial” and foren e analysts sic ar “witnesses” to which Confrontation Clause - applies. -, id. at See S. Ct. at L. 2d Ed. at -. specifically The Court autopsy referenced as examinations one such analyses. kind at -, n.5, of forensic See id. 2536, n.5, 129 S. Ct. at - L. 2d Thus, Ed. at -. when the State seeks to introduce forensic *13 analyses, analysts showing a that the unavailable to “[a]bsent [are] testify petitioner prior at trial opportunity and that had a to cross- examine them” such evidence is inadmissible under Id. at Crawford. — —, Ct. L. —; 129 S. at Ed. 2d at see also v. Watson, State 221, 229-32, (holding 294-96 trial court in admitting erred of the of evidence cause the victim’s death con tained in the certificate), denied, victim’s death cert. 409 U.S. L. Ed. 2d 493
Here, the sought analyses State introduce evidence of forensic performed by a pathologist forensic and forensic dentist who did testify. The State failed to show either witness was unavail- testify able to or that given prior opportunity defendant had been to cross-examine them. The of admission such evidence violated right defendant’s constitutional to confront the against witnesses him, and trial court in overruling therefore erred defend- objections. ant’s We now must determine whether admission of beyond the evidence was harmless a reasonable doubt. See N.C.G.S. 15A-1443(b) § (2007) (“A rights violation of the defendant’s under prejudicial the Constitution of the United States is unless ... it was beyond Lewis, harmless a reasonable doubt.”); 361 N.C. at S.E.2d at 830.
IN THE SUPREME LOCKXEAJR two erroneously facts: The evidence admitted tended establish body; (2) the cause of positive identification of Wheeler’s and (1) critical, however, to the State’s case Wheeler’s Neither fact death. presented copi- of The State against for the murder Persad. Persad, including defendant’s con- ous that defendant killed evidence presented other evidence of fessions to the crime. The State also by beating he killed Wheeler Wheeler’s murder. Defendant admitted We and that he then burned her vehicle. choking her to death erroneously regarding evidence Wheeler’s conclude the admitted body have of her would not cause death the identification Watson, 233, 188 jury’s See 281 N.C. at S.E.2d influenced the verdict. overwhelming evidence of the (determining that, light defendant, average jury minds an victim’s murder “the persuasive had the conclu- would not' have found the evidence less copy sory certified of the death certificate evidence contained con- been admission of the evidence excluded. [of victim] at most harm- copy certified of the death certificate was tained beyond omitted)). (citations error a reasonable doubt.” less presented evidence of addition, above, In as the State discussed opportunity, knowledge, plan, murder to show defendant’s Wheeler’s intent, premeditated and operandi, and motive to commit the modus However, murder of Persad. also found defendant deliberate erroneously felony rule, which the admit- guilty under the murder played Thus, autopsy regarding Wheeler no role. even ted evidence autopsy wrongful evi- assuming arguendo that the admission of find defendant murdered Persad dence influenced the premeditation would not affect deliberation, with that evidence felony murder Defendant has jury’s guilt under the rule. verdict prejudice arising from this error. failed to show objections examination witness Overruled re-direct [5] Defendant contends the trial court committed prejudicial error *14 of objection re-direct examination overruling his State’s exchange of regarding testified Heather Justice. Justice appearance at her home at the shotgun drugs, and his Persad’s driving was a red approximate of Defendant time Persad’s death. the time. spattered and fresh blood at Mustang Ford was with previous regarding her Justice Defense counsel cross-examined prior convictions, inability dates, inconsis- to recall and criminal her testified, she was incar- statements. At the time Justice tencies in her boyfriend Campbell. her manslaughter conviction of cerated for the STATE v. LOCKLEAK Upon re-direct, questioned the State Justice about a letter she re- while serving objections, ceived her sentence. Over defendant’s Justice testified she believed the letter came from defendant and that letter, “change story.'” his defendant asked her to [her] his, contends letter was never authenticated as and its contents were therefore inadmissible.
However, right has State to introduce evidence to rebut “[t]he explain by or although evidence elicited the evidence incompetent Johnston, would otherwise be or irrelevant.” State v. (1996) (citations omitted). dispel “Such evidence is favorable arising admissible inferences 605-06, from defendant’s cross-examination witness.” of a Id. at (citations S.E.2d at 294 omitted). Here, sought defense counsel impeach Justice cross-examining regarding manslaughter her her inability conviction to recall certain dates. The State’s re-direct credibility attempted to part by restore Justice’s with demonstrating willingness cooperate her to come forward and with law Thus, enforcement. while of evidence the letter was otherwise irrelevant, it response was admissible in to defendant’s attack on during Justice’s character cross-examination. See id. We moreover that, assuming error, prejudicial. conclude even error such was not We overrule these assignments of error. second-degree
Denial instruction on murder of [6] Defendant asserts there was evidence from which the could guilty have him second-degree murder, found of and the trial court requested therefore erred in failing submit the instruction to the jury. According statements, to defendant’s he lost argu control while ing with Persad and thing “the next grabbed “had a two [he knew]” began four that was in . . . her room her beating with it.” [] Defendant continued to beat Persad the head until he believed she dead, then set fire to the argues residence. Defendant provoked could find from this evidence he was to a state blind rage by argument his Persad, with beat her that he while in that state rage, and that he set believing then fire to the house she was already justified dead. Defendant contends the evidence submission second-degree murder. We do agree. second-degree well-established rule for submission of mur- first-degree der as a lesser-included offense of murder “If the evi- is: fully satisfy dence is sufficient to proving the State’s burden of each every element of the in the degree, offense murder first includ- *15 n 455 THE SUPREME COURT IN
STATE LOCKLEAR v. evidence to deliberation, and there no ing premeditation and he commit other than denial that negate these elements defendant’s properly from con offense, the should exclude judge ted the trial degree murder.” possibility of a conviction second sideration the 645, (1983), 298 658 Strickland, 307 S.E.2d State v. N.C. Johnson, v. 317 N.C. part grounds other State overruled in 775, evidence must be suf 193, 203-04, (1986). S.E.2d 781-82 344 guilty of the to a rational to find defendant ficient allow Conaway, acquit greater. State 339 offense and to him of the v. lesser Alabama, U.S. 487, 824, (quoting 447 514, 453 S.E.2d Beck denied, 884, 133 635, 392, cert. 516 U.S. 625, (1980)), 65 L. Ed. 2d L. (1995). Ed. 2d 153 clearly the elements
Here, support to each of there was evidence question premeditated and murder. The determinative deliberate negate these was evidence to then becomes whether there sufficient have been allowed consider elements such that the should Strickland, 293, at at See 307 N.C. S.E.2d second-degree murder. angry time “The defendant was or emotional 658. fact negate will of deliberation unless such killing the element abil enough to disturb the defendant’s anger strong or emotion was Solomon, 222, 778, 785 ity 212, 456 S.E.2d to reason.” State v. denied, L. 2d 438 (citation omitted), 516 U.S. 133 Ed. cert. argued, without Thus, and the victim evidence that more, anger is insufficient to show that ability to Without evidence strong enough to disturb his reason. his incapable deliberating defendant was showing support the lesser included actions, the evidence could not second-degree murder. offense of 557, 564, 411 S.E.2d Olson, 330 N.C.
Id.; see also State v.
“
may pre
‘may deliberate,
perpetrator
(1992) (indicating that
premeditation and deliber
meditate,
may intend to kill after
and
by passion
prompted
large
to a
extent controlled
ation, although
”
Vause, 328 N.C.
(quoting State v.
at the time’
(1991))).
magnitude
was of such
rage
has
that his
failed
show
ability incapable
thought of deliberate
that it rendered him
Persad numerous
that defendant struck
reason. The evidence showed
vic-
“felled
fire to the house. Under the
board,
with a
then set
times
deliberation,
premeditation
“when numerous
theory of
tim”
opportunity
premedi-
inflicted, the defendant has the
wounds are
THE
IN
SUPREME COURT
STATE v. LOCKLEAR
*16
(2009)]
438
N.C.
[363
[here,
tate and deliberate
one
from
shot
a
to the next.” State v.
blow]
Austin,
295,
276,
653,
641,
denied,
S.E.2d
cert.
U.S.
“
916,
weapon
We moreover note that the
evidence of
“blind
defendant’s
rage” comes from his own statements to law enforcement. In
v.
State
Smith,
357,
denied,
S.E.2d
cert.
525 U.S.
(1998),
L. Ed. 2d 91
we concluded the
not
defendant was
entitled to
an
on second-degree
produced
instruction
when
murder
the State
apartment
destroy
evidence that he set fire to an
building to
evidence
of his earlier mail
463-64,
theft from residents. Id. at
Submitted murder based on assault felonious [7] argues the trial court erred in submitting first-degree felony murder to the underly based on as felonious assault felony. ing Defendant asserts the evidence shows his assault of injuries proximately Persad with board inflicted led to her death. merged Defendant contends the assault should have with murder charge separately and could not felony be used as a basis for Assuming arguendo murder. position correct, that defendant’s cannot show reversible error. The convicted defendant of first- degree premeditation deliberation, murder based on as well as felony rule, under the with murder both felonious assault with a deadly weapon inflicting injury serious and arson as the underlying argument felonies. Defendant’s has bearing no on his conviction of premeditated and felony deliberate murder or murder based assignments arson. We overrule these of error. Assistance Counsel
Ineffective [8] Defendant contends he received ineffective assistance of counsel grounds. First, based on argues several an actual conflict privileged his to disclose information of interest caused counsel State, This asserted against the State then used defendant. which Defender, September Capital when conflict arose Floyd, Jr., Judge F. Hurley, message sent facsimile Robert Robert County, Superior Judge for Robeson Senior Resident Court experts of two from his concern over withdrawal expressing Hurley prior Mr. had no in defendant’s case. involvement case, defendant, William Davis and Donald that counsel Bullard, appointed in March formation of the were before Although in July Services of 2001. Indigent (“IDS”) Office Defense *17 experienced capital Mr. and Mr. Bullard defense both Davis were attorneys, Mr. had to included on the IDS roster. neither chosen be Floyd Hurley copies of the let- Judge in his facsimile to two included M.D., experts, psychiatrist Artigues, ters of withdrawal. The Moira they Hilkey, Ph.D., in letters psychologist and James stated their that trial to communicate withdrawing were because of counsel’s failure they supply requested to information had to review and them with opinion to an on case. The letters from Drs. order render defendant’s Hilkey Davis, they William but were Artigues and were addressed to copied Hurley. message Judge Floyd,. Hurley Mr. stated to Mr. In his to experts questions as to the that the withdrawal defendant’s raised adequacy preparation for the case and the availabil- of trial counsel’s ity experts. of alternative day September 2004, receiving one the facsimile from
On after Hurley, Floyd hearing with defense counsel Davis Judge Mr. held County attorney to L. Johnson Britt determine and Robeson district Mr. stated his preparedness for trial. Davis that defense counsel’s Hilkey requested supply Artigues and with the decision not to Drs. “discovery information, reports,” was including investigative and do they don’t need the information to an evalua- deliberate “because experts “all the informa- tion, a evaluation” and that the had medical they have were to.” . .. I wanted to and I think entitled tion that them Hilkey previously Artigues never Mr. Davis that Drs. and had stated they testify case, unprepared in defendant’s informed him that felt to ready trial. that, experts, the case was for and but for now-absent Hurley complained Davis that the from Mr. contained Mr. also letter got stuff in there privileged . . . to our defense. He’s “information evaluations, privileged abuse. And that’s information about substance it, disclosing be it.” he shouldn’t got that shouldn’t —if he second, hearing the matter to ex- Judge Floyd held a closed present at Hurley’s Mr. in the case. Defendant plore intervention STATE v. along Bullard, with hearing, defense counsel Davis and as well Britt, Hurley, attorney Hilkey, as Mr. district Dr. Dr. Artigues, and persons. Floyd parties several other all Judge that, cautioned they necessary it perti- should find “disclose that is to information Locklear, put nent to the of Mr. Court defense on notice [to] prior proceed to that .disclosure” so that such discussions could presence anyone representing outside the of Mr. Britt or the State. Mr. portion hearing Britt was absent from a this reason. Floyd expressed Judge resignation also belief his that the letters Artigues Hilkey “information, from Drs. and contained no in and of itself, light point prohibited their ... resignation that was at that repeated position be disclosed.” At the hearing, Mr. Davis his Hilkey he had given Artigues Drs. and “all the information that I had I attorney, intended for them to have as Mr. Locklear’s they that I felt should have.” that, revealing
Defendant asserts Hurley, the letters from Mr. Hilkey Dr. Dr. Artigues, attorney Britt, and referring district hearings, them at the his counsel revealed and privileged confidential prosecution communications without authorization. These communications, argues defendant, contained “counsel’s mental processes product and work on sensitive mental health issues.” Defendant claims State used this later information to attack credibility expert sentencing hearing. *18 defendant, attorneys According to his “threw under him the bus” in protect an effort dilatory per- themselves from of accusations persuaded. formance. We are not
First, it is unclear from the record who first disclosed the fac- Hurley, along simile from Mr. its accompanying with letters from Drs. Artigues Hilkey, to Mr. Britt. Defendant it was argues Davis, Mr. Floyd. while the Judge transcript State contends it was While Floyd copies Hurley’s shows that Judge distributed of Mr. facsimile to September Mr. hearing, Davis and Mr. Britt at the 28 it is silent on already by whether Mr.Britt had obtained the facsimile then. It seems unlikely given that Mr. Davis would Britt, have the facsimile to Mr. given complaint Floyd to Judge Hurley his that Mr. should not have information in the Mr. privileged. included letter Davis considered privileged Defendant cannot fault defense counsel for information by parties. disclosed third
Moreover, we do not conclude of the privileged disclosure prejudiced information Although defendant. the letter from Mr. THE 459
IN SUPREME COURT
STATE v. LOCKLEAR IQ Hurley included the an when statement that “defendant had of 65 years age,” he was 14 of this was in an same information disclosed pretrial affidavit attached to defendant’s motion for a mental retarda hearing tion Hurley filed less than week after Mr. sent the facsimile. history References defendant’s substance abuse also would prejudice, prosecution already have no worked as the aware that had significant defendant substance abuse issues. Defendant experts rely other in trial obtained time for his not on either did Hilkey. Dr. or Dr. Artigues Defendant has failed show that out come of his trial have would been different had the State known not experts’ resignations doing and their reasons v. for so. State Gainey, 463, that, 558 S.E.2d under (noting Strickland, must prejudiced defendant show “he was trial his performance counsel’s deficient a degree to such that ‘but coun errors, unprofessional sel’s proceeding result would have ” been (quoting Washington, 668, different’ v. Strickland 466 U.S. 896, 80 L. Ed. 2d 698 (1984))), denied, cert. U.S. L. Ed. 165 (2002). 2d protected product prepared by
The letters contained ho work protected defense counsel. Nor do we Mr. conclude Davis revealed product responded work when questioning Judge Floyd. he Mr. responded appropriately questions gen Davis trial to the court’s eral Although terms. Mr. Davis giving noted had “reasons” for not appointed experts requested information, all the he did not reveal were, what or strategy. his reasons otherwise disclose trial State See Prevatte, (2002) (concluding that, attorneys had general described terms what “[b]ecause done, any been disclosing processes, rather than of their there mental product denied, was work (citation no violation” cert. omitted)), 986, 155 L. Further, U.S. Ed. 2d 681 to the extent that majority argument prejudice arising focuses on sentencing proceeding, disposition our his case renders these arguments moot. delay grounds
Defendant also cites case as his for ineffective delay However, assistance. does demonstrate *19 solely performance counsel, part due to deficient on of his any delay prejudiced Unfortunately, delay capital nor that his case. County. Floyd unusual, particularly Judge cases is not in Robeson “overwhelming capital noted number of to be tried here cases County.” Judge Floyd expressed his over Robeson While concern Artigues defense of Dr. counsel’s lack communication with Dr. and IN THE SUPREME any lapse showing no time been of Hilkey, he found has “[t]here any prejudice upon delay has visited and that has occurred [defend- hearing that he desired Defendant indicated at at this time.” ant] Judge and representation from Mr. Davis Mr. Bullard. continued necessary Floyd that, delay obtaining of new predicted with the probably in the “tried experts, defendant’s case would be [until] April of case was tried in 2005. first half of Defendant’s [2005].” he a number of further instances assigns Defendant error to of We have constitute ineffective assistance counsel. contends carefully unpersuasive. find these them reviewed contentions failed show he received ineffective We defendant has conclude assistance counsel.
Recusal [9] argues prejudicial error occurred when motion his Floyd Judge Floyd dis Judge was denied. Defendant contends recuse apparently played when he told against “irrefutable bias” during argument defense counsel in an unrecorded bench conference pretrial hearing for a on mental retardation on the defense motion way” retarded, was “no he would find defendant based there Floyd part Judge his with defendant. previous on interactions pretrial hearing on mental retardation. denied the motion for Floyd Judge presiding moved recuse from over Defense counsel pretrial hearing and the defendant’s motion for mental retardation Floyd subsequently rul Judge case. withdrew his trial of defendant’s ing pretrial hearing retardation and on the motion for mental motion, along motion, with the recusal before another reset judge, who denied both motions. defendant, disqualify
Upon judges must them- motion they “[prejudiced if are presiding from over a criminal trial selves party.” party in favor the adverse N.C.G.S. against moving or also suggests The Code of Judicial Conduct § 15A-1223 “may reasonably ques- impartiality a judge when the be recusal prejudice personal . has a or con- judge tioned . . where bias [] [t]he R. party.” (l)(a), 3C 2008 Ann. cerning a Code Jud. Conduct Canon 475, 480. Judge Ammons, F. Jr. considered defendant’s motions James Floyd his Judge as that: made Judge denied them. Ammons found fact “only reviewing arguments” . . . all the evidence remark after by counsel; documents, agreed with reviewing after the same *20 THE
IN SUPREME COURT
STATE LOCKLEAK (2009)] N.C. 438 [363 Floyd’s Judge pre- conclusion that defendant was not a entitled to hearing evidence; Floyd trial Judge based on the never said he would not allow of presented evidence on issue mental retardation to be jury; Floyd to Judge “extremely case, was familiar with” the' hav- ing many motions, transcripts heard of the review the of those Floyd’s Judge “knowledge case,” motions demonstrated of the as well impartiality”; Floyd as “his fairness Judge recusal cause would delay delayed already in an case; needless were no grounds there for recusal. Floyd’s Judge
We conclude that single past reference to his inter- any action with defendant does personal not demonstrate or bias prejudice against any defendant. Nor do we discern evidence Judge Floyd’s deny pretrial to decision motion for a retar- mental hearing emotional, dation evidentiary, based on rather than con- Floyd’s Judge pretrial siderations. denial of hearing on mental ability did present retardation not affect defendant’s his mental jury. retardation claim to the We assignment overrule this of error.
Jury Selection presents arguments Defendant several regarding selection. Defendant the trial improperly contends court his questioning limited prospective jurors about their views mental retardation. The bulk argument of defendant’s addresses the need new asserted for a sentencing hearing alleged these In light because of errors. our grant decision to sentencing hearing, defendant a new we do not address these issues. To the extent defendant selec- contends tion structural, requiring errors were trial, new have we considered these arguments unpersuasive. and find them
SENTENCING PROCEEDING
[10]
assigns
error to the trial court’s
instructions to
Specifically,
on mental retardation.
defendant contends the trial
court should have
finding
instructed the
that verdict
him men
tally
imprisonment
retarded would result
a sentence of life
without
parole.
consideration,
After
agree
careful
we
with
heightened
procedural
necessary
safeguards
attention
in cases
of alleged
protect
mental retardation in order
against
the inadver
mentally
tent and unconstitutional execution of
retarded defendants.
We
refusing
give
conclude
trial court erred in
instruction,
thereby.
requested
prejudiced
and that defendant was
We
sentencing hearing.
therefore remand for new
THE
IN
SUPREME
v. LOCKLEAR
Eighth
violates
retarded
Execution
*21
punishment.
See
prohibition
against
excessive
Amendment’s
335,
(2002),
304, 321,
L.
2d
350
Virginia,
153 Ed.
v.
536 U.S.
Atkins
Poindexter,
approval
v.
in State
cited with
Supreme
States
Court
761,
(2005). Even before the United
S.E.2d
Atkins,
Carolina General
in
the North
announced its decision
exempt
Assembly
capital punishment
men-
our
statutes
amended
penalty. See Act of
tally
receiving the death
retarded defendants from
(adopt-
Sess. Laws
July 25, 2001,
ch.
sec.
pro-
now
Accordingly, our General Statutes
15A-2005).
N.C.G.S.
ing
§
mentally retarded shall be sentenced
that “no defendant who is
vide
enactment
(2007). North Carolina’s
15A-2005(b)
death.” N.C.G.S. §
mentally
part
a
executing the
retarded
of
prohibition
a
of
by
legisla-
similar enactments
state
consensus, reflected
national
society
mentally
country,
retarded
the
that “our
views
tures across
culpable
criminal.”
average
than the
categorically
as
less
offenders
Ed.
at
The Court in Atkins
Atkins,
U.S. at
153 L.
2d
347.
the
disagreement
is serious
about
noted that
the extent there
“[t]o
mentally
offenders,
determining
it
which
retarded
is
execution of
Id.
Procedurally, by defendant, a court in its upon motion the trial may pretrial determination of mental retardation. discretion order must to such hear- 15A-2005(c) (2007). id. State consent § See production per- “has the burden of ing, at which the defendant by convincing mental retardation clear suasion to demonstrate trial Id. If the shows to satisfaction evidence.” defendant retarded, may only proceed mentally case non- he is court that sensibly procedure avoids the needless burden capitally. Id. Such capital is proceedings those defendants whose mental retardation clearly convincingly evident.
If the trial court that a determines defendant has failed to show convincing evidence, mental retardation clear and the defendant may during seek a determination of mental retardation the sen- tencing hearing. 15A-2005(e) provides: Subsection mentally
If the court does not find the defendant be pretrial upon retarded in proceeding, the introduction of evidence of during the defendant’s mental retardation sentencing hearing, special shall court issue to submit as to whether retarded as defined special in this section. This shall issue be considered and jury prior answered to the or aggravating consideration of *22 mitigating jury factors and the of If determination sentence. the mentally retarded, determines the defendant to be the court shall noncapital declare the case be the defendant shall sentenced imprisonment. to life 15A-2005(e) (2007). Thus, jury
N.C.G.S. § the often has the unenviable defendants; identifying “gray is, task of area” that those offenders mentally may not clearly pre- who are retarded who but nevertheless enough sent evidence of mental to them ineligible retardation render penalty. Atkins, for the death See at Ed. 536 U.S. 153 L. 2d at 348 people mentally that all who (noting claim to be retarded will “[n]ot impaired mentally range be so as to fall within the of retarded offend- Notably, consensus”). ers about whom there is a national the defend- production persuasion ant’s burden of to show mental retarda- sentencing stage required tion to the at the lower at is than that pretrial hearing stage. only the The must defendant “demonstrate preponderance to the a mental retardation of the evidence.” 15A-2005(f) (2007). N.C.G.S. The proof § lesser burden of indicates legislative “gray awareness of area” defendants and lawmakers’ protect against mentally intent to the of inadvertent execution retarded offenders. presented to at
Once evidence mental retardation is the sentencing proceeding, appropriate the trial “give court must 15A-2000(b) The significance § instructions.” Id. of the requirement “appropriate for instructions” on the issue of mental- noted, apparent previously is As a retardation several reasons. jury finding noncapital. of mental retardation renders the case Id.. mentally 15A-2005(e) (“If determines defendant to be § IN THE SUPREME STATE LOCKLEAR noncapital and the defend- retarded, court shall declare case mentally imprisonment.”). Identifying ant be sentenced life shall par- inherently requiring difficult task offenders can be an retarded safeguards. Atkins, U.S. at procedural See attention to ticular men- characteristics of (noting L. Ed. 2d at 348 that “some protections procedural strength of the tal undermine the retardation difficulty steadfastly The capital jurisprudence guards”). that our mentally retarded offenders the likelihood that this task increases unconstitutionally at death. id. will sentenced to See be aggregate in the defendants (“Mentally L. 2d at 350 retarded Ed. execution.”). special wrongful face Careful instruction risk “steadfastly pro- important guardf]” the the trial court is therefore is Id. at protections to which the defendant entitled. cedural L. Ed. 2d at 348. presented present case, substantial evidence
In the defendant Dr. jury during sentencing proceeding. retardation to the mental case “a slam dunk for retardation.” Hancock considered defendant’s requested an additional Defense counsel trial court “include upon finding . paraphrase . . that sentence or parole.” mentally retarded, to life without he will be sentenced instruction, jury might mistak- argued Counsel enly that absent such “go or otherwise misunderstand believe defendant would free” request happen him.” The trial court refused defendant’s “what’sto pro- pattern jury law gave following instruction: “The instead shall be sentenced that no defendant who is retarded vides stage pro- you this to death. one issue for determine *23 Jr., mentally defendant, Locklear, ceedings Is the Dane reads: 1 150.05 retarded?” N.C.P.I.—Crim. jury request made a instruction is well settled that a is
It “[i]f supported by evidence, itself the trial court which is correct in and Harvell, in v. 334 the at least substance.” State give must instruction omitted). capi- 356, 364, 125, (citations In (1993) N.C. 432 S.E.2d required appropriate cases, “give tal the trial court is to instructions in which of defendant’s mental retarda- those cases in evidence the by jury provisions of of G.S. requires tion the the the consideration 15A-2005, pro- in 15A-2000(b). turn, N.C.G.S. Section § 15A-2005.” mentally be jury to vides that the determines the defendant “[i]f noncapital the and the defend- retarded, the court shall declare case imprisonment.” 15A-2005(e). § be to life Id. shall sentenced ant requested therefore correct itself Defendant’s instruction was by supported evidence. relatively 15A-2005,
Given the recent enactment of N.C.G.S. this § previously opportunity Court has the not had to examine whether “appropriate by instructions” the trial court should include an consequences declaring instruction the mentally on defendant approach jury capital retarded. Our instructions cases involv- insanity ing the present defense informs our case. In State v. Hammonds, 595, (1976), we held the request jury trial court in denying erred to instruct the on by consequences insanity. the of finding guilty him not reason of Court stated that “the average does not know what a verdict of guilty by insanity not reason of will mean the defendant. This may uncertainty lead the to convict the accused a mistaken insanity belief that will an be set free if verdict is returned.” Id. at 14, 224 603. S.E.2d at The Court reasoned that speculate allow a of an if the fate accused found
[t]o only possibility insane at the time of heightens the crime the that jurors thereby will prey fall their emotions return a guilty verdict of which will insure will defendant be [the] safety safety community incarcerated for his own large. at 15, adopted
Id. at
persuaded,
Just average as “the does not know what a verdict of not by insanity guilty defendant,” reason of will mean to id. may average jury finding
S.E.2d at
understand what a
Speculation
mental retardation will mean for a defendant.
over the
punishment a defendant will receive if found to be
retarded
may
jurors
prey
finding
cause
to “fall
to their emotions” and render a
overriding
safety
on mental retardation
on “an
fear
based
for the
community,”
603-04,
id. at
224 S.E.2d at
rather than on the
Atkins,
clinical evidence. See
466 v. 438 N.C. 727, Harris, 724, 295 community.” in State v. 306 large ant erred in We conclude the trial court 391, (1982). 393 therefore S.E.2d requested give instruction. failing to defendant’s Notably, prejudiced defendant. that the error Wefurther conclude claim, the jury rejected mental defendant’s retardation although many also jury facts that would mitigating found as circumstances part For mental retardation on the of defendant. tend to establish mitigating circumstances defendant: example, the found as IQ test, sixty-five at fourteen on the Slosson age an score of received individually scientifically accepted, administered standardized pop- percent in the of the general intelligence; test bottom two adaptive testing docu- global functioning, according ulation special for records; in his attended classes mented school education mentally performed poorly handicapped children and educable career; adaptive his had deficits from throughout significant school academics; learning areas of had difficul- childhood functional IQ days; a Full of 68” ties his earliest and “obtained Scale score from given by Timothy Hancock, Dr. which was “con- on the WAIS-IIItest prior Dr. Brad Fisher on the ver- sistent with the score obtained test, the found that defend- sion of the same WAIS-R.” also ability his cognitive impairment ant’s decreased his to control impulsivity in situations. stressful prejudice cannot show because
The State contends defendant jurors arguments that during closing trial counsel told they imprisonment life if him be men would be sentenced to found “ tally disagree. law, arguments matters of of coun retarded. We ‘[O]n ” effectively the court.’ State sel do not substitute statements 279, 612, 654, (1994) (quoting Spruill, v. 338 N.C. 302 173, 133, 148 Carolina, U.S. L. Ed. 2d Simmons v. South Stevens, JJ., concurring) (alteration original)), (1994) (Souter & denied, (1995). L. This is because cert. 516 U.S. 133 Ed. 2d likely as arguments of are to be viewed statements of advo counsel binding cacy, whereas a instruction is definitive and statement Boyde U.S. L. Ed. 2d California, of law. v. attorneys Further, in their although arguments referenced imprisonment, life for the also receiving counsel State Dane argued claim was “about that defendant’s mental retardation jury’s mitigation find avoiding punishment.” light In Locklear possibility would ings, we conclude there is a reasonable absent the omitted instruc have found defendant retarded Lamb, 15A-1443(a)(2007); § tion. N.C.G.S. State *25 IN THE 467 SUPREME COURT v.
STATE LOCKLEAR (2009)] [363 reasonably pos- 365 606 was “not (1988) (concluding S.E.2d it that, given [requested] sible the trial had court [the] verbatim, trial”). instruction a result would have different occurred sentencing hearing. Defendant is therefore entitled to a new On remand, compliance the trial court should instruct the with 15A-2005(e) N.C.G.S. determines the defendant to § “[i]f mentally retarded, noncapital be shall the court declare the case shall imprisonment.” defendant be sentenced to life light
In our decision to remand defendant’s case for a new sen- tencing hearing, we remaining arguments not address defendant’s do regarding we sentencing, engage proportionality nor do review.
PRESERVATION ISSUES
assigns
multiple
error
as
issues he concedes have
unfavorably
prior opinions
been
him
decided
of this Court.
preservation
assign
Most of defendant’s
issues
error to
sentenc
ing proceedings. We need
in light
not address such asserted error
disposition
case,
of our
of defendant’s
we
note
but
nonetheless
presents
prece
compelling
no
reason to overrule our
objects
dents on
issues.
these
Defendant also
to the use of
“short-
constitutionally
form”
as
murder
indictment
deficient. As he
however,
consistently
acknowledges,
repeatedly
this Court has
upheld
legitimacy
first-degree
of short-form
indictments
mur
See,
Maness,
e.g.,
v.
der.
State
S.E.2d
Lawrence,
State v.
(2009);
1, 9-11,
N.C.
813-14
S.E.2d
denied,
cert.
(2000),
(2001). Thus,
531 U.S.
We conclude defendant a fair free received from However, prejudicial error. we conclude trial court committed error during sentencing proceeding. therefore defend- We vacate Superior Court, ant’s death sentence and remand this case County, capital sentencing Robeson for a proceeding. new PHASE; NO IN GUILT-INNOCENCE SEN- ERROR DEATH VACATED; TENCE REMANDED FOR NEW CAPITAL SENTENC- ING PROCEEDING. dissenting.
Justice MARTIN (1) only sentencing The trial court instructed that: two options parole; (2) were and life a find- available —death without IN THE SUPREME option. Having an eliminate death as
ing mental retardation would fully finding instructions, aware that these received parole. of life without would mandate sentence mental retardation retarded defendants violates execution of *26 Virginia, 304, U.S. 321 Constitution,. Atkins v. 536 United States reason, law, 15A-2005(b) (2007). For this N.C.G.S. (2002), § state procedural protections capital must the court in a case observe trial identifying such challenges associated with designed to meet here, however, jury in is whether the The narrow issue defendants. consequences finding that of case understood this mentally retarded. was is ambiguous that an instruction
When a defendant claims inquiry ... subject interpretation, proper “the to erroneous jury applied that the has there is a reasonable likelihood whether way of prevents in that the consideration challenged instruction Boyde California, U.S. constitutionally relevant v. 494 evidence.” “possibility.” is more than a 370, (1990). A “reasonable likelihood” 380 instruction ‘could proper inquiry is whether the See id. “[T]he manner, applied in an but whether there have’ been unconstitutional jury apply it.” v. did so Victor is a reasonable likelihood that McGuire, Nebraska, 1, 6 v. 502 U.S. (1994) (citing 511 U.S. Estelle 341, 62, Smith, 347, (1991)); n.4 see State v. 72 & also (2006) reasonable likelihood test to chal- (applying S.E.2d 261-62 jury instruction). lenged “ ‘may
Moreover,
judged in arti-
instruction
not be
challenged
of
isolation,
must
viewed in the context
the overall
ficial
but
be
”
Cupp Naughten,
v.
414 U.S.
Boyde,
(quoting
This Court stated inquire subject whether interpretation, to erroneous “we allegedly jury applied the chal- likelihood that the has there is reasonable way In deter- instruction in a that violates the Constitution.... lenged has likelihood the defendant met the reasonable mining whether standard this Court must review the trial court’s instruction to the Smith, charge.” the context the overall 360 N.C. at (citations quotation S.E.2d internal omitted). at 261-62 marks opened court sentencing proceeding The trial here purpose instructing the that its sole determine which of sentences, parole, two death or without life defendant would receive: jury, having guilty “Members of the found the defendant murder in your duty degree, first it is now to recommend to the Court impris- whether be death the defendant should sentenced to or to life parole.” onment no time during sentencing proceeding without At any potential punishment, was the advised of third form of nor that, having guilty was the advised the defendant been found murder, first-degree might he nevertheless released. be presumed pay particular are close attention to the “[J]urors language judge’s instructions in a criminal case ... fol and [to] Trull, low given.” the instructions as State v. *27 178, (1998) (citation omitted), denied,
S.E.2d
196
cert.
U.S. 835
528
(1999).
presumption
particularly appropriate here,
This
is
as the trial
spoken
jury
court’s
first
on
instruction
the
sentence
the
the
day
proceeding.
recently
first
the
As this
sentencing
of
Court
only
possible sentences,
observed: “The trial court alluded to
two
imprisonment
parole.
jury
Therefore,
death or life
without
if
fol
the
they
only
instructions,
possible
lowed these
knew of
these two
sen
presume
jury
tences. We must
that the
followed these instructions.”
Smith,
denied,
State v.
N.C.
S.E.2d
cert.
Following of mental retardation and other sentenc- ing evidence, gave challenged the trial now court the instruction appeal. statutory instruction, law, The which state tracked both pattern jury 15A-2005(b), instruction, N.C.G.S. the 1 N.C.P.I.— § provides Crim. (2001), 150.05 read: “The law that no defendant who mentally is sentenced retarded shall be to death. The one issue for you stage proceedings to determine at this reads: defend- Is the ant, Locklear, Jr., mentally Having Dane retarded?” been told that its sentencing options parole two death were and life without and that a finding sentence, would of mental retardation foreclose death the jury only could one reasonable conclusion: a mental finding reach of parole. retardation would result in a sentence of life without consequences finding That the understood the of a of men- only supported tal is overall retardation not “the context of the THE SUPREME COURT IN STATE v. LOCKLEAR place at Boyde, at also “all that 494 U.S. but charge,” [took] retardation, arguments on mental trial,” During closing the id. 381. finding parties specifically informed the that a both counsel for in a sentence of life without retardation would result of mental prove he is stated, can parole. prosecutor “If Dane Locklear retarded, law, he be mentally as a of cannot sentenced then matter murder, you’ve first as he has degree if convicted of death. And been prison case, be life in without been in he has to sentenced to this . . Similarly, stated, . that he’s parole.” “If we show defense counsel parole.” arguments These cor- retarded, it’s a sentence without life weigh against a conclu- roborated the trial court’s instructions jury’s by an erroneous under- the verdict was influenced sion that McNeil, (2004) standing the law. See Middleton v. U.S. of 541. precluded “from (per curiam) (explaining that a state court is not ambiguous arguments clarified an assuming that counsel’s particularly apt assumption is when it is and that charge” “[t]his prosecutor’s ambiguity that resolves an in favor argument defendant”). isolation, did out challenged in total instruction not rule Read pun- possibility might receive that a retarded defendant parole. jurors But did hear the ishment other than life without Instead, they heard instruction in the con- instruction isolation. capital sentencing proceeding text that the trial court had told death or life with- them would result in a either recommendation parole. defy understanding,” Boyde, It out would “commonsense speculate post- U.S. at for the trial court would pro- pone of a the determination mental retardation to middle finding imprisonment versus life if a of mental ceeding about death eligible would make defendant for some third result. This retardation when, case, parties’ both especially true as this counsel told *28 jury otherwise. majority compares the case with this Court’s decision
The
instant
major-
Hammonds,
1,
in
IN THE SUPREME
v.
jury
free, the trial court’s failure to inform the
generally go
may
impression
statutory
procedure
well have left the
commitment
insanity
acquittal by reason of
would result
the release of
that an
Here,
potentially dangerous defendant. Id. at
Additionally,
that the
this Court noted Hammonds
prosecutor’s misleading
closing
statement in
further confused
“ you
[by
argument
guilty
‘if
conclude
is not
rea-
defendant]
[the
insanity],
guilty,
son of
...
he walks out of this courtroom not
”
community.’
Here,
returned to this
Id. at
“[T]he Arsdall, perfect (1986) Van 475 U.S. not a one.” Delaware v. every inconsistency, or defi- (citations omitted). ambiguity, “[N]ot process ciency in a rises to the level of a due instruction violation,” McNeil, resentencing improper 541 U.S. at speculation,” “where the claimed error amounts to no more than Boyde, Here, challenged instruction did not con- 494 U.S. 380. “constitutionally disregard or lead it to relevant evi- fuse Accordingly, the dence” of mental retardation. Id. trial court’s does not entitle defendant to a instruction on mental retardation sentencing proceeding.1 new respectfully
I dissent. to a new sentenc- 1. While the trial court’s instruction does not entitle defendant Jury may ing proceeding, wish to on Pattern Instructions nevertheless Committee stating finding language retardation will result in additional that a of mental consider Benton, parole. imprisonment See State a sentence of life without challenged pattern (1980) (stating that when a instruction “cor- *29 IN THE SUPREME COURT v. LOCKLEAR dissenting. BRADY Justice majority’s was a reasonable likelihood assertion that there jury “speculate” as to defendant’s fate in the sen-
that the was able to of the record before us. tencing proceeding ignores the contents jury finding trial informed the that a of mental Because the court parole, in a life sentence without there was retardation would result request special for mental prejudicial denying no error in defendant’s jury Therefore, respectfully I dissent. retardation instructions. orally special conference, requested charge At the jury finding mentally informing instruction defendant to be imprisonment result in a sentence of life without the retarded would possibility parole. specific was denied. The crux This instruction majority.opinion, upon based argument, of defendant’s and the jury speculate illogical reasoning that the was allowed to that defend- escape jurors possibly “go punishment free” and if found ant could claims, major- defendant to be retarded. Defendant orally requested ity denying instruction, agrees, permitted jury hypothesize the trial court about defendant’s result, process Eighth fate and as a violated defendant’s due rights. Amendment outset, nothing
At the
I note that I could find
in the record indi
request
trial
cating that defendant ever tendered written
supplemented mental retardation
instruc
court for alternative or
law,
requested special
tions to the trial court. As a matter of
“such
writing
judge
instructions ‘should be submitted in
to the trial
at or
”
Augustine,
before the
instruction conference.’ State v.
359 N.C.
515,
(2005) (emphasis added) (quoting
616 S.E.2d
Gen.
Super.
para. 1,
21,
18),
R. Pract.
& Dist. Cts.
2005 Ann. R. N.C.
cert.
denied,
(2006). Accordingly,
repeatedly
has
STATE
(2009)]
N.C. 438
[363
committed
alone,
should conclude that the trial court
basis
this Court
requested
denying
defendant’s
instruction.
no error
majority’s path and overlook
However, even if I choose the
special
apparent
request
make a written
defendant’s
failure to
jury instructions,
that the trial court committed no
I still conclude
request.
appropriate standard under
denying
error in
The
jury instructions is
challenges
which to review constitutional
jury
applied the
“whether there is a reasonable likelihood that the
has
way
State
challenged instruction
a
that violates the Constitution.”
Smith,
341, 347,
(citations and
(2006)
v.
360 N.C.
626 S.E.2d
likelihood,
quotation omitted).
demonstrating
In
such a
internal
possibility
upon
burden
the defendant “to show more than a
is
jury applied
in an
manner.” Id. at
the instruction
unconstitutional
quotation
(citations
at 261-62
and internal
marks
626 S.E.2d
Furthermore,
has
omitted).
determining whether the defendant
“[i]n
review the
met the reasonable likelihood standard this Court must
jury
to the
in the context of the overall
trial court’s instruction
quotation
(citations
at
In the instant concerning aggravating mental retardation and heard evidence presented, the trial mitigating After this evidence was circumstances. jury solely on to deliberate and reach a verdict court instructed and defendant’s counsel the mental retardation issue. Both the State presented arguments concerning before the mental retardation. recited, verbatim, then North Carolina judge The trial this case Jury instructing 150.05when Criminal Pattern Instruction provides law that no mental retardation. The instruction states: “The The who is retarded shall be sentenced to death. defendant you stage proceedings of the reads: one issue for to determine this ” Jr., mentally defendant, Locklear, Dane retarded?’ See ‘Is the (2001) (footnote omitted). call number N.C.P.I.—Crim. 150.05 orally requested given, instructions were defendant Before these retar- charge additional instructions on mental during the conference retardation, specifically upon finding stating that of mental dation majority parole. would be sentenced to life without request instruction which is cor- correct that is made for “[i]f supported by evidence, give the trial court must rect in itself and Harvell, instruction at least in substance.” State v. majority However, the (1993) (citations omitted). IN THE SUPREME requested
incorrectly instruction was concludes that defendant’s very jury. At the outset of the sen- “in substance” to the given phase heard proceeding, guilt after the and before tencing retardation, trial court any concerning mental evidence jury, having the defend- as follows: “Members of the found instructed duty your guilty degree, murder in the first it is now to recom- ant Court whether the defendant should be sentenced to mend to the parole.” imprisonment without The effect of this death or to life sentencing proceeding was to inform charge beginning at the *31 only jury possible that two sentences were available for defend- jurors imprisonment parole. The heard ant —death or life without every piece regarding of evidence mental retardation within the con- jury per- argument that the was text of this instruction. Defendant’s contrary very speculate “go he would free” is to the mitted to jurors proceeding, given sentencing first instruction were at the explicitly possibility. which eliminated that majority rely heavily upon in and the our decision Hammonds, (1976), argue State v. 290 N.C. S.E.2d 595 requested prejudicial of defendant’s instructions was error. denial noticeably judice. In distinguishable Hammonds is from the case sub Hammonds, “upon request, this Court held that a defendant who interposes insanity charge is entitled to an defense of to criminal by judge setting instruction the trial out in substance the commitment procedures [by statute], applicable acquittal by outlined reason of jury First, at at 604. in mental illness.”2 Id. S.E.2d insanity, considering Hammonds was the issue of not mental retar- However, arguendo assuming dation. even that the Hammonds rule application applicable retardation, is to defendants who claim mental inappropriate. Hammonds, of the rule in this case is still In as this specifically noted, guilt phase during Court determination of the defendant, acquitted by trial “the fate of should he be reason of insan- ity, confusing arguments a central and in the of coun- became issue Thus, purpose at 602. sel.” Id. at S.E.2d of the Hammonds any hesitancy jury in returning rule is “to remove of the a verdict of insanity, by by guilty engendered doing reason of a fear that so community.” large at releasing would be the defendant [it] Harris, State v. 306 N.C. The above, directly applicable Hammonds 2. As noted even if the rule were to the case, given in substance. instant defendant’s instructions were to the important in Hammonds tendered a Next, recognize it that the defendant request supplemental Transcript 117-24, written instructions. See of Record Hammonds, (1976) (No. 40). State v. S.E.2d 595
STATE v. LOCKLEAK present fears are not here. The in the instant case was not same already deciding guilt; the defendant’s this had been determined phase Also, consequences guilt-innocence of the trial. unlike the insanity finding guilty of a verdict the defendant not reason of trial, in the record that the the Hammonds there is no indication question happen upon finding of what to defendant of men- would confusing dispute. tal retardation was or ever in Both the State and agreement counsel for defendant were in and communicated to the jury during sentencing proceeding that if defendant was found to mentally retarded, prison be he would sentenced to life in without be. parole. Thus, designed the fears the rule to eliminate Hammonds present judice. were not in the case sub orally
Additionally,
requested special
when defense counsel
men
conference,
charge
tal retardation
instructions at the
the State
previously
reminded the trial court that the instruction had
been
given
beginning
sentencing
at the
trial
proceeding.
court
“
asked,
anything
prevent
then
there
counsel for either the State
[i]s
type
punishment
arguing
or defendant
the law as it relates to what
imposed upon finding
would be
of either mental retardation or no
prompted
mental retardation?” This
a discussion in which the State
argue
confirmed with the trial court that counsel was entitled to
*32
jury
mentally
before the
that if it found defendant to be
retarded “he
will be sentenced in
with the law of the
of North
accordance
state
prison
parole[.]” Therefore,
Carolina to life in
without
at the time the
acutely
judge
request,
trial
denied
aware that
defendant’s oral
jury
already
had
received the same instruction and that counsel
explain
again
during closing arguments.
could
the instruction
“Jurors
they
adequate instructions,
need
need
hear them
but
do not
repeated
Garcell,
10, 60,
ad nauseam.” State v.
363 N.C.
678 S.E.2d
Gainey,
73, 107,
(2009);
see also State v.
355 N.C.
558 S.E.2d
463, 485,
denied,
(2002).
cert.
Counsel for the State and defendant imprison- ing of mental retardation result in a sentence of life would parole. During closing arguments, without counsel for the State ment mentally retarded, prove “If Dane can that he is asserted: Locklear if law, be sentenced to death. And then as a matter of he cannot you’ve degree murder, as he has been this been convicted of first IN THE SUPREME parole.” prison without
case, he has to be sentenced life clearly explained Likewise, in his defense counsel (Emphasis added.) be sentenced to life without defendant would closing argument that mentally to be retarded: parole if the found defendant person you heard, when a you know and [A]s any any better. You retarded, get get better. Doesn’t it doesn’t nobody somebody who’s retarded smart. Can’t know, can make is, and way thing, It’s a sad but it it. He’s fixed that for life. do law, things, If show these why have this 15A-2005. we that’s we parole. You don’t retarded, sentence without that he’s it’s life mentally retarded. children. You don’t execute execute added.) (Emphasis Spruill, “argu majority opinion that under State v. asserts by effectively for statements do not substitute
ments
counsel
(1994) (quoting
court.”
(Souter
Carolina,
(1994)
512 U.S.
&
Simmons v. South
denied,
However,
Stevens, JJ., concurring)),
STATE v. you well, why they saying he’s So, then, yourselves, ask are only. mentally reason If retarded now? For one reason and one mentally prove retarded, then Dane Dane Locklear can that he is consequences for what he has Locklear cannot face the ultimate mentally retarded, prove If Locklear can that he is done. Dane death. And if law, then as a matter of he cannot be sentenced to you’ve degree murder, as he has been in been convicted of first parole. case, prison life in without this he has to be sentenced to diagnosis This is not about diagnosis That’s what this is about. mentally from the time he was a being Dane Locklear retarded child, is about Dane Locklear throughout diagnosis his life. This punishment. avoiding plainly jury if defendant does not receive
The State
tells the
prison
penalty
to life in
without
the death
“he has to be sentenced
parole.”
appears just
sentences before the state
This remark
two
majority
prejudicial.
finds
“Statements or remarks
ment the
the over
closing argument
light
‘must be viewed in context and
”
Goss,
they
all factual circumstances to which
refer.’ State
Alston,
610, 626,
(2007) (quoting State v.
N.C.
651 S.E.2d
denied,
(1995),
cert.
gesting that if the found defendant to be prejudiced day eligible parole. Defendant was not would one be by these statements.
Considering beginning that the was instructed at the the death sentencing proceeding that defendant would either receive imprisonment parole, and that both the State penalty or life without points during closing argu- reiterated these and defense counsel any juror was confused about defend- ments, it is inconceivable that such, As decide he was retarded. ant’s fate should applied have is no reasonable likelihood that the could there way constitu- instructions in a that violated defendant’s given specu- majority pure rights. engaging tional has succumbed to reality the record before us. accepting lation rather than Accordingly, respectfully I dissent. opinion. joins dissenting in this
Justice NEWBY