*1 CASES Argued and Determined in the SUPREME COURT
OF North Carolina
AT Raleigh STATE OF NORTH CAROLINA v. SHERMAN ELWOOD SKIPPER
No. 122A92 (Filed 1994) 29 July Jury
1. (NCI4th)— capital §§ penalty case — death equivocal answers — excusal for cause — rehabilita- views — tion not allowed juror’s While a capital answers on voir dire in a case were not entirely unequivocal and her views on whether she could consid- er penalty required by the death as unmistakably law were not clear, the trial excusing juror court did not err for cause responses where her revealed that her thoughts and views on the penalty substantially impair death would ability her to follow the they duty instructions of the as juror. court related her as a Furthermore, the trial refusing permit court did not err attempt defendant to juror prosecu- to rehabilitate the where the explained procedure tion in detail the that must be in followed determining juror death; explanation, sentence of after affirmatively responded three times that she would be substan- tially impaired following beliefs; the law because of her juror there was no indication that further questioning would have anything done but make the situation more confusing. 2d, Jury §§
Am Jur 290. regarding capital punishment Comment Note. — Beliefs disqualifying juror capital post-Witherspoon case — cases. 39 ALR3d 550. THE SUPREME COURT IN *2 questions— capital dire Jury (NCI4th)— case — voir 2. § attempt to impairment, age, of mental consideration etc. — jurors out stake to by refusing permit to err court did not The trial they could “con- jurors capital case whether prospective in a ask specific retardation, impairment and other age, or mental sider” decision, ques- since the reaching in mitigating circumstances jurors. attempt impermissible to stake out an tions were opportunity adequate to discover given an permitted inquire gen- juror to part of a where he bias on the illness and retardation erally jurors’ feelings about mental into they jurors if would circumstances, to ask mitigating and other penalty first-degree in murder automatically death vote for the they mitigating circum- jurors if would consider case, and to ask determining defendant’s sentence. when stances Jury 2d, § 197. Am Jur prospective jurors hypo-
Propriety asking of and effect they questions, dire, how would on voir as to thetical 99 ALR2d 7. decide issues of case. capital previ- (NCI4th)— jury voir Jury §
3. dire — case — penalty— vote death ous criminal record — automatic for question properly excluded juror question prospective to as whether she
Defendant’s always penalty person given the death if he felt “that a should first- previous record and has been convicted of has a criminal degree attempt an to determine what kind of verdict murder” was yet juror in evi- would render under certain circumstances not dence, its and the trial court did not abuse discretion sustain- objection phrased ing question as where the the State’s already juror she consider cir- had stated that could deciding imprisonment life whether to vote for cumstances automatically penalty for the death and that she would not vote penalty first-degree someone convicted of murder. death for Jury 2d, § Am Jur 197.
Propriety asking prospective jurors hypo- and effect of they questions, dire, how would thetical on voir as to of 99 ALR2d 7. decide issues case.
Propriety, case, inquiries on voir dire in criminal juror’s possible prejudice if informed of defendant’s prior convictions. 43 ALR3d 1081. Jury (NCI4th)— capital §
4. voir dire —mean- case — ing of imprisonment possibility parole questions life — — properly excluded permit refusing trial court did not err in defendant to
question prospective jurors capital ain trial about their views on imprisonment meaning possibility parole. life and the Jury 2d,
Am § Jur 197. *3 Propriety asking prospective hypo- and jurors effect of questions, dire, they thetical on voir as to how would decide issues of case. 99 ALR2d 7. Jury (NCI4th); capi-
5. Criminal Law 395 (NCI4th)— § § punishment questions by impar- tal judge views — —no tiality in favor of State impartially judge
The trial did not act in favor of the State in jurors determining challenges prospective for capi- cause in a capital punishment tal trial based on their beliefs the manner juror in questioned equivocal which he gave who answers about jurors her beliefs asking questioned by being defendant if they could given follow the law as to them where the record jurors shows judge challenged by that the trial treated the State jurors ques- and the defense in asking the same manner they substantially tions determine if impaired would fact be by their views against penalty they for or the death and if could law, follow the judge and that the trial also intervened on occa- explain clarify jurors sion to and the law when were confused. 2d, Jury Am seq.; Jur §§ § 265 et Trial 117. regarding capital punishment
Comment Note. — Beliefs disqualifying juror capital post-Witherspoon case — cases. 39 ALR3d 550. 6. Homicide (NCI4th)— first-degree § 552 premedi- murder — tation and deliberation — brain disorder — intoxication— relationship
lack of second-degree bad on — instruction required murder not premeditation The evidence of and deliberation was not equivocal prosecution in a first-degree of defendant for two mur- THE COURT IN SUPREME
STATE SKOTPEK jury on second- require the trial court to instruct so as to ders the female victim it to show that where tended degree murder they argument at the female along; had an get not did to come to her want defendant and she did not victim’s home provoke anything legally victim did neither again; home from pulled a rifle under defendant, semiautomatic but defendant fragmentation bullets killed the victims with a car seat victim, power; defendant shot one for their destructive known “you too,” vic- momentarily, and shot the second paused stated multiple times; as left tim; were wounded both victims both; get I scene, companion, “did them” crime he asked his dispose gun and ammuni- proceeded to and defendant mildly defendant was left town. Evidence that tion and then pre- was not organic brain disorder and suffered from retarded phase was thus sentencing not until the sented support a instruction. second-degree murder factor that could lack of a bad rela- Furthermore, did not indicate the the evidence and defendant which would tionship between the female victim murder, support second-degree and evidence an instruction on support an instruc- intoxication insufficient established that he was second-degree murder where it tion visibly intoxicated, not a vehi- that defendant chose to drive day, cle, something he had had to drink that but there and that or over what no to how much he had had to drink evidence as *4 period drinking. he of time had been seq. 2d, 525 et §§
Am Jur Homicide capital jury argu- (NCI4th)— § 7. Criminal Law case — testify by failure to cured ment —defendant’s —error court’s actions by prosecutor’s possible jury argument
Any error created testify capital in a trial was defendant’s failure to references to objection, sustained defendant’s cured when the court record, from were both withdrawn and stricken comments “disregard argu- to the last the trial court then instructed during charged its prosecutor,” and the trial court ment testify to that his right had a instructions that defendant jury’s any way. silence was not to influence the decision Assuming arguendo that the trial court’s actions were insufficient error, guilt was so over- the evidence of defendant’s to cure the beyond a reasonable whelming that the error was harmless doubt.
STATE 2d, Am Jur TMal 237-243. §§ ,
Violation (Griffin of federal rule constitutional v. Cali- fornia) prohibiting by prosecutor adverse comment or upon testify, court constituting accused’s failure to reversible or harmless error. ALR3d 1093.
8. Evidence (NCI4th)— § Witnesses cross-examina- prior question properly conviction — date
tion — crime — excluded capital In a trial in which a witness admitted oh cross-exami- by nation defense counsel that he had been convicted four counts of common forgery, convicted, law he date was he years’ probation, had received five he had violated his probation, the trial did excluding court not err defendant’s question as to the date on which the par- witness had committed a of forgery. Assuming arguendo ticular act that defendant should have been allowed to ask the witness the date on which he com- specific crime, mitted the error was harmless because the date any impeachment could not add value to the information the already had prior about 8C-1, conviction. N.C.G.S. § Rule 609(a). 2d,
Am Jur seq. Witnesses §§ et Impeachment Comment of witness Note. — inquiry arrest, or accusation, prosecution. as to ALR2d 1421. (NCI4th)—
9. Criminal Law § 414 introduction right open arguments evidence — loss and close —no coercion trial court The trial court did not coerce introducing into right open evidence so that he lost argu- his and close the final prosecutor objected ment where the defendant’s use of photograph help testimony during illustrate witness’s cross- evidence; examination unless it was introduced into the court objection immediately sustained the and defendant asked to *5 photograph evidence; introduce the into the trial court asked if defendant he that he was offering understood now responded understood; and defendant that he the court allowed photograph evidence; photograph the into the was shown to the jury questions while the posed defendant; witness answered impeach photograph and defendant used the the witness. Even STATE evidence, into defendant admitted if had been photograph the open jury argument right and close his would still have lost of depositions diagram a the and he also introduced two because Superior for the Rule General Rules of Practice crime scene. Courts. and District 2d, 213. §
Am Jur Trial premeditation and delibera- (NCI4th)— Homicide § 10. provocation of tion — instructions—lack jury premed- could infer instruction the The trial court’s “lack of circumstances such as and deliberation from itation it did not the because provocation” not have confused could ordinary provocation, legal between and explain the difference judicial opinion impermissible expression of an did not constitute impermissibly evidence, shift the burden on and did not proof to defendant. 2d, §
Am Jur Homicide 501. premeditation delibera- (NCI4th)— and 11. Homicide § plain from threats — no error tion — instructions—inference instruction that “threats” The trial court’s deliberation, support premeditation and if may an inference of evidence, plain supported was not erroneous because not premeditation supported finding of the evidence a error where deliberation, failed to meet his burden and and pre- that, the word “threats” the instruction showing absent probably deliberation, would have meditation reached different verdict. 2d, 501. §
Aun Jur Homicide pho- autopsy (NCI4th)— § 12. Evidence and Witnesses premeditation tographs relevancy and delibera- show — tion properly autopsy two victims were photographs Seven although it was first-degree prosecution, murder admitted in this by multiple gunshot killed that the victims were uncontradicted rifle and that defendant wounds from semiautomatic excessive, they they were not shooting, since involved they testimony, relevant pathologist’s were helped illustrate premeditation Further- probative and deliberation. to show prejudicial finding that more, court did not err probative value. photographs outweigh did not their effect of the *6 STATE v. SKIPPER (1994)] N.C. 1
[337 2d, seq. Am §§ Jur Homicide 417 et Admissibility photograph corpse prosecution of of causing for homicide or civil action for death. 73 ALR2d 769. (NCI4th)— voluntary §
13. Homicide instruction intox- production burden ication — defendant’s of due — no process violation process rights Defendant’s due were not his violated bur- den producing evidence he was so that he intoxicated premeditated could not form a and deliberated intent to kill in order voluntary to be entitled to an instruction on the defense of jurors since intoxication were not considering restricted from evidence of intoxication in whether determining the State satis- beyond fied them a reasonable doubt to all elements first- murder, premeditation degree including and deliberation kill, satisfy if produc- intent to failed to the burden of necessary tion voluntary intoxication, for an instruction on beyond the State’s burden proving first-degree murder way pro- reasonable doubt was in no reduced the burden of satisfy duction voluntary defendant must in order to receive a intoxication instruction. 2d,
Am Jur § Homicide 517. (NCI4th)— voluntary 14. Homicide § intoxication instruc- tion — insufficient require capital
The evidence in a trial was insufficient an voluntary only instruction on intoxication where it showed drinking day defendant had been during for some time murder and that he not want did to drive because had been he drinking, but there was no evidence that defendant looked drunk difficulty having or that he was speaking walking, and no evi- actually dence how as to much defendant had drunk. 2d, §
Am Jur 517. Homicide (NCI4th)— question 15. Evidence § Witnesses about telling properly excluded truth — permit
The trial court did err refusing capital ask a pro- witness on redirect sentencing examination ceeding “telling whether he was this truth” because the credibility aof witness is for the to decide. Even if the trial IN COURT THE SUPREME objection question, the error by sustaining the
court erred already that he affirmed because the witness had was harmless *7 truth, question redundant. and the was would tell the seq. 2d, 426 et §§ Am Jur Witnesses exami- (NCI4th)— redirect § 16. Evidence and Witnesses exceeding scope objection nation — cross-examination — error not stricken —harmless sustained —answer err capital sentencing proceeding did not trial court in a The objection question asked defendant sustaining the State’s to which he to the name of the church for a witness on redirect as beyond question scope of was went the the minister where pro- cross-examination, made no of the witness’s which mention any case, was because the witness fession. there no error to admon- question, the there was no motion strike or answered jury answer, and thus disregard the the defendant ishment of to Furthermore, sought. received the benefit of the evidence objection question harmless sustaining error the to this was in determining the the the witness error because name of church credibility. did not his worked for bolster 2d, Am Witnesses 425. § Jur sentencing pro- (NCI4th)— capital
17. Law § Criminal testimony process ceeding due violation —no — exclusion process rights due were not violated when Defendant’s capital permit sentencing proceeding to trial court in a refused telling if he (1) to ask witness on redirect defendant questions truth, for he a minister. The (2) and what church evidentiary standards, incompetent and were under traditional process implicated rights due were not because defendant’s directly testimony sought guilt on did not reflect which in the crime for he had been convicted. involvement Criminal 2d, § Law Am Jur 598. mitigating (NCI4th)— Law circumstances— §
18. Criminal request necessity peremptory for instructions — requested peremptory that instructions Where mental given only dealing circumstances with for impairment capacity appreciate and and defendant’s emotional criminality of his conduct his conduct to conform failing give peremptory law, trial court did not err in statutory instructions as to other uncontroverted and nonstatuto- ry mitigating circumstances. 2d, Criminal
Am Jur Law 628. § 19. Criminal (NCI4th)— capital sentencing §§ Law
proceeding parole eligibility to instruct — refusal question during concurrent delibera- sentences — proper instruction tions — correctly request trial court denied defendant’s jury charge capital include in sentencing proceeding for two murders an instruction that a life sentence means that may parole twenty be eligible years for defendant could be sentenced to consecutive life so sentences parole he eligible forty years. would not be for for Further- more, question parole when the out a asking sent eli- about *8 gibility sentences, and concurrent properly court jury eligibility parole instructed the for proper is not a mat- jury ter for the “you and that in considering imprisonment, life question imprisonment should determine though as life- exactly says: imprisonment means what the statute for life in the prison.” 15A-2002, state’s require § N.C.G.S. which will the trial in capital court instruct sentencing proceeding con- cerning parole eligibility of a life, applies defendant sentenced to prospectively date, after its effective 1 October and thus apply not does this case. 2d,
Am Jur Trial 890. §§ Procedure jury requests be followed where informa- possibility pardon parole tion as to of or from sentence imposed. 35 ALR2d 769.
Prejudicial effect of statement or instruction of court possibility parole pardon. as to of or 832. ALR3d Jury’s parole ground discussion of law as for reversal or new trial. ALR4th 420. (NCI4th)— capital sentencing pro-
20. Criminal Law § ceeding parole eligibility mitigating not — — instruction required necessary parole eligibility
An instruction on was not mit- as igating in light prosecutor’s argument stressing evidence of the potential dangerousness parole for future because any eligibility mitigating aspect is not it does since not reflect on IN THE COURT SUPREME STATE v. SKIPPER or of a defendant’s character record circumstances proffers as a basis a sentence offense that the defendant for less death. than seq. 2d,
Am Trial et §§ Jur sentencing (NCI4tñ)— capital § 21. Criminal Law —miti- history— significant gating criminal circumstance —no required instruction not by failing mitigating
The trial court did not err submit prior history significant had no circumstance that defendant activity presented criminal where the State defend- weapon deadly inflicting ant had convicted of assault with been 1984; bodily injury found an serious previously aggravating circumstance that defendant had been felony violence to a involving convicted the use threat of juror person; rational have found that defendant had and no could activity. history prior significant no criminal 2d, Am Jur Criminal Law 599. §§ mitigat- (NCI4th)— statutory §§ 22. Criminal Law ing of miti- circumstances —instructions—determination gating effect in the trial court’s instructions on statuto- statement
ry effect of age that “the mitigating circumstance *9 allow you the is for to determine” did not the age of law,” jury consider, to to as a matter the evidence about “refuse Eddings v. in violation of Okla- age mitigating circumstance homa, improper. Moreover, the evi- 455 and was not U.S. contradictory as and mitigating dence was to this circumstance jury’s did to find that this circumstance existed not failure interpreted jury to mean that it show that this instruction where there evi- could “refuse to consider” this circumstance defendant, forty-eight, chronological age dence whose six-year-old child, was also evi- age had the mental of a but there married, business, had ran his own dence that defendant been supported himself and his children. 2d, 599; §§ Trial 888 §§ Am Jur Criminal Law seq. et
STATE SKIPPER 23. (NCI4th)— nonstatutory mitigating § Criminal Law 1323 mitigating
circumstances —instructions—determination value permitted jury The trial instructions which con- .court’s nonstatutory
sider whether mitigating circumstances in fact had mitigating value were not erroneous where the instructions jury allowed all to consider of the evidence in mitigation. 2d, 598, 599; Am Jur Criminal Law §§ Trial §§ seq. et
24. Law (NCI4th)— mitigating § Criminal circum-
stances —consideration circumstances found other jurors constitutionally required not —instruction requirement juror is no
There constitutional that a must con- mitigating juror sider a circumstance found another to exist. required jurors individually constitutionally What is is that be opportunity given weight to consider give to whatever they mitigating Therefore, evidence deem to be valid. the trial jury juror err failing court did not instruct that once one jurors all mitigating exist, finds a circumstance to consider must decision, reaching that circumstance even sentencing when their juror if a mitigating did not believe that circumstance existed. 2d, 598, 599; Law §§ §§
Am Jur Criminal Trial seq. et mitigat- (NCI4th)—
25. Criminal Law 1323 § consideration of ing “may” circumstances —instructions—use juror “may”
The court’s consider instruction that each juror mitigating weighing circumstances found exist when aggravating mitigating circumstances did not allow some jurors they disregard relevant had earlier fully comported McKoy found to exist and with v. North Caroli- na, the evi- U.S. where court also instructed that mitigation weighed against dence in must the evidence aggravation. 2d, 598, 599; §§
Am Jur Criminal Law Trial §§ seq. et sentencing— (NCI4th)— capital
26. Law § Criminal defining mitigating instructions circumstance — improperly restricted capital sentencing proceeding in a was not re- *10 any may considering stricted from evidence that have lessened COURT IN THE SUPREME directly that was sentence, it be evidence whether defendant’s that related to or evidence character on defendant’s based cir- mitigating defined murders, where the trial court actual justification or not constitute “which do as facts cumstance degree of crime than a lesser reduce it to killing for a or excuse extenuating may murder, which be considered but first-degree making it less killing or culpability of the reducing moral mur- first-degree punishment than other deserving of extreme duty had a that the also instructed ders,” and the trial court any aspect circumstance mitigating “to consider as mur- any of this of the circumstances character and less than for a sentence is a basis the defendant contends der that evidence arising from the circumstances other death value.” you have which deem to 599; , §§ Trial §§ Law 2d, Am Jur Criminal seq. et sentencing— capital (NCI4th)— Law §
27. Criminal sufficiency aggravating of conduct course circumstance — course of conduct properly submitted the trial court capital sentencing pro- jury in a aggravating circumstance to show that where the evidence tended for two murders ceeding his from under the seat of pulled rifle a semiautomatic victim; then said multiple female he shots at the truck and fired pulled away, victim; truck male as the “you and shot too” both; them and the crimes got driver if he defendant asked the same location each other at the within moments of thus occurred operandi. modus by use of the same 599; Trial §§ 888 2d, §§ Law Am Jur Criminal seq. et sentencing— capital (NCI4th)— Law §
28. Criminal nonstatutory mitigating requested circumstances —com- bining of circumstances separately and by failing err to submit
The trial court did not nonstatutory mitigating circumstance independently each requested where some requested writing on the written the trial court were combined circumstances were requested circumstances form; all of the recommendation submitted; the circumstances subsumed *11 IN THE COURT 13 SUPREME
STATE (1994)]
[337 required every point brought in defendant’s to address forward request. arguendo written that the trial erred Assuming court requested by defendant, giving not the exact instructions such beyond error it was harmless a reasonable doubt where is clear prevented potential that the not considering from mitigating evidence. 2d, Criminal 598, 599;
Am Jur §§ §§ Law Trial seq. et (NCI4th)— mentally Law §
29. Constitutional retarded penalty defendant —death not unconstitutional Imposition penalty on death defendant was not uncon- stitutional he lifelong organic damage because has suffered brain mentally Supreme and is U.S. retarded since the Court has held prohibit Eighth categorically Amendment does person mentally penalty infliction death on a who is retard- ed, Supreme penalty and the affirmed Court has the death IQ cases where defendants’ test scores were similar to or lower IQ than test score of 69. 2d,
Am Jur Criminal 628. Law § Propriety imposing capital punishment mentally on 177. retarded individuals. 20 ALR5th Jury peremptory challenges (NCI4th)— § 30. — death constitutionality penalty views — permit prosecutor cap-
It was in a not unconstitutional jurors peremptorily expressed ital challenge case to who reserva- penalty. tions about the death Jury seq. 2d,
Am Jur 233 et §§ capital sentencing— (NCI4th)— § Criminal 31. Law duty penalty instruction to recommend death Jury duty imposing upon The Pattern Instruction return insufficient death if circumstances are outweigh aggravating circumstances not unconstitutional. seq. Trial 2d, §§ Am Jur 888 et constitutionality
Supreme views on death Court’s penalty imposed procedures which it is or car- under ried ont. L. Ed. 2d 1001. THE IN SUPREME COURT
STATE v. SKIPPER Jury (NCI4th)— capital trial —denial of individual § 32. sequestration
voir dire and in denying The trial court did not abuse its discretion defend- prospec- request sequestration voir ant’s for individual dire jurors capital tive in this trial. Jury 2d,
Am Jur 197. § *12 (NCI4th)— capital preliminary 33. Criminal Law 1318 § trial — instructions by request denying The trial court did not err specific instructions, defendant, give the court written about procedures capital punishment proceeding prior involved in a jury beginning gave to the selection where the trial court preliminary jury Jury pursuant instructions to the Pattern Instructions. 2d, seq.
Am §§ Jur Trial 888 et (NCI4th)— constitutionality § 34. Criminal Law 1298 of death penalty statute penalty
The North Carolina death statute is not unconstitu- tional. Criminal 2d,
Am Jur
Law § 628.
Supreme
constitutionality
Court’s views on
of death
penalty
procedures
imposed
under which it is
or car-
ried out.
35. Criminal Law § 1326 circum- proof stances — burden of jury instructing capital
The trial court did not err in a sentencing proceeding proving that defendant had the burden of preponderance circumstances of the evidence. seq. 2d,
Am Jur Trial 888 et §§ (NCI4th)— first-degree 36. Criminal Law § murders— disproportionate death sentences imposed upon Sentences of death for two first- degree disproportionate murders are not excessive or to the penalty imposed in considering similar cases both the crimes and the defendant where defendant was convicted of both murders on theory premeditation deliberation; found as
IN THE SUPREMECOURT aggravating previously circumstances that had been felony involving person convicted of a the use violence part and that the murders were of a course of conduct that includ- others; ed crimes of violence to defendant had been convicted on previous inflicting injury three ly weapon by occasions serious with a dead- person back, one
shooting in the severing the hand knife, of another with a and shooting chest; in the another and the defendant, provocation, evidence showed that without shot the two victims times numerous with a semiautomatic rifle contain- ing fragmentation bullets, left lying them on the ground, and attempted any help. never them get Defendant’s sentences IQ disproportionate were not because defendant has a low and mentally found emotionally that defendant was dis- turbed when the were capacity crimes committed and that his appreciate criminality impaired. of his conduct was 2d,
Am Jur Criminal Law § 628.
Chief concurring Justice Exum in the result. *13 Appeal right pursuant as of 7A-27(a) to N.C.G.S. judgments § from imposing by Britt, J., two sentences death entered at the 4 Febru- ary Special Superior Court, County. Criminal Session of Bladen Supreme February Heard in the Court 1994. F. Easley, Attorney General,
Michael Spalding, Valerie B. General, Attorney Assistant the State. for Ray Hunter, Jr., Appellate Malcolm Defender, by Gordon Widenhouse, Appellate Defender, Assistant for defendant- appellant. MEYER,Justice. August 1990,
On 25 grandson Ailene Pittman and her Nelson Fipps, Jr., were shot and standing killed while in Ms. Pittman’s front yard. August 1990, defendant, The evidence showed that on 25 Skipper, They Sherman Smith and Mark drove to Ms. Pittman’s home. drinking. both had been had dating Defendant been Ms. Pittman and driving wanted talk to her. Mr. Smith was defendant’s truck. twenty minutes, Defendant and Ms. Pittman talked for fifteen by the to Ms. standing front door Pittman’s home. Defendant then truck, in, got away. went back and told Mr. Smith to drive approached bring Ms. Pittman truck and Smith told Mr. not to IN THE SUPREMECOURT backing the began When Mr.Smith truck back her home. driveway, seat of the reached under the truck out of the containing fragmentation rifle bul- pulled out semiautomatic and proceeded Pittman, stopped shooting, said then to shoot Ms. lets. He Fipps, in the “you too,” standing then drive- and shot Nelson who away spent a way. from and week The two men then drove the home finally police run. Mr. Smith turned himself in to the and told on the be found. them where defendant could murder of guilty first-degree both Defendant found Fipps and Mr. and was to death for each mur- Ms. Pittman sentenced previously found that defendant had been convicted of der. The injury deadly weapon with a inflicting assaults serious that three during murdered current a course of con- he had each of his victims They he involving to the other. also found that was men- duct violence emotionally tally when the murders were disturbed committed ability criminality appreciate that his of his conduct or to impaired. requirements his conduct to the of the law was conform thirty-one assignments sets error in a 244-page Defendant forth necessary disposi- will be addressed for the brief. Additional facts tion of these issues.
Jury Selection Issues reversible error Defendant in excusing begins arguing that Juror Shirley the trial court committed Clark for cause, based on juror’s feelings penalty. argues that about the death Defendant that allowing question juror. court erred the trial defendant to adequately question He also trial court failed to juror juror for determining before should be excused cause. this, rights argues that, because of he was denied his ato impartial jury, process law, from fair and due and freedom cruel punishment. and unusual *14 prospective juror may determining
The standard for
whether a
be
punishment
properly
capital
excused
his
for cause for
views on
“prevent
substantially impair
per-
whether those views would
or
the
juror
of his
in
with his
formance
duties as
accordance
instructions
118, 128,
Syriani,
and his oath.” State v.
reh’g
denied, -U.S. -,
(1993),
denied,
the challenge for cause should have been This denied. juror’s prospective may Court has noted that a always bias not be “ ‘provable clarity with [and,] cases, unmistakable reviewing such [i]n courts must defer the judgment concerning to trial court’s whether ” prospective juror impartially.’ would be able to follow the law Syriani, Davis, N.C. at 128 (quoting S.E.2d at at 426) (alteration in original). Supreme
The United States Court has also that it noted is some- times difficult to establish total against penalty bias the death with clarity.” “unmistakable
[M]any simply questions veniremen cannot enough be asked point “unmistakably reach where their bias been has made clear”; may these they veniremen how will know react when imposing sentence, faced with may the death be unable to may articulate, or wish hide Despite their true feelings. this clarity printed lack of in the record, however, will there be situa- tions where a judge impression trial is left with a definite that a prospective juror faithfully impartially would be unable to and apply the law.
Wainwright Witt, L. 425-26, U.S. Ed. (1985) 2d (footnote omitted). transcript juror
The reveals that Clark stated that while she thought necessary penalty may death be today’s society, she personal scruples had against penalty convictions and the death prosecutor she many because was Christian. The asked Ms. Clark questions, trying juror if impose to determine could the death penalty prosecutor explained in some great situations. The detail procedure impose that must be followed before could penalty. death hearing regard After the law finding how worked in aggravating balancing circumstances the circum- juror stances, the still stated she was not sure whether she could impose penalty. juror try the death The stated that she would her best fair, prosecutor but she told scruples also two times that her impair ability substantially Christian beliefs would her to consid- penalty. prosecutor juror er the death for challenged then cause. juror dismissing cause, judge questioned
Before for the extensively. impose her Juror Clark stated that she could the death *15 COURT IN THE SUPREME SKIPPER scruples then that her
penalty but said under some circumstances substantially impaired in prevented such that she would be were juror in with her oath duty as a accordance performance of her the Syriani, juror Here, in the seemed the Court. as and the instruction of responses answers; nevertheless, her revealed that conflicting give to substantially penalty would thoughts and views on the death her they ability of the court as relat- impair her to follow the instructions juror’s view she could duty juror. as a While the on whether to her ed required the was not “unmistak- penalty death law consider the juror’s responses questions to such that the ably clear,” the were be challenge for cause should judge could determine that trial affirmatively juror that she could fol- permitted. The could not state duty juror. and do her as a given the court low the instructions juror excusing Clark for cause. not in trial court did err given the he have been chance Defendant also should juror Brogden, under State v. rehabilitate this to a Brogden, judge that when (1993). In this Court held S.E.2d 905 opportunity rehabilitate under the mistak- a defendant to denies juror, a permitted not impression that is to rehabilitate en is reviewable and not considered then the decision of the court at In Id. at 909. under an abuse of discretion standard. questioning should have been allowed Brogden, we held that further juror may question about have answered crucial because the substantially impair prevent or his duties as whether his views would differently Brogden, In juror if rehabilitation had been allowed. juror affirmatively feelings that his here, never stated unlike ability duty substantially impair his his and follow do would explained case, prosecution pro- in detail the instructions. in a sentence of death. determining that must be followed cedure affirmatively juror responded explanation, three times After this impaired substantially following the law because that she would of her beliefs. opportuni- given defendants can be
We have noted that while entitlement; juror, judges are not ty this is not an to rehabilitate attempt jurors to rehabilitate chal- required to allow a defendant may discretion refuse lenged for cause. A trial court its sound jurors request attempt to rehabilitate certain chal- Brogden, N.C. at lenged for the State. See cause 908; Taylor, 332 N.C. entirely juror Clark’s answers were We conclude that while they sufficiently equivocal justify being her unequivocal, were
STATE *16 (1994)]
[337 judge, excused for cause in discretion of the trial who heard the questions of, given by, juror. In addition, asked the answers incorrectly we do not believe that defendant right denied his to process sentencing fully explained rehabilitate. The had'been to the juror responded prosecutor’s question and she had in answer that, beliefs, impaired based following on her she would be in procedure. deny did judge right not to based rehabilitate on a exists, misunderstanding right that no such and there was no indica- questioning juror tion that the of would anything have done but confusing. make the situation more In defendant’s second and fourth assignments of error, he argues impartial his right
that to a fair and was violated because the trial prosecutor’s objections questions. court sustained the to certain In error, his second of assignment argues defendant that should he have questions jurors allowed regarding been to ask how would affect impairment, age, ed evidence of mental mitigating other cir error, cumstances. fourth assignment argues his that jurors it was error not allow him to to ask two who sat on the if they always person would sentence a to death if a he had criminal just record and had been guilty first-degree found murder. Morgan argues Illinois, - U.S. -,
Defendant that under Ed. (1992), specifically inquire L. 2d 492 a be able defendant must prospective juror each juror pre individual whether that would be disposed mitigating not to consider relevant in determining appropriate sentence. questions
The State that a were blatant attempt jurors. also stake out The State notes that when defendant jurors questions ques- asked the about without certain characteristics tioning they them as to what kind of would in a verdict render situa- involving characteristics, questions tion certain those were allowed and able to elicit the desired information.
First, permitted they jurors we note that defendant was to ask if could, in general, consider in deciding circumstances imprisonment penalty. whether to vote life or the for death jurors automatically they was also allowed to ask if would sentence a person imprisonment option an death and consider life in every person first-degree case a where has been convicted murder. Morgan particular propositions is that It these two are addressed v. Illinois. voir judge dire
A illustrates that the sustained review of the juror prosecutor’s objection asking if a would “consid- to defendant’s retardation, family and impairment, mental age, er” mental reaching However, the record employment background in decision. ask, “If the was allowed to Court instructs also reveals that defendant person suffering you you whether not a should consider not to deciding whether or from mental or emotional disturbance you you penalty, do like could follow give someone the death feel permitted inquire gener- Additionally, defendant was instruction?” ally juror’s feeling into about such issues as mental illness. *17 occasions,
On the court indicated that it would allow numerous “rephrased” question trying to ask if it was or if an the defendant was “appropriate occasion, predicate” judge was set. On one even told may accept juror if will follow the defendant, ask the he “[Y]ou jury by to cir- given law as to the this Court as it relates judge It is clear that the would allow defendant to ask cumstances.” juror a if a follow law but would not allow defendant to ask could juror hypothetical question if a a circum- regarding would consider time, stance, reaching to that a not known exist at in decision. A able defendant should not be juror’s will
to in advance what the decision be under a cer- elicit upon tain a state of given state of facts.... [S]uch questions juror pledge tend to out” the and cause him “stake law himself to a future course of action. This the neither contem- plates permits. permit ques- nor The court should not counsel jurors they prospective tion would kind verdict they vote, render, given or how would be inclined to under a state of facts. Vinson,
State v.
sentence
326, 336,
60,
(1975),
215
68
S.E.2d
vacated,
Hill,
State v.
902,
In
S.E.2d 183
the Court held that it was not error to refuse to
jurors
they
allow defendant to ask
impossible
if
would find it
to vote
imprisonment
for
rape
place
life
if torture or
had also taken
during
at 541,
murder. Id.
We conclude generally defendant jurors’ feelings into about mental illness and and retardation other mitigating circumstances, adequate opportunity given he was an part juror. only discover bias on the restriction juror specif- the court was a enforced whether could “consider” a mitigating reaching ic circumstance in a This decision. restriction v. SKIPPER n nor of the trial court’s dis- fundamentally unfair an abuse
was neither jurors they ask if addition, was allowed to cretion. automatically penalty first-degree in a mur- the death would vote for they circumstances when consider der case and if could We this the con- believe satisfies determining defendant’s sentence. requirements Morgan the concerns does not violate of stitutional set forth in Ham. prosecu- sustaining no that there was error
We conclude they which objections questions issue, the manner in tor’s jurors. phrased attempted to stake out was erroneous were to allow defendant Defendant also to ask argues that the trial court erred two jurors if they would always when it sentence a refused and has been person previous if he has criminal record con death pro We that defendant was first-degree of murder. note first victed only juror sat on asking question one who hibited from question initially, objection to was' sustained in While, an case. juror rephrased question Munroe, laying after regard to question permitted. foundation, and the juror Howell, following colloquy During questioning place: took Grady everyone you Do feel like who
Mr. Counsel]: [Defense previous has a criminal record and who’s been convicted first- automatically put to degree murder should be death? Attorney]: Objection. [Prosecuting Mr. Hicks Court: Sustained. please.
Rephrase, Grady: you always person given should Do feel Mr. .that previous if penalty he has a criminal record has death first-degree murder? been convicted Objection. Mr. Hicks:
Court: Sustained.
Rephrase. *19 Grady: you you you like person like a feel feel Do Mr. —Do person question. would a convict —Strike person solely you you like would convict a because of Do feel past lifestyle? their No.
Juror:
STATE Defendant now that the trial court committed reversible by preventing asking error and abused its discretion him from the question specific concerning prior a with criminal record. begins argument Defendant his again stating that this is error Morgan Illinois, - U.S. -, under 119 L. 2d Ed. 492. Defendant question argues that the needed to be asked in to if order determine juror automatically penalty the would vote for the death if she juror particular already would mitigating consider evidence. This had stated that she could mitigating deciding consider circumstances in imprisonment penalty whether to vote for life or the death and had response question also stated in to that she not “in did feel that every somebody’s case first-degree murder, where been convicted of automatically person would sentence that to death and not [she] imprisonment option.” consider life as an This is the extent of what is required by Morgan. Thus, the trial did in sustaining court not err the objection question phrased. State’s to the as also argues that the trial court’s decision sustain arbitrary
objection question to this and an abuse of discretion. question phrased proper; We thus, conclude that was not it was objection an question. not abuse of discretion to sustain the As above, asking question noted defendant was not barred from in any form, “rephrase” question, but instead was asked to indicat- ing properly put, permissible. that if would it be This was illus- further juror Munroe, voir questioned trated dire who was immediately juror objection question, after Howell. An to the same juror sustained, posed Munroe, and defendant was asked rephrase juror question. Defendant then asked the if he would juror mitigating reaching consider circumstances in decision. The his “yes,” person’s asked, said and defendant next “So even if a con- been past record, you first-degree victed murder and has criminal could still deciding consider circumstances whether to imprisonment vote for life penalty; the death is that correct?” juror objection, question. There was no Munroe answered proceeded It seems clear that had defendant in this manner with juror particular ques- Howell, he would have been allowed to ask the However, question tion at issue. which the manner in was asked you person always here: “Do feel given that a should the death penalty previous if he has a criminal record has been convicted attempt first-degree nothing murder?” was more than an deter- juror mine what kind verdict a would render under certain named yet Yelverton, circumstances evidence. See *20 IN COURT 24 THE SUPREME (1994)] N.C. 1
[337 Hill, 404, 183, 188; State 387, v. 532, 542, 417 S.E.2d was no reversible error or 765, 772. We conclude that there S.E.2d juror allowing in to ask Howell this abuse of discretion question attempted particular in the manner defendant. one [4] his third assignment of error, argues that the trial question jurors their views judge have allowed him to about should possibility parole. imprisonment life the meaning on the and question that made a to be allowed to Defendant notes he motion jurors concerning parole eligibility. questions concerning that the
Defendant concedes issue meaning imprison parole and the of life eligibility instructions on him this Court. See State against repeatedly ment has been decided Lee, Green, State v. 142, 14, (1994); 443 S.E.2d Syriani, (1994); N.C. Robbins, 118, 145; 465, 521, denied, cert. 918, 98 L. 2d 226 Ed. why convincing to this Defendant has failed assert reason Court concerning depart prior from its decisions on the issue the should of, jurors about, possible parole eligibil questioning informing ity of defendant. Defendant next argues that trial court led jurors who were say penalty they impaired
opposed the death to that would be to performance duty and not to follow law so of their be able that jurors they cause, persuaded challenged could be for who penalty say they impaired favored that would not be the death that performance of their duties and could follow law so these jurors argues for that challenged could not be cause. Defendant disparate right impartial treatment violated his to an and fair was an abuse of discretion. juror again stresses that Clark should not have
Defendant once equivocal as for her answers were been excused cause because impose penalty. argues whether the death Defendant that she could way questioned juror that judge the trial Clark in a elicited answers argues challenged that her for cause. Defendant would allow questions judge leading suggested that a desired used reliability jurors’ responses. answer and tainted the of this and other unfairly when argues judge the trial acted he Defendant also jurors were during qúestioning strong- who intervened complains ly penalty. specifically in favor of the death jurors being three where trial court in effect asked occasions IN THE SUPREMECOURT
STATE v. SKIPPER
questioned by
they
if
given
the defendant
could follow the law as
them.1 Defendant
that the trial court’s intervention in defend-
*21
questioning
ability
jurors
ant’s
his
to challenge
defeated
these
for
represented
cause and thus
an unevenhanded treatment of defendant.
Quick,
1,
(1991),
In state v.
defense in same to determine they impaired substantially if would fact their views for or against penalty they and if the death could follow the law. trial juror “accept given you by 1. was One asked if he could and follow law as you impris- saying the Court in case” and if was he “that would not consider life circumstances, regardless onment under those of the instructions the Court.” you juror asked, you’re Another “if Court of the instructs consider all you evidence, would follow those instructions?” SUPREME COURT IN THE explain law clarify when also intervened on occasion court carefully entire jurors have reviewed the record of were confused. We for of bias or unfair treatment hold that selection part on the was no of discretion was none that there abuse there trial court. Phase Guilt-Innocence Issues Next, argues that the court erred in not giving an pre murder the evidence of second-degree because instruction equivocal. argues that and deliberation was He Beck meditation Alabama, Arizona, 2d 392 (1980), 65 L. Ed. and Schad proposition (1991), L. U.S. 115 Ed. 2d 555 stand for required included in this case. a lesser instruction intoxication, lack of evidence that evidence *22 relationship the fact that he parties, a bad between and the of mildly the organic retarded and had an brain disorder establish nec- essary support finding second-degree to a of elements murder. We disagree. every involving propriety
The test in of an instruction on case grade a lesser of an offense is not whether the could convict crime, of the but the State’s lesser whether evidence positive charged as to and each element crime whether any conflicting relating there is of these elements. 378, Leroux, 368, 314, 322, denied, cert.
State v.
S.E.2d
871,
may
“premise
112 L.
A
(1990).
Ed. 2d 155
trial court
not
second-degree
possibility
on
that the
a
murder
instruction
accept
por
rejecting
will
some of the State’s evidence while
other
379,
State’s
Neither
tions of the
case.” Id. at
S.E.2d at 322.
Beck v.
proposition
nor Schad
Arizona stands for the
that the
Alabama
v.
freely
capital
given
included
should be more
in
cases.
lesser
offense
they
fact,
support
proposition that
instruction
In
the lesser
should
indiscriminately.
Strickland,
274,
See State
307 N.C.
given
not be
Supreme
(1983) (language
of United States
supports
position
in
Court
Beck
lesser offense instructions
indiscriminately
only
given
automatically,
but
should not
when
by
evidence),
grounds
State v.
warranted
other
modified
Johnson,
(1986).
the act was out beforehand for some necessary short, particular no amount of time is for the mental but premeditation:" State Conner, process kill, 835-36 “Deliberation means' an intent car blood, design
ried out
a cool state of
furtherance of
fixed
for
accomplish
purpose
an
revenge or to
unlawful
and not under
passion,
suddenly
just
influence of a violent
aroused
lawful or
Id. provocation.”
legal
cause or
A careful review of the shows that each and ele- first-degree supported murder is ment evidence and that support finding second-degree evidence would not murder. The get evidence showed that defendant and the victim Pittman did not recently along. There was evidence that defendant had struck Mark bring Pittman and that she told Smith never to defendant back to her house. This indicates that defendant and Pittman were not on friendly just normal, peaceful and had terms had conversation prior addition, did shooting. at Pittman’s home neither victim yet anything legally provoke defendant, pulled a semi- weapon automatic from under the and killed the victims with seat power. fragmentation bullets known for their destructive victim, paused momentarily, “you too,” shot one stated and shot the multiple second victim. Both victims were wounded times. Pittman’s body thirty-four wounds, Fipps’ body had had two. As defendant scene, Smith, and Mark Smith left the crime defendant asked “did I proceeded dispose get them” both. Defendant of the evidence of Thus, (the gun ammunition) the crime and then left town. there *23 premeditation was sufficient evidence to show and deliberation. Additionally, support the evidence would not an instruction for First, second-degree murder. we note that the evidence that defend- mildly organic ant was retarded and suffered from brain disorder was presented jury phase, it not a sentencing not to the until the so was support In second-degree factor that could a murder instruction. relationship addition, a a the evidence did not indicate lack of bad evidence showed that Pittman between Pittman and defendant. The may argument and defendant have had an earlier and that Pittman did again. Finally, the evidence not want defendant to come to her home premeditate that he could not that the defendant was so intoxicated solely not to or deliberate was based on the fact that defendant chose day. was no something drive a vehicle and had had to drink that There day, what much he had had to drink that nor over evidence as to how vis- period of time. The evidence did establish that defendant not support ibly would not an instruction for intoxicated. This evidence second-degree murder. by instructing
We conclude that the trial court did not err jury second-degree on the lesser included offense of murder. Defendant next argues the trial court erred in denying prosecutor request grossly a after the made a defendant’s for mistrial testify. improper argument referring to defendant’s failure to prosecutor’s argument jury, During closing he stated: jury] you Smith], You have to decide if believe He [the [Mark Skipper turned himself in. Did Sherman turn himself [defendant] Skipper in? He talked about how he was there. Did Sherman do way slumped that? He talked about the Ailene Pittman down— immediately objected argument, to this and the state- ment was withdrawn and stricken. Defendant then asked for a request. mistrial. The trial court denied this The trial court then reit- objection erated sustained and instructed the jury “disregard argument” prosecutor. the last because,
Defendant now that the trial court erred when objection, specifically the court sustained defendant’s it did not jury testify right instruct that defendant has a not to and that testify any way. against defendant’s failure to be held him in cannot It may prosecutor is well fail- established that not refer to defendant’s “ testify right ure to because this ‘violates an accused’s constitutional ” Reid, to remain silent.’ State v. 434 S.E.2d (1991) (quoting Randolph, 198, 205-06, (1984)). testify,
When the State comments on defendant’s failure to improper comment is “cured a withdrawal of the remark or improper, statement from the court that it was followed an instruc- tion to the the failure of the him- not to consider accused to offer McCall, self as a witness.” State v. McCall, the Court noted that an instruction to the began deliberating it
before
defendants had no burden and
—that
required
produce evidence, testimony,
were not
or witnesses —was
insufficiently
incomplete
it was an
statement of the
curative because
*24
pertinent
jury
neglected
rule of law in that
it
to advise the
that a
testify
presumption against
no
him. Id.
defendant’s failure to
created
IN THE
COURT
SUPREME
656,
243, 255,
Williams,
675,
In State v.
305 N.C.
cert.
denied,
1056,
reh’g denied,
(1982),
In the case at the trial court sustained defendant’s and the comments were both withdrawn and stricken from the jury “disregard record. The trial court then instructed the to the last prosecutor. addition, McCall, jury argument” during In unlike instructions, trial charged court here also that “the defendant gives this case has not testified. The law of North Carolina him this privilege. This same law also assures him that his not tes- decision tify presumption against Therefore, creates no him. his silence is your any way.” to influence decision in prosecutor’s striking
We conclude that the
withdrawal and
of his
any possible
statement
trial
and the
court’s further instruction cured
by
prosecutor’s
Williams,
error created
statement. See State v.
255;
Monk,
failure to be cured an instruction from the court that argument improper, by prompt explicit instruc- “followed jury Lindsay, 293, 295, disregard it”); tions to the State v. (1971) (any prosecutor’s remarks error caused testify regarding defendant’s failure to was removed “prompt explicit disregard court’s instructions reference”). arguendo, however,
Assuming judge’s that the trial instructions objection immediately during the after he sustained the error, conclude that the instruction were insufficient to cure the we guilt overwhelming that the error was evidence of this case so beyond attempts argue doubt. Defendant harmless reasonable beyond may a reasonable doubt. that such an error never be harmless Barber, (1986), we by prosecutor regarding if a defend- arguments concluded that even testify over- improper, failure to were the trial court’s decision to ant’s *25 IN THE SUPREME COURT SKIPPER, (1994)] 1N.C.
[337 beyond light doubt in of objection was harmless a reasonable rule the guilt. We conclude that the overwhelming evidence of defendant’s the victims, shot the two dis- uncontradicted evidence that defendant evidence, from the state makes the state- posed of the and then fled beyond prosecutor a reasonable doubt. ment of the harmless Defendant next argues that the trial judge erred when he sus prosecutor’s objections cross-examination tained the to defendant’s prior convic regarding of a witness the date of the witness’ criminal punishment conviction, he had vio tion, received for the and whether probationary A review of the record lated the terms of his sentence. only question defendant asked for which he did not indicates that the receive an answer at some time in the cross-examination was the date forgery law the actual common occurred. credibility party 609(a)
Rule of Evidence allows to attack the pun- that he has been convicted of a crime a witness with “evidence days 8C-1, ishable more than 60 confinement.” N.C.G.S. Rule § However, permissible scope inquiry prior 609(a) (1992). into “[t]he impeachment purposes convictions for is restricted ... to the name punishment crime, place conviction, and the the time and of the Lynch, 402, 409, imposed.” 432 S.E.2d attempted here to ask on what date the crime (1993). Defendant occurred. policy support principle ordinarily
Strong reasons the that one may go into the details of the crime which witness is the unduly impeached. jury from being Such details distract inject properly it, issues before harass the witness and confusion into the case. Finch,
State v. (1977) (deter Garner, in apply post-Rules mined cases 288-89, (1991)).
A close review of the record indicates that the witness told counsel, objection, he had convicted of defense without that been probation violating forgery. and common law The witness also told years’ probation five for the defense counsel that he had received crime, forgery common law which involved four counts of common forgery. sought law that he to elicit the nature of offenses, they committed, prior the witness’ criminal the dates were punishment them, compliance he received for and the witness’ probation. However, the record indicates that with the terms of his STATE v. SKIPPER only question gave asked witness never an particular had one act of com-
answer to was whether he committed forgery particular Defendant did not ask mon law on a date. prior
specific questions the nature the witness’ criminal about beyond offenses, name of the Nor did defendant ask the crimes. punishment probation witness had received for his violation. probation. witness’ Also, defendant never asked the terms of the *26 pros- sustaining the We conclude that the trial court did not err objection particular question of act for which ecutor’s to the when was was the witness later convicted committed. however,
Assuming arguendo, that defendant should have been specif- he to ask the witness the date on which committed allowed beyond crime, a reason- we conclude that the error was harmless ic crime, jury The the was tried his able doubt. knew when witness for convicted, he was and the name of the crime that he had the date of; jury convicted also knew that the witness had received been the years’ probation date for this crime. We fail to see how the actual five any impeach- one crime could add on which count of the occurred prior Thus, we ment value to the information about the conviction. beyond question that the allow this was conclude failure to harmless a reasonable doubt.
[9] Defendant next that the court erred coercing him into piece evidence, introducing a the of which was that he lost result open final We that this right argument. his to and close the conclude argument is without merit. Superior 10 of the Rules of for the and Dis-
Rule
General
Practice
defendant,
states
“if no evidence
introduced
the
trict Courts
open
jury
argument
belong
the
shall
to
right
and close
App.
Judge
Hall,
(1982),
In State v.
[W]e party it as in evidence is whether a has offered substantive jury may it or examine and determine so testimony impeaches illustrates, corroborates, it whether the witness. 564, 291 at 814. Id. at S.E.2d attempted photograph offer a of the crime scene testimony help during cross- evidence to “illustrate” witness’
into prosecutor objected photograph to the use of this examination.
STATE jury before the unless introduced into evidence. The court sustained objection, immediately and defendant asked to introduce photograph into evidence. The trial court asked defendant if he understood that he offering was now responded evidence. Defendant understood, only that he then did the court allow the photograph to be received into evidence. A transcript review of the reveals that way the trial court no coerced defendant to introduce photograph.
Additionally, it is clear that the photograph actually intro duced above, into evidence. As noted photo defendant offered the graph into evidence because the witness help said it would him testimony. illustrate his The photograph was then shown to the while the questions posed witness answered by defendant. In addi tion, defendant used the photograph impeach the witness. We con clude that photograph actually offered into evidence; thus, right open lost his and close argument. See State v. Reeb, 159, 180, Hinson, State v. 374 (1992); denied, cert. 256, 264, L. Ed. Knight, (1984); 2d 78 *27 101, 134 S.E.2d 109 (1964).
Finally, we note that even if photograph had not been intro- duced evidence, into defendant would still have right open lost his jury argument and close because he pieces introduced three other of evidence during depositions the trial: two diagram and a of the crime scene.
We conclude that assignment defendant’s totally of error is with- out merit. In defendant’s next assignment error, he argues that the trial
court erred in instructing
jury
that it
premeditation
could infer
and deliberation from
provocation
circumstances
such as “lack of
the victim.”
that
this
jury
instruction misled the
explain
because it did not
the difference
legal
ordinary
between
provocation,
impermissible
it
expression
constituted an
judicial
opinion
evidence,
on the
impermissibly
it tended to
shift the bur
proof
den of
to defendant on an element of an offense. We note that
object
defendant did not
trial;
the instruction at
thus, this issue will
analyzed
“plain
be
analysis.”
under a
See State v. Odom, error
STATE v. SKIPPER Handy, In (1992), this presented by Court addressed the same issues the defendant Handy, here. In we concluded that assignment of error merit; without we reach the same conclusion this case.
First, we properly note that trial court in this case instructed jury that the State had the proving beyond burden of a reasonable every doubt each first-degree element of murder, including the premeditation elements of and deliberation. The trial court never premeditation instructed presumed should be and never expressed any opinion as to proven whether the State had lack of Fowler, See State v. provocation. (statement jury may consider provo- evidence of the absence of cation in determining premeditation whether there was and delibera- judicial tion expression opinion does not amount that there vacated, sentence was no provocation), evidence of L. Ed. 2d 1212 (1976).
In case, court pre- instructed the with regard to pursuant Jury meditation Instructions, Pattern stating: premeditation usually Neither nor deliberation suscepti- are proof. They may ble of proved by direct be circumstances from they may which inferred, provocation by such as the lack of victim; before, during, conduct and after killing; threats and defendant; declarations of the the brutal or vicious killing; circumstances of the and the manner in which killing the means which the is done. addition, the trial court instructed the that defendant did act with deliberation if his intent to kill was formed “under the influ- suddenly passion.” ence of some aroused violent We conclude that the instructions set forth the trial court cor- *28 rectly placed proving premeditation the burden of and deliberation on the State. We instruction, also conclude that provo- that lack of cation considered, can be jury. could not have jury confused the could not have been confused about the difference between “ade- quate” “legal” provocation or ordinary provocation because charged only was first-degree with murder. No instruction given was second-degree voluntary as to manslaughter; murder or thus, specific provocation definitions for jury. were not before the Contrary assertions, jury to defendant’s could not mistaken- have ly premeditation concluded that defendant acted with and delibera- COURT THE SUPREME IN
34 not act that defendant did simply evidence showed because the tion jury provocation. The adequate legal passion following or heat in a guilty of not find defendant specifically that it could instructed kill his intent if he formed and deliberated murder premeditated passion. See suddenly aroused violent influence of some under the State v. 776, 669, (1994); 788 Reid, 647, State v. S.E.2d at 551. Handy, 527, N.C. at Defendant also argues under this assignment of error that not have included instruction should premeditation and deliberation may indi be inferred to of the defendant that “threats” the statement evidence that deliberation, there was no premeditation and cate again We that this issue the victims. note ever threatened analysis objection was analyzed plain error because no under will be Thus, this at trial. “defendant must convince made the instruction jury error, error, the only that absent the that there but Court Thomas, verdict.” probably have reached different would (1992). this Lampkins, (1973), S.E.2d 697 In judge give should never instructions Court determined “[a] presented upon a facts some are not based state of to a which 699. We view of the evidence.” Id. 196 S.E.2d at reasonable may supported the instruc- here not have note that while the evidence defendant, was one of “threats” of regarding tion consideration jury instructions. The pages of detailed word in the middle of eleven premeditation deliberation supported finding here him to the vic- asked Smith take based on the fact that defendant truck, pulled home, victims, got one then in his tims’ talked to fragmentation bullets from under rifle loaded with a semiautomatic victim, “you too,” the second vic- seat, stated and killed killed one them,” proceeded Smith, get I rid get “did tim. He then asked of the evidence. that, “threats” absent the word has not demonstrated probably a different instruction, would have reached
in the not met his burden under the We that defendant has verdict. hold Faison, 347, 363, 411 S.E.2d See State v. plain error rule. phrase “lack of conclusion, we that the inclusion hold premeditation and deliberation did provocation” in the instruction court, imper- jury, opinion of the trial reflect an not confuse Additionally, con- proof we missibly to defendant. shift the burden of *29 35 v. elude that if it was error to instruct the that “threats” of the may be considered an premeditation inference of deliberation, plain it was not error. Defendant next argues that the trial court erred in admitting autopsy
seven photographs into over objection. argues photographs probative had no value as the by fact that the multiple victims gunshots were killed wounds from a rifle semiautomatic and that defendant was involved in the shooting was not alternative, controverted. In the
probative photos value of by is outweighed prejudicial effect. We conclude arguments that neither of these is valid.
“Photographs may of a homicide victim be introduced even if they gory, are gruesome, horrible or revolting, long they so are purposes used for illustrative long and so as their repe- excessive or solely titious use is not aimed at arousing passions jury.” of the Hennis, State 279, 284, v. 323 N.C. 523, 372 (1988). S.E.2d 526 Gener ally, photographs during taken autopsy an are admissible. State v. Barnes, 666, 678, 333 N.C. 223, 230, denied, - U.S. cert. -, 126 L. Ed. (1993). 2d 336 In a first-degree case, murder autopsy photographs are relevant even when such identity factors as the disputed. victim the cause death are Kyle, See State v. 687, 701, 333 412, (1993); Barnes, 333 N.C. at 678, 430 229; Bearthes, S.E.2d at 149, 161, State 170, S.E.2d (1991). plea
“A
guilty places
of not
all
alleged
issue
of the facts
in the
Wall,
indictment.”
68,
(1982).
S.E.2d
case,
In this
the State
attempting
prove
first-degree
murder
premeditation
and deliberation.
“Premeditation and deliberation
processes
relate
ordinarily
readily
to mental
susceptible
are not
proof by
direct
Gladden,
evidence.” State v.
denied,
cert.
93 L. Ed. 2d
nature and number of the wounds and evidence that the murders
were done in a brutal
premed
manner are circumstances from which
itation and
deliberation can be inferred. Id. at
The State introduced autopsy into evidence seven photographs showing different areas bodies where the victims had been struck bullets. photographs Two of the showed wounds suffered Pittman, Ailene photographs five showed the wounds of Fipps. photographs Nelson The State introduced the during the testi- mony pathologist performed autopsy, help who illustrate *30 THE SUPREMECOURT IN
36 SKIPPER
STATE v. (1994)] N.C. 1 [337 photographs in fact testimony. Upon admitted, were being his wounds and to show the numerous and describe the to illustrate used photographs were rele- conclude that the the wounds. We tracks value. probative had substantial vant and we probative, were relevant and photographs Concluding that the prejudicial effect that the argument, second to defendant’s turn outweighed probative value. photographs probative than is more photographic evidence the use Whether photo- number of an excessive prejudicial and what constitutes . . . within value of each lies light of the illustrative graphs in the results where Abuse of discretion of the trial court. the discretion manifestly unsupported by or is so reason ruling is the court’s result of a reasoned arbitrary have been the that it could not decision. omitted). 285, (citation at 527 Hennis, N.C.at 372 S.E.2d v. 323
State
they
that
were
photographs and conclude
We have reviewed the
excessive,
they helped
illustrate
that
relevant, probative, and not
they
contribute evidence
testimony,
that
could
pathologist’s
there
We conclude that
finding premeditation and deliberation.
for
photo-
admitting these
in the trial court’s
no abuse of discretion
was
is without merit.
assignment of error
graphs. This
have instructed
court should
argues
next
Defendant
voluntary
argues that this
intoxication. Defendant
jury regarding
that defend-
given
there
evidence
instruction should
because
day of the murders.
consumed alcohol on the
ant had
voluntary intoxica-
that an instruction on
It is “well established
he
every
a defendant claims that
required in
case in which
tion is not
beverages or controlled
person
consuming intoxicating
after
killed a
446, 462,
31, 41
Baldwin,
412 S.E.2d
v.
330 N.C.
State
substances.”
in order to be entitled
repeatedly held that
(1992). This Court has
produce
voluntary intoxication, the defendant must
an instruction
by judge
that defendant
support a conclusion
that would
premed-
deliberated and
not form a
so
that he could
intoxicated
532,
346,
Mash,
339,
N.C.
372 S.E.2d
v.
323
intent to kill. State
itated
272,
252,
432 S.E.2d
Shoemaker, 334 N.C.
State v.
(1988);see also
536
738,
308,
377 S.E.2d
Vaughn,
v.
324 N.C.
(1993);
State
killing the
the time of the
must show that at
(1989).
“The evidence
completely intoxicated and
so
mind and reason were
utterly incapable
forming a deliberate
as to render him
overthrown
premeditated purpose
Medley,
to kill.” State v.
75, 79,
243 S.E.2d
(1978) (citations
omitted); see also
McQueen,
118, 141,
(1989);
State v. Strick-
land,
Evidence of mere
enough
justify
intoxication is not
the instruction.
Mash,
(1987), support argument. However, his we conclude that Martin actually supports process the conclusion that there is no due viola- present Martin, tion here. In the Court considered whether it was require prove error to a defendant to preponderance self-defense of the evidence. The Court held that it was not error but that noted quite would jury different if had been
[i]t instructed that self-defense evidence could not be considered in determining whether there was a reasonable case, i.e., doubt about the State’s put self-defense evidence purposes must be aside for all preponderance unless it satisfied the standard. Such instruction would relieve plainly the State of its burden and run afoul of Winship’s mandate. Ohio, 233-34,
Martin v. U.S. L. Ed. 2d at (citing In re Winship, L. U.S. 25 Ed. (1970)). 2d
In hand, the case at was not instructed that evidence intoxication could not be considered determining whether there was reasonable doubt about the State’s case. The was not told that the intoxication evidence purposes must be set aside for all unless the production defendant satisfied burden of necessary voluntary instruct on intoxication. We conclude that the State’s bur- proving den in first-degree beyond murder a reasonable doubt is in no way production reduced the burden satisfy defendant must THE SUPREME COURT IN
STATEv. SKIPPER Thus, no there is voluntary instruction. intoxication receive a order to process violation. due
here justified an instruction on As an alternative argument, defendant states voluntary intoxication that the evidence as the evidence plan capacity think and that defendant’s unquestionably showed voluntary if the determining intoxication. impaired due to in the given, we review evidence have been instruction should Vaughn, N.C. at to defendant. light most favorable had that defendant in this case shows 742. The evidence 377 S.E.2d at day that he the murder and during the drinking for some time been extent drinking. That is the he had been did not want to drive because presented guilt-innocence in the of the evidence intoxication he drunk or that that defendant looked phase.2 There was no evidence walking. See id. (evidence that difficulty speaking or having walking, no evidence had trouble but was intoxicated and were irrational or that his statements inappropriately he behaved going what was around he was unaware of or incoherent or that voluntary intoxi require instruction on him; evidence insufficient how much no in this case as to cation). was also There actually had drunk. *32 this case was not sufficient We that the evidence in conclude See State v. voluntary on intoxication. require an instruction (evidence Baldwin, 446, 463, (1992) 412 S.E.2d that marijuana not suffi- five or six beers and consumed defendant drank require instruction). cient to production required of defend-
Determining that the standard of voluntary intoxication does not allowing instruction on before an ant determining the of this case did not process and that facts violate due that voluntary intoxication, we conclude require an instruction on of error is without merit. assignment defendant’s Sentencing Issues Phase when it the trial court erred sustained argues Defendant during questions objection prosecutor’s to two defendant’s brother, Skipper. Kenneth of defendant’s redirect examination long Court, argument that evidence of defendant’s defendant states 2. In his history for addiction institutionalized treatment abuse and his unsuccessful of alcohol However, voluntary the tran- support a close review of intoxication. an instruction on presented jury sentencing script until the was not shows that this evidence phase, here. so it cannot be considered STATE v. SKIPPER Skipper by
Kenneth had been shot the back the defendant anat ear- lier by date. Evidence of this assault had been introduced the State earlier in sentencing proceeding. Skipper Kenneth testified for that he felt at fault shooting for the because he had attacked his brother forgiven and that he had defendant for shooting cross-examination, him. On prosecutor Skipper asked Kenneth if he had witness, contacted another (who ex-wife had also been attacked defendant) testify and told her to that it was her fault that defendant Skipper attacked her. Kenneth denied making this ex-wife, statement to defendant’s and no pre- evidence was ever sented that such a was statement in fact made. On redirect examina- tion, attempted to ask the (1) witness if telling he was truth, (2) for what church he was a minister. [15] Defendant argues that he should have been allowed to ask these questions to bolster the credibility, witness’ which had been under questions. mined the State’s precluding him from asking questions, prevented these the trial court him from offering competent evidence that would have bolstered the testimony. effect of the witness’ other We conclude that defendant’s argument is without merit. correctly prosecutor’s objection sustained the you
question, telling jury “Are credibility the truth?” because the decide, Ford, witness for a 466, 469, State 373 S.E.2d (1988). Thus, witness, whether this who truth, actually affirmed to tell the telling the something truth was decide, was to not the witness. regard to the second question concerning the witness being particular minister to a church, we note that redirect examination is Questions limited to information elicited in cross-examination. asked beyond redirect go should not matters during discussed cross- Felton, examination. See (1992); Jolly,
(1992). case, question In this the beyond second at issue went far the scope cross-examination, of which made no mention whatsoever profession. Thus, correctly the witness’ the trial court sustained the prosecutor’s objection. any case, there regard question was no error with to the second actually
because the witness question answered the defendant’s despite prosecutor’s objection the and the trial sustaining court’s objection. prosecutor answer, did not move to strike the and COURT IN THE SUPREME
40 v. SKIPPER the answer. disregard to did not admonish trial court of the evidence effectively received the benefit “Thus, appeal.” State complaint on no . . . cause for ,. he has sought. . and denied, cert. 203, 216, 459 U.S. Pinch, S.E.2d v. 292 306 2d reh’g denied, 459 U.S. 1189, 74 L. Ed. (1982), 2d 1056, 74 L. Ed. 622 Benson, v. grounds State 323 N.C. on other overruled (1983), Robinson, 78, 443 (1988), S.E.2d 306
missible
under traditional
also
evidentiary standards,
even
if
these
questions
they
should
were
imper
have
evidentiary
penalty
standard
permitted under the relaxed
been
any violation of
proceeding in
to avoid
capital
order
phase of a
no due
process
We conclude that
there is
rights.
defendant’s due
Barts, was in process
here as there
concern
Georgia,
95, 60 L. Ed. 2d
(1987), Green
442 U.S.
S.E.2d 235
Mississippi,
284, 35 L. Ed. 2d
and Chambers v.
410 U.S.
(1979),
and oral
at issue was written
cases,
the evidence
(1973). In those
excep
hearsay
hearsay
not fit under traditional
that did
statements
they
credi
indicating
were
some evidence
tions but which contained
process consideration,
importantly for
More
due
ble statements.
directly
on defendant’s
all
reflected
at issue
these cases
for which he had been convicted.
involvement
in the crime
guilt or
per
Barts,
(confession
at 240
of other
at
See
was
actually
person convicted
he
killed the
son that
(state
issue); Green,
Finally, if the trial court even beyond a reasonable questions, was harmless two the error these that the allowed elicit the fact redirect, defendant was On doubt. already affirmed that he The witness had was a minister. witness you truth; thus, question, telling “Are would tell the *34 STATE v. SKIPPER
truth?” was redundant. We also determining conclude that the name of the church that the witness worked for does not bolster the wit- credibility. any ness’ Thus, error made the trial court was harmless beyond a reasonable doubt. Defendant next that the trial court erred when it did not
give peremptory instructions on all mitigating circumstances for predicate which the factual was uncontradicted. Defendant notes that request he made a peremptory jury written that given instructions be as to each mitigating circumstance he submitted to the court. Defend ant argues that he peremptory should have received instructions as to all mitigating circumstances, statutory uncontroverted both and non- statutory. agree
While we that a peremptory is entitled to instruc- tions for mitigating uncontradicted circumstances, statutory whether nonstatutory, requested we conclude that defendant peremp- that tory only be given mitigating instructions for the circumstances deal- ing impairment with mental and emotional capacity and defendant’s appreciate criminality of his conduct and to his conform con- request duct to the law. As peremptory defendant did not instruc- given tions be circumstances, for other the trial court did not err Green, giving in not such instructions. See State v. 142, 174, Gay, 14, 33; 443 S.E.2d 467, 493, (1993). judge required The trial should not “be to determine on his own which deserving peremptory circumstance aof instruction defendant’s favor. In order be entitled to such an timely request Johnson, instruction defendant must it.” 618-19 above, As noted a general request peremp- defendant made tory be given instructions as to each mitigating circumstance. How- ever, questioned when the trial court him as meaning of this request, responded: peremptory requesting instructions, especially
We are as to those mitigating factors, statutory... mitigating the two dealing factors impairment with mental and dealing emotional and also with the capacity appreciate criminality of his conduct and to conform his conduct to law.
There was against then a discussion about the evidence for and these particular discussion, circumstances. At the conclusion of COURT IN THE SUPREME
STATE *35 (1994)] N.C.1 [337 and the trial counsel colloquy between defense following occurred court: you correctly you Do I understand Let me ask this.
Court: first two peremptory instruction on the you’re asking for a that mitigating circumstances? Yes, sir. Counsel]:
[Defense peremptory on the asking for a instruction You are not Court: remainder? probably recognize We we’re not sir. No, Counsel]: [Defense it on the other.
entitled to only peremptory you’re asking for instruc- right. All So Court: two? tions on the first Yes, sir.
[Defense Counsel]: peremptory given be as to instructions did not ask that statutory circumstance, regarding age, mitigating defendant’s the last any given for peremptory instructions be nor did he ask that however, that nonstatutory Now, argues circumstances. given as the third statu- peremptory have been instructions should tory eight at of the thirteen non- mitigating and for least circumstance statutory circumstances. mitigating peremptory request that defendant did not
We conclude
except
given for
the circumstances
instructions be
circumstances
of a mental or emotional
was under the influence
that defendant
defendant was
impairment when he committed the murder
criminality of
or to conform his
appreciate the
his conduct
unable to
require
trial
law. We will not
requirements
conduct
judge
on his own which
circumstance
“to determine
Johnson,
favor.”
deserving
peremptory
instruction in defendant’s
Therefore, we hold that the
ing Defendant next jury that defendant would argues that the trial court be eligible erred for parole not for twen instruct two years defendant could serve ty if a life sentence and that given parole for consecutively, eligible not be for life and thus sentences request during forty years. he made written Defendant notes that during the given be charge that such an instruction conference THE IN SUPREME COURT
STATE jury instructions. Defendant also that such an instruction def- initely given should have been judge when the sent a note asking long how defendant would serve before he would eligible be parole for if given life and whether he would serve two life sentences concurrently. begin, correctly
To
the trial
request
court
denied defendant’s
include in
charge
the instruction that life means that defend-
may
eligible
parole
twenty years
ant
for
and that the court has
the discretion to determine that defendant’s sentences be served con-
secutively. This
jury may
Court has held that a
be instructed about the
*36
question
parole
meaning
imprisonment,
of life
if
question
such
jury
Robinson,
deliberation. State v.
during
arises
78, 123,
336 N.C.
306,
S.E.2d
(1994). However,
443
329
jury
we have
held
a
not
that
upon
should be instructed
these
inquiry.
issues absent such an
Such
jury
unnecessarily
an
to
present
instruction
the
“would
the
issue
parole
jury,
any
jury
absent
indication that
considering
was
possibility.”
Id. at
124,
that
gibility and concurrent specifically sentences. The trial court instruct- v. Conner, jury pursuant ed the 468, S.E.2d 584 Robbins, State v. (1955), and 465, 518, 279, 310, jury telling eligibility parole proper for that is not a matter for the jury “you considering imprisonment, and that in life should determine question imprisonment as though exactly life means what says: imprisonment prison.” statute for life in the state’s The trial correctly court also instructed that concurrence of is sentences not proper matter for the to consider.
We conclude that
convincing
defendant has failed
assert a
prior
basis for this Court to abandon its
stating
decisions
that instruc-
parole eligibility
tions about
See State v.
given.
Green,
should not be
157,
Assembly
(1994), which held parole. for law, ineligible state that under instruction case, in this apposite case because defendant We not consider that do parole sentence, eventually eligible for would have been given if a life 15A-1371(al) (1988). under North Carolina law. See § N.C.G.S. Defendant also argues light prosecutor’s argument potential dangerousness, the instruc stressing for future especially necessary mitigating evi parole eligibility tion on “parole mitigating is since it does eligibility note dence. We aspect ‘any of a defendant’s character record not reflect on proffers as a the offense that the defendant of the circumstances of ” Green, N.C. at than for a sentence less death.’ basis Carolina, Skipper v. South (quoting at 23 (1986)). L. Ed. 2d assignment of error without
We conclude that defendant’s merit. in not submit next that the trial court erred Defendant [21 ] significant that defendant had no circumstance
ting requested history activity. occa prior on three criminal *37 presented given. The State evidence sions that the instruction not deadly weapon assault with a defendant had been convicted of bodily injury 1978, 1982, inflicting in and 1984. serious required a rational A “trial court is to determine whether history significant prior no of could conclude that defendant had Wilson, 117, 143, State v. activity.” 589, S.E.2d 322 N.C. 367 criminal as whether to submit 604 The trial court has no discretion (1988). in statutory presented when a mitigating circumstances evidence circumstance. State v. may statutory a capital support case which vacated on 323, Lloyd, 321 N.C. sentence 301, 311, 316, 364 S.E.2d remand, grounds, on 807, 18, other L. Ed. 2d 323 N.C. 488 U.S. 102 grounds, 494 vacated on other sentence 622, (1988), 277 374 S.E.2d remand, on 662, Ed. 601 329 N.C. 407 1021, (1990), 108 L. 2d U.S. required However, to instruct the trial court is not (1991). S.E.2d 218 supports unless substantial evidence mitigating on a circumstance Laws, 609, v. 81, 110, 626 the circumstance. State 325 N.C. 381 S.E.2d grounds, 494 U.S. 1022, vacated on other sentence (1989), remand, 573, cert. 550, (1990), 328 N.C. 402 S.E.2d L. Ed. 2d 603 STATE 876, 174, reh’g 2d denied, 1001, U.S. 116 L. Ed.
denied,
ing to submit this Jones, circumstance ex mero mo tu. See State 48, 443 S.E.2d (1994) (defendant 56-57 illegal used drugs, broke into a times, convenience store six or seven and broke pawn shop into a guns); Robinson, and stole 443 S.E.2d (defendant pled drugs, guilty used and dealt had a robbery, pistol, carried a and used another man’s driver’s license identification); Stokes, as 653-54, (1983) (defendant engaged in pos- five incidents of theft and sessed, used, marijuana). and sold necessary do comparison
“We not find it in engage further between this case in and those cases which we have determined the
propriety of the submission or refusal to submit the circumstance at
Robinson,
issue.” State v.
instructions regarding *38 Next, the statutory the trial court erred when mitigating circumstance giving age. of its jury: The trial court instructed the
(3) age Consider the of whether the of defendant at the time mitigating this murder is a factor. v. you to age defendant is for mitigating of the of the
The effect you which all evidence and circumstances determine from the from the evidence. find the evi- you by preponderance a of
If or more of finds one you indicate hav- exists, would so that the circumstance dence space provided your write, “Yes,” in after this foreman ing recommendation form. mitigating circumstance on the issues and exist, you you to would so If finds this circumstance none your write, “No,” space. in that by having foreman indicate pursuant Pattern to the North Carolina These instructions are however, Jury Defendant, (1993). N.C.P.I.—Crim. 150.10 Instructions. statutory give to argues that these instructions allowed Eddings v. mitigating weight violation of Okla- circumstance no (1982). argu- L. bases his homa, 455 U.S. 71 Ed. 2d mitigating age language ment on the that “the effect of you to We conclude that defendant’s is for determine.” argument is without merit. statutory begin noting regard mitigating that in to circum
We statutory jurors they mitigating if stances, are instructed that find a exist, they to then must consider the circumstance circumstance However, jurors aggravators mitigators. are balancing their only particular if the finding to indicate a of a circumstance instructed juror persuades preponderance of the evidence that the circumstance 144, 160 196,224, (1983), Kirkley, exists. v. See State grounds by Shank, v. overruled other State Additionally, weight that a (1988); 150.10. the actual N.C.P.I.—Crim. up particular juror give chooses to to such circumstance denied, juror. Craig, cert. only requirement L. 2d 247 is that the 464 U.S. 78 Ed. law, any consider, miti jury may not a matter relevant “refuse Eddings Oklahoma, at 71 L. Ed. 2d at gating evidence.” “may jurors given mitigat relevant weight 11. The determine the they may give weight excluding it such evi ing evidence. But not no 114-15, L. 2d 11. from consideration.” Id. at 71 Ed. dence their that, case, language “mitigating effect” in this We conclude consider, law,” did allow the to “refuse to as matter as a The instruction age evidence about circumstance. However, weight clearly age states that should be considered. *39 STATE v. SKIPPER (1994)] 1N.C.
[337 given jury such circumstance is for the to decide based on its con- all sideration of the facts and circumstances found from the evidence. argues jury interpreted that it clear that the this instruction to mean that it could have “refuse to consider” this cir- [d] support cumstance because the evidence in of the circumstance was yet strong, jury so did not find that the circumstance existed. We analysis conclude that this is erroneous. chronological age forty-eight.
Defendant’s Chronological age usually standing alone is not determinative of the existence of this Hill, v. circumstance. State N.C.
(chronological fifty-four age standing alone does not entitle defendant this (age) mitigating have circumstance submitted). In case, presented evidence was that defendant a age had mental six-year-old. However, there was also evidence that defendant had married, business, been supported ran his own himself and his children. We facts, jury conclude based on these was not required to find that this Turner, circumstance existed. See State v. (1991) (jury required accept twenty-two years old; circumstance where defendant was evi- very dence affecting development; bad childhood his and evidence married, prior that defendant maintained employment, and had a history criminal indicating maturity). We also note that defendant acknowledged that the evidence as to this circumstance contro- verted. Defendant’s counsel told the trial court that he did not believe peremptory appropriate instruction would be for this circumstance.
Holding jury given that the instruction to the was correct and that contradictory circumstance, the evidence was mitigating as to this we assignment conclude that defendant’s of error is without merit. Next, argues that the trial court erred when instruct
ing
nonstatutory
as to
mitigating circumstances because its instruc
jury
nonstatutory
tions let
decide if the
circumstance had
mitigating
nonstatutory
argues
value. Defendant
mitigating
that the
presented
jury
circumstances that he
had inherent
value,
as evidenced
the fact that the trial court decided to submit
place. Thus,
them in the first
that the
has to
Eddings
Oklahoma,
consider the circumstances under
455 U.S.
104, 71 L.
Ohio,
Ed. 2d
Lockett
The trial court instructed COURT THE SUPREME IN you by preponderance finds or more of one [i]f *40 and also deemed [nonstatutory] circumstance exists that this your write, by having foreman you would so indicate mitigating, space provided. “Yes,” in the nonstatutory mitigat- repeatedly that has determined
This Court
mitigating value. See State
necessarily
have
do not
ing circumstances
Robinson,
v.
State
14, 32;
336
Green,
142, 173, 443 S.E.2d
v.
N.C.
336
Gay, 334 N.C.
467, 492,
306, 325; State v.
434
78, 117,
443 S.E.2d
N.C.
518,
Fullwood,
371, 397,
S.E.2d
v.
373
State
840, 854;
323
S.E.2d
1022,
grounds, 494 U.S.
vacated on other
108
(1988), sentence
533
remand, 233,
(1991).
The nonstatutory mitigating of the jury consider to Ohio, 586, Lockett v. circumstances, by 438 U.S. 57 required Oklahoma, Eddings v. L. 2d Ed. Fullwood, v. Court noted in State how- As
L. 2d 1 Ed. Eddings requires that the sentencer ever, “neither Lockett nor has mitigating submitted circumstance must determine that the Fullwood, 533. N.C. at 373 S.E.2d at value.” mitigating recently Robinson, As at 325. State 336 N.C. at Court, Supreme States noted the United only proposition that a progeny for the “Lockett stand its presentation may off in an absolute manner not cut judicial instruction, or evidence, either statute mitigating severely that the inquiries which it is relevant so limiting the all.” part sentencing decision at never be evidence could .[337 U.S. -, -, v. Texas,
Johnson L. Ed. 2d 302 (1993) - McKoy Carolina, (quoting v. North 108 L. 2d U.S. Ed. (1990) (Kennedy, J., concurring The judgment)). instruc jury tion at issue here allows the all consider the evidence in miti gation, jury nonstatutory and it allows consider whether mitigating circumstances in fact have value. instruc tion not ignore does allow the the evidence. previous find no our
We reason to alter decisions conclude that the trial its nonstatutory court did err in instructions mit- igating circumstances this case. Next, trial court’s instructions to the they jurors were erroneous because did all not allow the to con *41 any mitigation
sider issue aggravators when weighing and mit igators determining argues death sentence. Defendant that such McKoy Carolina, instructions violate v. North 494 U.S.
L. 369. Ed. 2d jury:
The court instructed the you If from find the evidence one or more mitigating circum- stances, you weigh aggravating must against circumstances mitigating circumstances. issue, deciding juror may any
When this each consider miti- gating juror circumstance or that circumstances determined by preponderance to exist a of the evidence in Issue Two. is, you unanimously beyond
Issue Four Do find a reasonable aggravating you doubt that the or circumstance circumstances is, sufficiently are, imposition found or substantial to call for the penalty of the death when with mitigating considered circum- by or you? stance circumstances found more of one or issue, you are deciding aggravating this not to consider the standing circumstances alone. You them in must consider con- any mitigating by nection with circumstances found one or more you. juror may making comparison, When this each consider juror or mitigating circumstance circumstances that by preponderance determined to exist a of the evidence. that were these instructions erroneous because
they precluded jurors mitigating who had those not earlier found COURT IN THE SUPREME v. SKIPPER circumstance, mitigating considering to exist from
circumstance determining juror, when it found another even if was instruct- that the should be Defendant seems believe sentence. juror mitigating circumstance exist and one finds ed that once jurors circumstance when value, twelve must consider have all decision, juror did not believe that the miti- reaching even if a their gating circumstance existed. defendant’s desired instruction inconsistent
We conclude that procedure capital sentencing dictated the North Carolina with the contemplated by required the United is not what was scheme and Carolina, Supreme McKoy North 494 U.S. States Court in Maryland, L. 2d 369, or 100 Ed. L. Ed. 2d Mills upon McKoy adopt reading we relied. “Were (1988), which McKoy progenitors, and its we would create an anomalous situation jurors required mitigating circumstances which where are to consider Lee, only juror.” single are found to exist holdout 570. purpose McKoy was to allow individualized of Mills mitigating determination of circumstances. requires juror permitted to and give
Mills that each be consider question mitigating deciding when the ultimate effect to evidence requirement to vote for a sentence of death. This means whether juror that, system, in North Carolina’s each must allowed all .... consider *42 442-43, 108 Ed. 2d at McKoy Carolina, v. North 494 U.S. at L. 381. McKoy Justice Blackmun noted in that may persuaded by jurors differ- it is understood that different be they pieces agree upon evidence, even when the bottom ent Plainly requirement jury general is that the reach line. there no preliminary on the factual issues which underlie their agreement verdict. J., (Blackmun, (foot- L. concurring)
Id.
Ed. 2d at 384-85
McKoy
invalidate “a
instruction that
omitted).
*43
may
found,
cumstances
he or she
have
the instant
instruction
expressly instructs that
must be
mitigation
weighed
the evidence in
Id. at
against
aggravation.”
287,
the evidence in
STATE v. SKIPPER Jury given Pattern Instructions as here to believe that the continue 33-34; at Green, 175, 336 N.C. 443 S.E.2d See State v. at are correct. 121, Thus, Robinson, 443 at 327. this v. S.E.2d State of error merit and is overruled. assignment is without Next, argues that the trial court erred in its instruc mitigating because the instruction too nar tion on circumstances jury unacceptable an risk failed to consider row and created that the mitigating relevant information. jury:
The trial court instructed jury, is a mitigating Members circumstance fact or justification facts not or group of which do constitute a excuse killing degree or it to a lesser of crime than first- for reduce may murder, be degree extenuating but which considered or culpability making reducing killing it less moral deserving punishment other first-degree extreme than murders. approved has this in numerous
This Court
definition
cases. See
Hill,
387, 420,
765, 782;
Boyd,
State v.
State v.
408, 421,
189,
(1984),
denied,
1030,
471 U.S.
N.C.
319 S.E.2d
cert.
Moose,
482, 499,
(1985);
contends is basis for a sentence than death and less other you deem to arising circumstances from evidence which have mitigating value. instruction with language Eddings
This is consistent from Oklahoma, 1, L. Ohio, 455 U.S. 71 Ed. 2d and Lockett v. 57 L. 2d what discussing Ed. evidence a determining sentencer must be able to consider when a sentence of Irwin, death. life versus See State v. 304 N.C. at S.E.2d at 447; see also N.C.P.I. - Crim. 150.10.
Reviewing given entirety, instructions in their we considering any that the conclude restricted from evi- may sentence, have it dence that lessened defendant’s whether be evi- *44 53
STATE v. SKIPPER (1994)]
[337 directly dence that was on based defendant’s character or evidence gave that related to the actual trial murders. The court a valid instruc- tion law, Jury consistent with our case North Carolina Pattern Instructions, Supreme and United States law. Court case We conclude assignment that defendant’s of error is without merit. Next, argues court erred in submitting
the aggravating part circumstance that were the murders of course of in engaged conduct which defendant and which course of conduct included the commission the defendant of crimes of violence against person persons. another 15A-2000(e)(ll) (1988). N.C.G.S.§ acknowledges jurors
Defendant that the trial court instructed Jury consistent with the Pattern Instructions: part
A is murder of such a course of conduct if it and the part pattern other crimes of violence are the same or sim- ilar acts which establish that there existed the mind of the plan, scheme, system, defendant a or design involving both the murder and those other crimes of violence. this circumstance should have not been supported beyond
submitted because it was reasonable doubt by the evidence. We note: determining sufficiency the evidence to submit an
aggravating jury, circumstance to the the trial court must con- light State, sider evidence in the most favorable to the with every the State entitled to reasonable inference to drawn therefrom, discrepancies and contradictions resolved favor the State. Syriani, 350, 392, 333 118, 428 (emphasis S.E.2d 140 “ added). ‘If there substantial evidence of each element of the [aggravating] consideration, issue under the issue must be submitted ” Moose, for State 494, its determination.’ 310 N.C. at 313 v. Stanley, State (quoting 332,
S.E.2d at 516 347, 310 N.C. (1984) J., 401 (Martin, dissenting)). determining prove When if there is evidence to the existence of circumstance, sufficiency the course of conduct of the evidence “depends upon factors, among temporal prox- a number of them imity operandi, a recurrent modus another, events one Price, reasons.” 56, 81, motivation the same 326 N.C. grounds, sentence vacated on other S.E.2d U.S. COURT IN THE SUPREME remand, on (1992), (1990),
L. 2d 7 Ed. on on other sentence vacated L. grounds,-U.S.-, 122 Ed. 2d on remand, sentence vacated (1993), S.E.2d 746 remand, other L. 2d 129 Ed. grounds, -U.S.-, pet. cert. *45 1995) 17 Jan. (1994), (U.S. 756, 448 S.E.2d for filed in are 94-7672). incidents of violence connected (No. closer the “[T]he system, likely part plan, scheme, acts are of time, the more the Cummings, of action.” State v. design or course conduct, find of order to course “[I]n vio surrounding the acts of must the circumstances court consider connection, scheme, pat or some some common lence and discern together.” Id. psychological that ties them tern or thread support sub- case, there was substantial evidence to the In this previously, As the evidence of this circumstance. noted mission pulled a rifle under that defendant semiautomatic from established multiple Pittman, at inflict- of his truck and fired shots Ailene the seat “you Fipps. thirty-four said too” and shot Nelson wounds. He then ing crime, away of pulled truck from the scene the defendant As the driver, get I There was no evidence that asked the “did them” both. provoked defendant. the victims had the within each Determining that crimes occurred moments of operandi and that the same modus
other at the same location clearly killing, we that the facts establish that used in each hold part which committed as a of a course of conduct in two crimes were and included the commission defendant engaged defendant which against person. We conclude that the of a crime violence another jury. did err it submitted this circumstance to the trial court when assignment of error without merit. Defendant’s Next, defendant argues court erred when it refused nonstatutory independently specific mitigating circum submit requested writing. in that the stances kept considering given court from instructions the trial and written mitigating evidence and diluted diminished the relevant requested given place that were in instructions. instructions put requested by were All the circumstances on form; however, some of the written instruc- written recommendation read and were combined. The instruction that defendant cannot tions read defendant cannot write were combined to the instruction that functionally and write. illiterate cannot read or that defendant pled charges to criminal in guilty instruction that defendant pled guilty charges in to criminal the instruction that defendant STATE v. SKIPPER pled guilty instruction that defendant charges to criminal in pled guilty
1977 were combined to read that the defendant to criminal charges in 1977. The instruction that defendant was under the influence alcohol the time of the changed offense was to read that defendant had consumed alcohol at the time Finally, the respects offense. instruction that defendant loves and his mother and the respects instruction that defendant loves his respects father were read combined to that defendant loves and parents. his Cummings, (1990), S.E.2d 66
Court held that written timely
where defendant makes a request listing for a writing possible nonstatutory on the form of mitigating circum- supported by stances that are the evidence and which the reasonably could value, deem to have mitigating the trial court put must writing such circumstances form.
Id. 324, at practice 389 S.E.2d at We 80. concluded that such was necessary jurors, because “common sense teaches us that well as apt people, all to seriously are treat written documents more than verbally items related to them. . . . the circumstances writ- [If] [were] form, on judge jury ten the the trial required the would ... to [be] of them.” Id. at directly 325, each address 389 S.E.2d 81. We requested by conclude that in this case the instructions given jury defendant were to the in written form. While language the exactly by requested defendant, jury was not that required the to directly every point by brought address forward defendant in his writ request. example, jury ten For was instructed to consider whether respects parents. addressing issue, defendant loves and his In this jury must respects consider both whether defendant loves his mother and whether respects loves and his father. essence, requested instructions were given subsumed into the Benson, State v. See instruction. 318, 327, 372 517, 323 N.C. S.E.2d 522 (1988) (no error when trial court fails to submit a mitigating circum stance that circumstance). was subsumed into mitigating another judge proposed refusal of a trial to submit circumstances Greene, not error. State v. separately independently is 1, 324 N.C. 430, 21, may 376 (1989) (court incorporate requested S.E.2d 443 cir- given cumstances within instructions and the circumstance), catchall grounds, sentence on vacated other 1022, 108 L. 2d Ed. COURT IN THE SUPREME v. SKIPPER State v. remand, 771,
(1990), (1991);
329 N.C.
We conclude that the trial court requested support- all of defendant’s instructions that were attention Assuming arguendo, however, that ed the evidence. the trial court err, beyond did such error harmless reasonable doubt. Next, imposition of the death penalty here has lifelong organic because defendant suffered unconstitutional mentally damage begin, To we note defend brain and is retarded. imposition penalty object of the death on these ant did assignment grounds at trial. Nor did defendant make an of error Accordingly, record. is deemed waived defendant. issue Upchurch, *47 Nevertheless, argument. we have considered defendant’s Supreme
We first that the United States Court has held that note categorically prohibit the infliction Eighth Amendment does Penry v. penalty person mentally of the death on a who is retarded. Lynaugh, 302, 340, 256, (1989). 492 106 Ed. 2d 292 In addi U.S. L. penalty in tion, this Court has affirmed the death cases where IQ to or than defendants’ test scores were similar lower this defend McCollum, IQ v. 248, State 208, test of 69. N.C. ant’s score 334 433 144, part (1993) (Exum, C.J., concurring S.E.2d and dissent 166 tests scores of cert. (IQ 69), denied, - U.S. -, 61 ing part) Artis, v. 278, State 311, 2d 325 384 (1994); 129 L. Ed. 895 N.C. S.E.2d Hunt, State v. 407, 435, 470, (IQ 67); 489 score of 323 N.C. test 57 STATE SKIPPER v. IQ 400, (1988) S.E.2d of (codefendant 68),
373
418
Barnes’
test score
grounds
on
v.
sentence vacated
other
sub nom. Barnes
North
Carolina,
remand,
on
1022,
602,
104,
499 U.S.
108 L. Ed. 2d
N.C.
330
Pinch,
State v.
1, 57,
(1991);
203,
Preservation Issues [30] brings forward six issues for preservation purposes. First, permit defendant contends it is that unconstitutional to prosecutor peremptorily jurors challenge express who reser penalty. previously vation about the death We have this decided issue Allen, State v. against 208, 222, 855,- defendant. 323 N.C. grounds, sentence vacated on other (1988), 1021, 863 494 U.S. 108 remand, 746, L. Ed. 2d (1990), 601 331 N.C. 417 227 (1992), S.E.2d 775, reh’g cert. denied, - U.S. -, 122 Ed. denied, - U.S. L. 2d -, L. (1993). 123 Ed. 2d 503
[31] Second,
defendant contends that the Pattern
Jury
Instruction
duty upon
imposing
if
return death
cir
outweigh
cumstances
are insufficient
aggravating
circum
previously
stances
unconstitutional. This Court has
decided this
McDougall,
v.
adversely
State
1, 26,
issue
to defendant.
301
denied,
cert.
308, 324,
S.E.2d
865,
L. Ed.
(1983);
78
2d 173
Pinch,
State
1, 33-34,
203,
292
227.
S.E.2d
[32]
Third, defendant
contends
that
the trial court erred in
denying
request
for individual voir
sequestration
prospective
his
dire
jurors.
consistently
This
has
Court
denied other
relief on
defendants
Reese,
State v.
110,
basis.
352,
S.E.2d
(1987);
N.C.
Wilson,
State v.
(1985);
Johnson,
“The decision
sequestration
and individual voir dire grant
prospec
whether
jurors
tive
rests in the sound
discretion of the
court and its rul
ing will not
a showing
be disturbed absent
of abuse of discretion.”
Wilson,
STATE pursuant to the Pattern preliminary jury instructions give did court a con- previously has considered such Jury This Court Instructions. Artis, to defendant. State v. adversely and decided it tention 470, 478-79. 278, 294-96, 384 S.E.2d
[34] Fifth,
argues that the North
Carolina death
penalty
repeatedly
This Court has
held that the
is unconstitutional.
statute
State v.
penalty statute is not unconstitutional.
North Carolina death
denied,
cert.
600, 619,
Roper, 328 N.C.
337, 370,
502 U.S.
402 S.E.2d
McLaughlin,
323 N.C.
902,
(1991);
[35] Sixth,
that the trial court
erred
by instructing
prov ing
had the burden of
cir
that defendant
previously
by preponderance
of the evidence. We have
cumstances
adversely
and have decided it
to defend-
considered this contention
Roper,
State v.
ant. State v.
618;
402 S.E.2d at
Johnson,
Barfield,
543;
N.C. at
issues have been decided issues, previous review of the we find no reason to alter our decisions assignments all of these of error are without and determine that merit.
Proportionality Review Finding no error in either the guilt-innocence phase or the cap duty sentencing proceeding, it is now the of this Court to review ital jury’s supports the record (1) the record and determine whether upon aggravating sentencing circumstances which the finding of the death; (2) its sentence of whether the sentence was court based imposed passion, prejudice, other 'arbi under the influence of trary factor; (3) whether the sentence of death is excessive or dis imposed cases, proportionate penalty considering in similar 15A-2000(d)(2) crime and the defendant. N.C.G.S. § both the were submitted to the following aggravating circumstances jury: *49 59
STATE v. SKIPPER (1994)] N.C. 1
[337 felony previously convicted of a (1) Had the defendant been person? violence to the involving the use of [N.C.G.S. (1988).] 15A-2000(e)(3) § . part of conduct in which the
(2) Was this murder of course include the engaged and did that course conduct against violence commission the defendant of other crimes of persons? 15A-2000(e)(ll).] § other [N.C.G.S. jury responded “yes” inquiries, finding to each of these thus aggravating
these circumstances to exist. already earlier, aggravating have concluded that the As noted we part murder was of a course of conduct that circumstance that the supported by violence was the evidence. We included other crimes of jury’s finding aggravating also conclude that the of the other circum- clearly supported by During sentencing stance was the evidence. pled phase, presented guilty that defendant had the State deadly weapon separate inflicting three occasions to assault with a injury. serious transcript, record on conducting thorough
After review of counsel, appeal, arguments and briefs and oral we further con- while under clude that the did not sentence defendant to death arbitrary passion, prejudice, or other factor. the influence of duty punishment of death in Our final is to determine whether the disproportionate penalty imposed in this case is excessive or N.C.G.S. considering cases the crime and the defendant. similar 15A-2000(d)(2). § noted, purpose proportionali frequently
As this Court has possibility person ty that a will be sen review is to “eliminate jury.” Holden, to die the action of an aberrant State v. 321 tenced denied, 125, 164-65, 513, (1987), cert. 486 U.S. N.C. 362 S.E.2d 537 necessary 1061, (1988). Proportionality L. review is 100 Ed. 2d 935 capricious imposition against serve a check or random “[a]s 306, 354, 510, penalty.” Barfield, 298 N.C. 259 S.E.2d death State review, proportionality we “determine (1979). conducting 544 dispropor whether the death sentence in this case is excessive or penalty imposed cases, considering the crime tionate to the in similar Brown, and the defendant.” State v. (1986), L. over- (1985), denied, cert. 90 Ed. 2d THE SUPREME COURT IN
ruled, Vandiver, grounds on other with those analysis by comparing the instant case begin
We
our
sentence of
has determined that the
cases in which this Court
seven
Benson,
disproportionate: State v.
N.C.
death was
Rogers,
Stokes,
State v.
517; (1987);
In State v.
individuals who
the defendant was one of four
robbery
of a
victim. Defendant was
beating
was involved in the
death
felony
theory
murder,
first-degree
of
murder under the
of
guilty
found
only
found, that the crime was
aggravating
one
circumstance was
Court,
especially heinous, atrocious,
finding
or cruel. This
in
that the
disproportionate,
that none of the defend-
death sentence was
noted
they
accomplices
death, although
“committed
ant’s
were sentenced
in
manner.”
Given the somewhat
nature of the evidence
surrounding
here,
apparent
lack motive,
murder
apparent
offenses,
absence of
simultaneous
and the in-
credibly
jury’s
short
time involved, together
amount of
with the
finding
tending
of three
circumstances
show defend-
past
activity
being gainfully
ant’s lack of
criminal
his
employed,
unqualified cooperation
during
investigation ....
172.
319 S.E.2d at
Bondurant,
victim
shot his
after defend-
spent
drinking;
ant
the night
killing,
had
there was no motive for the
*51
immediately
shot,
after the victim
defendant made sure the
hospital.
was taken
victim
to the
We this above cases, disproportionate where death was to be a sentence. found notably, Most in all of where sentence has the cases the death been only disproportionate, person determined to be has been mur- one case, people were dered defendant. In two murdered defendant, exactly eyewitness in front relate of an who could what happened. here, provocation, without shot Ailene Pittman Fipps and Nelson numerous times with a semiautomatic rifle con- taining fragmentation dying He left his victims on the bullets. two attempted any help. get front lawn and never them Defendant had already inflicting been other convicted on three occasions serious injury deadly weapon, with a on three different victims. THE COURT IN SUPREME v. N.C.1 sentence, appropri it is also proportionality of reviewing
In pool in the us to other cases compare the case before ate for us to Lawson, N.C. proportionality review. State used for denied, L. Ed. 2d (1984), cert. all of to discuss or cite However, we “will not undertake McCollum, we have reviewed. those cases” with sim examining pool, we review cases 144, 164. In mitigators. aggravators and with similar ilar facts first-degree murders on the Here, was convicted of two defendant addition, found theory premeditation and deliberation. submitted in this aggravating the two circumstances the existence of felony involving previously of a had been convicted case: defendant person, 15A-2000(e)(3); and the § to the N.C.G.S. the use of violence vio- part that included crimes of were of a course of conduct murders jury also found five others, 15A-2000(e)(ll). The § lence to N.C.G.S. miti- mitigating circumstances to exist.3 The sixteen submitted was committed while were: the murder gating circumstances found dis- influence of mental or emotional the defendant was under the capacity of defendant turbance, 15A-2000(f)(2) (1988); N.C.G.S. § criminality conform his conduct appreciate the of his conduct or to impaired, 15A-2000(f)(6) requirements of law was N.C.G.S. § to the alcohol; had time of the offense defendant consumed (1988); abuser; and other circumstance or cir- was an alcohol or more of the arising from the evidence which one cumstances value, 15A-2000(f)(9) jurors N.C.G.S. § deems to have but following circumstances were submitted (1988). The murder, at the time of the N.C.G.S. age not found: the of defendant good had a defendant was a hard worker and 15A-2000(f)(7) (1988); § IQ range; retardation employment record; defendant’s is in the mental he charges with which pled guilty to the earlier criminal May 1984, 1981, and on 31 15 December charged, occurring of two children dur- 1977; defendant suffered the death 6 December *52 period other; defend- years of each ing the last five within six-week provided love, respects parents; financial his defendant ant loves and only children; completed the assistance, his defendant and care for school; cooperative with law enforce- defendant was eighth grade functionally arrest; is illiterate at the time of his ment jury, given Ailene one for issues and recommendation sheets were 3. Two Fipps. aggravators same and mit- The sheets contained the Pittman and one for Nelson mitigators igators, aggravators to exist in both cases. the same and the found 63 COURT THE SUPREME IN compas- kind, friendly, and was a write; defendant cannot read or ties to his close developed strong emotional person who sionate friends. his sentence is dis prime reasons that argues that the
Defendant
IQ
him
found
and the fact that
proportionate
are his low
committed,
emotionally
crime was
mentally
disturbed when the
criminality of his con
capacity
appreciate the
and that defendant’s
even
affirmed death sentences
impaired. This Court has
duct was
See State
statutory
mitigators.
noted
jury has found the two
when the
Rook,
v.
201,
State
308;
304 N.C.
McDougall, 308 N.C.
1,
S.E.2d
v.
301
denied,
1038,
We have reviewed cases
many
cases,
of these
and have noted that
found in this case
Vereen,
499,
State v.
N.C.
324
received death. See
312
State
denied, 471 U.S.
1094,
(1985);
L. Ed. 2d 526
cert.
250,
85
have also reviewed cases
McDougall, 308 N.C.
1,
S.E.2d 308. We
v.
during a
violence committed
have been other crimes of
where there
many
that while
murder. We have noted
premeditated and deliberated
sentences, most of these cases
life
these defendants
received
of
Austin, 320 N.C.
276,
But see State v.
only
single killing.
involved
denied, L.
2d
victims), cert.
98 Ed.
(three
S.E.2d 641
(1987).
multiple
involved a
that the fact that this case
forth
automatically
proportionate
and sets
make it
killing does not
multiple
for
received life sentences
where defendants have
cases
proportionality
responsibility in
review
“our
murders. We note that
considering
‘the individual
independently,
each case
to evaluate
or crimes which he has com-
nature of the crime
defendant and the
”
Quesinberry,
125, 145,
mitted.’ State
Pinch, 229),
State v.
(1989) (quoting
grounds,
L.
2d 603
other
U.S.
108 Ed.
vacated on
sentence
“Early in the
remand,
NO ERROR.
Chief Justice Exum concurring in the result.
I
concur in the
majority
result reached
on both
guilt-
innocence proceeding
capital
and the
sentencing proceeding.
I write
separately to address defendant’s
impose
contention that to
the death
penalty upon him is violative of the State constitution because he is
mentally retarded. Had the evidence that
mentally
defendant was
retarded been
manifestly
uncontradicted
credible,
then I believe
strong argument
could have been made that to execute defendant
would violate our
prohibition
State’s constitutional
against cruel or
punishment.
unusual
McCollum,
STATE *54 (1993) (Exum, C.J., part concurring in cert. dissenting and part) denied, - U.S. -, - L. 2d - (1994). Ed.
Here, however, mentally the evidence that defendant retarded uncontradicted, rejected is not and nonstatutory mentally circumstance based on his being retarded. generally accepted definition of mental retardation is that it person question afflicts the with (1) significant subaverage a intel- functioning (2) concurrently lectual which exists with deficits in adaptive disability behavior and which (3) has manifested itself dur- person’s ing developmental period. American Association on Deficiency Mental Retardation], in Mental [now Classification Retardation 1 (H. Grossman ed. 1983). General intellectual function- IQ ing by (intelligent is measured quotient) vary; tests. These tests however, mentally retarded, to be classified as person a generally must place person score below which only would among three percent population. of the Support Amici Curiae Brief in of Petition- n.2, Penry Lynaugh, er 106 L. Ed. 2d at.5 presented Evidence at trial tended to show that defendant had a significantly subaverage general functioning. dropped intellectual He during eighth grade out of school because he was unable to learn having difficulty and staying during was large portion awake a day. Puente, school Dr. Antonio a neuropsychologist retained defendant, tested defendant Wide-Range means of the Academic Achievement Test and determined defendant’s mathematical skills a were in fourth-grade level and that his reading writing and skills IQ were grade. level between first and second Defendant’s tested at 69. functionally
Dr. Puente found defendant unable read or write placed age years. defendant’s mental at six-and-one-half Dr. suffering Puente further found defendant to be from “somewhere syndrome, between moderate and organic severe” brain a defective causing problems. condition of the brain behavioral The cause of this injuries condition child, was believed be severe head suffered aas including dropped a skull being fracture after on his head as an infant, hypertension, which him to caused have facial stroke. In Dr. opinion, Puente’s defendant’s intellectual deficits left him with a poor ability ability plan, carry to learn remember and a limited upon out or reflect the serious issues in his life. COURT THE SUPREME IN v. BACON testimony, was evidence there Dr. Puente’s
Notwithstanding things, that defendant among other jury indicating, before society. example, the evidence For acceptably in well able to function of four chil- was the father was married and indicated that helped Additionally, defendant living. still dren, two of whom were vehi- his father’s repairing his father’s cattle keeping his father always employed testified Defendant’s brother cles. testimony revealed fully children. Other provided for his and that he junkyard, larger successfully operated a one of that defendant community. in the businesses *55 IQ uncontro- tested at was that defendant’s
Although evidence jury that defendant’s positive before the verted, there was adaptive This IQ behavior. significant deficit in his result did not being preclude from believed, evidence, was sufficient if jury’s support mentally enough to retarded and was classified nonstatutory circum- mitigating as a rejection retardation of mental mental on the issue of defendant’s the evidence stance. Because jury rejected retar- mental and because the retardation is in conflict circumstance, with the nonstatutory I concur as a dation not violate defendant does majority’s that to execute this conclusion punish- or unusual prohibition against cruel constitutional our State’s mentally he is retarded. ground ment on the JR. v. ROBERT BACON, OF NORTH CAROLINA
No. 209A91
(Filed
1994)
29 July
first-degree
(NCI4th)—
murder—
Law
§
1. Criminal
report
required
be dis-
psychiatrist
defense
—
—written
prosecutor
closed
first-degree
resentencing for
not err in a
court did
The trial
compile
psychiatrist
a written
by requiring
defense
murder
it to the district
defendant and submit
report of his evaluation of
recip-
attorney
provided no more than the
order
where the court’s
15A-905(b).
discovery requirements
§
under N.C.G.S.
rocal
attorney’s
merely
the district
concern
addressed
trial court
prepare a
never
expert
the defendant and
would examine
ability
hindering
State’s
to cross-examine
report,
thus
written
notes
does not
unanimity
respect
require
mitigating
with
circumstances
does
juror
only
requires
a
circumstance
if he
mitigating
but
a
to consider
by
preponderance
a
evi-
or she
convinced
its existence
J.,
concurring).
(White,
Id. at
Notes
[25] issue,
In a
argues
related
that the trial court erred
instructing
juror “may”
that each
consider mitigating circum
stances that
found to exist when weighing
aggravating
juror
mitigating
Specifically,
circumstances.
judge
the trial
instructed the
jury:
you
If
find from the evidence one or more mitigating circum-
stances, you must weigh
aggravating
against
circumstances
mitigating
circumstances.
may
deciding
issue,
juror
When
this
each
consider
miti-
gating
juror
circumstance or circumstances
that the
determined
by preponderance
to exist
of the evidence in Issue Two.
you
deciding
issue,
this
are not to consider the aggravating
standing
circumstances
alone. You must consider
them in con-
any mitigating
nection with
circumstances
found
one or more
you.
may
making
comparison,
juror
When
this
each
consider
any mitigating
juror
circumstance
or circumstances
by preponderance
determined to exist
of the evidence.
(Emphasis added); see N.C.P.I.—Crim. 150.10.
Defendant contends
Eighth
that this instruction violated the
prin-
Fourteenth Amendments to the United States Constitution and
Eddings Oklahoma,
ciples
set forth in