# State v. Holden

> Supreme Court of North Carolina · December 2, 1987 · 321 N.C. 125

URL: https://www.frixlaw.com/law-library/cases/9577295

## Case

- **Full name:** State of North Carolina v. Russell Holden, Jr.
- **Court:** Supreme Court of North Carolina
- **Decided:** December 2, 1987
- **Citations:** 321 N.C. 125; 362 S.E.2d 513; 71 A.L.R. 4th 585; 1987 N.C. LEXIS 2568
- **Precedential status:** Published
- **Opinion:** Concurrence by Exum
- **Judges:** Webb, Exum, Frye
- **Cited by:** 192 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by State v. Robinson, 330 N.C. 1 (1991).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9577295

## How later opinions describe it (automated extraction)

- holding no abuse of discretion where trial court found that it had “no alternative but to dismiss” juror after guilt phase upon learning that juror would not impose the death sentence under any circumstances

## Opinion text

Chief Justice Exum
concurring.
Were we deciding the issue for the first time, I would agree with defendant’s contention that the trial court erred in failing to give defendant’s requested instruction number seven, which is:
With respect to each of the mitigating circumstances, only those mitigating circumstances unanimously found by you to exist should be marked “yes” by you on the verdict sheet. However, no single juror is precluded from considering anything in mitigation in the ultimate balancing process, even if that mitigating factor was not considered or agreed upon by all 12 of you unanimously.
This is precisely the instruction suggested by the state in State v. Kirkley, 308 N.C. 196 , 302 S.E. 2d 144 (1983) (Exum, J., dissenting). As the state’s brief then put it, such an instruction should be given in order that “no juror ... be precluded from considering anything in mitigation in the ultimate balancing process even if that mitigating factor was not agreed upon unanimously. To do otherwise, the State believes, could run afoul of Lockett v. Ohio, [ 438 U.S. 586 (1978) ].” Id. at 228, 302 S.E. 2d at 163 .
I continue to think, as I wrote in dissent in Kirkley , that in the final balancing process the rationale of Lockett would suggest that each juror must be permitted to consider any circumstance he or she concludes exists and has mitigating value whether or not all other jurors agree.
The Court held to the contrary in Kirkley , and Kirkley , being the law on this point, controls the issue here contrary to defendant’s contention.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9577295. Public record. Not legal advice.