*1 IN THE SUPREME COURT QUICK STATE (1994)] N.C. 359 [337 QUICK OF NORTH VERNARD STATE CAROLINA HAROLD No. 18A92 July (Filed 1994) (NCI4th)— capital sentencing 1. Law Criminal —miti- significant gating history circumstance — no —fail- prejudicial ure to error submit — by failing jury capital the in a The trial court erred to instruct statutory mitigating that sentencing hearing on the history significant had defendant no presented by
where evidence the State in its case-in-chief and had used of defendant revealed that defendant cross-examination larceny, receiving stolen drugs illegally and had been convicted of jury forgery, the should have been allowed goods since insignificant. whether this The trial court’s consider mitigating was not harmless failure to submit this positively beyond a it cannot be said reasonable doubt because jury have existence of this circum- that the would not found the that, against circumstance been balanced the stance had this a circumstances, still returned aggravating would nonstatutory sentence of death. The trial court’s submission has con- mitigating circumstance no “[t]he involving did not its failure to victions of crimes violence” cure statutory circumstance because submit nonstatutory required cir- give mitigating was not value to required if the its but would cumstance found existence value. give 2d, Law 599. §§ Am Jur Criminal (NCI4th)— 2. accusa- §§ Evidence and Witnesses agent’s testi- of murder — silence defendant —SBI tion mony of con- defendant —violation — cross-examination silence stitutional by per- capital resentencing hearing trial in a erred
The court that, testimony agent from an SBI dur- mitting the State to elicit had been ing interrogation after defendant advised arrest, Miranda rights been informed that he was under and had with accu- agent’s had silent faced remained when testimony amount- victim, he since sation that murdered of his impermissible reference defendant’s exercise to an ed STATE v. *2 by right permitting to silence. The trial court also erred the State to cross-examine defendant about his silence the face of the agent’s questioning SBI accusation of murder since this allowed jury guilt to infer and through lack of remorse defendant’s right exercise of his constitutional to silence. 2d, seq.;
Am §§ Jur Evidence 802 et Homicide § 339. Meyer dissenting. Justice
Appeal pursuant to N.C.G.S. 7A-27(a) § from judgment a a imposing sentence of death entered Washington, J., 24 August Superior Court, at the 1987 Criminal Session of Richmond County, upon finding a verdict guilty first-degree murder and a recommendation that defendant be sentenced to Supreme September death. Heard in the Court 13 1993. Easley, Attorney General, by
Michael F. Bryant, Spe- Steven F. Deputy Attorney General, cial the State. defendant-appellant. Thomas K. Maher for EXUM, Chief Justice. appeal presents questions
This regarding circum- stance that significant history defendant has no activity, N.C.G.S. 15A-2000(f)(l) (1988), and whether improperly offered evidence pretrial of defendant’s silence during a interrogation. Concluding there was reversible error in failing to sub- mit the mitigating circumstance and at offering least error in silence, of defendant’s we vacate the sentence of death and remand sentencing for a new hearing. appeal
This is defendant’s second
of a death sentence. At his first
robbery
trial he was convicted of
dangerous weapon
with a
and first-
degree
premeditation
murder on the basis of
and deliberation felony-murder
Upon
jury’s
under the
rule.
recommendation,
imposed
trial court
a sentence of death for the murder and arrested
judgment
robbery
conviction. On his first
we found no
prejudicial
guilt phase
error in the
trial,
of defendant’s
but concluded
defendant was entitled to a new sentencing proceeding
McKoy
under
Carolina,
v. North
108 L. Ed. 2d
(1990).
State v.
Quick,
STATE sentencing At the new hearing conducted at the December 1991 Superior Criminal Court, County, again Session of Richmond of, imposed, returned a recommendation the trial court a sen- tence of death. has forth brought assignments Defendant thirteen error. Because we find reversible error the trial court’s failure to instruct on the mitigating circumstance that defendant has significant no assign- we address this likely pro- ment. Because the issue is sentencing to arise at the next ceeding, assignment we also address relating of error during pretrial admission of his silence interrogation. necessary
Except understanding as for an of the issues we will repeat adequately the evidence inasmuch it is *3 as summarized in prior opinion appeal. our on the first
I. [1] By his tenth assignment error, contends trial failing statutory court erred in to submit mitigating circumstance (f)(1)- Assembly
The General has mandated that: penalty may authorized, all cases in which the death be judge shall in his include instructions to the it must any aggravating consider or circumstances miti- gating provided circumstance or circumstances from the list (f) may supported by subsections (e) the evidence 15A-2000(b) N.C.G.S. (1988). regarding The law of miti- submission gating (f)(1) states that: required
The trial court is whether will determine the evidence significant a rational a defendant no finding that has Wilson, State v. activity. 117, N.C. 322 (1988). so, discretion; 367 If S.E.2d 589 the trial court has no jury, must be to the mitigating circumstance submitted wishes of the State or the defendant. State to the regard without Lloyd, grounds, v. 316, vacated on other 301, 321 N.C. 364 S.E.2d L. 807, 488 U.S. Ed. 2d (1988). 102 18 Mahaley, v.
State 583, 597, 58, Regard- N.C. S.E.2d (1992). 332 423 66 requests less of whether defendant submission of this objects jury, mitigating to the cir- circumstance or its submission must be trial court cumstance submitted to where the 362 v. QUICK
STATE
supported
evidence.
determines
Jones,
State v.
229, 247,
48,
(1994);
State v.
336 N.C.
443 S.E.2d
56
Robinson,
State v.
118,
306,
(1994);
78,
336 N.C.
443 S.E.2d
325-26
denied,
Gibbs,
cert.
1,
321, 352
55,
(1993),
335 N.C.
436 S.E.2d
McHone,
v.
627,
State
641-42,
- U.S. -, - L.
2d - (1994);
Ed.
334 N.C.
cert.
296,
denied, - U.S. -,
128 L. Ed.
(1993),
304
2d
435
Mahaley,
State v.
586,
58,
N.C.
(1994);
583,
332
423 S.E.2d
60
220
418,
Bacon,
State v.
404,
327,
(1990);
335
(1992);
326 N.C.
390 S.E.2d
Artis,
sentence
470,
State v.
278, 311,
(1989),
325
384 S.E.2d
489
N.C.
vacated,
remand,
604,
on
1023,
679,
L. Ed. 2d
329 N.C.
494 U.S.
108
Laws,
v.
110,
State
81,
609,
827
325
381 S.E.2d
(1991);
406 S.E.2d
N.C.
vacated,
sentence
on
1022,
603,
U.S.
L. Ed. 2d
(1989),
626
494
108
Fullwood,
remand,
State v.
550,
(1991);
328 N.C.
In and held the failing we trial court erred mitigating submit when the evidence revealed prior activity had engaged in criminal similar to and cer- tainly activity than no less defendant’s criminal in the case now Mahaley, illegal drug before us. In the evidence showed money Mahaley, larceny drug of and credit cards habit. Wilson, 598, prior 423 332 N.C. at S.E.2d at 67. In defendant had a con- second-degree kidnapping for the of wife and had engaged viction prior activity including storage illegal in other drugs criminal the Wilson, complicity 143, in a 322 N.C. at theft. at 604.
IN THE SUPREMECOURT
STATE v. QUICK
Mahaley and Wilson
reversible, requir-
also held the error to be
ing
sentencing
a new
proceeding. Wilson,
In
we held
“rights
that the
guaranteed
§
N.C.G.S. 15A-2000are
in
eighth
anchored
amend-
prohibition
ment
against
punishment
cruel and unusual
in that the
‘requires
statute
consideration of the character and record of the indi-
vidual offender and the
particular
circumstances of the
offense as a
constitutionally indispensable part
process
of the
of inflicting the
”
penalty of
Wilson,
144,
death.’
whether the failure to submit this
mitigating circumstance
jury may
tipped
to the
scales
favor of the
determina-
tion that the aggravating
sufficiently
circumstances were
substantial
imposition
penalty.”
to call for
Wilson,
the death
322 N.C. at
Brown,
Here the record demonstrates that the
knew about defend-
history
activity,
ant’s
but was not allowed to consid-
er whether this
was insignificant. “We cannot state that had
jury,
circumstance been submitted to the
would not have
Brown,
found its existence. See State v.
315 N.C.
Wilson,
S.E.2d 808.”
Further,
STATE v. the evi- received the benefit of The State contends defendant activity by of a non- the submission dence about his has no statutory mitigating circumstance “[t]he Mahaley, we held that involving of crimes violence.” convictions nonstatutory mitigating circum- submission of two the trial court’s did paralleled statutory mitigating (f)(1) circumstance stances beyond satisfy showing harmlessness a rea- the State’s burden of not doubt. sonable nonstatutory mitigat- court substituted the
The fact that the trial has no of violence ing circumstances that “the defendant physical injury “the has no record of to others” and satisfy not the State’s burden. The trial criminal convictions” does nonstatutory was submission of these two circumstances court’s discretion, inadequate jury if gave because the trial court you exist, determine “whether it found either circumstance to to instruction, mitigating deem this to have value.” As a result of this nonstatutory jury required give weight to such By jury contrast, if a determines that a mitigating circumstances. exists, mitigating give it must that cir- Fullwood, mitigating cumstance value. State v. grounds, 1022, 108 (1988)
S.E.2d 518 on other [vacated (1990)]. L. Ed. 2d 602
Mahaley,
Mahaley,
Mahaley dispositive of this issue and Wilson are defendant. We therefore conclude the trial court’s failure to submit is reversible error.
H. [2] By another assignment of error defendant contends the trial court testimony by allowing present regarding defend erred questions respond following ant’s failure to his arrest. Because we granting sentencing hearing grounds, are a new on other we need not However, this matter in terms of reversible error. due to the address *6 STATE v. QUICK (1994)] N.C. 359 [337 arising upon likelihood of resentencing, this issue we address defend- argument at this time. ant’s presented resentencing
Evidence at tended to show that on 6 April County was taken to the Richmond Courthouse questioned officers, where he was including five law enforcement Agent Snead of the State Investigation. Bureau of Defendant was any informed he was not under was at arrest and free to leave time. Miranda was setting rights pursuant He then read a form forth Arizona, 436, 16 that, L. Ed. 2d 694 The form stated “You right you say have the to remain can Anything silent. be used you against you court.” The form also stated that “If decide to questions now, lawyer present, you answer without a will still have right stop answering stop the at You time. also have the answering any time, you lawyer.” at until talk to a rights explained
Defendant waived his and then his whereabouts during the time at which the murder was believed to have occurred. visiting He denied ever the of the victim residence and further denied any involvement with the death of victim.
During interview, Agent telephone Snead received a call from Agent Johnnie Leonard with the Latent Evidence Section Agent Bureau of Investigation. Agent Leonard informed Snead that fingerprints ashtray defendant’s had been on an found victim’s Agent hung up phone defendant, home. Snead and said to “You’re degree under arrest for first murder.” objection,
Over Snead Agent following testified to resentencing: Q: Quick? you say anything Did else to Mr.
A: I did.
Q: you say? What did A: ready him if he truth, asked to tell the and he did not respond. eye, said, I looked him dead in and I “You’re a cold- son-of-a-bitch, seventy- bloodied does it feel kill a how [sic] year helpless eight man.” old Objection
Mr. Nichols: to Strike. Motion Court: Over-ruled.
Q: response What was his to that statement? THE SUPREME COURT IN
STATE v. talking acted I was about He had no reaction. He like A: weather. regard given the court with to this limiting instructions were
No *7 evidence. trial allow believe it was error for the court to admission
We
testimony
impermissible
as it
to an
reference
amounted
Hoyle,
v.
State
to silence. In
right
exercise of his
defendant’s
(1989),
S.E.2d 752
we stated:
Doyle Ohio,
Supreme
The United States
Court held
person
(1976),
Id. at being rights, Here advised of his at 754. cease defendant was advised that he could remain silent or answer- any however, questions During resentencing, ing time. testimony allowed to elicit which revealed defendant had when with the that he remained silent faced accusation murdered testimony pur- This should have been excluded as the State’s victim. clearly pose presenting it was to demonstrate that deny pros- defendant did not the accusation. This is evidenced closing argument: ecutor’s any tear, compas- shed a showed
Has this defendant ever once talking Agent said, He sits there Snead and we’re about a sion. as murder, talking vicious, cold-bloodied like we’re about the [sic] utterly compassion, That is without (indicating) murder. man jury. never members of You have seen it. That sitting a cold-bloodied killer there (indicating). over [sic] jury, testimony, of the own the State contends would Members his Now, sitting You that. saw him the stand. how could Snead, Agent investigating, gets up react at all in his he not when SOB, right face, and calls him a cold-bloodied his face [sic] helpless year seventy-eight it feel kill old man— “How does how does it feel to kill him?” say
And, man Didn’t (indicating) doesn’t react at all. a word. your it, do own sense and If he didn’t would- Use common reason. away saying, got wrong n’t he be man. Get from me. “You’ve your you lost Have mind?”
STATE v. QUICK silent, Once a been defendant has advised to remain “it is a under rights violation the Fourteenth Amend- impeach ment to the Constitution of the then United States to by questioning defendant on cross-examination him about Yet in following silence.” Id. the instant case defendant was asked the during cross-examination:
Q: you When Mr. And Snead—Mr. Snead did call a cold-bloodied son-of-a-bitch, didn’t he?
[sic]
Mr. Nichols: Objection.
Court: Over-ruled.
Q: he? Didn’t
A: Yeah.
Q: you? get him, You didn’t mad at did *8 Well, A: I—I a doing calling wondered what he was me cold-
bloodied son-of-a-bitch. [sic] Q: And, directly your he right you, face, sat there and in accused man, killing
of that didn’t he?
A: killing He accused me of him.
Q: your face, Right didn’t he? supposed say.
A: I What to [sic] Q: And, you say him, you? a single didn’t word back did to [sic], nobody A: him [sic], Yeah I told killed hadn’t Q: you say So, him, when he a said didn’t word back to he truth, telling right?
wasn’t isn’t that responded A: I—I—I back to him. by questioning wrongfully
This referred the defend- Agent murder, ant’s silence in the face of Snead’s and it accusation guilt allowed the to infer through lack remorse defend- testimony ant’s exercise of his constitutional to silence. The therefore should been excluded. reasons,
For foregoing we vacate the sentence of death and County, cap- Superior Court, remand a this case Richmond for new sentencing proceeding. ital IN SUPREME COURT THE v. QUICK
STATE VACATED; FOR NEW CAPITAL REMANDED DEATH SENTENCE PROCEEDING. SENTENCING Meyer dissenting.
Justice the “no give instruction on that failure agree I do not history” circumstance, N.C.G.S. significant criminal error. in the case bar constitutes reversible 15A-2000(f)(l) (1988), § of that precluded the submission before the court The evidence circumstance. indicate reflected the record
I believe that the facts activity. The record reflects significant of criminal stand drugs and admitted from witness illegally used receiving goods, and larceny, stolen that he had been convicted years. only last Not is defendant’s criminal forgery within the ten activity of it recent, “significant” it is because much involves charged with he is in this case. similar to the crime properly declined to submit I believe the trial court Accordingly, in this case. (f)(1) mitigating circumstance case, particular of this addition, regard without to the outcome problem highlighted on a the case. I wish comment case, Heretofore, required, as have in this the trial we have we in the judge concerning all the evidence record review activity, when, purpose, what regardless motu, ex mero determine, submitted, whom it and then to circum- whether evidence warrants submission such regard to 15A-2000(f)(l); this must be done without stance N.C.G.S. *9 Wilson, 322 117, 143, on the issue. State v. position N.C. defendant’s 589, (1988). 604 367 S.E.2d particular experience mitigating
After
considerable
with this
our
requirement places
circumstance,
I now
our trial
conclude
this
ques-
this
judges
position
having
in
untenable
of
their decision on
they
frequently assigned
submit
the circum-
tion
as error whether
case, appears
that, from case
stance or fail to submit it on evidence
Mahaley,
583,
See, e.g., State v.
(1992)
423
58
332 N.C.
S.E.2d
similar.
when
mitigating
in
to submit
circumstance
(error
trial court’s failure
engaged
illegal drug
in
and
evidence
defendant had
showed
v.
State
larceny
money
support
drug habit);
a
of
and credit cards
Turner,
249,
mitigating
(1991) (submission
847
of
330 N.C.
410 S.E.2d
defendant had been
(f)(1) proper where record showed
circumstance
369
IN
SUPREME COURT
THE
STATE v.
misdemeanors,
including receiving
goods,
stolen
convicted of four
deadly weapon, and had
check, and assault with
larceny, worthless
marijuana, theft,
possession
activity, including
of
in criminal
engaged
altercation,
posses-
and
marijuana
which led to fatal
of
to victim
sale
388,
McNeil,
395 S.E.2d
shotgun); State v.
327 N.C.
sion
sawed-off
despite
(f)(1)
(proper
mitigating
to submit
circumstance
(1990)
106
voluntary
manslaughter),
cert.
conviction for
Wilson, 322
942,
v.
denied,
(1991);
both the burden of persuading trier fact that issue and the burden tion on that party’s evidence, be answered such the issue should because of Evi- Carolina Broun, & Broun North favor. Kenneth S. Brandis on which the on an issue (4th 1993). In a criminal case dence 30 ed. produc- burden of proof, the defendant’s has the burden of *10 370
STATE v. QUICK
may
by
by
tion
be satisfied
own
or
the defendant’s
evidence
evidence
Oliver,
State. State v.
by
513,
the
offered
334 N.C.
434
202
S.E.2d
Phipps,
v.
State
(1993);
427,
331 N.C.
418
State
(1992);
S.E.2d 178
Brogden,
McQueen,
State
N.C.
(1991);
329
First, defendant retain burden producing should the of evidence support in of mitigating (f)(1). Second, may circumstance defendant production by offering by meet this burden of evidence himself or by relying Third, defendant, on evidence offered the if State. in order production, meet his burden of on relies evidence offered required expressly he should be so State, advise the trial court. If defendant offers of his support evidence in of expressly (f)(1), circumstance relies evidence State, proffered offered he should deemed have evidence support in of mitigating (f)(1). proffers support
If defendant evidence in circum- stance (f)(1), the trial court must submit the circumstance for the jury’s proffer If support consideration. fails to in evidence prescribed above, this circumstance in the manner then he should be deemed to have might waived he had have to have this permitted circumstance submitted at trial assign and should not be as error on the failure of the trial court to submit it. I recognize requiring judge that the trial to submit mitigating cir- proffers support cumstance when defendant evidence in of it in somewhat unusual that it from judge removes the trial the obliga- tion to make determination in first instance whether supports evidence believe, submission of the circumstance. how- ever, approach an particular such is warranted because this mit- igating being self-policing. has unusual attribute of A proffers defendant will if support know that he evidence in of this circumstance, may offer evidence in A rebuttal. will not want circumstance to be will submitted and want proffer it unless he thinks a reasonable would find the his favor based on true state activity. To this circumstance sub- *11 THE SUPREME COURT
IN STATE BARLOWE activity is that a reason- such when defendant’s criminal mitted likely reject will work to will the circumstance able detriment. activity” “prior “signifi- someone’s criminal
Further, whether subjective completely inquiry. “significant What is cant” is a activity” others. activity” to “insignificant will be some eye activity” “significant criminal lies “beauty,” what is Like beholder. proper be the it is and would reasons, I conclude that For these to the dis- of this circumstance practice to leave submission better of the defendant. cretion contrary previous holdings, that evidence conclude, our now as crimes purposes, for other such other
offered 404(b) Rule or evidence North Carolina Evidence evidence under under prove aggravating an criminal convictions provide for an the basis 15A-2000(e), should N.C.G.S. the submission instruction on or proffered evidence, it such should
(f)(1). For it become purpose supporting submission of for (f)(1). v. TIMOTHY CURTIS BARLOWE STATE OF NORTH CAROLINA No. 420A92 July 1994) (Filed 29 Breakings (NCI4th)— first- Burglary § 164 and Unlawful 1. conflicting degree burglary to commit murder — —intent misdemeanor necessity for instruction evidence — entering breaking or wherein the State prosecution first-degree burglary for In a victim, to murder the presented that defendant intended evidence and entered her home mother-in-law, at the time he broke son, presented sufficient his wife and looking while and that he victim was accidental killing of the requisite the time he intent to murder at possess the did not by refusing erred trial court her home so that entered breaking entering where jury on misdemeanor instruct