State v. McKoy

CAS ES ARGUED AND DETERMINED IN THE COURT SUPREME OF North Carolina

AT Raleigh McKOY, JR., McCOY, DOCK STATE OF NORTH CAROLINA DOCK a/k/a McKAY, PAUL McCOY DOCK a/k/a a/k/a 585A85 No. 1988) (Filed September 102.13, by capital §§ case—comments trial court 120.1— 1. Criminal Law appellate prosecutor review on explanation during a of the court routine The trial court’s statement case, pros- Supreme and the reporter’s Court can review” duties that “the convicted, defendant, appeal questions of jury argument can ecutor’s fact, reasonably be jury’s findings construed to could not law but not the fatally jury’s and thus did not responsibility for its decisions diminish jury’s degree murder and its conclusion guilty first verdict of undermine the punishment. appropriate death is the de- jurors sympathy intoxicated Jury prospective § toward 6.3— dire 2. voir — fendant pro- failing ex motu to discretion mero not abuse its The trial court did prospec- asking several degree case from prosecutor in a murder first hibit the they sympathetic who was toward a defendant jurors would be whether tive offense, questions since did not tend the time of the intoxicated at potential vote verdict or how would as to their out” the “stake exercise of the properly allowed in the given but were state of facts under jury. right secure an unbiased prosecutor’s rights waiver sign § written waiver of 75.10— refusal to Criminal Law —oral express waiver of his finding made an that defendant court’s trial testimony agent’s supported S.B.I. interrogation an rights before see it but sign because he could not a written waiver refused to agreed officers. rights to talk with the he understood stated that expressed —supporting § 4. Criminal Law 75.8— no desire to terminate interview evidence finding expressed defendant never a desire ter- The trial court’s that testimony supported agent’s minate an interview was an S.B.I. that defend- he was defendant ant asked to take a break because tired and that subsequently agreed to resume the conversation. rights totality § 5. Criminal Law 75— of confession and of voluntariness waiver — —necessity police of circumstances coercion totality appellate The court will look to the of circumstances in determin- ing rights. the voluntariness of a confession and the waiver of Miranda However, necessary police predicate coercion is a to a determination that a voluntarily given meaning waiver or statement was within the of the due not process clause of the Fourteenth Amendment. rights § 6. Criminal Law 75.10— and voluntariness waiver confes- sion-previous convictions finding previously A that defendant had been convicted of two felonies that, experience, and that he told an officer because of this he understood “all Re., rights) supported that stuff’ his the conclusion that defendant’s waiver of voluntary. rights his and his confession were § 7. Criminal Law 75.15— voluntariness of confession —mild intoxication may experienced lingering, The fact that defendant have some mild intox- preclude at the time of his confession does not the conclusion that he ication Rather, voluntarily. defendant’s was relevant confessed credibility, intoxication to his question jury. which was a for the § I.Q. 8. Criminal Law 75.14— low of confession —voluntariness I.Q. Although psychiatrist placed a him in testified defendant’s range functioning, permitted the evidence a conclu- borderline of intellectual capacity rights sion that defendant had sufficient mental voluntarily to waive his and rationally spoke during confess where it showed that defendant his officers; job prior shooting in extensive conversation with he held a to the worker; supervisor question good he and was described his as and had testify capacity the mental at trial. § 75.14— 9. Criminal Law mental disorders —voluntariness confession —con- testimony flicting psychiatric lay and testimony psychiatrist’s pre- A that defendant’s mental disorders would voluntary truly preclude making him not a conclu- vent confession did voluntary prevent making that defendant’s mental disorders did not his sion agent, ample opportunity where an S.B.I. who had to observe de- confession confessed, rights gave he waived his and substantial fendant at the time testimony indicating comprehend his discussion that defendant was able to law with officers. rights § confession —total- 10.Criminal Law 75.10— voluntariness of waiver of and ity of circumstances totality permitted court’s conclusion of the circumstances the trial voluntarily knowingly, intelligently, waived his Miranda IN THE SUPREME COURT in-custody freely, rights understandingly, statements were made voluntarily. jury argument concerning psychiatrist § Law 102.7— 11. Criminal —absence prejudice overruling objec- did abuse its discretion in trial court defendant’s prosecutor’s potentially misleading argument degree in a first tion recognized [psychiatrists] experts murder case “if the law them on was, somebody’s you hearing what the condition of mind wouldn’t be the case” correctly permits hearing prosecutor law where the went on to state that the considering say, experts urged have from the what and he then only testimony expert also to consider not but that of the other witnesses. g jury argument competency Law 102.6— to stand trial as evidence 12. Criminal — sanity of objec- overruling The did not abuse its discretion defendant’s trial court jury argument suggesting prosecutor’s that the that defendant tion to the fact sanity competent indicated that his defense lacked was to stand trial merit jury argument urged did not misstate the law but in effect since the passing evidence defendant’s state of mind at the time of trial in consider crime, gave upon his and since court state of mind at the time the trial insanity. and clear correct instructions on g interpreta- jury argument Law 102.6— of law as one 13. Criminal —misstatement tion-objection sustained objec- sustaining abuse its discretion in the State’s trial court did not that, jury argument defense counsel’s in order to convict defendant of tion to murder, jury degree psychiatrist have find who first would capacity premeditate lacked the mental testified that defendant beyond wrong crime “was a reasonable deliberate at the time of the doubt,” about it argument interpreted stating could have been the correct since the beyond proving proposition bore the burden of a reasonable that the State degree premeditation and deliberation element of first murder or as doubt the insanity incorrectly implying proving that the State bore the burden of error, carry prej- Assuming showing defendant failed to his burden of defense. correctly charge unambiguously emphasized udice where the trial court’s beyond proving premeditation and deliberation the State’s burden of reasonable doubt. g jury’s mitigating 14. Criminal Law 135.9— emotional disturbance circumstance — inherently expert testimony failure to find —defendant’s not uncontradicted credible testimony psychiatric experts defendant’s two shooting was suffering significant psychological of a disorders at the time inherently sentencing credible so as to make the neither uncontradicted nor statutory jury’s find the because of the failure to determination unreliable mental or mitigating was under the influence of that “defendant circumstance testimony regarding de- where the of other witnesses emotional disturbance” shooting time of the conflicted mental and emotional state fendant’s experts, experts and where neither of defendant’s ex- with of defendant’s crime. weeks or months after the N.C.G.S. 15A- amined him until several § 2000(f)(2)(1983); the U. S. Eighth and Amendments to Constitution. Fourteenth sympathize § jury argument not to 15. Criminal 102.6— with Law —commitment intoxicated defendant not abuse its degree in a murder case did discretion The trial court first attorney by failing intervene ex when the district reminded the mero motu jurors during closing argument sympathy not to of their commitments have for defendant because he was intoxicated. sentencing § capital procedure mitigating 16. Criminal Law 135.9— circum- — requirement unanimity constitutionality jury stances — — degree sentencing The trial court’s instructions in a first murder case were not erroneous and unconstitutional under the decision of Mills v. — (100 384) jury Maryland, they required 486 U.S. L.Ed. 2d because unanimi- ty mitigating on existence of a circumstance before that circumstance purpose sentencing. could be considered for the capital sentencing procedure 17. Criminal 135.4— Law sentenc- —individualized ing guided constitutionality sentencer discretion — capital sentencing procedure The North Carolina allows individualized (1) allowing jury sentencing mitigation, to find circumstances both other submitted circumstances and circumstances the deems to have (2) value, mitigating allowing the to consider all relevant evidence in (3) death, deciding requiring jury, whether to recommend a sentence of death, recommending before defendant be weigh sentenced to aggravating “found” and “found” circumstances and to decide circumstances, aggravating whether “found” the considered with the “found” circumstances, mitigating sufficiently are to call substantial for the death penalty. capital sentencing procedure jury’s guides The also discretion so guard against arbitrary capricious as to penalty infliction of the death (1) by requiring prove aggravating State to the existence of an circum- (2) doubt, beyond requiring stance a prove reasonable the defendant to the ex- evidence, mitigating istence (3) preponderance of a a circumstance and ie„ allowing jury only relevant, then to consider which evidence “found,” jury unanimously the evidence which the had in sentencing the de- capital sentencing procedure fendant. The provides proper thus a balance be- sentencing guided tween conformity individualized in discretion with requirements. federal constitutional capital 18. aggravating Criminal Law 135.8— right factors relied on—no case— disclosure capital in a denying trial court case did not err in defendant’s motion require potential aggravating State to disclose circumstances it intend- rely upon sentencing. ed to IN THE SUPREME COURT mitigating § 19. capital Criminal Law 135.9— circumstances —burden case — proof placing in capital prov- The trial court in case did not a err the burden of ing the existence of circumstances on defendant rather than on the State. capital § 20. Criminal Law 135.7— case —affirmative answer to issue four —death penalty required instructing in capital The trial court did not err case that it affirmatively. must recommend a death sentence it answered issue four § prior felony aggravating 21. Criminal Law 135.8— violent circumstance —consti- tutionality aggravating prior circumstance that defendant had a conviction felony involving person the use or threat of violence to is not unconstitu- tionally vague facially applied either overbroad or in this case. degree § 135.10— penalty disproportion- Criminal Law first murder —death ate upon imposed degree A sentence of death defendant for first murder was excessive, disproportionate not ant, considering both crime and the defend- against where crime was committed a law officer he was while en- duties; gaged killing period during his official followed a considerable neighbor persuade attempted which law officers stop and a defendant to randomly shooting gun and after told the defendant officer to “leave or I’ll you”; previously kill felony involving and the that defendant found had been of a convicted person pled guilty the use of violence to the in that he had degree second murder. dissenting. Chief Justice Exum Fkye joins dissenting opinion.

Justice in this Frye dissenting. Justice joins opinion. dissenting in this

Chief Justice Exum dissenting part. Justice Martin Frye join dissenting opinion. Exum and Justice in this

Chief Justice 7A-27(a) Appeal to N.C.G.S. pursuant § Freeman, J., judgment imposing a death sentence entered Court, July County. the 29 1985 session Superior STANLY 1988; Supreme arguments Heard in the March additional August heard 22 THE SUPREME COURT IN General, F. Bryant, by Steven Attorney Thornburg, H.

Lacy General, and (original the State Attorney Assistant brief for General, J. James Co- Attorney Thornburg, H. Lacy argument); Farrell, Jr., General, N. man, William Attorney Deputy Senior General, Deputy H. Byers, Special Joan Attorney Deputy Special General, General, Attorney Assistant Bryant, F. Steven Attorney General, McNeill, the State Attorney Assistant S. Barry and for argument). and (supplemental brief Hunter, Jr., W. Defender, David Appellate Ray Malcolm Defender, defendant-appellant Assistant Dorey, Appellate for Hunter, Jr., Ray Appellate Malcolm argument); (original brief Bilionis, (supple- Defender, defendant-appellant D. and Louis for argument). mental brief Carolina Zaytoun E. North and Robert E. Ann Christian for curiae. Lawyers, Trial amicus Academy of Jr., North Carolina Association Dusenbury, A. John curiae. amicus Lawyers, Black WHICHARD, Justice. degree Dep- first murder

Defendant was convicted of the County De- Anson Sheriffs Kress Horne of the uty William aggravating circumstances found partment. felony involving had been convicted of previously defendant a deputy was committed against and that the murder violence of official It performance while in the duties. engaged sheriff circumstances that defendant’s capacity ap- found as criminality of his conduct or to conform his conduct preciate impaired of the law was requirements that defendant functioning. intellectual has borderline recommended the death penalty, and the trial court We find accordingly. no error. sentenced Haywood lived Haskell beside defendant outside of Wades- Haskell was boro. On December his wife’s working on car. He fire two Haskell observed shots into the air. shooting that defendant’s could suggested endanger neighbor- children, “everybody but defendant else is responded hood “well, shooting” it’s Christmas.” THE IN SUPREME COURT McKoy County

Haskell the Anson telephoned Department, Sheriffs and Lambert After the situ- Deputy responded. discussing Calvin Haskell, ation with Lambert walked onto defendant’s and porch to talk with him. Lambert asked attempted step defendant to out onto the but defendant remained inside. Lambert de- porch, told fendant not to shoot his because gun might he was drunk and hurt someone. He then returned to his car and defend- observed ant’s home for several minutes before leaving the area.

Later, Haskell saw defendant his lying front of outhouse. unaided, Because defendant could not stand a neighbor helped out, him to his house. Defendant had locked himself entry by him A neighbor helped gain prying a window. few open Cox, minutes later defendant hailed Duke teen- neighborhood ager, asked Cox to him fix the help window. Cox attempted but he help, soon left because defendant refused to provide hammer. When away, Cox walked defendant accused him of steal- money some ing and fired three shots his direction. incident, by this

Prompted Haskell called again the sheriffs department. Usery Deputies Robert and Kress Horne responded. outside; They asked defendant to come defendant responded to kill threatening rived, them did not leave. More officers ar- Usery decided to investigate back of defendant’s house while Horne stood behind the patrol car and continued to house, talk to defendant. Usery While circled behind defendant’s Horne drew his revolver and braced himself across the car. patrol Defendant pushed his screen door open and fired one shot that hit Horne in the face. Horne later died injuries. from the resultant house,

The other officers surrounded the Usery advised that he gas would use tear if defendant did not come out. Hearing Usery no response, threw a tear gas canister into shots, the house. After defendant fired two the officers returned out, a short burst of fire. Defendant then walked and the officers took him custody. into Because defendant was from two bleeding wounds, the officers him transported County to the Anson Hos- pital. There, Dr. Perry Merceda examined Perry defendant. found wounds,

two bullet and he noticed strong odor alcohol. He treated a puncture wound on defendant’s buttocks and a lac- deep forehead, eration on his which he closed with sutures. Initially, incoherently ques- responded

Perry found that defendant Perry 6:30 ordered blood alcohol p.m., At approximately tions. level was blood alcohol defendant’s which indicated that test breathalyzer scale. Although reading a .26 on the equivalent intoxicated, by more coherent he had become remained defendant Perry’s In defend- Perry opinion, saw him. 7:20 p.m., the last time by 8:30 8:15 p.m. still At more coherent ant would have become custody S.B.I. Agent the Perry released defendant into p.m., Prison in delivery Raleigh. to Central Carl Jackson for sheriffs defendant in a van deputy placed and Jackson two were department, him sheriff’s where warrants and drove to the They Raleigh. When defendant served on him. then drove toward thirsty, two soft purchased that he was the officers complained drinks, read which defendant consumed. Jackson orally to waive them. Defendant rights, agreed and defendant injury his head pre- refused to a written waiver because sign him waiver form. Defendant made several seeing vented the he killed admitting Deputy the Horne during trip statements him. “pressured” because Horne Phase

Guilt ^[1] Defendant contends that the jury’s verdict of guilt, and its “fatally is are appropriate punishment, conclusion that death the fact trial and prosecu undermined” that both the court the re subject appellate tor informed the that the trial The basis is as argument view. factual follows: First, trial court court at the outset of the identified the explained: to the and reporter lady

The down here front of me in the blue dress is right Melody Courtney. She’s a She will reporter. taking court be said everything during down that’s or done the trial so that is a she can everything public type matter of record then of a mail down Su- up transcript trial it to the can review we’re preme Supreme Court what Stanly County. doing here in up statement, object

Defendant did not to this and the court con- general explanation tinued its of the duties of various court per- sonnel.

Second, closing guilt-phase argument, prosecutor in his following: thé stated Now, well, may say, is you Judge what our role?

And As your happens as a trial to be. you juror will tell what role fact, role, your you simply are finders of we understand law is. You don’t interpret that. You decide what don’t he you Judge law. law is tells given is, will you law and he tell how you meaning of that what the which he you you gives law apply will tell how —he have testi- you you facts that found from sworn mony. body fact —a finds That’s simply facts. you’re appeal your There is no in of facts. finding

all here for. any of laws and interpretation There of right appeal is are in The de- present laws which this case. application of convicted, fendant, say certainly he from as we should be law, he can on of appeal points and under the the evidence law,— Objection. Mr. Stokes: law,—of —questions

Mr. LOWDER:

The Overruled. Court: your findings of appeal LOWDER: he cannot Mr. —but fact. is essen- argument grounded, legal The basis of defendant’s White, in State v. decisions

tially, this Court’s (1975), Jones, S.E. 296 N.C. 211 S.E. 2d 445 decision Supreme States Court’s the United 320, 86 L.Ed. 2d 231 472 U.S. Mississippi, in Caldwell cases are as follows: of these pertinent aspects The White, argued: prosecutor In the is this defendant whether question will answer the

“[Y]ou an If guilty, gets he murder. found degree first guilty of North Carolina —it Court of Supreme appeal automatic court, Court any made in that If is this necessary. error is say.” will

White, 402, 211 S.E. 2d 449. The sus- 286 N.C. at at trial court objection the jury: defendant’s and instructed con- tained “[DJon’t Later, Supreme began he said about Court.” as it sider what the charge, gave following its court instruction: “I go argument objected want back to the that was argument Supreme in the has a counsel I right send case back on The reason sus- this mistakes. objection, you tained that I want all is to understand only Court will review case. Supreme they That would send back if I legal the case make a mistake on a question. They will not review decisions of jury. the facts is the sole trier the facts of this lawsuit.” 402-03, 211 S.E. 2d 449. We Id. at at an explained argument can suggesting “depend upon either ex- judicial or verdict, ecutive review to correct errors in their and to share it, for an responsibility their abuse of privilege prejudicial Id. defendant.” at S.E. 2d 450. prosecutor’s said, we argument, clearly “was jurors’ intended to overcome the natural reluctance to guilty render verdict of of murder first degree diluting responsibility their its consequences.” 211 S.E. Id. 2d at While the accurately court stated law, only that this Court will review questions of the instructions inadequate were nonetheless held to cure the be- impropriety fully “did enlighten cause the jury as to the nature Supreme Court’s review a case on appeal and to the dif- ference the between ‘triers of judges facts’ and the law.” Id. Moreover, said, we the jury probably understood the statement “the Supreme that will Court review this case” mean to that the trial court assumed that guilty there would be a verdict. Id. at reasons, 211 S.E. 2d 450-51. at For these we granted the de- fendant a new Id. trial. 211 S.E. at 2d at 451. Jones, In the argued: prosecutor you do err this case “[I]f Jones, he has right the of appeal.” 296 [defendant] N.C. at 251 S.E. 2d 427. at Because appellate an will court not review the factfinder’s in the guilt phase, verdict we observed the prose- that Moreover, cutor had made an inaccurate statement. the argu- ment’s vice” “overriding was that it “effectively told the rely that could upon the Supreme to correct their ver- Court dict it wrongful were or ...” improper Id. at S.E. 2d IN SUPREME THE COURT jury have caused argument the could the to 428. We held that at a reaching ver- would share its burden of believe that this Court dict, Id. request defendant’s for new trial. granted and we thus Caldwell, jury: deci- prosecutor argued the

In the “[Y]our . is job . . Your reviewable.” is not the final decision. sion addition, Caldwell, 325, 86 L.Ed. 237. In the trial at 2d at U.S. jury’s would be “reviewable auto- that the decision court stated States matically penalty commands.” Id. United the death sentence, stating vacated death that Supreme Court defendant’s rest a on a constitutionally death sentence impermissible “it is believe by sentencer who has been led to determination made of the determining the responsibility appropriateness that the 328-29, 86 Id. at L.Ed. at rests elsewhere.” defendant’s death by the that statements proposition These cases stand for the jury’s dilute sense of re- that tend to the prosecutor trial court its verdict suggesting for its determinations sponsibility reviewed, with- punishment will be imposed will or that the be held, See 75 Am. Jur. 2d Trial prejudicial. impermissible are (1974) ... to sus- power on the of the court (“[comments § pend aside, or jury’s verdict statements sentence or to set the finding review the power has the higher court evidence, the are induce calculated to jury weight on the and are That responsibility, improper.”). their jury disregard here, however, by facts which implicated, proposition from those the above cases. distinguishable are White, any error is jury told the prosecutor In “[if] White, court, say.” Court will Supreme] in this made [the added). clearly could (emphasis 211 S.E. 2d at include its errors “in court” phrase interpreted have contrast, Here, by prosecutor as well as the court’s errors. jury’s could not appeal clearly stated that of, fact. findings Further, jury that “the White court stated to 402, 211 S.E. 2d at Id. case.” will review this Supreme added). “positive concluded that This Court (emphasis understood that . . was bound to have . statement 404, be Id. at guilty.” verdict would their court assumed [that] Here, contrast, only pos- the by the court noted 450-51. S.E. 2d at sibility by of the context appeal stating explana- of routine —in tion Supreme of the court “the can reporter’s duties —that added.) review” this case. This no (Emphasis implies statement guilt only conveys commonly of information assumption We known. conclude that this brief the comment —at outset of the trial in of explanation the context an of the court reporter’s influenced, defendant, adversely duties —could have to jury’s of perception responsibility its for its decisions.

Likewise, Jones, prosecutor argued jury: “[I]f err in you do he right case has the of appeal.” [defendant] Jones, added). Here, at 2d 251 S.E. at 427 (emphasis above, as noted the prosecutor clearly instead stated that defend- jury’s ant could not appeal from the findings fact. The chal- lenged argument simply an explanation jury’s function application of law the facts.

Finally, in Caldwell the prosecutor argued jury: decision is not the final decision. . . is job . Your review- “[Y]our . . you automatically able. . decision is render reviewable [T]he Caldwell, 325-26, the Supreme Court.” at U.S. 86 L.Ed. 2d at above, 237. As noted the United Supreme States Court vacated the death sentence on the ground “it is constitutionally that im- to rest permissible a death sentence on a determination made a sentencer who has been led to that believe the responsibility for determining the appropriateness of defendant’s death rests Caldwell, 328-29, elsewhere.” at 472 U.S. at L.Ed. 2d 239. It stated: suggestion uncorrected the responsibility for “[T]he any ultimate determination will death rest with others an presents danger intolerable will fact choose the importance minimize role.” Id. its 86 L.Ed. 2d at Caldwell, Again, unlike here prosecutor did not argue jury’s determination of guilt defendant’s and punishment Instead, was not final. clearly he informed the that there was no appeal from its findings of fact. The risk condemned in Caldwell, viz, “state-induced suggestions sentencing jury may court,” shift its sense of responsibility appellate an id. at 86 L.Ed. thus not present here. reasons, White, Jones, For the foregoing we do not find Instead, Caldwell controlling. we conclude that this case is more 13 IN THE SUPREME COURT McKoy v.

State (1977). 132, Finch, 235 S.E. 2d 819 The trial 293 v. N.C. like State says court about the what the in Finch remarked: court “[T]ake law, Court is then the wrong, case. the is in the what it If Somebody straight- will let that he known. will Appeals of ” out, Id. the Court. at instructions you your en 135, hut take that from We 821 in held that these (emphasis original). 235 S.E. 2d at reviéwed or the verdict would be suggest did not statements withheld; they in- simply would be punishment the mandated court, law, by could the stated the trial formed the 137, 235 S.E. 2d Id. at be reviewed.

Here, Finch, court or nothing as in the statements the reasonably be diminish the could construed to the prosecutor only in decisions. The trial court jury’s for its responsibility (Emphasis review” case. Court “can formed the that this added.) review does process appellate “Mere reference to the 850, State, P. v. 733 2d a death sentence.” Mazzan not invalidate (Nev. 1987). context, argument prosecutor’s 851 Viewed in diluting final rather than jury’s role as the factfinder stressed the (“argu id. 851 its verdict. See responsibility its sense court, but rather appellate to the responsibility did not shift ment gravity awareness of its jury’s sentencing heightened (Del. 1985), denied, 997, State, task”); A. 1025 cert. 496 2d Riley v. (1986)(“In 1022, may sense it reasona 92 2d 743 no 478 U.S. L.Ed. law, misstating either bly prosecutor said that be role, minimizing sentencing its jury as to its misleading the court did the trial We thus conclude responsibility.”). v. State argument. by allowing abuse its discretion Huff denied, 92, 111, stetler, 122 cert. S.E. 2d 322 312 N.C. error assignments 169 These 85 L.Ed. 2d 471 U.S. are overruled.

[2] ing Defendant prosecutor, next contends during voir that the trial dire, to “stake out” the court erred by allow intox defendant’s disregard them to obtaining commitments of premeditation existence determining ication De voluntary defense. intoxication reject deliberation Or at trial. prosecutor’s questions object failed fendant to assert right a waiver of the dinarily, such failure constitutes 326, 334, Oliver, 307 N.C. State appeal. error on alleged (1983). However, practice light of our S.E. 2d end it cases “to in death sentence [that] review scrupulous State v. may affirmatively appear that all proper safeguards” have been defendant, 106, 108, afforded the Whitley, N.C. (1975) Fowler, 468, 469, S.E. 2d (quoting (1967)), 155 S.E. we elect to review the issue. asked several prosecutor prospective jurors whether they would be sympathetic toward a defendant who was intox- icated at the time of the offense. The questions slightly, varied but the thrust of each was:

If you beyond it is shown to from the evidence and a reasonable doubt that defendant was intoxicated at the time you would this alleged shooting, sym- cause to have pathy your for him and allow that sympathy to ver- [a]ffect dict? juror

Each responded negatively to the question. is allowed jurors Counsel wide latitude in on voir examining dire; of regulation the form of the lies within the trial questions Vinson, 326, 336, court’s discretion. State v. 287 S.E. N.C. 215 2d as to 428 death U.S. 49 L.Ed. penalty, modified (1976). A defendant seeking to establish reversible error prejudice must demonstrate as well as a clear abuse of that 1, 20, discretion. State v. (1985). Avery, 337 S.E. 2d Vinson, In we explained:

[Hypothetical questions phrased so as to be ambiguous or confusing containing incorrect or statements of inadequate may the law are and should not be allowed. improper Counsel not pose hypothetical questions designed to elicit in advance what will juror’s decision be under a certain state of the evidence or a . . . upon given state of facts. The court should not counsel to permit question prospective jurors as to the render, they they kind of verdict would or how would be in- vote, clined to under a given state of facts. of which have been considered

Types questions improper include if the asking juror “those what his verdict would be balanced; evenly evidence were he had a reasonable doubt beyond if he a reason- guilt; of a defendant’s were convinced him asking or guilt; questions able doubt of defendant’s THE IN SUPREME COURT situation, would, he in a vote specified hypothetical whether . . .” penalty. in favor the death (citations 336-37, omitted);

Vinson, 287 N.C. S.E. 2d at 337 S.E. 2d Avery, State N.C. at accord were as into questions properly inquiry here allowed an They an sympathies person. toward did jurors’ intoxicated law, nor were inadequate contain incorrect or statements not Moreover, they did they confusing. or tend to ambiguous jurors as verdict how potential out” the to their “stake questions under state of facts. The did not given would vote in- legal questions judge “fish for answers before ha[d] Clark, 215, 221, 353 S.E. 2d 319 N.C. jury.” structed the 205, 208 Addressing questions, similar our Court propriety has State’s upheld questioning prospective Appeals a they involving be fair and in a case impartial whether could to 287, Williams, 41 marijuana. App. sale of State v. N.C. proposed 649, denied, 699, S.E. 2d 297 254 S.E. 2d (1979). disc. rev. 297 N.C. only “secure questions It held State’s tended to that the jurors,” to a future causing while not them commit to impartial 291-92, 254 S.E. 2d at of action. Id. at course Williams, simply in here was into prosecutor inquiring As jurors his right of in the exercise of sympathies prospective Lee, an See jury. unbiased State N.C. to secure (1977) (State jury; 234 S.E. 2d entitled to unbiased such). of is A not to purpose promise voir dire to secure primary a with defendant because of his not sympathize intoxication of in ignore of commitment to the effect intoxication equivalent responses issues. The did not questions resolution of legal jurors trial court’s instructions disregard out” to “stake in- or determining guilt effect of defendant’s on the nocence, intoxication sentence, the facts applicable or his under the law to did abuse its We thus that court not presented. hold trial ques- this line of ex mero motu failing prohibit discretion to Clark, S.E. 205 (proper See State v. N.C. tioning. fact jurors if the that the prospective to ask prosecutor any cause them on circumstantial evidence would relying was S.E. 2d 920 App. State v. problems); Hedgepeth, (1984) ask prospective for defense counsel to (proper criminal record consider defendant’s follow instructions to

could credibility). only determining his court’s refusal to assigns error to the trial

Defendant next He inculpatory post-arrest his statements. suppress evidence of voluntary waiver his Miranda he did make a argues that voluntarily. make his rights did not statements admissibility of de- hearing After voir dire to determine the statements, made of fact and findings fendant’s the trial court law, conclusions of as follows: pertinent part, was scene crime the defendant arrested at the [T]hat . . . six December approximately p.m. o’clock on [at] 22nd, 1984; charged deadly that he was with assault awith kill, counts; weapon with intent three that he there- County Hospital after taken to the Anson and treated for buttocks; his head and his wound to and that he was by van . . . thereafter taken Central Prison for safekeep- .; . . . he was ing; interrogated in the van . . enroute temperature that the and conditions inside van were com- fortable; .; any . . question prior interrogation .; defendant was advised of his . . rights constitutional him; rights these were read to that he was advised rights at 8:43 approximately p.m., advised of his to re- right main silent and he anything said would be used against [that] court, him as evidence in and advised have right an [his] attorney present before and during he questioning; was advised a right attorney to have an appointed, if he one, one; couldn’t afford . . . the State would him appoint he was that advised of his . . . right to stop answering ques- any tions at time and not to resume attorney until he had an one; present he wanted that he was advised of rights these by Special Agent Carl Jackson ... [S.B.I.]; of the . . . that officer; . . . was introduced as a law enforcement [Jackson] and that he was also advised of his in rights the of presence Henry . . . George Pratt...[;]... Watkins and the de- that orally fendant in replied English that he all understood stuff, he that had been tried for his life in and that before, he had heard all of this stuff and that he understood rights; his that he he lawyer stated that did not a pres- want talk, ent and that he he stated that would but he that didn’t . . he see[;]. because he could not that anything sign want to by a point in and at later interrogated English was [Jackson] Pratt[;] . . . by were asked and that questions [Watkins] years he sixty-five speaks is old and approximately defendant . . back- . his educational Englishf;] that understands I.Q. limited, approximate- he has an very that ground . . . his condition at 89[;] physical 74 and that ly—between he had been released was that interrogation the time an injury been for to he had treated hospital, from the that shut; he was blind eye was swollen that eye; his his left that his from a injury hip gun- had an to eye; in his that he right wound; by had been treated these wounds shot that both of he was in County Hospital; good that Anson physician at the otherwise; was and that other sitting up he condition that basically same condi- appeared he bandage than the [in] today; . . . point that at one the de- as he does court tion . drink and . . was something provided to requested fendant drinks, consumed[;] he . . . de- which that with two soft to moderate odor of alcohol about slight fendant had 8:43 and interrogation at the time of the person that influence alcohol or he was not under the thereafter that coherent, was was that he . . . defendant drugs[;] that and not com- he was not confused understanding that questions . . . answers relation to the that plaining^] reasonable, extremely appropri- responsive were asked . . offers of reward or ate[;] promises, . that no inducements] were made in order for the any officers law enforcement . were no statement!;] . . that there make a defendant of violence of violence or show suggestions] or threats induce the persuade made to any law enforcement officers . . . defendant make defendant statement^] but at one stop questions, desiring no made statement rest, and that he be allowed to request he did point minutes[;] . . . seventeen approximately rest for allowed to attorney during an no request defendant made expressly and that questioning, defend- attorney that the present; want an he did not stated his rights; he understand . did . . stated expressly ant waiver, he but that the written sign he was unable to fact, did, And waiver an oral expressed make [Jackson]. as a Court would conclude of fact the findings based on these 18 totality of the circumstances law under the

matter of that State, Federal nor rights, neither none of the constitutional arrest, detention, by were violated his inter- of the defendant confession; promises, were no offers of or that there rogation, reward, make a or to the defendant state- inducements] ment; of violence suggestpons] that there were no threat[s] or induce the defendant persuade or show of violence to statement; by make a the statements made the defend- that freely, voluntarily . . . were made and under- ant to [Jackson] in full understanding defendant was standing^; silent, remain his rights right his constitutional counsel, rights; freely, and all and that he knowingly, other voluntarily intelligently and waived each of those rights thereupon made the statement to the officers above men- tioned. objection

The court then admission overruled defendant’s the statements.

Defendant the above are findings sup- contends not ported the evidence. At a voir dire hearing on the admissibili- confession, ty of a the trial court must determine whether has showing by State met its burden of preponderance voluntary. evidence v. Corley, the confession State (1984). 40, 52, However, 311 S.E. N.C. 2d appellate courts Rather, do apply preponderance of the evidence Id. test. findings are if appeal conclusive on are supported Id.; Perdue, competent evidence in the record. v. State N.C. (1987). 51, 59, evidence, 357 S.E. 2d Despite conflicting may reviewing properly modify court set aside or those find- “[n]o Jackson, 549, 569, ings supported.” so S.E. However, fully conclusions of law are re- Perdue, viewable. State N.C. at 357 S.E. 2d at 350. hearing, voir dire the trial testimony At the court heard Jackson, Perry, S.B.I. Agent Dr. Merceda Carl and Dr. Robert Perry, County Rollins. a doctor at the Anson Hospital, testified that: arrived at the County

Defendant Anson Hospital at around 6:30 Perry p.m. examined defendant and found he had suf- fered a his laceration to forehead and puncture wound to buttocks. While injuries normally these are painful, defendant ex- IN THE SUPREME COURT McKoy intoxicated, and he Defendant only appeared discomfort. pressed coherently. did Defendant not difficulty answering questions had medication, A and he was hallucinating. receive narcotic underwent a blood alcohol test 6:30 defendant p.m., little after reading a .26 equivalent alcohol level to which indicated a blood recovery defendant’s breathalyzer scale. To accelerate on the fluids, intoxication, Perry dex- administered intravenous from his fluids, received these his mental After defendant trose and water. considerably; he became more co- improved and condition physical defendant, Perry When saw around and last cooperative. herent far he had become more lucid than 7:20 or 7:25 defendant p.m., Perry Perry’s opinion, In defendant’s condition was when arrived. Perry re- over next hour. improve have would continued be hospital so that he could defendant from the leased Raleigh. transported that:

S.B.I. Jackson testified Agent defendant at the picked up and sheriffs deputy Jackson two van to the County The officers first drove their Hospital. Anson was served where defendant County Department Sheriffs Anson deadly with intent weapon with a warrants for assault with three defend- Raleigh to deliver kill. The then drove toward officers advised of his constitu- Jackson defendant Central Prison. ant to In S.B.I. form. interrogation from the by reading rights tional life, I my “I was under- tried for defendant stated: response, an ex- 8:43 Jackson read defendant p.m., all At stand this stuff.” he understood the Defendant stated that rights. waiver of plicit however, officers; he did not he talk to the waiver and that would agree- waiver because he could not see it. After sign want to thirsty, he was complained his defendant rights, waive ing to drinks, con- soft which defendant two purchased and the officers sumed. with law talking knew he was defendant made sure Jackson defendant also informed Jackson

enforcement officers. Jackson safekeeping. Prison for him to Central transporting were Defend- day’s events. about the defendant began questioning then later recounted Jackson statements incriminating made ant defendant wanted 10:20 testimony jury. p.m., At in his tired, him. questioning stopped and Jackson because he break shoulder defendant on the p.m., tapped 10:37 Jackson At sleep- was not he indicated that if he was Defendant asleep. asked cold; he was the officers covered him ing with sheet and turned the heat. Jackson asked defendant up continue annoyed story, but became with defendant Jackson. other of- ficers asked if he would questions, defendant their answer Defendant make agreed. proceeded to further incrimi- nating jury. statements that Jackson related to the In particular, defendant he shot Horne because explained Deputy “he way.” An pressured wrong me the officer asked defendant he life, was fearing for his and defendant “I’m replied: fearing my life now.” right After the officers assured defendant that he was in no danger, the discussion continued. At 10:55 p.m., defendant remarked that he was tired and his was hip beginning to hurt. The officers then terminated the interview. rational,

During the interview defendant appeared and his statements made sense. Defendant was able upright to sit in the van himself. Defendant did complain about stiffness in his hip. He appeared sober despite slight to moderate odor of alcohol his person. about eye,

Defendant is blind in his right eye and his left injury swollen shut because of the to his forehead. When defend- cold, ant complained being the officers turned up the heat and maintained temperature comfortable van. Jackson did not offer defendant reward in return for a statement. Jackson did not coerce or him pressure to make a statement. never Defendant attorney. asked for an Jackson knew that had defendant been con- victed of degree first murder in 1951 and felonious assault with intent to kill in 1977. Rollins,

Robert a forensic psychiatrist, testified that: Defendant suffers from mixed personality disorder including paranoid features of thinking, impaired abstract im- thinking, paired judgment and impaired perception. He also suffers from organic syndrome, delusional manifested false beliefs. General- antisocial, ly defendant tends to violently overreact to perceived abuse, but, threats. engages Defendant in episodic alcohol accord- ing supervisor, defendant’s he was a good worker who did not drink job. on the When defendant was admitted to Dorothea Dix I.Q. Hospital February he achieved an test score of seventy-four, which places him in the “borderline in- range IN THE SUPREME COURT However, I.Q. tellectual he functioning.” did achieve an score of in May eighty-nine on Dr. Perry’s description

Based of defendant’s condition and on treatment night shooting, Rollins believed that de- fendant’s Nonetheless, improved intoxicated condition would have over time. substantially

defendant would have been intoxicated the interrogation place, when took and this intoxication would have exacerbated defendant’s mental disabilities. Because of his disorders, mental defendant would not capable have been of vol- untarily his at the waiving rights time of the interview. testimony

The above voir dire establishes the pertinent are findings supported by competent They evidence. thus are Perdue, on this binding Court. State 357 S.E. 2d at 350.

[3] In addition to general challenge findings, specifically finding an disputes express that he made waiver that, rights. merely He contends rather declining than see, waiver sign a he could not he testified, however, fact refused waive his rights. Agent explicitly Jackson that defend ant that he rights agreed stated understood his to talk with officers. This supports finding. evidence trial court’s never ^[4] Defendant also expressed a desire to terminate specifically challenges interview; finding that he he contends by invoked rights asking that he his the officers terminate the testified, however, at Jackson questioning p.m. expressly 10:20 tired, to take a he was defendant wanted break because Thus, he resume subsequently agreed the conversation. by is finding again the evidence. supported findings support Defendant further contends that the do voluntary and waiver of the conclusions that he made confession evidence, Miranda rights. findings, his if supported While Court, fully binding upon are the conclusions of law are re- Id. findings is a of legal significance question of the viewable. Jackson, 582, v. for this State 308 304 S.E. 2d law Court. N.C. at at 152.

waiver cumstances. ^[5] In determining Miranda Id. at rights, voluntariness of S.E. 2d we look to at 152. the confession However, totality police of the cir and the coer-

State v. a waiver or a determination that necessary predicate is a cion voluntarily meaning within the given was not statement v. Amendment. Colorado the Fourteenth Due Process Clause (1986). pur- Because the 93 L.Ed. 2d 479 U.S. Connelly, within the same set of cir- arose waiver and the statement ported cumstances, confession as a voluntariness of the we discuss the 48, 311 S.E. 2d at 545 310 N.C. at Corley, issue. single Cf. Miranda, determining question with ultimate compliance (despite it in fact was made volun- admissibility of confession is whether tarily).

[6] Defendant previously had been convicted of two felonies. He he under experience, because of this Jackson that Agent told (ie., Prior with the rights). experience “all this stuff’ his stood in deter system “is an consideration justice important criminal voluntarily was made whether an statement mining inculpatory 1, 20, Fincher, 309 305 S.E. 2d v. N.C. understanding^.” State (1983)(defendant’s significant one arrest considered prior confession); see also voluntariness of determining Jackson, 153. This at 304 S.E. 2d at circumstance N.C. the conclusions that the waiver and the confession supports thus voluntary. were

[7] voluntariness, While intoxication is a circumstance critical to the issue of intoxication at the time of a confession does not Perdue, necessarily involuntary. State v. render it N.C. 59-60, 357 S.E. 2d 350-51. a factor to be considered simply It “Sufficiency determining Showing voluntariness. See Annot. that Voluntariness of or Admission was Affected Confession (1983 1987). Alcohol or 25 A.L.R. 4th 419 Drugs,” Supp. Other “is unless the is so intox confession admissible meaning icated that he is unconscious of the words.” State Oxendine, 235, 243, 278 S.E. 2d At about 6:30 defendant had a level p.m. blood alcohol scale, breathalyzer to a .26 on the and he equivalent reading ap- Perry intoxicated. Dr. administered fluids to defendant to peared recovery accelerate his from his intoxication. the next During hour, Perry improvement observed considerable in defendant’s Perry and physical agreed mental condition. Both and Rollins defendant’s condition would have continued to over time. improve The officers did not until begin questioning defendant some two IN THE SUPREME COURT 23

State v. hours after the blood alcohol Agent test. Jackson explicitly testified that defendant appeared to be sober during the inter view. Jackson also stated that defendant spoke rationally and coherently. The trial specifically court found that was defendant not under the influence of alcohol during the interview. There was ample McClure, evidence support this finding. See State v. 288, 291, 693, Therefore, 280 N.C. 185 S.E. 2d 695 the fact may that defendant have experienced some lingering, mild intox ication at the time of the confession did preclude the conclu Perdue, sion 59-60, he voluntarily. confessed State v. 320 N.C. at 350-51; State, 357 S.E. 2d see Bryant also 16 Ark. App. 45, (1985) (less 696 S.W. 2d 773 than an hour after defendant a signed waiver of his rights, Miranda he had blood alcohol .28; Rather, level of waiver voluntary). held defendant’s intoxica credibility, tion to his relevant which was a question for the McClure, 290-91, jury. State v. 280 N.C. at 185 S.E. 695 2d at 238, (citing denied, Logner, N.C. 145 S.E. 2d cert. (1966)). 384 U.S. 16 L.Ed. 2d 1032 penalty, 220, 231, not render a confession inadmissible. State v. ^[8] While important, subnormal 303, 318, 226 S.E. 2d U.S. 214 S.E. 2d L.Ed. 2d (1976) mentality standing alone—will (citing State v. (1976)). — modified If person Taylor, Thompson, as to death has the N.C. testify mental capacity to and to understand the meaning of his statements, he has sufficient mental capacity voluntary to make a confession. Id. I.Q. Rollins testified that defendant’s him in placed the bor- however, range

derline of intellectual functioning; there was no testimony that defendant did not have intelligence sufficient Moreover, understand meaning Perry of his words. reported that after received responded coherently defendant fluids he questions. spoke rationally Defendant during his extensive con- versation with job the officers. He held a prior shooting, and his supervisor described him as a worker. He had good also capacity testify sufficient mental at trial. The evidence thus permitted a conclusion that had sufficient mental capacity voluntarily to waive his rights and confess.

vent ^[9] Rollins testified him making defendant’s mental disorders would truly voluntary confession. However, pre IN THE COURT SUPREME v. to observe defendant at the time ample opportunity Jackson had made, he gave were substantial

the waiver statements was to testimony comprehend that defendant able indicating had non-expert opportunity When a has a reasonable discussion. form an such ob- opinion a defendant based on to observe servation, testify opinion he his of the defendant’s men- may 232, 226 S.E. 2d at 30. Taylor, N.C. at tal condition. State preclude The thus did not conclusion that defendant’s evidence voluntary his making not confes- prevent mental disorders did sion. not that defendant’s blindness or

The evidence did indicate injuries at the time of confession had on the vol- bearing They were of his waiver and statement. not shown to untariness a free of will. have or exercise precluded understanding Cf. (1976)(“Il- White, 291 N.C. S.E. 2d understanding not a free exercise of literacy does or preclude will.”). Finally, we of we have note the absence circumstances that often in our consideration voluntariness: emphasized or about nature was not deceived tricked [Defendant] ... He crime or the possible punishment. involved subjected He prolonged uninterrupted interrogation. of violence. subjected physical was not threats shows were made to him return his confession. promises No (citations Jackson, 308 N.C. S.E. 2d 152-53 State omitted). supports circumstances the conclu- absence these voluntarily. made See sion the waiver and statements were 2d 473. Colorado v. U.S. L.Ed. Connelly, record we conclude that ^[10] For the foregoing reasons, totality after the circumstances thorough review of the permit knowingly, in ted the trial conclusion court’s voluntarily rights his Miranda and that his waived telligently, voluntarily. freely, understandingly, and statements were made to sup We find no error in the denial of defendant’s motion thus press these statements.

[11] Defendant next challenges overruling of his objection testimony of de concerning expert prosecutor’s argument argued: fendant’s psychiatrists. prosecutor THE IN SUPREME COURT McKoy State v. Well, I you testimony. want to tell this about If psychiatric they were the so-called of all times and if experts the law as the was, recognized expert[s] them on what the condition of somebody’s you mind wouldn’t be hearing the case. Object.

Mr. Stokes: The Court: Overruled. Go ahead[.] says you Lowder: The law Mr. may hear from the witnesses, that, yes, you so-called expert can consider says you may but it also take into account what other people have said about him. We’ve had other witnesses that you told him. about We had his neighbor right across the street you to tell how he was acting day. on this 8C-1, 702, Defendant contends that under N.C.G.S. Rule the law § does an recognize forensic expert psychiatrist, qualified and ac- court, cepted as expert an witness on “what the condition somebody’s mind was.” He asserts that the prosecutor deliber- ately misstated the law in order to jury. mislead the

It is well established in this jurisdiction “[testimony re- garding mental is capacity not confined to expert witnesses 152, 162, 375, alone.” State v. Evangelista, N.C. 353 S.E. 2d (1987). 382-83 “Anyone who has had a reasonable opportunity form an opinion is permitted give opinion upon the issue of 383; mental capacity.” Id. at 353 S.E. 2d at see also State v. Davis, (1987). 52, 55-58, N.C. S.E. 2d 726-27 evidence here included both expert and non-expert opinion testi- mony on sanity defendant’s at the time of the shooting. The argu- ment in question was an exhortation to the to consider both kinds of testimony in resolving question. isolation,

In the statement “if the law recognized them [psy- as the expert[s] on what the condition of somebody’s chiatrists] was, you mind However, wouldn’t be hearing the case” be could misleading.

the prosecutor went on to correctly state the law permits hearing experts and considering what have say. He then urged to consider only not the expert testimony but also that of the other witnesses. “Arguments counsel are largely in the control and discretion of the trial court. The appellate courts ordinarily will review the exercise that discretion unless the impropriety of counsel’s remarks IN THE SUPREME COURT

State v. clearly prejudice jury.” extreme and is calculated to 92, Huffstetler, 312 S.E. 2d cert. denied, context, 471 U.S. 85 L.Ed. 2d 169 Viewed in potentially misleading portion of the prosecutor’s argument clearly was and . . . not so “extreme prejudice calculated to jury” to warrant that the holding trial court abused its dis in overruling objection. cretion defendant’s ^[12] Defendant next assigns error to the prosecutor’s argument suggesting that the fact that to stand competent insanity trial indicated that his defense lacked merit. Defendant argument contends that this tended to confuse the blend ing the issues of stand competency insanity. trial and

Although potentially misleading, argument did not misstate law. simply urged It to consider evidence of defendant’s state of mind at the time of trial in passing upon his of mind state at the time of the The shooting. trial court gave insanity. clear and correct instructions on See State Evangelis- ta, 353 S.E. N.C. at 382. In light of the foregoing, we decline to find an abuse of discretion in failure to sustain objection defendant’s argument.

[13] Defendant next contends that the trial court erred sus objection taining the State’s portion of his closing argument. Dr. Rollins had testified that defendant was insane legally at the shooting time of the and that he lacked the mental capacity premeditate deliberate the act. the relevance Addressing of testimony, Dr. Rollins’ defense counsel argued: time, And he said too that at that on that evening, December 22nd, 1984, he that could not premeditatedly or delib- [sic] shooting deputy. erate to That’s what he said. How is His significant? Honor—I believe he you will charge you in order for to find the guilty degree first murder, that, you that before can do you’ve first to be got beyond a satisfied reasonable doubt certain elements of [that] those, the crime are Among met. one of the elements of first murder is degree that there was premeditation and delibera- tion, unlawful killing of human being with premeditation and deliberation. Premeditation and deliberation. That think, thought reflect, went into it. That there was time to to choose to do the thing. THE IN SUPREME COURT years

Dr. all of his and with experience Rollins with McCoy all work that went into examination of Dock says he deliberate at that time. premeditate could you can man to find before convict this got You’ve did, so, only murder not could he but that he degree first effect, Dr. you’ve only to find that not got what it, he was it be- wrong wrong Rollins about but that about yond a reasonable doubt. following then occurred: Object

Mr. Lowder: We to that. a fair

Mr. STOKES:That’s comment. objec- Judge We ask the to rule on that Mr. Lowder: tion. Objection. I’ll have to Sustain Court: stated the argument properly that his

Defendant contends beyond a burden proving the State bore the proposition and element of deliberation premeditation reasonable doubt the argument implied asserts that the murder. State degree first defense, insanity disproving bore the burden of the the State that Mize, 315 of our law. State v. is an inaccurate statement which (1985). 285, 293-94, S.E. the We conclude that N.C. reasonably subject interpretations. to either of these argument arguing should be allowed wide Although counsel latitude ordinarily of the exercise of this jury, privilege the control the Robbins, v. in the sound discretion of the trial court. State lies --- ---, 279, 303, 465, 505, denied, U.S. 356 S.E. 2d cert.1 319 N.C. (1987). have jury interpreted Because the could 98 L.Ed. 2d facts, law as the applied to misstate the argument defendant’s objection. sustaining discretion in the of the we find no abuse of Further, correctly emphasized unambiguously charge the and deliberation premeditation proving burden of the State’s Mize, See State beyond a reasonable doubt. this, record as and in view of the light S.E. 2d 567. In 337 whole, that the is a reasonable possibility we believe there do not court had over- a different result would have reached IN THE SUPREME COURT Thus, error, objection. assuming arguendo, defendant ruled the of showing prejudice. has not carried burden N.C.G.S. 15A-1443(a) § of defendant’s trial was fair guilt phase We conclude that the prejudicial and free error.

Sentencing Phase hearing ^[14] Defendant contends that because the failed to find he is entitled to statutory a new sentencing mitigating that was circumstance “the defendant under the influence of men 15A-2000(f)(2)(1983). tal or emotional disturbance.” N.C.G.S. § Defendant two was presented psychiatrists who testified that he suffering significant psychological disorders at the time He shooting. argues there thus was uncontradicted and inherently credible to support evidence the existence of this circumstance, jury’s and that refusal to find this makes sentencing circumstance determination unreliable violation Eighth Fourteenth Amendments.

We conclude that other evidence regarding defendant’s men- tal and emotional state at time of the shooting conflicted with presented experts. defendant’s Prior to the shooting, de- job years, fendant had held the same for four and his supervisor as a good described him On employee. day de- shooting, able fendant was to aim and fire his shotgun. When confronted Haskell, defendant was able explain he was firing his shot- air gun into the because “it’s Christmas.” several points At prior shooting, defendant conversed with officers. After wounds, receiving medical for his gunshot treatment defendant answer Perry’s able to Dr. questions coherently. During the ride to Raleigh, “appeared to be rational in all respects.” Defendant gave detailed narration of the day’s events, he explained reason he shot Horne was be- cause “pressured” Horne Agent him. Jackson testified that de- fendant responded logically, clarity with of recollection and expression, witness, questions by to posed the officers. Defendant’s own Lara,

Dr. testified he found no evidence that defend- hallucinations, delusions, ant suffered from “an ongoing psycho- sis.” reject

We also testimony defendant’s assertion that the of his psychiatric experts inherently was credible. Defendant’s mental v.

State at the the crime is ques and emotional state time the central presented by the mitigating tion the submission of circumstance however, neither of defendant’s question; experts examined until him Smith, several weeks or months after the crime. See State v. 691, 705-06, 264, 273-74, denied, 292 S.E. 2d N.C. cert. (State’s (1982) 459 U.S. 74 L.Ed. 2d 622 evidence concerning defendant’s capacity mental conflicted with expert’s defendant’s believe”). “jury’s duty after-the-fact to opinions; decide what to jury was required not to believe evidence simply defendant’s testimony because the did not specifically State refute the of de credibility fendant’s evidence experts. “Determining the is at Jones, the heart of the v. fact-finding function.” State N.C. (1983). 214, 220, 306 S.E. 2d Because concerning the evidence mental defendant’s inherently state was neither emotional ble, uncontradicted nor credi- Smith, we find merit in See argument. no (“all 706, 292 S.E. 2d at 274 did N.C. evidence” not sup- circumstance; port existence of defendant thus thereon). entitled peremptory instruction ^[15] Defendant next contends his rights under the Eighth Amendments were Fourteenth violated trial court’s Attorney, allowing closing argument, District to remind the jurors of their have sympathy commitments not to for defendant argument because he was intoxicated. was as follows: seven, ability Number to remember [defendant’s] 22nd, events is actually impaired, they of December I contend. He was And that’s the last one. don’t know. drink- you I ing liquor you juror and told were as a before chosen intoxicated, you if it is shown that he’s going were recall, I sympathy, sympathetic you have his cause. As I you said He wouldn’t. don’t know. can remember what he did because he told the officers about it. object We argument

Defendant did not to this at trial. thus can find an abuse discretion in the trial failure to in- court’s only argument ex impropriety tervene mero motu Johnson, 355, 368-69, 259 S.E. indeed.” State “gross 752, 761 held gross We find no We have above impropriety. ex failing the trial did not abuse discretion mero court its jurors regard- dire prohibit questions prospective motu voir IN THE SUPREME COURT McKoy State v. an We likewise ing sympathies person. their toward intoxicated find abuse discretion in the allowing no of trial court’s Attorney closing argument, objection District without —in —to jurors remind of their gently responses questions. to these ^[16] Defendant next contends that the trial court’s sentencing in were they structions erroneous unconstitutional because unanimity required jury on the a mitigating existence of cir cumstance before circumstance that could be considered for the purpose sentencing. We find no error. contrary We resolved issue position defendant’s v. Kirkley, 302 S.E. 2d overruled Shank, grounds, on other State v. 322 N.C. 367 S.E. 2d 639 (1988). Kirkley, In jury the trial court instructed the that “the de-

fendant has jury the burden of persuading to the existence if mitigating circumstance and all jurors twelve are unable agree that a specific mitigating circumstance exists must 217-18, find Kirkley, it does not exist.” N.C. at S.E. Therefore, 2d at 156. jury only could find a cir- unanimously cumstance if agreed it that it existed. The defendant argued that the court should have instructed that the could only determine a mitigating circumstance did not exist they unanimously found that it did not exist. Id. S.E. We held in a capital jury case “the unanimously must find that an aggravating circumstance exists before that cir- may cumstance be considered in determining its sentence recommendation” and “consistency and fairness dic- jury unanimously tate that a find that a mitigating circumstance may exists before be it considered for the purpose sentencing.” Id. We stated:

The consideration of mitigating circumstances be must the same as the consideration of aggravating circumstances. unanimity requirement only placed upon the finding of whether an aggravating or mitigating circumstance exists. With the exceptions of who has the burden proof and different quantum of proof required to establish the existence circumstance, of a we see no reason to distinguish method a must use in finding the existence or nonex- istence of aggravating and mitigating circumstances during sentencing procedure. It must be kept mind that when sentencing are procedure begins there no aggravating mitigating circumstances deemed be in to existence. Each cir- cumstance must be established party who bears the burden if he fails proof to meet his burden of proof on circumstance, any may that circumstance not be considered in that case. In determining mitigating whether circumstance ex

ists, jury is free all to consider the evidence relevant procedure that circumstance. This is in accord with the re Ohio, 586, 2954, 438 quirements of v. U.S. 98 57 Lockett S.Ct. --- (1978) Oklahoma, ---, 973 Eddings L.Ed. 2d v. U.S. (1982). 869, 102 71 1 We S.Ct. L.Ed. 2d therefore find no error in the judge’s concerning trial instructions unanimity requirement mitigating on circumstances. 219,

Id. 302 S.E. 157. at 2d at We have declined reexamine our Kirkley holding cases, 321 following: several State v. including Lloyd, N.C. 301, (1988); Holden, 125, 364 S.E. 2d 316 State v. 321 362 S.E. N.C. --- (1988); (1987), denied, ---, 100 2d 513 U.S. 935 cert. L.Ed. 2d --- 179, 1, Brown, denied, v. 320 358 S.E. State 2d U.S. N.C. cert. ---, 98 (1987); Noland, 1, L.Ed. 2d 406 State v. 312 320 S.E. N.C. (1984), denied, 1230, (1985); 642 469 U.S. 84 369 2d cert. L.Ed. 2d 197, denied, 311 316 S.E. 469 Maynard, N.C. cert. (1984); Oliver, 83 L.Ed. 2d 299 309 307 U.S. State v. S.E. 2d 304 law, then, clearly As a matter of issue is settled state contends, however, contrary position. to defendant’s Defendant the recent decision of States Court in Supreme the United ---, Maryland, Mills v. U.S. L.Ed. 2d requires Mills, we and its In Kirkley progeny. Supreme overrule jury were held that the trial court’s instructions to the con Court stitutionally may . . . have infirm because “reasonable were thought precluded considering unless all 12 of a jurors agreed par evidence on the existence ---, such circumstance.” Id. at L.Ed. 2d at ticular long Mills is one of a line of in which the United States cases constitutionality has examined the of state Supreme Court has faced be- schemes. the tensions capital-sentencing such schemes: relating the constitutional two concerns tween sentencing, and the constitutional of individualized requirement arbitrarily be inflicted penalty the death requirement Ohio, 438 U.S. L.Ed. 2d and (1978), In Lockett capriciously. from this Court recognized signáis court “[t]he always easy . . . been and that it had “an decipher” have not views in order to previously differing pro- obligation to reconcile Lockett, 438 U.S. 57 L.Ed. 2d guidance.” vide [clear] (plurality opinion). how, in Furman v. opinion explained Lockett plurality 238, 33 346 plurality 408 L.Ed. 2d of the

Georgia, U.S. “discretionary sentencing, unguided had concluded standards, Eighth defined violated the Amendment” legislatively discriminatory, “wantonly” was imposed because it “afforded the few cases in which meaningful distinguishing ‘no basis for it ” many in from the cases which it not.’ imposed [was] [was] 599, Lockett, Furman, 438 U.S. 57 L.Ed. 2d 986 408 (quoting at at 392). 257, 310, 313, 359, 390, 33 In attempting U.S. at L.Ed. 2d at Furman, mandatory some states death adopted penalties to follow crimes, any jury in eliminating for certain thus discretion sentenc- 599-600, Lockett, 438 U.S. at 57 L.Ed. 2d 986-87. ing. at Furman, In wake examined penalty the Court death mandatory A plurality in five states. found the death statutes in Louisiana and sentence statutes North Carolina unconstitu- Louisiana, 325, (1976); 428 v. U.S. 49 L.Ed. 2d 974 tional. Roberts Carolina, 280, 428 v. U.S. 49 L.Ed. 2d 944 Woodson North found, however, Texas, A also plurality Georgia, statutes, mandatory Florida which were not and which provided safeguards certain ess, to the defendant the capital-sentencing proc- constitutionally 428 were not invalid. U.S. Gregg Georgia, (1976); 153, Texas, 262, 49 859 Jurek v. 428 49 L.Ed. 2d U.S. L.Ed. (1976); Florida, 242, 428 2d 929 U.S. 49 L.Ed. 2d 913 Proffitt (1976). In wrote Gregg, plurality expressed that “the concerns be in an ar- penalty imposed Furman that death not bitrary carefully manner can be capricious met drafted authority ensures that is ade- sentencing given statute that 195, 428 49 guidance.” information and U.S. at L.Ed. quate Gregg, 2d at 887. From these in Lockett opinions, plurality opinion ‘a sub- “sentencing procedures concluded that should not create 33 be inflicted an arbi- penalty risk that the death stantial [will] ” Lockett, 601, 438 U.S. 57 L.Ed. trary and manner.’ at capricious 883). 188, 49 U.S. at L.Ed. 2d at (quoting Gregg, 2d at Justices, . . . Furman did not re- In the view of the three eliminated, only all discretion be but quire sentencing limited,” U.S., 189, 49 L.Ed. 2d be at that it “directed 2909, 859, 96 be im- penalty so that the death would S.Ct. in a and rational manner and so that posed more consistent basis “meaningful distinguishing would be a there many . is . . . cases in imposed . . cases in which it from Id., 49 L.Ed. 2d which at S.Ct. it not.” Lockett, 987-88. 438 U.S. L.Ed. 2d at man- acknowledged in Lockett plurality opinion datory sentencing sentencing death unconstitutional. “[T]he permit consideration of the ‘character record process must of- particular individual offender and the circumstances of the constitutionally as a of in- indispensable part process fense ” Lockett, 438 U.S. 57 L.Ed. of death.’ flicting penalty Carolina, 428 v. North U.S. at (quoting 2d at Woodson opinion stated that “the (plurality opinion)). L.Ed. 2d at as a considering . . . [may] precluded not be sentencer factor, any character or record aspect of defendant’s offense that the defendant any of the circumstances of the Lockett, 438 a basis a less than death.” for sentence proffers 604, 990 in (emphasis original). 57 L.Ed. 2d at U.S. at statute, examined in which the Court death-penalty Ohio’s Lockett, where penalty of the death imposition mandated the unless, con- circumstance aggravating had found at least one and the and circumstances of the offense sidering “the nature offender,” character, deter- of the the court history, condition cir- specified mitigating one of three mined that at least by a of the preponderance had been established cumstances 607, 991-92. opinion 57 L.Ed. 2d at The plurality Id. at evidence. circumstances range mitigating limited of concluded that “[t]he under Ohio statute may by the sentencer which be considered Amendments” Eighth Fourteenth incompatible with fac- mitigating relevant “preclude[d] because it consideration Therefore, 608, re- 992. Court 57 2d Id. L.Ed. at tors.” at IN THE 34 SUPREME COURT MeKoy penalty and remanded for re- imposition versed the of the death 608-09, 57 L.Ed. 2d Id. at 992. at sentencing. Oklahoma, 104, Eddings

In 455 U.S. 71 L.Ed. 2d the Lockett rule Supreme applied Court that “the sentencer as a mitigating [may] . . . be precluded considering, fac- tor, any any aspect of defendant’s character or record and offense as a proffers the circumstances of the Id. basis for sentence less than death.” at L.Ed. 2d at 990) Lockett, 57 L.Ed. 2d in (quoting (emphasis U.S. at at that, Eddings The trial in had stated as a matter original). judge law, he could consideration not take into the defendant 112-13, Eddings, background. had come from a 455 U.S. violent at 71 L.Ed. 2d at 9-10. The Court held Supreme that “the sentencer law, consider, as a matter [may refuse relevant not] Id. 71 L.Ed. mitigating evidence.” at 2d at (emphasis original). The Court reversed the death sentence and remanded Id. 71 L.Ed. 2d 12. resentencing. at at ---,

In Mills v. Maryland, U.S. L.Ed. Lockett-Eddings Supreme applied holding doctrine because the instructions on circum were potentially misleading, stances possibility that “[t]he . . . jury conducted its task . . . improperly great enough to [was] ---, require resentencing.” Id. 100 L.Ed. 399. 2d at The verdict form Mills had three sections: I

Section stated: Based the evidence we upon unanimously find each following aggravating circumstances which is marked Beyond “yes” has been proven DOUBT A REASONABLE each aggravating circumstance which is marked “no” has not Beyond been proven a reasonable doubt[.] ---, Id. L.Ed. 2d at Following this was a paragraph circumstances, list of the submitted aggravating each of which answer, followed a “yes” two blanks —one for the other for a “no” answer. I Section concluded:

(If one or more of the above are “yes,” marked complete Sec- tion II. If all of the above are marked “no” do not complete III.) II Sections ---,

Id. at L.Ed. 2d at 400-01. IN THE SUPREME COURT II

Section stated: unanimously the evidence we find each upon Based circumstances which marked following mitigating A PREPONDERANCE exist “yes” proven has been THE OF each marked has mitigating circumstance “no” EVIDENCE By a PREPONDERANCE OF THE proven not been EVIDENCE!.] section, ---, 2d 401. As in the pro 100 L.Ed at the first Id. at circumstances, were through numbered posed mitigating listed, read, “yes” and “no.” Number each with blanks for exist, as set forth below.” Id. at mitigating circumstances “Other ---, II 401-02. 2d at Section concluded: L.Ed.

(If II above Section have been marked one or more II III. If “yes,” all of the above Section complete Section III.) “no,” you not complete are marked do Section ---, 2d 402. 100 L.Ed. at Id. at III read:

Section we has unanimously find it the evidence Based on A EVIDENCE that the proven been THE OF PREPONDERANCE II “yes” in Section marked circumstances “yes” in marked circumstances outweigh aggravating I. Section —, 100 L.Ed. Id. “yes” and “no” followed. designated

Blanks 403. read: and final section fourth Determination of Sentence “Life Im- sentence either determination of

Enter following instruc- according or “Death” prisonment” tions: I “no”

1. answers in Section are marked If all of the Imprisonment.” enter “Life “yes” marked

2. III was completed If Section Imprisonment.” enter “Life answers completed II was all of the If Section “no” enter “Death.”

were marked then THE IN SUPREME COURT McKoy

State v. III “no” 4. If was and was completed Section marked enter “Death.” ---,

Id. at 100 L.Ed. 2d at 403. I, jury “yes” In Section to ag answered one of the II, and “no” to the rest. In it gravating circumstances Section mitigating answered “no” to circumstances through 7 (the “catchall”). to Having “none” circumstances, number found no mitigating jury did not Section It answer III. returned a to response death sentence in of number mandate three in the ---, final section. Id. at L.Ed. 2d at 400-03. sentencing

This scheme mandated the death penalty if jury unanimously found at least one aggravating circumstance unanimously and did not any find mitigating circumstances. Because the found one aggravating circumstance no circumstances, it mitigating as a to required matter of law impose III, the death without penalty Section completing which called for weighing aggravating cir- mitigating cumstances. sentence, challenged his conviction and argu

ing Maryland’s capital-punishment statute was unconstitu him, tionally mandatory as applied because “even if or all some jurors some were believe mitigating cir circumstance or cumstances present, they were unless could on unanimously agree factor, the existence the same mitigating the sentence (em ---, necessarily would be death.” Id. at 100 L.Ed. 2d at 392 phasis in original). The Supreme granted certiorari “[bjecause of importance Maryland’s in issue capital- [this] ---, punishment Id. scheme.” 100 L.Ed. 2d at 393. examining

After the verdict form and instructions under death, which the jury had sentenced the defendant the Court III, concluded that even had reached “they Section were not free ... to consider all relevant in evidence mitigation they balanced aggravating mitigating circumstances. Sec tion III instructed the only those weigh cir ---, ‘yes’ cumstances marked Section II.” Id. 100 L.Ed. 2d at 397 (emphasis original). is a substantial probability reasonable jurors,

[T]here upon case, receiving judge’s instructions and in at- instructed, tempting complete the verdict form as well may thought have were precluded from considering 12 jurors evidence unless all mitigating on the ex- agreed istence of a such . particular circumstance. . . The possibility consideration, a single juror that could block such and conse- quently jury require impose the the penalty, death one we dare risk. not ---,

Id. at 100 L.Ed. 2d 400. at Because of risk jury the that the was improperly from precluded considering certain relevant evidence, mitigating Maryland the Court held that the scheme violated the doctrine articulated in Eddings. Lockett and See id. ---, Therefore, at 2d at 400. L.Ed. the Court vacated the judgment of the Court of Appeals, insofar as it sustained the —, death and remanded penalty, for Id. resentencing. at L.Ed. 2d at 400. --- ---, In v. Lynaugh, Franklin U.S. 2d 155 L.Ed. Mills,

a case Supreme decided after the again Court examined Texas’ capital-sentencing process. That process provided the “Special submission of two Issues” jury. If jury the “yes” answered questions, both the defendant would be ---, Id. sentenced to at death. L.Ed. 2d 162. The at requested Franklin instructions that the should take Issues, mitigating evidence into account in answering Special the they that answer so could “no” to either one or both of the Issues, if they even Special otherwise would have answered the ---, Id. “yes.” Issues at 101 L.Ed. Special 2d at 162-63. The trial instead the jurors court instructed that reach should their ---, verdict based all the evidence. Id. on at L.Ed. 2d 163. at argued The defendant that Issues Special precluded jury from certain considering mitigating though evidence. Even capital-sentencing process Texas dence, not mitigating does mention evi ---, (Stevens, J.,

id. 101 L.Ed. at 2d at dissenting), held Texas opinion procedure that un plurality constitutional. opinion that there “two plurality stated are lines of . . .

cases are in ‘tension’ somewhat with each other” —the [which] jury cases not be holding precluded that must consider evidence, all cases ing relevant and the states holding must discretion, ---, jury channel the exercise of id. 101 L.Ed. 2d at

State both of in Texas “accommodates procedure ---, 171 (emphasis Id. L.Ed. 2d at these concerns.” does not that “Lockett opinion concluded original). plurality structuring giving shape has no role in hold that ---, 101 . . . Id. at mitigating factors.” jury’s consideration 169. L.Ed. 2d at jury held must be has never discretion

[T]his unlimited or suggested we have never unguided; evidence be undirected or must consideration unfocused; never cannot chan- we have concluded that States an capital sentencing discretion in effort nel equitable achieve a more rational and administration penalty. death ---, 101 channel [capital]

Id. at L.Ed. 2d at States “must objective pro ‘clear and standards’ sentencer’s discretion rationally ‘make guidance’ vide and detailed ‘specific ” Id. a sentence of death.’ process imposing reviewable the 420, ---, 446 U.S. 101 2d 170 v. (quoting Godfrey Georgia, L.Ed. (1980) (footnotes 398, 428, 406 (plurality 64 L.Ed. 2d omit opinion) ted) ). Thus, scrutiny given Court has individual Supreme the procedures to determine capital-sentencing several states’ non-mandatory they were for individualized whether allowed yet adequately channeled the discretion of the sen sentencing, —see upheld procedures The Court has some Franklin v. tencer. —-- --—, 155; 101 L.Ed. v. 428 Gregg U.S. 2d Lynaugh, Georgia, 153, 859; 262, Texas, Jurek v. 428 U.S. 49 U.S. L.Ed. 2d L.Ed. 929; Florida, v. U.S. 2d L.Ed. 913 — while Proffitt --—, invalid —see v. 486 U.S. declaring Maryland, others Mills 384; Oklahoma, 1; L.Ed. 2d v. 455 U.S. Eddings L.Ed. 2d Ohio, 973; 438 U.S. Lockett L.Ed. 2d Roberts v. Loui 974; siana, Carolina, 428 U.S. 49 L.Ed. 2d Woodson North Therefore, 428 U.S. L.Ed. 2d in examining aspect here, capital-sentencing process question our we must look individually aspect at that and in the context of the whole. us, In case now before sentencing verdict form in the had phase four sections: section, One,

The first Issue listed the aggravating submitted circumstances and asked jury unanimously whether found any evidence the existence of of those circumstances. unanimously The jury aggravating found the two circumstances submitted. Two, section,

The second Issue listed the submitted jury asked whether unanimous- circumstances and mitigating ly evidence the existence of of those cir- found from the submitted, circumstances eight mitigating Of the cumstances. six, “yes” to and “no” to the “catch- including answered two (“[a]ny arising all” circumstance or circumstances from the other value”). have you evidence which deem to mitigating section read: third “yes.” you answered If

Answer Issue Three Issue Two TWO," “NO,” ANSWERED SKIP THREE AND YOU ISSUE ISSUE answer Issue Four.

Issue Three stated: you unanimously find a reasonable beyond Issue Three: Do circumstance or circumstances doubt is, are, by you aggravat- insufficient to outweigh found or by you? found circumstance circumstances ing Answer:

The fourth section read: imprison- you “no,” Three, life answer

If Issue indicate IF YOU AS TO PUNISHMENT.” ment UNDER “RECOMMENDATION proceed Three, “yes,” to Issue Four. answer Issue Issue Four stated: doubt, find, beyond you unanimously a reasonable

Do by or found circumstance circumstances aggravating that the is, are, sufficiently imposi- substantial to call for the you or mitigat- when considered with the penalty death tion of the you? found circumstance or circumstances ing Answer: “yes” Three and returned jury answered to Issues Four penalty.

a of the death recommendation shows, differs as this case capital-sentencing procedure, Our ways Maryland’s procedure: significant two IN THE SUPREME COURT First, jury to the as when impose the instructions to it must Maryland’s are penalty procedure required the death different. jury death if impose penalty ag- to it “found” at least one any and did not “find” gravating mitigating circumstance cir- jury required impose penalty cumstances. It also to the death unanimously if it found that did mitigating circumstances outweigh aggravating circumstances. Issue Three here re- quires weigh to the “found” mitigating circumstances the “found” against aggravating circumstances. In contrast however, Maryland procedure, it does not mandate the death where are penalty there no mitigating circumstances and at least circumstance, aggravating one nor does it mandate the death if the penalty outweigh circumstances do not the ag- gravating Rather, requires circumstances. it then to jury may answer Issue Four. Issue Four ensures return a recommendation of life if imprisonment it feels that the aggravat- sufficiently circumstances are not ing call substantial to for the if penalty, death even it has found several aggravating circumstances and no mitigating Maryland’s circumstances. capital-sentencing procedure, which the Supreme Court found con- stitutionally infirm in

Mills, did not include a equivalent section Issue Four here.

Second, in North Carolina evidence in effect becomes legally prove irrelevant if mitigation fails to prove the satisfaction of all the that such evidence supports the of a finding mitigating factor. “Each circumstance must be estab- lished party who bears the burden of proof and he fails circumstance, to meet his burden proof on that cir- may cumstance not be considered in that case.” v. Kirkley, 196, 218, 302 S.E. A requirement carry the defendant evidentiary must certain burden prove the existence a mitigating factor is a proper limitation of the York, jury’s discretion. See Patterson v. New 432 U.S. (1977) (states 281, 286-87, 53 L.Ed. 2d normally have the power regulate burdens of production and persuasion and “[i]f . . . the State chooses to recognize mitigates factor that the de- gree criminality punishment, . . . may the State assure it- self that the fact has been established certainty”). with reasonable The instructions and verdict form in our capital-sentencing proce- that, dure serve jury’s to channel the discretion ensuring when determination, only final it will jury sentencing makes con- the its have, effect, we in rele- evidence which to be sider determined If all do on of a jurors agree specific vant. the not the existence circumstance, then has failed meet mitigating the defendant to on re- her burden of that circumstance and the evidence proof is There- legally it relevant for garding fore, sentencing purposes. not the cir- jury weigh only instruction to to the mitigating the by a was an to cumstances “found” unanimous vote instruction only mitigating answering evidence in consider the relevant Issues Three and Four. Mills, Maryland jurors had held Appeals

In Court that they only mitigating “no” on a circumstance when mark could unanimously not exist. mitigating found that circumstance 33, some, 3, State, A. 310 Md. 2d Where v.Mills all, jurors agreed on the existence of cir- mitigating but not cumstance, circumstance; could Carolina, mark “no” jury not to that thus, unlike evidence mitigating in North introduced legally relevant mitigating circumstance remained support unanimously jurors ex- though agree even did not on the circumstance. mitigating istence ap such relevant legally

The fact evidence remained Supreme in the Court’s resolution of significant parently here, one has did the argued noted nor Mills. “[n]o can evidence Maryland Appeals suggest, mitigating Court of v. by one vote.” Mills legally rendered ‘irrelevant’ holdout be --- --- n.7, 100 L.Ed. 394 n.7. The Court U.S. at 2d at Maryland, in answering was that problem that the Mills went on state form, ... III “were not free verdict Section ag balanced mitigation all evidence consider relevant ---, 100 2d Id. L.Ed. mitigating circumstances.” gravating added). potential The instructions in Mills were (emphasis clearly they did because not ly misleading inadequate and thus North consider all relevant evidence. Under permit law, relevant considering prevented Carolina during sentencing. evidence at time Court, see Godfrey Supreme Like the United States have emphasized 64 L.Ed. 2d at we U.S. at Georgia, process. capital-sentencing discretion guided need --- denied, Brown, 358 S.E. cert. In State IN THE SUPREME COURT McKoy ---, 2d 406 argued U.S. L.Ed. the defendant the erroneously only that it con jury trial court instructed the could the the miti mitigating weighing sider “found” circumstances circumstances. He contended that the gating aggravating jury should have been able to consider not “found” circumstances by jury the and even circumstances had not written which been on Id. the verdict form. at We S.E. 2d 25-26. stated a procedure caprice” that such would “sanction an invitation to the of sentencing phase trial. Id. at 358 S.E. 2d capital concern, We discussed often articulated the United Court, Supreme jury’s States discretion must limited be arbitrary to of prevent capricious infliction penalty: death “The of mitigating consideration circumstances be must same the consideration aggravating circumstances.” There is no reason to confound the jury’s process decision with arbitrary, may “inarticulable” factors that applied be mitigation of a sentence but not in aggravation of it. “[T]he jury may only guided exercise in making discretion the un- derlying findings required for a recommendation of the death penalty ‘carefully within the statutory defined set criteria crime, that allow them take into account the nature of the ” character of the accused.’ 217-18, (citations omitted); Id. at 358 S.E. 2d at 26 see also State v. Kirkley, 308 N.C. at 302 S.E. 2d at 157.

[17] Our capital-sentencing procedure allows for individualized sentencing. It allows the jury to find circumstances in mitigation, both submitted circumstances and other circumstance the jury deems to mitigating have value. It allows the jury con sider all relevant in deciding evidence whether to recommend a Finally, sentence it requires death. recom —before mending that the defendant be sentenced to weigh death —to “found” aggravating and “found” mitigating circumstances and to decide whether circumstances, the “found” aggravating con with circumstances, sidered the “found” mitigating are sufficient ly substantial for call the death penalty. In addition to allowing individualized sentencing, our capital-sentencing procedure also guides jury’s discretion so as to guard against the arbitrary and capricious infliction of the death penalty. It requires the State to prove existence an IN THE SUPREME COURT beyond a It requires circumstance reasonable doubt. aggravating the existence of a circumstance prove of the evidence. It then allows the preponderance relevant, ie., only consider evidence which the evidence “found,” unanimously has in the de- sentencing which fendant. capital-sentencing procedure provides proper

Our thus sentencing guided and balance between individualized discretion believe, therefore, re- we conforms with federal constitutional and quirements. “[bjecause certiorari in Mills of Supreme granted Maryland’s capital-punishment issue in of the importance ---, in Id. 100 L.Ed. 2d at The decision Mills

scheme.” statute-specific. sup be This conclusion is further thus appears to immediately three cases after ported by the treatment of Court’s in cases decision in The Court denied certiorari two Mills. which raised the issue of whether North state from unanimity of on the existence of requirement Carolina’s Holden, v. is unconstitutional. See State mitigating circumstances --- (1987), ---, 100 denied, S.E. 2d 513 U.S. 321 N.C. 362 cert. (1988); Gardner, S.E. 311 319 2d L.Ed. 935 2d --- (1988). (1983), denied, ---, 100 U.S. L.Ed. 2d cert. Mills, However, issue as in Maryland raising in a case the same certiorari, remand vacated and granted judgment, the Court v. light in of Mills. See Jones further consideration ed A. granted 2d 743 and 310 Md. cert. Maryland, --- ---, vacated, We 100 L.Ed. rec U.S. 2d judgment . . . car for a writ of certiorari petition “a denial of ognize that the Court’s views regarding whatever implication ries it no with Maryland review.” which it has declined to merits of case on the 912, 919, Show, 338 94 L.Ed. Radio U.S. Baltimore (1950) (Frankfurter, J., certiorari); see also re: denial of opinion 940, 944, Revenue, U.S. v. Commissioner Internal Singleton of (1978) (Stevens, J., denial of cer- opinion re: 58 L.Ed. tiorari). in Holden We denial certiorari suggest do not that the of de- alone the Court decided and Gardner indicates that However, in merit. those cases were without arguments fendants’ its treatment view action on Jones and different we the Court’s Mills, Gardner, wake of some all in the immediate and Holden differs sufficient- capital-sentencing procedure our indication that IN THE SUPREME COURT ly Maryland’s that Mills does not control question presented here.

In light foregoing precedent from the United States Court, Supreme Court and from this the differences between our capital-sentencing procedure Maryland and the ad- procedure Mills, dressed in Supreme Court Supreme Court’s Jones, Holden, treatment and Gardner in wake the immediate Mills, we certainty are unable to conclude with degree Mills rendered our capital-sentencing procedure constitu- clear, stable, tionally infirm. We believe our considered pro- cedure, Kirkley established adhered progeny, its properly responsive requirement capital-sentencing provide schemes for both individualized sentencing guided sentencer We thus discretion. continue to adhere to our decisions Kirkley progeny its and hold ques- that the instructions tion were without error.

Defendant raises the following issues: “preservation” ^[18] (1) He contends that the trial court erred in denying his mo require tion to the State potential to disclose aggravating rely circumstances intended to upon it at Such sentencing. disclo Holden, 125, 153-54, is sure v. 321 required. State N.C. 362 --- 513, (1987), denied, S.E. 2d 531 cert. U.S. 100 L.Ed. 935 2d (1988). ^[19] (2) He contends trial court erred in placing proving burden of the existence of mitigating circumstances on Brown, him rather than on the State. This was not error. v. State --- 179, 216, 1, 25, denied, ---, 320 N.C. 358 S.E. 2d cert. U.S. 98 (1987). L.Ed. 406 2d (3) He contends that the trial court [20] jury erred instructing it must recommend a death sentence it answered issue four1 affirmatively. This was not error. State v. McDougall, 1, 26, 308, 323-24, denied, 308 N.C. 301 S.E. 2d 464 cert. U.S. (1983). 2d L.Ed. you unanimously beyond This issue follows: “Do find a reasonable is, are, aggravating by you doubt that the circumstance or circumstances found or sufficiently imposition to call for penalty substantial of the death when con- you?” sidered with the circumstance or circumstances found

State v. ^[21] death because (4) He contends that N.C.G.S. § the trial court erred in unconstitutionally 15A-2000(e)(3)2 is sentencing him overbroad, facially and and as both vague applied. argument 213-14, Brown, 320 N.C. 358 S.E. is without v. 2d merit. State 23-24. (5) entirety He 15A-2000 in is that N.C.G.S. its contends § Brown, is without argument merit. State unconstitutional. (1985), 40, 60-61, denied, S.E. 823-24 2d cert. N.C. 2d 733 grounds, U.S. 90 L.Ed. overruled on other (1988). Vandiver, 364 S.E. 321 N.C. 2d 373 us persuaded depart has not that we should

Defendant issues, we holdings “preservation” on these decline prior our to do so. sentencing phase

We conclude that of defendant’s trial prejudicial was fair free of error.

Proportionality Review guilt sentencing Because we have found no error (1) we are to review the and determine: phases, required record supports jury’s findings aggravat- the record whether which the court based its ing upon sentencing circumstances (2) death; imposed whether the sentence was under sentence factor; arbitrary prejudice, influence other passion, (3) or dispropor- whether the sentence of death excessive cases, in similar both penalty imposed considering tionate 15A-2000(d)(2)(1983); crime and defendant. N.C.G.S. § 465, 526, Robbins, 356 S.E. (1) circumstances, found, de- aggravating felony involving had of a the previously fendant been convicted (2) the was committed person, use of violence to the murder his engaged performance sheriff while the against deputy (8) (1983). 15A-2000(e)(3), As to first duties. N.C.G.S. the official § circumstance, presented State uncontroverted aggravating had documentary previously that defendant establishing evidence establishes, may aggravating which the 2. This as an circumstance statute consider, felony previously following: been convicted of a “The defendant had 15A-2000(e)(3) involving person.” of violence to the N.C.G.S. the use or threat § (1983). IN THE SUPREME COURT

State v. pled guilty degree to second murder and been sentenced to im- prisonment twenty-two twenty- of not less than nor more than circumstance, years. eight As to the second aggravating record contains plenary, uncontroverted evidence that the victim was, shooting, at the time of the sheriff deputy engaged in the performance of his fully official duties. The record supports thus jury’s findings aggravating circumstances upon which sentencing court based its sentence of death.

We find nothirlg the record which suggests that sentence of was imposed death under the influence passion, any arbitrary prejudice, or other factor. We thus turn to our final statutory duty of review. proportionality ^[22] In conducting proportionality review, we “determine whether the death sentence in case is excessive or dispropor cases, tionate to the penalty imposed in similar considering the Brown, 40, 70, crime and the defendant.” State N.C. 808, S.E. 2d We use “pool” of similar cases an Williams, 47, 335, nounced 301 S.E. denied, 2d cert. denied, 464 U.S. 78 L.Ed. reh’g 2d 464 U.S. (1983). However, L.Ed. 2d Id. do not find necessary it “[w]e all, to extrapolate analyze or in our opinions particular number, of the cases in proportionality our pool.” Rob bins, 319 N.C. 356 S.E. at 316 (emphasis at in original). The crime here was committed a law against enforcement of- ficer while he was engaged in performance of his official circumstance, duties. We have noted that this aggravating found 15A-2000(e)(8), in N.C.G.S. reflects the General Assembly’s § recognition of the “common concern” that “the collective con- science requires the most severe penalty for those who flout our Brown, system law enforcement.” State v. 320 N.C.

S.E. 2d

The murder of a law enforcement officer engaged in the per- his duties differs in kind merely and not formance of official in degree from other murders. When in the performance of duties, a law enforcement officer is the representative of public symbol of the rule of law. The murder of a law enforcement officer engaged in the performance of his duties in the truest sense strikes a blow at the entire public body politic is a direct attack upon the rule —the —and THE IN SUPREME COURT prevail society of law which must our as we know it is to survive. (1984) (Mitch- Hill, 465, 488, 163, v.

State 319 S.E. 2d N.C. ell, J., dissenting). Hill, v.

Defendant that S.E. 2d argues State N.C. 163, where a of found majority this the death sentence dis- in most is the case this one. proportionate, pool comparable Hill police in shot and killed a officer disagree. We The defendant struggle in ensued when the officer tackled defendant. a in holding significant A factor Court’s death incredibly “the was short amount disproportionate sentence Hill, v. time State 311 N.C. at 319 S.E. 2d at involved.” Abdullah, also See State 306 S.E. 2d 100 172. N.C. robbery where officer a store was in an entered while a him in- was almost progress, response shooting defendant’s stantaneous, Here, a life sentence. recommended contrast, which killing period during followed a considerable neighbor attempted officers and a persuade law enforcement which ex- stop shooting, during defendant defendant you.” or I’ll kill said to the victim: “You leave pressly Further, case, no unlike in there is indication present Hill or Abdullah cases had been con- defendants those felony involving against per- violence previously victed sufficiently those cases are son. We thus conclude that holding or suggest require case comparable present disproportionate. the death sentence here is Hutchins, Rather, case is comparable the more There, clearly “the record 2d 788 279 S.E. on the of the defendant part course conduct established] which value disregard wanton for the of human to a amounted] by duly appointed for the law authori- life and the enforcement of Id. We that under such S.E. 2d at 810. concluded ties.” was not disproportionate of death circumstances the sentence excessive, Id. at crime the defendant. both the considering 357-58, 279 S.E. Hutchins,

Here, day murder as in on the wanton disregard in a that showed a course conduct engaged shooting episodic, the value of human life. His random —de- IN THE SUPREME COURT McKoy State v. inhabited, several spite warnings into, stop it —threatened all who act, or ventured neighborhood. His ultimate violent which followed his own warning the victim to “leave or I’ll kill you,” struck by duly at the enforcement of the law appointed authorities.

Thus, Hutchins, as we conclude that nothing about crime renders defendant’s sentence of disproportionate death excessive. defendant, As to the jury supported compe- found —

tent, uncontroverted evidence —that he previously had been con- felony victed of a involving the use of violence to person. 15A-2000(e)(3)(1983). noted, N.C.G.S. As the record establishes § that defendant pled guilty had degree second murder and had been sentenced to imprisonment of not less twenty-two than nor more years.3 than twenty-eight prior Defendant’s offense thus in- malice, volved the unlawful killing another human being with Robbins, 771, 775, see 188, 309 N.C. 309 S.E. 2d (1983), and was therefore among the most serious many felonies “involving the use or threat of violence to the person.” 15A-2000(e)(3)(1983). N.C.G.S. § Brown, In State v. we note that the aggravating cir- 15A-2000(e)(3) cumstance provided for in N.C.G.S. § “reflects]

upon the 224, defendant’s character as a recidivist.” 320 N.C. 358 S.E. 2d at 30. The in Brown only found the “prior violent felony” circumstance, 219, aggravating 27, id. at 358 S.E. 2d at whereas the here found the additional aggravating circum- stance that the offense was against committed a law enforcement officer while he was engaged in performance of his duties. 15A-2000(e)(8)(1983). Further, N.C.G.S. prior felony violent § in Brown was the discharge a shotgun into an occupied building 358 S.E. 2d at considerably 34—a less serious —id. murder, offense than second degree prior felony violent here. We concluded Brown that we could not hold as a matter of law Co., judicial Trucking 3. We take re notice of own records —In our 285 N.C. 552, 557, Williamson, (1974); In re 184, 185, 206 S.E. 2d App. 67 N.C. (1984) S.E. 2d prior entering note plea guilty —and of second degree charge, murder on this guilty degree had been found of first Court, however, murder and sentenced to death. This awarded a new trial for er- McKoy, the instructions. See State v. rors 236 71 S.E. 2d IN THE COURT SUPREME S.E. Id. at disproportionate. death sentence 34. A the more nature the total criminal serious 2d at fortiori of the defendant here the same conduct dictates conclusion. carefully We have of the of- considered the circumstances and the fense character of the defendant propensities record, briefs, transcript revealed We con- arguments. case, clude that the facts of this combined with defendant’s history, support jury’s impose to ultimate penalty decision the We is imposed death. hold death sentence of thus that meaning and within the intent N.C.G.S. disproportionate 15A-2000(d)(2). is sentence affirmed. Upon holding death § in whether a death determining “This Court has no discretion 26, Jackson, v. 309 305 N.C. sentence should be vacated. State 703; Ohio, v. 438 U.S. 57 L.Ed. 2d 973.” S.E. 2d see Lockett Robbins, 356 317. v. 319 S.E. 2d N.C. at State error. No Exum dissenting.

Chief Justice I in Martin and Justice join dissenting Justice opinions v. I that Mills Frye. majority’s position also from dissent ---, (1988), 100 2d 384 require 486 L.Ed. does not Maryland, U.S. 302 S.E. 2d Kirkley, N.C. us overrule State Shank, (1983), grounds, in on other part overruled (1988); I in support and write separately S.E. 2d us Kirkley my require Mills does to overrule position that progeny. its time in this arose for the first Kirkley question

In pro- in a jury sentencing a capital as to whether jurisdiction a unanimously circumstance mitigating that ceeding agree must in the ultimate in consider circumstance existed order live or die. At the the defendant should of whether determination issue unanimity was not Kirkley’s trial sentencing phase of in After some court’s initial instructions. addressed the trial ask specifically jury returned to the courtroom deliberation the unanimously circum- on each agree it must whether in circumstance continue to consider that before it could stance imprisonment. or life death determining impose whether unanimously agree on it that must court instructed trial IN THE SUPREME COURT [323 each could mitigating circumstance before it continue to consider A majority in in balancing process. it the ultimate of this Court held, contrary Kirkley position of both the defendant and state, was in supplemen- there no error the trial court’s unanimity “Certainly question, saying, tal instructions on the con- sistency jury unanimously and fairness a find a dictate that may mitigating circumstance exists before it be considered for 302 S.E. purpose sentencing.” Kirkley, N.C. at issue in I Dissenting Kirkley, essentially on this adopted what then the state’s in position. state its brief said: Kirkley Ohio, Lockett v. U.S. 586 L.Ed. 2d 973]

holds that statute that prevents the sentencer in all capital cases giving independent weight aspects mitiga- tion creates a risk death will be penalty imposed spite of factors which call less severe penalty thus then, manifestly unconstitutional. It would seem improper, permit jury not to members of a to consider a in factor miti- because all gation simply members of were not satis- fied with the defendant’s showing concerning particular mitigating circumstance. It would any also make sentencing procedure if each unmanageable time deadlocked on an issue a new sentencing hearing required. is position only

It the State’s those mitigating cir cumstances unanimously found exist should be listed on to. Rook, the verdict sheet recommended in State v. 304 N.C. denied, 283 S.E. 2d 732 cert. 455 U.S. 1038 [72 (1982). However, L.Ed. 2d juror no should he precluded 155] considering anything in mitigation in the ultimate bal from ancing process even that mitigating was not agreed if factor otherwise, believes, upon unanimously. To do the State could Ohio, run Lockett supra. afoul of Kirkley, N.C. at S.E. 2d at I (emphasis supplied). my in wrote Kirkley dissent:

While the state’s position on this question might pass muster, I constitutional think the better practice would be to (1) unanimity instruct: is not required in order to answer the circumstance favor- mitigating of a of the existence question (2) defendant; be answered unfa- such an issue should ably to it; if to so answer vorably only jurors agreed all to defendant (3) favorably to defendant an issue should be answered such indication on the ver- answer it with an any juror would so (4) voted; in the final many jurors so form as to how dict only would be free to consider juror each balancing process per- which he or she were circumstances those existed in the case. suaded 229-30, I S.E. 163. still adhere to 2d at

Kirkley, this position. away, Mills explain effort majority’s valiant

Despite the Kirkley holding with our be reconciled holding Mills cannot sus- holding squarely the Mills unanimity Instead question. on the I on this Kirkley took both the state the position tains be holding might provided Mills from the escape issue. Whatever capital sentenc- Maryland’s and North Carolina’s by differences reached the in which the Mills case posture scheme or ing me, closed, ra- effectively it seems is Supreme itself. opinion expressed Mills decision as tionale in Jury holding: Mills correctly identifies the majority “a which create sentencing proceeding capital in a structions may . . . well have reasonable probability substantial considering mitigat precluded were thought of a par existence on the jurors agreed all unless ing evidence constitutionally infirm under are such circumstance” ticular Mills, 486 jurisprudence. Amendment Eighth Court’s Supreme ---, precisely Kirkley holding 2d at Our 100 L.Ed. U.S. at therefore, should, yield. contrary and the basis Mills on distinguish instead to chooses majority The legal- state as by the this Court urged upon circumstances of two differences. ly material Maryland capital in is that suggested first difference circumstance aggravating least one which finds at jury sentencing in a engages never circumstances any mitigating fails to find In North of death. a sentence must return

balancing process no circumstances aggravating or more if one even Carolina found, may nevertheless jury are circumstances mitigating IN THE SUPREME COURT penalty elect not to the death on the basis impose ag- gravating sufficiently circumstances are themselves not substan- tial to call for imposition. its

Relying on difference in sentencing the two states’ justification schemes as continuing unanimity our re Kirkley quirement ignores the rationale underlying holding Mills it is explained opinion. in the Mills is true Supreme It in Mills was juror concerned that holdout in single Maryland on circumstances mitigating might force the imposition of the death penalty. last substantive sentence of the Mills is, opinion possibility juror that a single could block “[t]he [con evidence], of mitigating sideration and consequently require the Mills, jury impose penalty, the death one we dare risk.” ---, Indeed, 486 U.S. at 100 L.Ed. 2d jury Mills the submitted, found the one aggravating circumstance found none of the several mitigating circumstances submitted and on basis returned a sentence of death. however, Maryland,

In finding one or aggravat- more ing circumstances to exist and one or more circum- mitigating stances to exist would then balance the conflicting sets of circum- by stances determining whether the mitigating circumstances outweigh aggravating. In this Maryland situation the sentenc- scheme is ing indistinguishable principle from North Carolina’s.

In North Carolina when mitigating both and aggravating cir- cumstances are found the must determine whether the miti- gating circumstances are insufficient outweigh aggravat- insufficient, they If ing. are then the aggravating circumstances must be considered with mitigating circumstances and found sufficiently to be substantial imposition warrant of the death penalty. In balancing only both processes those circum- stances found to exist all jurors twelve can be considered. jurors Eleven are prevented from considering mitigating circum- stances might wish to consider in these final balancing proc- esses if juror the one remaining refuses to do This so. amounts contradicting Mills unconstitutionally precluding North Carolina from considering mitigating circumstances when they ultimately determine whether to impose penalty. death IN THE SUPREME COURT 53 The Mills rationale as expressed in the leads in- opinion escapably to the conclusion that its would a holding apply to Maryland jury case whether the found no mitigating circumstance or at least one but not all mitigating circumstances submitted Since in Maryland’s it. this situation capital sentencing scheme Carolina’s, is no different from North it must follow that the Mills holding applies equally to North Carolina’s capital sentencing scheme.

The Eighth jurisprudence Amendment which upon Mills rests is that in a capital case the sentencing authority may not be precluded from considering any relevant mitigating circumstance which might be proffered reasonably justify defendant as Carolina, a ing sentence other than death. v. Skipper South 476 1, 4, (1986); Oklahoma, U.S. L.Ed. 2d Eddings 455 U.S. (1982); Ohio, 586, 604, L.Ed. 2d Lockett U.S. L.Ed. 2d This jurisprudence is summarized at the out Mills, ---, set of the substantive discussion Mills. 486 U.S. at 100 L.Ed. 2d 393-94. Later in its opinion Supreme Maryland a posits capital sentencing process under which the actually jury reaches balancing stage, saying:

Ordinarily, Maryland jury reaches balancing stage any process unanimously deliberation time it finds at circumstance, or, least one mitigating under the interpreta- case, adopted tion the Court of in this Appeals time jury unanimously does reject not all circum- mitigating stances. Had the that sentenced petitioner reached III, they they Section would have found that even had read as Appeals they the verdict form the Court of could suggests have, “yes” only and marked or “no” on basis unanimi- either, ty they as to were not free point at this to consider all evidence in mitigation relevant balanced aggravat- ing and III mitigating circumstances. Section instructed the only weigh those marked mitigating circumstances “yes” II. Any in Section mitigating circumstance not so marked, unanimously rejected, even if could not be con- A by any juror. sidered following the instructions set out in the form be “precluded considering, verdict could factor, as a aspect of a defendant’s character [an] or record of the offense that the defend- [or] circumstance] death,” as a basis proffer[ed] ant sentence less than McKoy

State v. 1, Carolina, 106 476 90 2d U.S. at L.Ed. v. South Skipper view that juror adhered to the single if even a S.Ct. be so considered. should not such a factor omitted). (footnote ---, Mills, Foot L.Ed. 2d at 397 at 486 U.S. further: point the note presses found might in case have jurors some example, For i.e., factor, a mitigating constituted age, petitioner’s Indeed, re- sentencing in his youthfulness, 413(g)(5). under § which “There was evidence from noted:

port judge the trial the existence of Circum- jury Mitigating the could have found (youthful 108. Other on the age).” App. jurors, stance No. hand, argument might accepted prosecutor’s other have the youthful in terms of criminal was “not petitioner id., history because of his criminal justice system,” circumstances, unanimity lack activity. Under such answer prevented have from marking would “yes.” or of whether the answer was marked “no” Regardless blank, III left in would those prevent instructions Section thought youthfulness relevant to petitioner’s who decision from sentencing giving mitigating the ultimate any weight. circumstance

Mills, ---, 397-98 U.S. at L.Ed. n.14. majority

The basis attempts distinguish next Mills on the case posture Supreme which that reached the Court. majority Maryland notes that Court of in its Mills Appeals Maryland Su- opinion and the State of before the States United preme mitigating Court both conceded that evidence continued unanimously if legally be relevant even does not find it value; have Carolina such mitigating but North evidence rejected by ceases even legally juror. to be relevant one This argument Eighth juris- stands Mills Amendment which prudence upon juris- it rests on their heads. The respective far prudence by so developed Supreme in a series of I already cases which have referred is that Eighth preclude Fourteenth Amendments state from barriers creating by a capital consideration all sentencer of evidence which may reasonably be have said to value. no dif- mitigating It makes ference what form these barriers take. The Court said Supreme unequivocally Mills: decisions, barrier

Under our it is not relevant whether the all evidence is in the sentencer’s consideration of statute, Ohio, v. v. by Lockett Hitchcock terposed supra; (1987); ---, 481 U.S. 95 L.Ed. 2d Dugger, S.Ct. court, Oklahoma, sentencing Eddings supra; Carolina, evidentiary ruling, an South Skipper supra. juror’s a single must be true with to holdout respect

same a circum finding presence mitigating vote the against of cause, . . . neces Whatever the the conclusion would stance. sarily same: “Because failure to be the the [sentencer’s] im consider all of the evidence risks erroneous mitigating sentence, Lockett, in of it plain of the death violation position duty case resentencing.” Eddings is to remand this for our 117, n*, Oklahoma, 869 455 U.S. L.Ed. 2d S.Ct. (O’Connor, J., concurring).

Mills, ---, 394 (emphasis supplied). U.S. at L.Ed. evidence, universally recognized is that to be relevant to “[I]t issue, conclusively the ultimate fact inquiry, prove an need not any tendency make fact only ‘any have the existence of but is the determination of the action more consequence that of be the evi- probable or less than it would without probable ” T.L.O., 325, 345, 469 U.S. L.Ed. 2d Jersey dence.’ New by Thayer, R. 401. As “The quoting Fed. Evid. noted relevancy.” Thayer, Preliminary E. A law furnishes no test of concept Evidence at the Common Treatise on f/aw relevancy kept separate in Rule 401 be must logical employed of such as to sufficiency any evidence purpose issues of of from Graham, M. Federal satisfy a burden Handbook production. (2d 1986). relevancy is 401.1 This concept Evidence ed. § sentencing in a capital evidence mitigating same in context of evi- mitigating Relevant as is in other contexts. it proceeding some prove disprove or logically evidence which tends dence is reasonably deem to which a fact-finder could circumstance fact or rejects accepts or value. Whether the fact-finder mitigating have relevancy. evidence’s bearing has on the evidence no persuaded fails to be even the fact-finder relevance exists necessary evidence alone is that the item of evidence. It COURT IN THE SUPREME the trier of be sufficient to convince fact or trier of convinces is Id. at for which it offered. proposition of the of the truth fact 401.1 n.12. § does, unanimity on here say, majority

To relevant necessary legally make that factor is factor mitigating only of the to be misuse seems not balancing process final in the reasoning case of circular relevancy a classical but also concept of When the question presented. constitutional regard with necessity for in Mills of the constitutional speaks Supreme all case to “consider” capital sentencer permitting not to impose whether determining evidence mitigating clearly stage has reference to that it penalty, the death impose being decision is made. It sentencing final where the process any juror predecessors where under Mills its stage is at that juror considering might evidence that be precluded must not enough have value. is not reasonably mitigating believe to It evidence at juror permitted mitigating be to “consider” par- to determine whether trying when the point exist. There is no question circumstances ticular such stage were to consider evidence at that permitted all in Mills. process Rather, in Mills is whether the presented at question the of a decision-making stage capital sentencing proceeding ultimate constitutionally any preclude juror to from con- permissible it is juror believes exist mitigating circumstance that sidering answers jurors agree because not all on its existence. Mills that makes clear be question It also that the must question “no.” any notwithstanding procedural devices a state answered “no” may sentencer’s employ preclude the consideration of miti- This means gating decision-making stage. factors at the ultimate preclude to me that North Carolina cannot from consider- evidence evidence mitigating stage labeling the ing irrelevant. legally --- relies in on Franklin v. U.S. majority part Lynaugh,

---, for is proposition permis L.Ed. 2d the it structure, and jury’s sible for states to direct focus the considera jury’s evidence. and mitigating Guiding structuring tion of the is mitigating thing; evidence one the precluding consideration such evidence final jury’s decision-making consideration of at the former; pro Mills permits is another. the quite Lynaugh stage Indeed, in concluded the Supreme latter. the hibits the constitutionally in were not infirm Lynaugh structions “[b]ecause Special we believe the instructions or the Texas do not Issues consideration relevant cir precluded mitigating case, unconstitutionally in this otherwise limited cumstances --- ---, Lynaugh, discretion . . . .” U.S. at 101 L.Ed. jury’s the majority’s Supreme reliance on the Court’s Because the cases in which Mills certiorari in two North Carolina denial of with properly recog- was raised carries it the sparing issue mean nothing regard such denials with the Court’s nition that case, I need respond merits see little views on the of the that, say Suffice it to accord- majority’s opinion. aspect majority, Supreme Court’s the authorities cited ing to unanimity vis-a-vis requirement issue position on the in a should capital sentencing procedure circumstances entirely analysis its in Mills holding be from its determined all denials of for of cer- applications and not at from its writs in cases in which this issue have been raised. might tiorari Frye joins dissenting opinion. in this Justice FRYE dissenting. Justice im- has received fair and

Believing that not trial, I majority’s decision in both the dissent partial First, I am con- sentencing phases of the trial. guilt-innocence circumstances, totality of defendant’s under vinced that and, voluntarily knowingly made oral confession reason, him was error. against its admission evidence dissenting out detail circumstances are set some These in which he defend- Justice Martin concludes that opinion of I portion in that to a new trial. concur is entitled ant opinion. is a new sen-

I defendant entitled to also conclude that the Chief dissenting opinion in the of the hearing stated tencing dissenting opinion. stated for the reasons Justice majority’s I with the separately disagree I because write directly upon guilt- bear the issues which of two other treatment THE COURT IN SUPREME 58 directly, indirectly, upon and of the trial phase innocence receive defendant should whether the of jury’s determination the My difference with first penalty. or the death life imprisonment both the of the fact that to its treatment majority relates the was jury informed the that the trial prosecutor and the trial court review. appellate subject to and the trial court the fact that both argued

Defendant that was jury defendant’s trial attorney informed the that the district error; con- reversible that review constitutes subject appellate fatally reli- jury undermined the that information veying was guilty ability jury’s that of the determination jury’s that death and the conclusion degree murder in the first by re- majority responds punishment. appropriate White, 286 211 N.C. decisions in State viewing this Court’s Jones, (1975), 251 S.E. 2d S.E. 2d (1979), decision Supreme United States Court’s 472 U.S. L.Ed. 2d con- v. Mississippi, Caldwell cases cluding that those by trial court proposition that statements

stand for the jury’s respon- dilute the sense of that tend to prosecutor its verdict sibility suggesting for its determinations reviewed, will be imposed punishment will be withheld, or that See 75 Am. Jur. prejudicial.

are impermissible (1974) (‘[comments ... power Trial on the 2d § aside, jury’s sentence or to set the verdict suspend court to has review higher power court or statements evidence, are cal- jury weight on the of the finding jury disregard induce their responsibility, culated to are improper.’). majority distinguish then the above cases proceeds White, I cases controlling. case. find those In instant from the court, any error made in this told the prosecutor “[if] White, say.” 211 S.E. will N.C. at Supreme] Court [the Here, is a prosecutor argued, right appeal “[t]here of laws and laws which are application interpretation case.” present

Further, in White the court stated to the that “the review Court will this case.” Id. S.E. 2d at Supreme . . . 449. This Court concluded that “positive statement IN THE SUPREME COURT McKoy was have understood assumed jury the bound to that the court Id. verdict would be S.E. 2d at guilty.” their [that] Here, judge jurors 450-51. told the that the reporter the court will be down said or taking everything during that’s done a everything trial so that is matter of record and then public she can a mail down type up transcript of trial it Court and the can review Supreme Supreme to the Stanly County. here in doing up what we’re majority draws a between the use of the words distinction review” in and “can review” in case. The “will distinction, White the instant context, clear in is fine. As this Court made too White, case evidence and find capital weigh in a must they render that whatever verdict assumption the facts on the case. When tells the disposition judge will be the final of the down so that jurors reporter taking everything that the court record, will mailed is a that it be down to the public it matter of Court can review “what Supreme Court so that Supreme Stanly County,” jurors could we’re here in reasonable doing up believe, Court, Jones, easily by in State v. stated 425, 428, 495, 500, 251 S.E. 2d Court would Supreme “that was in fact share with them a burden and which responsibility when encouraged This belief is responsibility.” sole further their ar- objection prosecutor’s court overrules defendant’s law. appeal points if convicted deféndant can on gument White, fully jurors may Sharp As Justice intimated Chief review of case Supreme nature of the Court’s comprehend “the . . . difference facts’ between ‘triers of the appeal upon White, 211 S.E. 2d law.” N.C. at judges and Here, directly told the its verdict both judge the trial and, subsequently, review sanctioned subject appellate by defendant’s time- subject overruling State’s comments on that holdings of this ly objection. prior Given facts those Court, va- be and sentence of death should defendant’s conviction case a new and this remanded for trial. cated defendant’s majority’s I with the treatment of disagree also prosecutor, erred allowing trial court contention that the dire, com- obtaining to “stake out” the during voir in de- defendant’s intoxication disregard them to mitments from and to and deliberation premeditation existence of termining the voluntary his defense. The reject purpose intoxication of voir dire prospective jurors examination of is to secure an impartial jury. (1978). Banks, 399, v. 295 245 S.E. 743 State N.C. 2d To assure end, this Court has held repeatedly improper it for counsel jurors to “stake out” during voir dire posing hypothetical questions designed to elicit in advance a juror’s what will decision be under a certain state upon of evidence or a given state of See, facts. (1986); State v. 316 e.g., Rogers, N.C. 341 S.E. 2d (1985); Avery, N.C. 337 S.E. 2d v. State (1981); Vinson, 300 N.C. 268 S.E. Phillips, 2d State 215 S.E. to death penalty, modified U.S. 49 L.Ed. 2d 1206 The prosecutor asked the prospective jurors “if it shown to you beyond evidence a reasonable doubt that the de- fendant was intoxicated at the time of the alleged shooting, would you your this cause opinion to have sympathy for him al- your low sympathy to affect jurors verdict?” The assured the prosecutor would let not that fact influence their deci- Further, sion. at the sentencing stage, prosecutor stated “he was and I drinking liquor you you told before were chosen as a intoxicated, juror that if it is shown that he’s you were going to recall, have sympathy, sympathetic to his cause. As I you said you wouldn’t.”

Allowing prosecutor to seek and obtain commitments from the was tantamount to asking them to ignore evi- dence of intoxication reaching their verdict and in determining the appropriate sentence. The evidence of defendant’s intoxica- tion was overwhelming. Deputy Sheriff Lambert went to defend- ant’s home in a response to report that defendant was drunk and firing shotgun. Deputy Lambert testified that defendant would mumble he defendant, but could not understand him and that though standing, “wobbly.” The emergency room physician alcohol, testified that defendant had a strong odor of did not re- and, coherently spond questions, doctor’s notwithstanding buttocks, laceration to his skull and a wound to his left did not complain pain and was given any medication for pain. had a Defendant blood alcohol level .264 shortly after Rollins, shooting. Dr. Robert clinical director of the Dorothea Dix unit, forensic psychiatry included among defendant’s diagnoses: abuse,” intoxication, “episodic recovered,” alcohol “alcohol IN THE SUPREME COURT syndrome.” “organic delusional In Dr. professional opin- Rollins’ ion, could not distinguish between right wrong offense time of the and could not have formed in- the specific Lara, tent to kill officer. In opinion of Dr. Patricio another defendant, Dix Hospital psychiatrist Dorothea who also examined intoxication, his together with limited intellectual functioning disorder, and personality ability, resulted in an of his impairment offense, at the time of the to conform his conduct with the re- quirements law.

Intoxication, may voluntary, even when constitute valid See, defense to of murder charge degree. e.g., the first (1983) (if 763, State v. 309 309 Lowery, S.E. 232 N.C. 2d a degree to deliber- precluding premeditation intoxicated ation, he be in guilty degree); cannot found of murder the first (1978) (defendant 75, v. Medley, State 295 243 S.E. 374 N.C. 2d be in degree cannot convicted of murder the first intoxicated to kill). a degree preclude specific sufficient to a to forming intent This has juror held who reveals he is that “[a] unable accept particular by to defense penalty recognized or law is such prejudiced to an extent that he can no be longer con- Leonard, 58, 62-63, sidered State v. 296 N.C. 248 S.E. competent.” (1978). 853, Thus, 2d 855 permitting defendant to be tried for his life by jury whose members had expressly committed them- selves disregard to to be proved what substantial evidence that highly defendant was intoxicated at the the shot was time fatal fired an upon by his fundamental to be tried im- infringed right jury. partial As v. Mississippi Stringer stated Court of in Supreme (1986):

State, 500 2d 929 So. is in a voir dire improper put It influence ‘box’ trial, promise, ignore tactics which prior extract This promise pledge evidence favorable to defendant. or prevents jurors all facts relevant to the considering during closing argu- verdict. The are called upon then calcu- ments fulfill that effect —whether promise, rejecting lated or not —is to shame coerce the into mitigate penal- factors which would against tend death ty-

Id., 500 936-37. So. 2d at THE COURT IN SUPREME

62 v.

State herein, reasons and for the reasons indicated all of the For Martin, defendant of Justice dissenting in opinion set forth is he upheld, if his Even conviction given should be a new trial. stated for the reasons sentencing hearing a new given should be of the Chief Justice. dissenting opinion in the Proportionality a fair I defendant has received believe that Because do not error, I reach the question would not prejudicial trial free of However, majority ques- reaches since the proportionality. disproportionate finds death sentence tion and case, with conclu- my disagreement I express write to sion also. states, in conducting majority correctly proportionali-

As the review, case ty we the death sentence in this “determine whether in similar penalty imposed is excessive or disproportionate Brown, cases, crime and the defendant.” considering 70, 337 S.E. 2d There are cases N.C. four killed enforce- which defendants law proportionality pool in the of their official duties. engaged performance ment officers v. cases are: S.E. 2d Payne, Those (1985), State N.C. (1984); Hill, 311 N.C. S.E. 2d State State Abdullah, 309 306 S.E. v. Hutch- (1981). ins, 321, 279 S.E. 303 N.C. 2d a who earlier Payne, In defendant murdered detective had He drug charge. him on a handcuffed the detective’s arrested his and him a river pushed hands behind back into to drown. Hill, a of life imprisonment. returned verdict In a policeman who suspected having chased and tackled the defendant was of felony. During ensuing a man- struggle, committed defendant pistol of aged possession the officer’s and and killed get shot him. disproportionate This Court found the death sentence and Abdullah, sentenced life In imprisonment. defendant defendant an robbery with to commit armed conspired others and shot the policeman during robbery, killing several times the course of the him. a of life returned verdict In Hutch- imprisonment. ins, the and killed defendant shot two officers and then shot killed a who third officer This attempting him. arrest of upheld the sentence death. When the crime and considering the defendant and compar- case ing this with the crime and the in defendants the other four officers, involving cases of law I killing enforcement find the Hill, Abdullah, case instant more like Payne than Hutchins. Thus, I with agree that to conclude he deserves die, Abdullah, when the defendants in Payne, and Hill were spared that ultimate penalty, would defeat the purpose propor- of which, tionality by review mandated the legislature, as this Court Jackson, 26, 46, stated in State v. 305 S.E. (1983), “is to serve as a check against capricious or random im- Thus, position of the I penalty.” death were to reach propor- tionality, I would find the death sentence in the instant case as a disproportionate matter of law and sentence defendant to life imprisonment. joins

Chief Justice in dissenting opinion. this Exum Justice dissenting part. MARTIN

I respectfully majority dissent from the holding admissible; otherwise, defendant’s were I inculpatory statements majority opinion, concur including specifically, the resolu ---, tion of the issue under arising Maryland, Mills U.S. 2d 384 L.Ed. issue, respect With to the confession majority approves sixty-five-year-old the admission of inculpatory statements I.Q. black man with an eye, eye blind one his other in- see, jured and so that he bandaged could not wounded treat- .264, ed his hospital, at the with blood alcohol level of afraid for life, travelling in van with officers for over two hours from An- County thirsty, Raleigh, suffering son at times cold and wounds, Rollins, in the Dr. being, opinion incapable waiver of his In I appreciating rights. constitutional can- not concur. record, done, majority as the has

Perhaps finecombing may evidence when support some can be found which isolated findings some the trial court’s of fact. The true test of the of confession, totality a is though, found of voluntariness Jackson, v. 308 304 S.E. 2d 134 the circumstances. State N.C. (1983). is procedural requirements Once it established that 64 Arizona, have 16 2d 694 L.Ed. 384 U.S. v.

Miranda met, defendant’s confession whether the determination been from consid- voluntarily made must be found knowingly was 310 Corley, v. case. State of the circumstances all of the ering (1984). 40, 311 S.E. 2d 540 defendant when totality circumstances were the What confessed? Environment

The van, First, was in a sheriffs defendant be noted that it is to is- without safekeeping” “for Raleigh being transported N.C.G.S. the transfer. judicial authorizing a order suance of (1983). “warrants” Although an officer testified 15A-521 § were served on van, appear while in the no warrants defendant crime defendant The occurred appeal. record on 22 1984. The order of arrest December Raleigh on taken to January 1985. So was served on defendant on appeal record on in a van unlawfully transported being a defendant we have alone, officers, way with no hostile night black of through the a otherwise. anyone van as witness or outside the to contact officers in consider the actions of the court failed to trial him in interrogating hospital from the removing defendant a van. moving police environment of isolated and coercive interrogation, or inter- during a to travel Compelling suspect travel, in- suggests is a factor which suspect during rogating Texas, 18 L.Ed. 2d v. U.S. Clewis voluntariness. (1967). Here, was completely defendant incommunicado obviously jail. This was station or the police isolated from the in an environ- the defendant purpose interrogating for the done are These inculpatory statements. producing ment conducive to is true when particularly involuntariness. This indicating factors Alabama, Vernon susceptible to coercion. the defendant (1941) curiam); Texas, White (per U.S. 85 L.Ed. fully aware were U.S. L.Ed. officers shortly badly before gunfire had been wounded the defendant extremely had been They knew that defendant interrogation. They knew he was brought hospital. when he intoxicated severely Having physical was blind and in a weakened condition. hospital from the knowledge, the officers took the containing van of- police him into three gurney, placed on IN THE SUPREME COURT McKoy fleers, Ra- nighttime and commenced the ride from Wadesboro to deliberately In leigh. doing, so the officers cut defendant off from world, outside him in a of vulnerabil- leaving position extreme ity conceive a interrogation. to their It difficult to fact situa- a will overbearing tion more conducive to defendant’s than existing one this case.

The Defendant sixty-five years time of offense was defendant at the suffering He was from serious wounds sustained age. gunshot disordered, blind, mentally He was had a hours. preceding intellect, He ex- and was under the influence of alcohol. borderline life he was afraid for his at the time to the officers that pressed Perry, Dr. an him in van. interrogating police were was brought defendant room testified that emergency physician, Perry 6:30 Dr. treated p.m. ambulance around hospital to the wounds, a facility one gunshot him in the trauma for two serious skull, the forehead down to the the other through laceration was six The head wound about puncture wound to the buttocks. very through long deep, passing the bullet centimeters the skull. The wound to of the forehead down to entire thickness injury, about ten to through-and-through the buttocks Defendant was semiconscious at the length. centimeters twelve coherently respond arrival and unable to of his time Such are nor- with him. wounds to communicate attempts doctor’s was suf- indicate he defendant did not mally very but painful, which doctor attributed degree pain, the normal fering intoxication, was a which blood of defendant’s alcoholic degree Perry defendant’s wounds .264. Dr. treated level of alcohol minutes, heavily They were forty closing them with sutures. some eye, being he good defendant’s completely closing the bandaged, was ad- defendant eye. During the treatment blind in the other his elevating fluids for the purpose ministered intravenous Perry. Dr. according to pressure, blood witness, psychia- forensic medical expert

Dr. is an Rollins trist, defendant He examined the the state. employed He incident. testified to this respect with several times disorders, including paranoid personality multiple had perception. judgment thinking, impaired with and delusional later, examination, I.Q. at the but an on 1980 he had scored In I.Q. event, score had deteriorated test time of this of intellectual range in the borderline defendant placed which was sub- that defendant further testified Dr. Rollins functioning. interrogation that the time of the stantially intoxicated at disabilities. exacerbate defendant’s mental would this condition defendant, his disor- because of mental that expressly He testified time, was incapable and his condition physical ders his at the voluntarily waiving rights constitutional knowingly and by the officers. interrogated that he was time as defend findings failed to make judge The trial the deterio completely condition and overlooked ant’s mental which had condition of the defendant rating psychotic mental decline in years five as evidenced past occurred over the I.Q. had an his I.Q. The court’s determination that defendant scores. unsup is interrogation at the time of the between only evidence by the evidence. The relevant indicates that ported I.Q. was having defendant’s interrogation at the time of the years he five from the that had scored some deteriorated which make a particularly Mental defendant previously. handicaps are an in susceptible important to the influence of others factor (5th Estelle, 593 F. weighing voluntariness. Jurek v. 2d Cir. 1979). Further, is an physical important defendant’s condition voluntary. factor in is determining whether confession Cooper (5th 1972). Griffin, F. See also Dailey, Cir. State v. (W. 1986). 351 S.E. 2d 431 Va. ---, Connelly, In 479 U.S. 93 L.Ed. Colorado 2d 473 ordinarily held Supreme the United States a defend alone, impairment, standing mental is not a ant’s sufficient basis However, case, involuntary. a confession ruling this we defendant, only have not the defective mental condition of the but also the coercive defendant, in which environment the officers placed his

together impaired physical with These condition. together factors considered are sufficient to show involuntariness. Interrogation After placing the defendant van police and beginning journey Raleigh, the officers informed the of his defendant were rights leaving city Wadesboro To this the limits. “I responded: my defendant I tried for life and understand all I my this stuff. was tried for life in 1951.” Interestingly, back Miranda warnings were not required years until fifteen earlier experience. defendant’s court The officers testified after that after being rights read said did under “[h]e stand but he did sign not want to because anything he couldn’t see.” testimony, From this the trial court found that the defend ant made an “express” statement that he did not want an at however, A torney fair present. reading testimony, of this only shows that the defendant he responded that understood his rights, but he did not sign anything want to because he could not testimony see. There is no indication the defendant expressly waived the He did presence go counsel. the addi course, say: lawyer “I step tional don’t want a now.” Of it not essential be an express there waiver defendant. However, presume the court must the defendant did not 234, waive his S.E. rights. Connley, State 2d (1979). denied, cert. U.S. 62 L.Ed. The trial court’s finding express by of an waiver is unsupported the evidence. Nowhere trial find an implied does the court waiver under all the case, circumstances of the and none can be so found. For this reason, I fatally is judge’s think the trial order flawed. hours,

The interrogation during continued for some two and this time the officers obtained admissions from defendant to be critical to case. proved During interrogation, the state’s stated, my “I’m life fearing Although the defendant for now.” they assured nothing officers testified that defendant that he had fear, way see the defendant could not the officers and had no way they were van. knowing doing what He also had no him, knowing taking though where were even one officer Certainly, Raleigh said he was taken to being safekeeping. physi- in which he was and his view of the environment situated condition, was and it is reasonable defendant cal mental that the interrogated. life he was being fearful for his at the time that any is sufficient to refute of voluntariness. finding That fact alone was interrogation suffering the defendant During the he wounds. There is no evidence that had been painful his bullet any painkillers suffering. to alleviate given sedatives during numerous complaints record shows that defendant voiced physical he was discom- interrogation experiencing fort. McLaughlin officers he one defendant told the was tired and point

At He stop interrogation. complained wanted to also at that time cold, he was and the heat in the van was turned and he up given was sheet to cover himself. After a period, short one of the officers asked defendant if he wanted to talk. Defendant stated that he did not to talk Officer One want Jackson. him, asked if he other officers defendant would talk with by This agreed. procedure defendant the officers violates rul Arizona, of Edwards v. 451 U.S. ing denied, L.Ed. 2d reh’g Edwards, 452 U.S. L.Ed. 2d In held that when his desire suspect indicates in stop the terrogation, the officers rtiust terminate it the interrogation Here, be resumed cannot until initiated the suspect. evi clearly dence shows that desired in terminate the terrogation. He said that he was tired and wanted to stop. then, officers stopped for time and short without initiation defendant, of the interrogation the officers resumed the reason, process of examining defendant. For this the confes sion not admissible.

Thus, I find defendant’s involuntary statement to be and the unlawfully result his being in a placed coercive environment severely while handicapped, mentally both and physically, and in- terrogated in violation of Edwards v. Arizona while fearful for his life. Defendant entitled ato new trial. Frye

Chief Justice join Justice in this dissenting Exum opinion.

STATE OF NORTH CAROLINA v. ELTON OZELL McLAUGHLIN

No. 637A84 (Filed 1988) September § complicated Constitutional Law 28— case —denial of motion to have trial judge jurisdiction retain process over all matters —no due violation prosecution The trial court did not err in a degree for three first murders by denying judge jurisdiction defendant’s motion have the trial retain over pertaining all matters grounds to the trial on the complicated that this was a process required case and that due judge therefore pretrial one to hear all mo-

Case Details

Case Name: State v. McKoy

Court Name: Supreme Court of North Carolina

Date Published: Sep 7, 1988

Citation: 372 S.E.2d 12

Docket Number: 585A85

Court Abbreviation: N.C.