State v. Oliver

Justice EXUM

dissenting.

In my view both defendants are entitled to new sentencing hearings (Moore in the Watts murder and Oliver in both murders) because the district attorney was permitted to say in his final argument that defendants had the burden of satisfying the jury they deserved life imprisonment:

*377 The burden is on them, not beyond a reasonable doubt, but the burden is on them by the preponderance of the evidence to satisfy you that there is something about these defendants of a redeeming value that gives rise to the mitigation that will cause you to drop it down to life imprisonment.

A defendant in a capital case does have the burden to satisfy the jury by a preponderance of the evidence that particular mitigating circumstances exist, State v. Johnson, 298 N.C. 47, 257 S.E. 2d 597 (1979); but our capital sentencing statute makes it abundantly clear that even though defendant bears this burden, the burden of persuading the jury that the crime and defendant are deserving of death remains always with the state. The majority concedes that, standing alone, the argument was error; but it concludes that when considered in context of the prosecutor’s entire argument and the trial court’s instructions to the jury on the various burdens of persuasion, the error was harmless.

I cannot join in this conclusion. Nowhere in the trial court’s instructions did it call attention to the particular erroneous statement by the prosecutor or direct the jury to disregard it. Nowhere did the trial court instruct generally that if his instructions on questions of law differed from the law as argued by counsel, the jury would be guided solely by what the court, not the lawyers, said. Indeed, the trial court told the jury to do just the opposite:

It is your duty, not only to consider all of the evidence, but also to consider all of the arguments, the contentions and positions urged by the State’s attorney and by the defense attorneys in their speeches to you, and any other contention that arises from the evidence; to weigh them in the light of your common sense and to make your recommendations as to punishment.

It is true that the trial court’s instructions were correct on the various burdens of persuasion arising under the statute and that the court did tell the jury to apply the law “as I give it to you.” It is extremely doubtful, however, that in the absence of a specific instruction to do so, the jury on its own motion disregarded what the prosecutor said on this point. It is particularly unlikely in light of his subsequent instruction that it was the jury’s “duty ... to consider all of the arguments, the contentions *378 and positions urged by the State’s attorney.” Indeed, depending on the relative force and vigor with which the point was made by the prosecutor and the trial court, respectively, the jury might well have given more weight to the prosecutor’s version than it did to the trial court’s, at least in the absence of more specific instructions on the defect in the prosecutor’s version of the law.

Neither do I see how the prosecutor’s other arguments made before and after the offending statement detract from its prejudicial effect. The majority seems to conclude that the prosecutor intended merely to argue that the burden of persuasion on the existence of specific mitigating circumstances was on defendants. Since this is what the prosecutor meant to say, the majority concludes the jury must have so understood his words. His words, however, unequivocally assign to defendants the burden of persuading the jury that the sentences should be “dropped down” to life imprisonment once the state has persuaded it of the existence of aggravating circumstances. Without cautionary jury instructions directed specifically and expressly to the error in the prosecutor’s statement and in light of instructions which directed the jury to consider “all of the arguments . . .,” I am unable to conclude that the statement did not mislead the jury to defendants’ prejudice as to which party bore the burden of persuasion on the ultimate question whether defendants should live or die.

Even if it is conceded that the death penalty is not an inappropriate punishment as a matter of law, the case for a death sentence here is not overwhelming. There is little to distinguish these cases from other armed robberies where the victims, or others, were murdered and life imprisonment was imposed. See e.g., State v. Barnett [, Barnett and Wilder], 307 N.C. 608 , 300 S.E. 2d 340 (1983) (armed robbery of convenience store and murder of clerk; one defendant shot at patron leaving the store); State v. Miller [and Williams], 302 N.C. 572 , 276 S.E. 2d 417 (1981) (armed robbery of convenience store and murder of operator); State v. Moore, 301 N.C. 262 , 271 S.E. 2d 242 (1980) (defendant shot manager of supermarket in armed robbery of the store with an accomplice); State v. Weimer, 300 N.C. 642 , 268 S.E. 2d 216 (1980) (defendant drove getaway car in armed robbery of supermarket and murder of manager); State v. Atkinson, 298 N.C. 673 , 259 S.E. 2d 858 (1979) (armed robbery of grocery store and murder of operator by beating with baseball bat); State v. Cherry, *379 298 N.C. 86 , 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980) (received death penalty at original trial but received life imprisonment on resentencing for armed robbery of convenience store and murder of an employee); State v. Crews [and Turpin], 296 N.C. 607 , 252 S.E. 2d 745 (1979) (two defendants shot and killed two strangers to obtain their money and vehicle; one of the victims begged Turpin three times not to shoot him but Turpin shot him once in the arm and then in the head). In close cases, placement of the burden of persuasion is critical to the outcome. I cannot conclude, therefore, that the error could not have affected the outcome of the sentencing hearing. See G.S. 15A-1443 (1978).

Defendant Moore is entitled to a new sentencing hearing in the Watts murder on the separate ground that inadmissible and highly prejudicial evidence was offered against him. The jury knew: both Moore and Oliver had been previously convicted of the capital crime of first degree murder; the question of their guilt had been finally determined; and it was to determine only the punishment to be imposed for that conviction. Yet the prosecutor was permitted to elicit evidence, over defendant’s objection, that Moore was on “death row,” clearly indicating that Moore had been sentenced to death at his first trial.

In State v. Britt, 288 N.C. 699 , 220 S.E. 2d 283 (1975), tried by the same prosecutor who tried the instant case, defendant had been convicted of a capital crime and sentenced to death. He won a new trial. At his second trial the prosecutor put before the jury the fact that defendant had been on “death row.” The trial judge instructed the jury not to consider this fact nor the fact that defendant had been previously convicted. This Court, in a thoroughly documented opinion by Justice Huskins, concluded that this kind of error could not be cured by cautionary instructions and gave defendant still another trial. The Court said:

A fair consideration of the principles established and applied in these cases constrains us to hold that no instruction by the court could have removed from the minds of the jurors the prejudicial effect that flowed from knowledge of the fact that defendant had been on death row as a result of his prior conviction of first degree murder in this very case. The probability that the jury’s burden was unfairly eased by that knowledge is so great that we cannot assume an' absence of *380 prejudice. State v. Hines, supra. We hold the challenged questions by the district attorney were highly improper and incurably prejudicial.

288 N.C. at 713 , 220 S.E. 2d at 292 .

The majority cautions prosecutors “to scrupulously avoid any reference to death row or death row inmates” but fails to say whether the evidence that Moore was on death row constituted error entitling Moore to a new sentencing hearing. The majority says Britt is distinguishable, but it fails to distinguish it. The question, not answered by the majority, is whether it is reversible error to inform the jury that a defendant in a capital case at a resentencing hearing is on “death row.” Britt held that it is. Britt controls this issue. The majority wrongly fails to follow Britt and to declare that this error warrants a new sentencing hearing for Moore.

Finally, not only Oliver but Moore also is entitled to a new sentencing hearing in the Watts murder because there is no evidence to support submission of the “especially heinous” aggravating circumstance in these cases. I recognize that we held to the contrary in an opinion I authored for the Court on the first appeal of this case. State v. Oliver [and Moore], 302 N.C. 28 , 274 S.E. 2d 183 (1981) (Oliver I). I am now satisfied this holding was wrong and we should now acknowledge our error. “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).

I accept the majority’s definition of the “especially heinous” aggravating circumstance. The majority recognizes that an “especially heinous, atrocious or cruel” murder is one which essentially inflicts unusual physical or psychological suffering upon the victim prior to the infliction of death. The majority says this is a case of psychological suffering because the victim Watts said “please don’t shoot me” immediately before defendant Moore fired the fatal shot. This plea is really all there is, although the majority vaguely refers to “the entire set of circumstances surrounding the killing.” Apparently these circumstances which the majority deems important are the planning of the robbery and Moore’s later boasts about the killing. Neither of these things has any bearing on whether Moore inflicted physical or psychological *381 suffering upon Watts. It is clear there was no physical suffering. Since the fatal shot was fired immediately after Watts said, “Please don’t shoot me,” and instantly rendered Watts either dead or unconscious, I can discern no psychological suffering in this case. All the cases cited by the majority had elements of either physical or psychological suffering before death. This case has none. In State v. Pinch, 306 N.C. 1 , 292 S.E. 2d 203 (1982), relied on by the majority, this Court said:

In accordance with the dictates of the Eighth Amendment, our Court has adhered to the position that the aggravating circumstance of G.S. 15A-2000(e)(9) ‘does not arise in cases in which death was immediate and in which there was no unusual infliction of suffering upon the victim.’ State v. Rook, 304 N.C. 201, 226 , 283 S.E. 2d 732, 747 (1981), cert. denied, 455 U.S. 1038 , 102 S.Ct. 1741 , 72 L.Ed. 2d 155 (1982); see Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed. 2d 398 (1980); see, e.g., State v. Hamlette, 302 N.C. 490, 504 , 276 S.E. 2d 338, 347 (1981) (submission of G.S. 15A-2000(e)(9) was erroneous). Instead, our Court has made it clear that the submission of G.S. 15A-2000(e)(9) is appropriate only when there is evidence of excessive brutality, beyond that normally present in any killing, or when the facts as a whole portray the commission of a crime which was conscienceless, pitiless or unnecessarily tortuous to the victim. State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979); see e.g., State v. Martin, 303 N.C. 246 , 278 S.E. 2d 214 , cert. denied, 454 U.S. 933 , 102 S.Ct. 431 , 70 L.Ed. 2d 240 (1981); State v. Oliver, 302 N.C. 28 , 274 S.E. 2d 183 (1981).

306 N.C. at 34-35 , 292 S.E. 2d at 227-28 . The Court sustained the submission of the “especially heinous” circumstance because it found:

It suffices to say that the deaths of the unsuspecting victims were not instantaneous and that both killings involved the infliction of unusual physical or psychological torture. Each victim essentially witnessed (or heard) the shooting of the other and was helpless to prevent this unprovoked horror.

306 N.C. at 35 , 292 S.E. 2d at 228 . This case involves neither physical nor psychological torture. Death, or at least unconsciousness, was immediate, and “there was no unusual infliction of *382 suffering upon the victim.” The “especially heinous” circumstance, therefore, should not have been submitted.

For all the foregoing reasons I vote to give defendant Oliver a new sentencing hearing in both murder cases and defendant Moore a new sentencing hearing in the Watts murder case.