evidence of I.Q. of seventy-two, and ingestion of marijuana, wine, beer, and “two hits of acid” on the day of the killing held sufficient; “[t]he jury could have found that a person who had ingested this quantity of drugs and alcohol had his judgment impaired and such impairment had affected his ability to appreciate the criminality of his conduct”
How later courts described this case
- evidence of I.Q. of seventy-two, and ingestion of marijuana, wine, beer, and “two hits of acid” on the day of the killing held sufficient; “[t]he jury could have found that a person who had ingested this quantity of drugs and alcohol had his judgment impaired and such impairment had affected his ability to appreciate the criminality of his conduct”
- evidence that on the day of the murder defendant ingested marijuana, wine, beer, and “two hits of acid” supported submission of mitigating circumstance that defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired
- child killed within hours of her mother’s death after she awoke while defendant was disposing of her mother’s body
Written by the judges who cited it.
The opinion
WEBB, Justice.
The State concedes the jury charge in this case is in error under McKoy but it argues such error is harmless beyond a reasonable doubt. N.C.G.S. § 15A-1443(b) (1988). It says this is so because although the jury was instructed that it must be unanimous in order to find a mitigating circumstance, it was not instructed that failure to agree on a mitigating circumstance did not mean the circumstance did not exist. This, says the State, coupled with the fact that the court also instructed the jury that it did not have to answer every issue but could leave any of them blank, makes it apparent that the jury was unanimous in the two mitigating circumstances to which it answered “no.”
This argument by the State is too speculative to convince us the jury was unanimous in answering no and none to the two mitigating circumstances. The jury was told it would have to be unanimous to answer affirmatively the issues as to mitigating circumstances and it could consider only those mitigating circumstances that it found unanimously. We presume the jury followed the instructions of the court. If it did, one or more of the jurors could have been convinced that a mitigating circumstance existed but did not consider it pursuant to the instructions of the court.
In further argument that the error was harmless in this case, the State contends there was not sufficient evidence for the jury to find the mitigating circumstance that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. The State says the only evidence was the low I.Q. of the defendant and the use of drugs by the defendant shortly before the killing. The evidence showed that in addition to having a low I.Q., the defendant, on the day he killed Mr. Worley, had ingested marijuana, wine, beer and “two hits of acid.” This evidence would support the finding of this mitigating circumstance. The jury could have found that a person who had ingested this quantity of drugs and alcohol had his judgment impaired and such impairment had affected his ability *70 to appreciate the criminality of his conduct. State v. Sanderson, 327 N.C. 397 , 394 S.E.2d 803 (1990).
The State concedes that there was some evidence to support a finding that the defendant had a good reputation in the community. It says the instruction in regard to this proffered mitigating circumstance was harmless. The State asks us to consider the aggravating circumstances found in comparison with this mitigating circumstance. It says the defendant in this case had been found by the jury to be a triple murderer. The jury found as one aggravating circumstance that the defendant had previously been convicted of a felony involving violence to the person. This was based on a crime in which the defendant killed a man and stole his automobile. The other aggravating circumstance found by the jury was that the murder in this case was for a pecuniary gain. This circumstance was based on the commission of a contract killing.
The State says that we can safely assume that testimony that the defendant’s character and reputation was good would not offset the two substantial aggravating circumstances that were found. This is particularly so, says the State, when we consider other evidence of the defendant’s character. The evidence was that the defendant when he was younger had shot his father while trying to shoot someone else, that he had left his daughter with his mother to raise and that he was having an affair with a married woman while still possessing a live-in girlfriend. The State says that this evidence as to the defendant’s character and reputation kept the jury from giving any weight to testimony that the defendant’s character and reputation were good.
There was certainly evidence that the defendant did not have a good character and reputation. There was evidence contra, however. Several witnesses testified to the defendant’s good character and reputation and related anecdotes of his acts of kindness and consideration for others. The fact that the jury did not answer the issue as to this mitigating circumstance is some indication that the jury was divided with some wanting to answer in the affirmative. We cannot say that we are satisfied beyond a reasonable doubt that at least one of the jurors would not have used this mitigating circumstance to recommend life in prison if the jury had been properly instructed. State v. Brown, 327 N.C. 1 , 394 S.E.2d 434 (1990).
*71 The State also argues that there was no evidence to support a finding of the “catch all” mitigating circumstance of any other circumstance of mitigating value. The defendant does not point us to any such evidence. Because we hold that error in regard to the other two mitigating circumstances requires a new sentencing proceeding, we do not discuss this mitigating circumstance. It may be submitted at a new sentencing proceeding if the evidence supports it.
For the reasons stated in this opinion, there must be a new sentencing proceeding.
Death sentence vacated; remanded for new sentencing proceeding.