State v. Huffstetler

Justice EXUM

dissenting as to sentence.

Believing there is reversible error in the trial court’s failure to submit a requested mitigating circumstance and that the death penalty is disproportionate, I respectfully dissent from so much of the majority opinion which concludes to the contrary.

I.

Defendant testified during the sentencing hearing that he had known Mrs. Powell, his mother-in-law and the victim, “way before my marriage, probably about all my life.” He said, “Me and my mother-in-law had a good relationship.” At this point in the testimony defendant lost his composure and was excused “for a *120 few minutes to regain” it. Defendant told of his life of drug and alcohol abuse, saying, “Most of my life I’ve been on and off drugs. This time I’ve been back on them about two years.” On the night before the murder defendant had injected into his veins two dilaudid tablets and drunk a bottle of whiskey. On the morning of the murder he had injected two more dilaudid tablets. He then went to his mother-in-law’s trailer, was admitted by her, and sat down on the couch. The two conversed cordially until defendant asked Mrs. Powell if she knew where his wife was. Mrs. Powell replied that she didn’t. Defendant testified, “So I got up to leave, and I stood up, and she said, ‘David, you’ve been drinking. You ought to go on up there to jail.’ ” David replied that he “had to drink around here to find out where [his] wife is cause nobody won’t tell you nothing,” whereupon Mrs. Powell said, “David, you’re just a darn liar. I don’t know where she’s at. All I know is you called me and said all hell was going to break loose if somebody didn’t come and pick you up.” Defendant testified, “I said, T know I didn’t say no such thing.’ She said, T know you did.’ We was just arguing, and I grabbed the frying pan and started hitting her.”

Defendant’s wife, daughter of the victim, testified that defendant and her mother “got along real well. They only argued over me. That wasn’t that much because I always insisted mother let me live my own life, and what David did was between me and him.” The witness said, “David’s not mean and he’s not vicious. He’s got a drug habit that he couldn’t control, but he was not mean.” She said David had sought professional help for his habit a number of times but that the help had been unsuccessful. The witness said that after defendant’s arrest and while he was in jail, he told her about the murder. The following colloquy ensued:

Q. Do you recall when he told you what happened?

A. It has been since he’s been in jail, and it has just been in bits and pieces, virtually what he has said today, but a two-minute conversation, there can’t be much said.

Q. Did you have to force David or talk David into telling you the truth about what happened?

A. No, I did not.

*121 Q. How did it come about?

A. He just called me one day, and I answered the phone and he started crying and saying he was sorry, and then after that, when he would call, if I answered the phone, we talked whatever length of time he had.

II.

Defendant requested in writing at the sentencing hearing that the trial court submit, among others which were submitted, the following mitigating circumstance:

That during the sentencing phase, the defendant testified under oath and admitted his role in the victim’s death. That this admission of wrongdoing reflects a potential for rehabilitation.

The trial court refused to submit the circumstance. I am satisfied this was error entitling defendant to a new sentencing hearing.

Not to permit a jury to consider any relevant mitigating circumstance is an error of constitutional dimension. Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978). In Eddings the United States Supreme Court reversed a sentence of death and remanded for further sentencing proceedings because the sentencing judge “would not consider in mitigation the circumstances of Eddings’ unhappy upbringing and emotional disturbance. . . .” 455 U.S. at 109 . This Court recognized as much in State v. Pinch, 306 N.C. 1, 27 , 292 S.E. 2d 203, 223 (1982), where we held that an error in failing to submit a mitigating circumstance is reversible unless the failure to submit it is “harmless beyond a reasonable doubt. G.S. 15A-1443(b).” (Emphasis original.) This is the statutory standard for reversible errors of constitutional dimension. Compare sections (a) and (b) of N.C.G.S. 15A-1443. A defendant is entitled to have a mitigating circumstance not listed in the statute, N.C.G.S. 15A-2000(f), if he makes a timely written request for it, if it is supported by the evidence, and if the jury could reasonably deem it to have mitigating value. State v. Johnson, 298 N.C. 47, 72-74 , 257 S.E. 2d 597, 616-17 (1979); accord, State v. Pinch, 306 N.C. at 26-27 , 292 S.E. 2d at 223 .

*122 Defendant here exercised his Fifth Amendment right not to testify in the guilt phase. At the sentencing phase, however, he did testify and admitted his guilt to the jury. So far as the transcript of his testimony, both on direct and cross, reveals, it was straightforward, unequivocal, and truthful. A jury could reasonably find that defendant’s admission of his guilt was a first step toward recognition of his wrongdoing and his ultimate potential rehabilitation. It was, therefore, error of constitutional dimension for the trial court not to submit this mitigating circumstance.

Whether this murder was premeditated and deliberated is a close question, although I agree with the majority that there is enough evidence in the guilt phase to carry the question to the jury. Further, even if one concludes, as does the majority, that a sentence of death is not disproportionate, a conclusion with which I disagree, this is not a compelling case for the death penalty. Therefore I cannot say that failure to submit the tendered mitigating circumstance was harmless beyond a reasonable doubt.

The majority says that because defendant admitted his guilt only after he had been convicted by a jury, told the jury that he was under the influence of drugs and alcohol when he committed the murder, and had indicated to his family that he did not want to testify, the fact that he ultimately did testify and admit his guilt cannot as a matter of law be considered a mitigating circumstance.

I disagree. Defendant was exercising his Fifth Amendment right not to be a witness against himself during the guilt phase. He should not be penalized for the exercise of this right when at the penalty phase he decides to forego the right and admit his guilt. There was plenary corroborative evidence of defendant’s addiction to drugs and alcohol other than defendant’s own testimony. This formed the basis of the mitigating circumstance that defendant’s capacity to appreciate the criminality of his conduct was impaired. That defendant so testified is no reason to say that his admission of guilt cannot be considered as a mitigating circumstance. Finally, defendant’s admission that he had not at first wanted to testify is no reason to hold as a matter of law that his ultimate decision “to tell the truth” cannot be considered by the jury as a mitigating circumstance.

*123 The question is not whether this Court thinks defendant’s admission is or is not a mitigating circumstance. The question is whether a jury could reasonably find it to be one. The factors mentioned in the majority opinion at most might be urged upon a jury in an effort to persuade it not to find defendant’s testimony to be mitigating. They do not render the testimony non-mitigating as a matter of law.

III.

I conclude that the death sentence is excessive and disproportionate “to the penalty imposed in similar cases, considering both the crime and the defendant.” N.C.G.S. 15A-2000(d)(2).

The majority deals with this aspect of the case perfunctorily. It refers to the “pool” of similar cases and says that it has compared the defendant and the crime to these cases without saying which of the cases in the pool it finds similar or to which cases it has compared the instant case. The majority simply describes the crime, without describing the defendant, and concludes that the sentence of death is not disproportionate. The majority seems to treat the issue as being one exclusively within this Court’s unbridled discretion.

I think the question of proportionality of any death sentence is more serious than this. It is not a question for the unbridled discretion of this Court. We do not sit as a super jury on this issue. Whether a death sentence in any case is disproportionate is a question of law. In State v. Jackson, 309 N.C. 26, 46 , 305 S.E. 2d 703, 717 (1983), the Court declared the death penalty imposed in that case disproportionate “as a matter of law.” In Jackson and State v. Hill, 311 N.C. 465 , 319 S.E. 2d 163 (1984), this Court took pains to note that our responsibility in conducting a proportionality review was serious indeed. Justice Martin, writing for the Court in Jackson , said, 309 N.C. at 46 , 305 S.E. 2d at 717 :

The purpose of proportionality review is to serve as a check against the capricious or random imposition of the death penalty. State v. Hutchins, 303 N.C. 321 , 279 S.E. 2d 788 (1981). We repeat that we consider the responsibility placed upon us by N.C.G.S. 15A-2000(d)(2) to be as serious as any responsibility placed upon an appellate court. State v. Rook, 304 N.C. 201 , 283 S.E. 2d 732 (1981), cert. denied, 455

*124 U.S. 1038 (1982). In carrying out our duties under the statute, we must be sensitive not only to the mandate of our legislature but also to the constitutional dimensions of our review. Id. We have, therefore, carefully reviewed the record, briefs, and oral arguments presented.

The foregoing was quoted with approval in Hill, 311 N.C. at 476 , 319 S.E. 2d at 170 , where the Court, in an opinion by Chief Justice Branch, said, “We have recognized, and continue to recognize the gravity of the duty imposed upon us by statute.”

In both Hill and State v. Lawson, 310 N.C. 632 , 314 S.E. 2d 493 (1984), the Court was careful to select similar cases with regard to the nature of the defendant and the nature of the crime from the available “pool” of cases for comparison purposes in conducting its proportionality review. Hill involved the murder of a policeman. The Court concluded the death penalty was disproportionate. The Court compared the case first to other cases involving the killing of law enforcement officers and second to other cases in which the death penalty had been affirmed on appeal for the purpose of demonstrating that the murder in Hill was not as egregious as in those other cases. It also emphasized the defendant’s lack of past criminal activity, his being gainfully employed and his cooperation during the investigation. In Lawson the Court said:

In essence, our task on proportionality review is to compare the case at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and defendant’s character, background, and physical and mental condition. If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.

310 N.C. at 648 , 314 S.E. 2d at 503 .

*125 Lawson involved a murder committed during a burglary. In sustaining the death sentence as proportionate, we compared Lawson with other cases involving robbery-murders in which life imprisonment had been imposed and distinguished Lawson from those cases. We also demonstrated how the circumstances in Lawson were similar with regard to both the crime and the defendant to circumstances in a number of cases in which the death penalty had been affirmed on appeal.

I think the approach used on proportionality review in Hill, Lawson, and Jackson is the proper one. When it is employed here, the conclusion is inescapable that the death sentence is disproportionate.

Although I concur in the majority’s conclusion that the evidence at the guilt phase, considered alone, is enough to be submitted to the jury on the element of premeditation and delibera- ^ tion, defendant’s testimony at the sentencing hearing, if believed, goes a long way toward depriving this crime of that essential element of first degree murder. The jury believed this testimony because they found as a mitigating circumstance that the killing occurred “contemporaneously to an argument between the defendant and the victim, a person whom he knew by virtue of a domestic relationship, and by means of an instrument acquired at the scene and not taken there.”

For deliberation, a necessary element of first degree murder, to be present, the specific intent to kill, also a necessary element of the crime, “must arise from ‘a fixed determination previously formed after weighing the matter.’ ” Hill, 311 N.C. at 470 , 319 S.E. 2d at 167 , quoting State v. Corn, 303 N.C. 293, 296-97 , 278 S.E. 2d 221, 223 (1981). “Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation.” State v. Misenheimer, 304 N.C. 108, 113 , 282 S.E. 2d 791, 795 (1981). The provocation necessary to reduce first degree murder to second degree murder is less than the provocation required to reduce second degree murder to manslaughter. State v. Thomas, 118 N.C. 1113 , 24 S.E. 431 (1896). In Thomas , defendant was convicted of the first degree murder of his wife and sentenced to death. There was some evidence that the killing occurred during a verbal argument. This Court on appeal held *126 that it was error not to submit to the jury the lesser included offense of second degree murder. The Court said:

There being no actual evidence of a fight between the prisoner and deceased, the jury were left to grope in the dark as to their duty in case they were not satisfied by the State beyond a reasonable doubt that the prisoner acted upon a fixed purpose to kill, distinctly formed in his mind. If [the jury] concluded that there was a quarrel or argument, and in the heat of sudden passion, engendered by disagreeable language, which would not have been provocation sufficient to bring the offense within the definition of manslaughter, the crime . . . was murder in the second degree.

Id. at 1124 , 24 S.E. at 435 . Thus if the intent to kill is suddenly formed in the course of a quarrel with another and is the product of that quarrel, it is not formed in a cool state of blood and there is no deliberation sufficient to support a conviction of first degree murder. Corn, 303 N.C. at 297 , 278 S.E. 2d at 223 ; Misenheimer, 304 N.C. at 113-14 , 282 S.E. 2d at 795 ; Thomas, 118 N.C. at 1125 , 24 S.E. at 435 .

The jury’s conclusion after the sentencing hearing that this killing occurred “contemporaneously to an argument between the defendant and the victim” makes this case, for proportionality review purposes, much like Hill, 311 N.C. 465 , 319 S.E. 2d 163 (1984), in which a police officer was killed by defendant during a struggle. A majority of the Court concluded that there was sufficient evidence of first degree murder, but it reversed a sentence of death on proportionality grounds principally because the evidence regarding precisely how the murder occurred “admits of some confusion and is certainly speculative at best.” Id. at 479 , 319 S.E. 2d at 172 . The Court said in conducting its proportionality review, “[TJhere is no evidence that defendant coldly calculated or planned the commission of this crime over a period of time. . . .” Id. at 478 , 319 S.E. 2d at 171 . In concluding its proportionality review, the Court said:

Given the somewhat speculative nature of the evidence surrounding the murder here, the apparent lack of motive, the apparent absence of any simultaneous offenses, and the incredibly short amount of time involved, together with the *127 jury’s finding of three mitigating circumstances tending to show defendant’s lack of past criminal activity and his being gainfully employed, and the unqualified cooperation of defendant during the investigation, we are constrained to hold as a matter of law that the death sentence imposed here is disproportionate within the meaning of G.S. 15A-2000(d)(2).

Id. at 479 , 319 S.E. 2d at 172 .

The jury here found as mitigating circumstances that defendant did not have a history of violent conduct, that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, and that the victim in this case was a person whom defendant knew by virtue of a domestic relationship.

In every case so far, affirmed on appeal, where murders have arisen out of prior close or domestic relationships and where there was evidence of impaired capacity arising from drug or alcohol abuse, except for State v. Noland, 312 N.C. 1 , 320 S.E. 2d 642 (1984), our juries have returned a sentence of life imprisonment. State v. Anderson, 303 N.C. 185 , 278 S.E. 2d 238 (1981) (defendant killed woman with whom he had previously lived but from whom he was separated at the time of the murder; evidence that defendant suffered from passive-aggressive personality disorder and alcohol and drug abuse); State v. Clark, 300 N.C. 116 , 265 S.E. 2d 204 (1980) (defendant killed father in a rage; evidence of alcohol and drug abuse); State v. Franks, 300 N.C. 1 , 265 S.E. 2d 177 (1980) (defendant killed girlfriend; evidence that defendant suffered from alcohol and drug abuse). In Noland defendant was convicted of first degree murder of both his sister-in-law and her husband. He was also convicted of first degree burglary of their home, first degree burglary of the home of his parents-in-law and felonious assault upon his mother-in-law. There was no question concerning the element of premeditation and deliberation. There was substantial evidence of defendant’s mental and emotional disturbance, but the jury did not indicate whether it believed this evidence. The aggravating circumstance in Noland was that the murder “was part of a course of conduct [of defendant] which included the commission by the defendant of other crimes of violence against other person or persons.” As we noted in our affirmation of a death sentence on proportionality review in *128 State v. Lawson, 310 N.C. 632, 650-51 , 314 S.E. 2d 493, 504-05 (1984), the aggravating factor that defendant engaged in a course of conduct involving violence against others was common to seven out of the fourteen cases then in the pool in which this Court affirmed the death sentence. It was likewise present in Lawson and was an important consideration in our affirmation of the death sentence in that case.

In every case so far, affirmed on appeal, where murders have arisen out of prior close or domestic relationships, except State v. Boyd, 311 N.C. 408 , 319 S.E. 2d 189 (1984), and State v. Martin, 303 N.C. 246 , 278 S.E. 2d 214 , cert. denied, 454 U.S. 933 , reh’g denied, 454 U.S. 1117 (1981), our juries have returned sentences of life imprisonment. State v. Hinson, 310 N.C. 245 , 311 S.E. 2d 256 (1984) (defendant killed husband); State v. Woods, 307 N.C. 213 , 297 S.E. 2d 574 (1982) (wife killed husband); State v. Parton, 303 N.C. 55 , 277 S.E. 2d 410 (1981) (defendant killed girlfriend with whom he had gone fishing); State v. Colvin, 297 N.C. 691 , 256 S.E. 2d 689 (1979) (defendant killed wife after marital difficulties and after threatening her “before he would allow her to take his children away from him”); State v. Myers, 299 N.C. 671 , 263 S.E. 2d 768 (1980) (defendant killed estranged wife).

Boyd and Martin are easily distinguishable from the instant case. In Boyd , the victim (defendant’s girlfriend) died as a result of thirty-seven stab wounds inflicted by defendant. In addition to the especially heinous aggravating circumstance, the jury found that defendant had previously been convicted of a violent felony. Most importantly, the Court in Boyd said at the close of its proportionality review that “scanty evidence of emotional or mental disorder, which together with defendant’s significant history of criminal convictions and the heinous nature of the crime, including suffering of the victim, provide the basis for a penalty of death.” 311 N.C. at 436, 319 S.E. 2d at 207. In Martin , likewise, the murder of defendant’s estanged wife was particularly brutal. Defendant shot her twice, disabling her. He then dragged her across the room while she was still alive, held her up with one hand while he struck her four or five times with the pistol, threw her against the wall and hit her several times with the pistol while she begged him not to hit her any more. Then in the presence of her small child and with the victim pleading for her life and asking for forgiveness, defendant fired three more shots, two *129 of which, entering her head, were fatal. The jury in Boyd expressly found that defendant was not under the influence of a mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct was not impaired.

In summary, this case, because of the closeness of the deliberation issue and the absence of any prior violent conduct of defendant, is quite similar to Hill in which we set aside the death penalty as disproportionate. It is much like all the other cases where the killing arose out of a close or domestic relationship and was the product, in part, of drug and alcohol abuse, in which our juries have consistently imposed life imprisonment. The death sentence here, therefore, is disproportionate.

For the reasons given I vote for a new sentencing hearing and, failing that, I vote to remand the case for entry of a sentence of life imprisonment.

Justice FRYE joins in this dissenting opinion.