State v. Fletcher

Justice EDMUNDS

concurring.

I agree with the result reached by the majority. However, because this case is now in a somewhat unusual procedural posture, I am concerned that the holding may be applied too broadly to limit proper closing argument in capital sentencing proceedings, during which counsel representing defendants convicted of first-degree murder routinely and justifiably seek to convince the sentencing jury that it should recommend a life sentence.

Both as a practical and as a legal matter, attorneys at a capital sentencing proceeding are bound by their trial tactics and by the jury verdict. However, here, because we had remanded defendant’s case *492 for resentencing, that proceeding was conducted before a different jury than the one that heard the guilt-innocence phase. Defendant elected not to testify at the guilt-innocence phase, but he nevertheless presented a defense, offering witnesses who suggested that an enigmatic individual in a raincoat killed the victim. The jury found defendant guilty, and at the subsequent sentencing proceeding before that same jury, defendant presented evidence of various psychological difficulties but made no further representation that someone else was the murderer. State v. Fletcher, 348 N.C. 292, 323-29 , 500 S.E.2d 668, 686-90 (1998), cert. denied, 525 U.S. 1180 , 143 L. Ed. 2d 113 (1999). We vacated and ordered a new sentencing proceeding. Id. On remand, defendant jettisoned his first failed defense and took the stand to testify that his girlfriend, Lisa Hill, was the one who stabbed and bludgeoned the victim. This theory was inconsistent with that presented at the guilt-innocence phase, strongly suggesting that defendant was attempting to take advantage of the fact that he had a new jury to raise a different and presumably improved defense. In light of the fact that the first jury had rejected defendant’s original defense and convicted him of the murder, I agree with the majority that the trial court’s instruction to the second jury limiting its consideration of the new defense was correct.

Even so, I believe the procedural quirks in this case thwart the majority’s efforts to address general principles relating to “residual doubt.” Because the jury that sat during the sentencing proceeding was different from the jury that returned the guilty verdict and because defendant presented contradictory defenses to different juries, I believe the issues relating to “residual doubt” and a defendant’s ability to present relevant evidence at sentencing are not clearly and cleanly before this Court now. In my view, there is a risk that the majority’s discussion of “residual doubt” could be read expansively to preclude future defendants from raising legitimate issues at sentencing. For instance, a defendant who did not testify at trial might be prevented from offering, as mitigation evidence, his version of events. Similarly, a defendant who has professed his innocence throughout the guilt phase could not continue to tell his same story. N.C.G.S. § 15A-2000(a)(3) states that “[i]n the [sentencing] proceeding ... all such [guilt phase] evidence is competent for the jury’s consideration on punishment.” Therefore, a defendant may ask a sentencing jury to consider all evidence presented at trial, not just that comporting with a guilty verdict or that tending to mitigate guilt. The extent (if any) to which this statute conflicts with a trial court’s *493 ability to enforce the factual determination inherent in a jury verdict is clouded by the procedural twist in the case at bar. Accordingly, I would limit the majority holding to the facts now before us.

Justices ORR and BUTTERFIELD join in this concurring opinion.