*1 IN THE SUPREME COURT of There is no evidence its sentence death. ing court based of passion, under influence imposed of death was sentence factor; nor the sentence arbitrary other is prejudice, The defendant’s conviction or disproportionate. death excessive must be affirmed. imposed sentence No error. as to sentence. dissenting
Justice EXUM my I in dissenting opinion the reasons in Part For stated Pinch, (1982), I 292 S.E. 2d believe State v. judge jury it error for the trial to instruct prejudicial it duty to if it had a recommend death sentence favorably issues to the state. answered certain in my opinion II of dissenting For the reasons stated Part Pinch, juror I Melton prospective conclude that supra, excused for in violation of improperly Witherspoon cause Illinois, 391 U.S. I to remand Therefore vote to vacate the death sentence and I concur in conclu- sentencing hearing. majority’s for a new phase no error occurred prejudicial guilt sion that case. SMITH, v. KERMIT JR.
STATE OF NORTH CAROLINA No. 124A81 1982) (Filed 2 June 98.2; Jury § for dire and § of motion individual voir 1. Law 6— denial Criminal opportunity be jurors discretionary —proper motions sequestration — heard denying written judge The trial did not abuse his discretion dire, jurors during sequestration voir requesting motions individual during pursuant witnesses the trial sequestration of the the State’s 15A-1236(b). 15A-1225, 15A-1214(j), the record Nor did and G.S. to G.S. sup- speaking prevented support he was defendant’s contention that written port of the motions. *2 Smith — Bobbery robbery § —sufficiency 2. 4.2 common law of evidence support The evidence was sufficient to defendant’s conviction of common robbery law where the evidence tended to show that defendant went to a col- lege intending money to steal money from students and that he took from a victim as appeared deadly he threatened her with weapon what to be a soon kidnapped companions after he her and two and where the evidence tended to support money a conclusion that defendant stole from the victim before he raped spot. and killed her at another § 3. expression opinion Criminal Law 114.2— no in statement of evidence or contentions accurately The trial court fairly stated defendant’s contentions and stressed the contentions of the State and his final instructions to jury though even the statement of sparse defendant’s contentions seemed comparison presented or brief in to those in the State’s behalf since defendant independent guilt did not offer phase, substantively evidence at the did not evidence, negate weight of the State’s specifical- circumstantial and did not ly request by upon any further elaboration point the trial court of contention in the case. 114.2; § § 4. Criminal regarding Law Homicide 25.2— provo- instructions cause or cation to kill A statement jury course court’s instructions to the “any just legal provocation there was no evidence of cause or to kill” in the prejudicial case was neither erroneous nor merely since the contested statement was record, legal recognition, correctly upon a made that the State’s just presence provocation evidence had not disclosed adequate cause or killing to excuse go- and that the defendant had not fulfilled his burden of Further, ing producing forward with or such evidence either. there was no jury indication that the was misled or confused the trial court’s remark. G.S. 15A-1222. sentencing phase § 5. give peremptory Criminal Law 135.4— —failure to instruc- impairment proper tion about defendant’s mental failing give The trial court not peremptory did err to instruction 15A-2000(f)(6) impairment about ample under G.S. where guilt phase evidence was introduced at the of the trial which authorized a jury reasonable inference and ty capaci- conclusion that defendant had the appreciate ability the character of his conduct and the to conform it to victim, legal requirements contrary despite when opin- he murdered the psychiatrists. ions of the sentencing phase —duty § 6. Criminal Law 135.4— to recommend sentence of death correctly judge jury duty The trial informed the that it had a to recom- findings necessary support mend the sentence of death if it made the three 15A-2000(c). such a sentence under G.S. COURT IN THE SUPREME Smith possibility of sentencing phase to instruct on § 135.4— 7. Criminal Law —failure punishment proper inability agree on jury would that the court properly to instruct the court failed The trial unanimously agree jury on a recommen- could not impose life sentence if the .may jury improper to consider what punishment it is for since dation may sentencing verdict. reach a unanimous happen in the event it cannot inability phase aside sentencing § —trial court’s set Law 135.4— 8. Criminal of death recommendation authority jury’s recommendation judge no to set aside The trial has necessary findings after the has made its own motion death 15A-2000(c). penalty under support imposition of the death *3 of this participate in the consideration or decision did not Justice Carlton case. dissenting to sentence. Exum as Justice from the right judg- as a matter of by defendant appeal
On Fountain, entered at the 27 Criminal Judge, April ment of Court, the sentence imposing of HALIFAX Superior Session mo- murder. Defendant’s degree the conviction first death of his additional for review bypass Appeals tion to the Court robbery law was degree rape of second and common convictions 1981. allowed on 7 October indictments, form, with in in charged proper
Defendant murder, robbery degree first and armed degree rape the first for The were consolidated trial over charges Whelette Collins. The found defendant objection. jury subsequently murder, common degree rape of first second and guilty degree robbery. ordered the of the death imposition law The trial court jury’s in accordance with the for murder conviction penalty sentenced defendant to con- recommendation. The trial court also years ten for his convic- forty years secutive terms of and prison robbery, tions of rape respectively. evidence to show the Three following. The State’s tended (the victim), Yolan- Whelette Dawn Killen and girls,
black Collins Woods, in Wesleyan at College da were students and cheerleaders Mount, early Rocky During North in December 1980. Carolina of 3 December cheered at a evening girls hours basket- After game college gymnasium. game ball held over, left to Whelette girls gym and walked Collins’ nearby automobile which was at a lot. It was parked campus ap- IN THE SUPREME COURT Smith proximately p.m. 7:30 were still girls wearing their [The just had cheerleading girls gotten into the car and uniforms.] defendant, were when the preparing depart young white male, suddenly at a appeared window and asked for a ride to the highway. They they told this were not stranger going direction of the and refused highway request. thereupon appeared brandished what be a and demanded pistol car, entrance into the vehicle.1 He then into the got the back seat He the girls behind driver. told that he was an escaped lift getaway convict and needed a to his car. He also told them they were “at the at the simply wrong place wrong time.” proceeded Whelette directed, then to drive where Collins defendant gun as he continued to hold the in his hand. eventually The group reached and at stopped place where parked defendant’s automobile was some woods not far campus. [They had been around for a while in driving what to be key seemed Defendant took the to the Collins’ car circles.] they if girls money. asked had Dawn Killen and replied they Yolanda Woods did not have their handbags with them. Whelette Collins said she had “a little bit.” Defendant out girls get ordered the of the car. Dawn and Yolanda got so, ground began pray. they down on the While were doing they overheard discussion between Whelette *4 Whelette, money. about Defendant asked “is that all?” only key $7.00. because she had Defendant then took the to car and girls go Whelette’s told the to the other car. He ex- location, that he was plained going to drive them to another about forty away, so he “plenty away” miles could have of time to get police before the were notified. Defendant made Dawn and Yolan- and, da into the trunk of get his car because there was not ,her there, room for enough told Whelette to lie face down on the back seat. then drove the girls heavily
Defendant a in a quarry pit adjacent County wooded area to the Roanoke in River Halifax (and trial) pistol 1. It was later discovered shown at that this could not fire a not, therefore, deadly reality. weapon bullet and was a in It was a blank .22 or races, “toy” pistol, pistol’s similar to that used to start with mud in its barrel. The not, course, immediately apparent true character was in the dark or to one un- with familiar firearms. THE IN SUPREME COURT Weldon, They North this at ap- near arrived at place Carolina. p.m. 9:30 proximately they girls told the that would have to wait this
Defendant with him friend” with until “his came another car spot deserted The it was ex- girls at 12:00 or 1:00. were uncomfortable because (below tremely freezing). They very also night cold that were telling them that “his friend” frightened kept because defendant if kill them he discovered that defendant “had taken all would also that he hostage.” girls
these Defendant warned people they hurt them if not listen to him. have to did might Dawn and evening, course defendant forced During it. He back into the trunk of car and shut said get Yolanda way to show Whelette to the going highway. he was back He talking the trunk could hear defendant Whelette. girls “very was that he “couldn’t tell pretty,” her she telling very Italian whether was black or white or because she she they “if under circumstances and that had met different fair” like that.” The they might something girls friends be frightened a scream. Whelette trunk then heard scuffle and away. running started Defendant slammed yelled out and helpless occupants, the trunk said to its keys top down on thereafter, Shortly thought they two girls “I’ll be back.” right of gunshots. heard the sounds later, Yolanda heard hour a half Dawn and
About an asked her on the trunk and Whelette knocked crying. someone they asked they They were fine and were. said friends how “no, wasn’t she replied, Whelette right.” if she “was all Whelette hear and her friends “could crying, still right.” Whelette was all defendant, in her voice.” Whelette asked everything pain said, “you my He don’t understand done this to her.” “why had he was cold and that she Whelette then told defendant motivation.” for her. out of trunk get him to blanket asked the blanket girls her the other needed told refused and however, “they have their complained, Whelette keep warm. I’m cold.” Defend- they coats I don’t and have clothes on and *5 they if saw “your get upset would friends merely responded, ant on.” He then snickered any without clothes here you standing voice, out of her, you “I put his can with a tone in sadistic said later, they would go A told Whelette misery.” while he your he thrown her clothes. where had back hour,
For over an Dawn and Yolanda heard nothing but “dreaded silence.” Defendant subsequently returned to the car and opened the trunk. He was alone. girls The as to inquired Whelette’s whereabouts. Defendant told them that she had at the stopped quarry to use the They bathroom. called for her but no received reply. Defendant suggested that one of them go with him to look for Whelette. Dawn and Yolanda refused to do so went, unless both they stayed in the trunk. later, twenty
About minutes defendant permitted girls get out of the trunk. He was “shaking.” He told girls that:
None of this would happened have if [they] had had some checkbook or some money with [them], because he was cold family and his any didn’t have money and didn’t have heat and he really wanted —he money, needed so thinking time, that he would realize it was around Christmas most col- lege students have money to go home.
At this point, Dawn and Yolanda told they had money back in Rocky Mount. agreed to take them there to it. get The girls got again, car and defendant not, however, began away. drive He did drive the direction instead, of the highway; he drove them even into deeper woods. When defendant stopped car again, Yolanda and Dawn attacked him with a straight pin and a lug wrench they which had on concealed their persons their during sojourn in the trunk. [Dur- ing wet, the struggle, girls noticed that defendant was par- ticularly pants.] Defendant told the girls that he was going Yolanda, however, kill them. wrestled the gun (see grasp unsuccessfully tried to shoot him with it note supra). girls The then away ran nearby hid some under- brush until daylight. was then 4:30 a.m. on 4 December [It 1980.] there, they As they waited splash heard a as defendant threw “something into the water.” girls The did not see or hear their companion Whelette this time. during a.m.,
At about 7:00 Dawn and Yolanda began to make their way out of the they woods. When reached the highway, interstate they flagged down a vehicle and told its driver their horrible story. Law enforcement officials (by were soon contacted 9:00 a.m.). girls gave they officers the gun had taken from defendant and described the place they where had been re- *6 SUPREME COURT IN THE Smith County, of Halifax The Sheriff the night. throughout strained transported to be girls for the Bailey, arranged William Clarence he with which River on the Roanoke pit gravel the area of a located. subsequently was of the crimes The scene was familiar. when the of- the area to leave attempting was Defendant wet, were bloody, his clothes He was witnesses arrived. and ficers hair, Dawn and and he was barefoot. off of his running was water and he was spot, on the him their assailant as Yolanda identified and arrested. apprehended quickly custody, began officers police inwas
As soon as defendant Many items of evidence for Whelette Collins. searching the woods clothes, found, wet the victim’s including were blood, underwear, with hair two cement blocks bloody was recovered body of Whelette Collins The nude on them. skin into a cement block. jammed feet were Her pond. from a shallow which revealed very soon thereafter performed An was autopsy area, vaginal were the deceased’s sperm Live following. about her face and lacerations and bruises numerous there were victim’s skull were fractured. The of her ribs body, and several to the force of blunt due severely places fractured several was scrapes on the were also scratches to her head. There trauma on the dragged that it had been body which indicated back Whelette died as a result determined that Collins It was ground. drowning. received and not from injuries she had of the head lungs.] no water her [There shortly officers after police was also searched
Defendant retrieved currency ring dollars in and a were arrest. Seven Whelette No ring belonged The Collins. from his person. advised clothing. properly in her Defendant was money was found that time. Despite not to make statement at by the officers however, admonitions, “it won’t them that: told these ... I just girls. I was to scare anyway. trying a real gun even anyway.” I threw her in the pond think she was dead before of his trial. guilt phase offered no evidence at the Defendant sentencing evidence at the State did not offer additional However, four witnesses 15A-2000. pursuant held hearing behalf, two his father and including in defendant’s testified sum, witnesses tended to testimony of these psychiatrists. IN THE SUPREME COURT old, twenty-three years show following. *7 However, healthy, very and physically legally intelligent. sane in had “antisocial a disorder which “the personality,” defendant the strongly perverted moral and acted of mind are or principles self-government of lost or depraved, power greatly the is im- the ... of paired incapable and individual is bound be conduct- decency with ing propriety himself and business of life.” stature, inferior, was in Because he small defendant felt inade- difficulty mistreated. He with quate getting along and had other did not normal people and have social He relationships. did not of maladjusted, respect rights others and often be- he “get haved as if was back at the world.” He trying could not keep joba and had suicide attempted once. He had also been to prison stealing for homosexually and was assaulted and harassed many there. Defendant had sexual which problems, ag- included fantasies, gressive and peeping cross-dressing (impersonating female), “extremely he was rejection by and sensitive” to women. that, Both psychiatrists stated their opinions, defendant was under the influence of an emotional disturbance at the time of the murder capacity appreciate criminality and his of his conduct or to conform his conduct to the of law requirements also impaired.
Other relevant be opinion. facts shall related Edmisten, Attorney General L. by Assistant Attorney Rufus General Donald W. Stephens, State. for L. Dwight the defendant-appellant. Cranford for COPELAND, Justice.
Defendant contends that various errors either require a new trial upon all á charges new sentencing hearing. We affirm disagree and defendant’s convictions and the sentences of death imprisonment murder, upon him the imposed for brutal robbery rape and of Whelette Collins.
Guilt Phase:
I-IV
I.
[1]
Prior to
trial,
defendant filed
written motions
requesting
in
dividual voir dire and sequestration of the jurors
voir
during
dire
IN
699
THE SUPREME COURT
witnesses
during
State’s
sequestration
—
—
1236(b).
1225,
15A-1214(j),
the trial
pursuant
brief,
day
Fountain
these motions on the
trial.
denied
were
concedes that
these matters
addressed
that this record fails
presiding judge
sound discretion
or an
prejudicial
to disclose
error
abuse
discretion
Moore,
See,
262,
301
rulings.2
agree.
We
judge’s
e.g.,
N.C.
355,
(1980);
(I),
242
v.
298
259 S.E.
271 S.E. 2d
Johnson
State
(1979);
Barfield,
denials of 1225, motions under G.S. — 1236.4The assignment of error is overruled. II. however, the trial court reduced this charge to common law rob [2] was indicted for armed robbery. Upon his motion, bery at the conclusion of the State’s evidence. Defendant assigns error to the trial court’s subsequent failure to set aside the jury’s verdict of guilty the lesser offense upon ground State’s evidence was also insufficient to show his commission of that crime. felonious, law robbery
Common is the non-consensual taking money or personal property the person or presence of Moore, another means of violence or fear. State v. 279 N.C. (1971); Lawrence, S.E. 2d 546 262 N.C. that, S.E. 2d 595 Defendant maintains although there was evidence to support an inference that he unlawfully took $7.00 Collins, ring and a belonging Whelette there was absolutely no evidence to support a conclusion that he stole these items from her while she was alive through the use of force or fear. The record plainly refutes this contention. evidence,
All of the
circumstantial,
State’s
both direct and
must be viewed in the
most
light
favorable to the State with
every reasonable
being
intendment
made in its favor. See State v.
(1981);
Simpson,
State This before he final- long to his own car. the girls transferred distant, rock That quarry. at deserted and killed her ly raped so, from v. clearly distinguishable is State case being instant 114, (1980), 95, 102, Powell, our 2d 119 where 299 261 S.E. N.C. have been robbery should charge held of armed that Court that the defendant only evidence indicated dismissed because certain “as an after- larceny taking objects had committed contrast, evidence once the victim had died.” thought of to show robbed victim us now tends that before companions had she was with her money little she while what uphold we defend- very Consequently, much alive afraid. still robbery. ant’s conviction of common law
III. [3] argues that trial judge did fully state his concerning charges against him and “numerous” contentions of the in his unfairly gave stress to the contentions State greater without jury. argument to the is merit. final instructions with, any to the objection To start defendant waived manner of or of the statements the contentions of either length judge’s challenge make an at trial before appropriate side failing 276 172 28 v. S.E. 2d Virgil, retired. State N.C. Goines, (1970); 2d 160 S.E. However, such if defendant had an ex- properly preserved even review, we not find for would error prejudicial our ception record. this utterly the trial
This is not a case which court failed reciting of contentions after those state the defendant’s Hewett, See, S.E. 2d e.g., the State. (1978). Rather, generally Fountain referred his to the as throughout charge jury, contentions follows: offered, you He contends . . . from evidence that should beyond not be satisfied evidence and reasonable that that, anything you he is if him guilty doubt that find guilty anything, you guilty only should find him But, charged. least with which he is ac- aggravating offense contends, tually, jury, by of not plea he members innocent; he is failed guilty, prove State has *10 that, circumstances, you guilt under all the should ac- him of quit charges. all IN THE
702 SUPREME COURT v. Smith
State course, you ... defendant Of contends that should have a that her. reasonable doubt he killed He contends that you him the of in acquit should murder the first charge degree. her, money
... If he did not he take could not . guilty robbery. be of common-law . . that,
As to contends defendant that there is no you to justify finding evidence sufficient he took any that that, did, money or from her if he it resulted from violence or her in fear. He putting ... it happen contends didn’t 63, and that not in he did her fear. Record 66 put at and 68. contentions, It is true that defendant’s as stated trial court, or supra, sparse seem brief comparison those However, presented the State’s behalf. the requirement stress be equal given must to the contentions of both sides does not mean that respective thereof statements must also be of lengths, corresponding consuming similar amounts of time. State Banks, 399, (1978); v. 295 245 N.C. S.E. 2d 743 v. State 256 King, 236, (1962); 123 S.E. 2d N.C. 486 State v. Sparrow, 244 N.C. (1956). bar, S.E. 2d 448 In the at case not did offer in- dependent at evidence he guilt phase, only elicited minor evidence upon from, cross-examination which tended to detract substantively and not negate, weight the State’s cir- evidence, cumstantial and he did specifically request further elaboration trial upon any court point contention in the circumstances, case. Under these the record as a whole convinces us that Fountain fairly adequately summarized defend- ant’s essential contentions. State v. Spicer, See (1980); Moore, S.E. 2d 893 see also S.E. 2d 242 IV. [4] deliberation elements of first degree In the course of its instructions murder, the premeditation the trial court told “any there was no evidence just cause legal provocation kill” the case. Defendant believes that the trial *11 IN THE SUPREME 703 COURT Smith
State v. thereby expres-. violated G.S. 15A-1222 which the prohibits court of upon any sion of an fact to be decided opinion question hold that the isolated comment was not erroneous or jury. We prejudicial.
First,
Judge
we do not believe that
Fountain’s reference to
imper
of
an
absence
certain evidence constituted
complete
Rather,
upon a controverted fact.
the contested
opinion
missible
correctly
merely
recognition,
upon
a
made
legal
statement
record,
evidence
not disclosed the
State’s
had
the kill
just
provocation
of
cause or
excuse
presence
adequate
had not fulfilled his burden of going
and that the defendant
ing
any such evidence either.
v.
producing
forward with or
State
Cf.
681,
(1980);
Tate,
Boone,
v.
294
Penalty Phase: V-VIII V. [5] At the sentencing hearing, two psychiatrists stated opinions that defendant suffered from the emotional disturbance of an and, result, tisocial as a personality, to capacity appreciate the criminality of his and to conduct conform his to conduct the re of quirements the law was at impaired the time of the murder. alia, court accordingly The trial to jury, submitted the inter 15A-2000(f)(2) (6) corresponding factors G.S. in mitigation defendant’s crime. The found that subsequently had committed the murder under influence of a mental or 15A-2000(f)(2); disturbance, however, emotional G.S. it did not find time, that defendant’s capacity was also impaired at G.S. 15A-2000(f)(6). by the trial court contends erred failing to a give requested peremptory concerning instruction the impair ment of his in capacity light expert opin “uncontradicted” ions, by explaining fully clearly not more supra, legal nature of that mitigating circumstance.5 analysis of
Our
defendant’s contentions about the trial court’s
regarding
instructions
the mitigating circumstance of G.S.
15A-2000(f)(6)
governed
is
the standards
forth in
set
our
(I),
in
decision
v. Johnson
previous
S.E. 2d
(I),
that,
although
Johnson
Court held
the de-
has the
a
proving
fendant
burden
existence of mitigating
circumstance,
...
all
upon
proper
request
a
“[w]here
believed,
case,
a particular
evidence
if
tends
show that
exist,
does
the defendant is
mitigating circumstance
entitled to a
circumstance,”
instruction on that
but that
peremptory
such “[a]
instruction is
when
is
peremptory
inappropriate
conflicting
there
outset,
request
5. At
we note
the trial court also denied defendant’s
upon
peremptory
mitigating
for
a mental or
a
instruction
circumstance of
emo-
However,
assign
denial
tional disturbance.
obviously
defendant did not
error to this
since it
jury’s ability
“impair”
finding
did
to make a
favorable to him
upon the issue.
IN THE SUPREME
COURT
76-77,
on
evidence
issue.”
at
The trial court should have explained the difference between to know capacity right wrong which defend- ant conceded he possessed, and the of his impairment capaci- *13 ty to appreciate criminality the of his conduct from which his evidence indicated and he contends he suffered. While de- might fendant have known that his conduct was he wrong, ie., might have been able to to appreciate, fully com- sensible, prehend, fully or be of its Further wrongfulness. to capacity while his so the appreciate wrongfulness of his obliterated, totally conduct not have been might it might ie., have been or impaired, lessened diminished. The trial court should also carefully have more that even if explained there was no impairment to capacity ap- conduct, preciate criminality the of his the should never- theless find the existence of this factor if it mitigating be- lieved that defendant’s to conform capacity his conduct to the law, ie., conduct, capacity his to refrain from illegal was im- this does not paired. Again, mean that defendant must wholly capacity only lack all to conform. It means that such capacity as he otherwise might have had the absence of his mental defect is lessened or diminished because of the defect. 69-70, 614; (II), at 257 S.E. 2d at see also Johnson 355, 373-75, 259 S.E. 2d 763-65 these Applying bar, to the case principles at we hold Fountain’s in- 15A-2000(f)(6) structions were consistent with the
evidence and sufficient under the law.
Ample evidence was introduced at guilt phase the of the trial which authorized a reasonable by inference and conclusion to the character capacity appreciate had the
jury that defendant to ability legal to conform it requirements of his conduct and the Collins, contrary despite opin- Whelette when he murdered testimony of Dawn For example, ions of the psychiatrists. Woods, who re- surviving girls were Killen and Yolanda hours on the night for over nine strained defendant that, very beginning to from the tended show generally question, end, carefully defendant executed a deliberate tragic to its satisfy intents and to fulfill certain criminal thought-out plan lust, adjusted recognized that he perverted quickly goals appeared, or to his desired as such new obstacles barriers of his constantly legal implications aware of the and that he was that, these testified at several girls actions. particular, various events, calmly con- junctures evening’s in the critical special precautions he should do next and took templated what in- being police, against possibility apprehended car, of his from the victim’s cluding fingerprints removal the evaluation of transport girls spot, a secluded identify they enough whether had been able see dark 10, 11, 37. The additional him his car. Record at facts by the State defendant’s callous remark concerning demonstrated victim, that he her out of rape, put after the could her misery body by to conceal her attempt “anchoring” and his later it with a block in the also with pond cinder conflicted psychiatrists’ opinions that defendant was legally after-the-fact unaware of and lacked control over his actions as he effected a scheme culminating sordid murder. We shall not belabor this sum, further. In other evidence in plenary there was the record *14 sufficiently, which if not that defendant equally, suggested was in control of when he committed complete crime, capital his faculties against it evidence comparing expert showing the of it presence legal impairment, jury’s duty and was the decide what to believe. As all of the evidence did therefore the existence support 15A-2000(f)(6), mitigating circumstance G.S. correctly the trial court refused to give defendant’s (I), instruction it. requested peremptory State v. Johnson supra. Fountain also competently the difference explained be- legal insanity totally
tween excusing legal crime and impair- merely mitigating ment for a punishment crime and properly the criminali- appreciate capacity emphasized only had to his conduct to the law ty of his conduct or conform for this circumstance mitigating or reduced” in order be “lessened additionally jury reminded judge exist. The able of the doctors” and “the evidence relying upon defendant was diminished to establish his history psychiatric problems” “his of the at 93-94. at the time murder. Record capacity or impaired whole, fully with the essential complied these instructions As a (I) (II), extent required as to the supra, of Johnson dictates 15A-2000(f)(6).See also charge upon of a and substance 150.10, at 30-33 N.C.P.I.—Crim. §
VI. [6] form of the sentencing issues submitted to thereto were as follows: their answers
Issue No. One: beyond a unanimously find from the evidence you
Do following ag- or more of the that one reasonable doubt the commis- at the time of existed circumstances gravating of the murder? sion
Answer: Yes. was while the defendant committed
1. the murder Was rape to commit attempt of or in the commission engaged deceased? Answer: Yes. the defendant while murder committed
2. Was the robbery to commit attempt of or in the commission engaged of the deceased? Yes.
Answer: while the defendant committed the murder 3. Was kidnap- to commit attempt of or in the commission engaged deceased? ping
Answer: Yes. heinous, atrocious especially murder
4. Was cruel?
Answer: Yes.
Issue No. Two: you
Do that one or find more the following mitigating circumstances exist?
1. The murder was committed while the defendant was under the influence of mental or emotional disturbance.
Answer: Yes. murder,
2. At the time of the of the capacity defend- criminality ant appreciate his conduct or to conform his conduct to the requirements the law was impaired.
Answer: No.
3. The age defendant at the time of the crime. Answer: No.
4. That the defendant no significant history has of prior activity. criminal
Answer: No.
5. Are there other circumstances arising from the you, evidence which the jury, deem to have mitigating value? Answer: No.
Issue No. Three: you
Do unanimously beyond find from the evidence reasonable doubt that the aggravating circumstances are suf- ficient to outweigh mitigating circumstances?
Answer: Yes.
Issue No. Four: you unanimously beyond
Do find from evidence reasonable doubt that circumstances found aggravating by you sufficiently the imposition are substantial to call for penalty? the death
Answer: Yes.
Record at 100-01. *16 IN THE SUPREME COURT court twice jury pro- The trial instructed the that it should only ceed to four issues answering issue after one and three and, affirmatively then if it also answered that final issue affirma- tively, “duty” would have that it the to return a of death verdict against the defendant. at 96-99. argues Record that the thereby erroneously trial truly court impeded “a individualized assessment of the the propriety jury death penalty” contravention provisions G.S. 15A-2000. Pinch,
We an upheld identical instruction in State v. also decided this We held there that the court correctly date. trial had a duty advised the “that it had to jury recommend a sentence of necessary death if findings it made three such support a 15A-2000(c).” one, four, sentence G.S. under three and [Issues necessary statutory supra, these correspond findings.] Among other the Court reasoned that: things,
The had no jury option such to exercise unbridled discre- tion sentencing wholly and return a verdict inconsistent with 15A-2000(c). it made findings pursuant jury may arbitrarily capriciously reject or or impose Instead, jury only sentence of death. may guided exercise in making discretion the underlying findings required for a recommendation of the death penalty within the “carefully of statutory defined set criteria that allow them to take into account the nature of crime and the character of the ac- cused.” —, (1982)(citations omitted).
306 N.C. 292 S.E. 2d We believe that this with reasoning applies greater even force instant carefully case since Fountain explained to the that it full should exercise its and considered discretion in four, deciding issue supra: you
That is for to determine depending upon how you find case, from from you’ve the issues answered. It is not you would something answer according whim or caprice guesswork, you but would weigh all the circumstances that found, you if any, have to be aggravating, you’ve those that found to be mitigating, you determine whether from find beyond evidence and doubt reasonable the ag- gravating circumstances found you are sufficiently substantial; is, sufficiently important call for im- IN THE COURT SUPREME Smith you If the State has satisfied penalty. of the death
position a reasonable doubt beyond the evidence sufficiently by you are found circumstances aggravating you penalty, of the death imposition to call for the substantial it, otherwise, Yes; that, No. would answer you would answer *17 at 96-97. Record direction, with the comports which this clear only
It was
after
15A-2000(b),
Fountain
Judge
that
G.S.
contemplated
procedure
duty
capital
to recommend
jury that
it had
further
told the
four.
its affirmative answer to issue
punishment upon
Pinch,
binding
sound and
constitutes
supra,
We hold that
hand;
from the case at
conse-
authority
indistinguishable
is
of error. Ac-
assignment
must overrule defendant’s
we
quently,
(1982);
656,
Williams,
No error. participate Justice did not the consideration or CARLTON of the case. decision EXUM as to sentence. dissenting Justice I my For the reasons in Part dissent stated (1982), Pinch, I disagree 292 S.E. 2d with my majority’s opinion. conclusion in Part VI of its view it error for the trial to instruct prejudicial judge if duty it had a to recommend the death sentence it answered cer- vote, therefore, favorably My to the state. is to vacate tain issues the death sentence and remand for a new judgment imposing sentencing hearing. majority’s
I conclusion that there is no error in concur case. guilt phase v. JOHN FINTON STEVENS STATE OF NORTH CAROLINA No. 103A81 (Filed 1982) 2 June *19 appropriate judicial § find- Law 181.3— motion for review of 1. Criminal relief — ings relief, reviewing appropriate an order on a motion for the find- entered binding upon appellate ings the trial court are court if of fact made evidence, they though conflicting supported even the evidence is are 15A-1415(b)(3) testimony contrary. gave to the G.S. defendant 15A-1420(c)(5). 48; plea guilty § of inef- § 23.3— not result Law Criminal Law 2. Constitutional of counsel fective assistance hearing appropriate relief presented on a motion for The evidence at a fact, including finding findings that defendant’s supported trial court’s robbery guilty attorney he was of armed not advise “did [defendant]