State v. Brown

*72 Justice EXUM

dissenting as to sentence.

I concur in the result reached by the majority on the guilt phase of this case; but believing there was error committed in the sentencing phase entitling defendant to a new sentencing hearing, I dissent from the majority’s conclusion to the contrary and vote for a new sentencing hearing.

The majority finds no error in submitting the mitigating factor that defendant had no significant history of prior criminal activity, N.C.G.S. § 15A-2000(f)(l), even though defendant did not contend he was entitled to have this factor submitted and, indeed, expressly objected to its submission. The majority concludes the trial judge has a duty to submit any statutory mitigating factor notwithstanding defendant’s objection whenever the trial judge “feels” such submission may be “in the defendant’s favor.” It reaches this conclusion by relying on this statement from State v. Pinch, 306 N.C. 1, 27 , 292 S.E. 2d 203, 223 (1982), cert. denied, 459 U.S. 1056 , 74 L.Ed. 2d 622 (1982):

Moreover, we must also point out that common sense, fundamental fairness and judicial economy dictate that any reasonable doubt concerning the submission of a statutory or requested mitigating factor be resolved in the defendant’s favor to ensure the accomplishment of complete justice at the first sentencing hearing.

The majority takes the statement out of context. The statement was immediately preceded by the following language:

This Court has previously established instructive guidelines for the trial judges of our State to follow in the submission of mitigating circumstances, including those which arise upon the evidence in a given capital case as well as those specified in G.S. 15A-2000(f). First, in State v. Goodman, we held that, although the jury’s consideration of any factor relevant to the circumstances of the crime or the character of the defendant may not be restricted, the trial court ‘is not required to sift through the evidence and search out every possible circumstance which the jury might find to have mitigating value,’ especially when the trial court instructs the jury upon the open-ended provision of G.S. 15A-2000(f)(9) and thus does not hinder it from evaluating on *73 its own anything of mitigating value. 298 N.C. 1, 33-34 , 257 S.E. 569 , 589-90 (1979). Second, in State v. Johnson, we held that the trial court must include additional factors, which are timely requested by the defendant, on the written list submitted to the jury if they are ‘supported by the evidence, and . . . are such that the jury could reasonably deem them to have mitigating value. . . .’ 298 N.C. 47, 72-74 , 257 S.E. 2d 597, 616-17 (1979) (emphasis added). Third, in State v. Hutch-ins, we held that, although the trial court has a fundamental duty to declare and explain the law arising upon the evidence, it is not required to instruct upon a statutory mitigating circumstance sua sponte unless defendant, who has the burden of persuasion, brings forward sufficient evidence of the existence of the specified factor. 303 N.C. 321, 355-56 , 279 S.E. 788 , 809 (1981); see State v. Taylor, 304 N.C. 249, 277 , 283 S.E. 2d 761, 779 (1981).

Id. at 26-27, 292 S.E. 2d at 223 .

It is clear that the statement in Pinch relied on by the majority was made with reference to mitigating circumstances which defendant contended should be submitted, not mitigating circumstances for which defendant concedes there is no supporting evidence.

It is error for the trial court to submit a mitigating circumstance when the circumstance is not supported by the evidence. There is no evidence in this case to support submission of the no significant criminal history mitigating factor. Defendant had had prior convictions of six felonious breakings, six felonious larcenies, five armed robberies, and one felonious assault. He had served a lengthy prison term.

Obviously, defendant did not want the no significant criminal history mitigating circumstance submitted because he realized that to submit it would enable the state to introduce evidence of his prior convictions which did not involve violence to another person. The state would not have been permitted to offer evidence of these convictions at the sentencing hearing but for the submission of the no significant criminal history mitigating circumstance. The majority so concedes, saying:

The defendant is correct in his assertion that the convictions were inadmissible to establish [that defendant had been *74 convicted of a felony involving violence to another, N.C.G.S. § 15A-2000(e)(3)]. However, after a close examination of the record, we conclude that the convictions were not admitted for that purpose. Instead, it is apparent that the convictions were admitted to rebut the mitigating factor that the defendant had no significant history of prior criminal activity.

As noted by the majority, an error in the sentencing phase of a capital case is reversible unless the state demonstrates the error was harmless beyond a reasonable doubt. I cannot say submission of the no significant criminal history mitigating circumstance was harmless beyond a reasonable doubt because it permitted the state to offer otherwise inadmissible evidence detailing defendant’s prior convictions for nonviolent crimes. The majority recognizes that defendant legitimately objected to the submission of the no significant criminal history circumstance so as to keep out evidence of his conviction of nonviolent crimes. Yet the majority holds it was not error to submit the circumstance over defendant’s objection and to offer evidence of the otherwise inadmissible nonviolent felony convictions because they were relevant to the circumstance. I cannot subscribe to this kind of judicial sleight of hand to justify sustaining a sentence of death.

State v. Taylor, 304 N.C. 249 , 283 S.E. 2d 761 (1981), cert. denied, 463 U.S. 1213 , 77 L.Ed. 2d 1398 , reh’g denied, 463 U.S. 1249 , 77 L.Ed. 2d 1456 (1983), holds that it is error to permit the state to introduce evidence rebutting the no significant criminal history mitigating circumstance “when defendant never intended to rely on that mitigating circumstance.” In Taylor the Court found the error harmless beyond a reasonable doubt because much of the state’s evidence “also was competent as evidence of aggravating circumstances,” 304 N.C. at 277 , 283 S.E. 2d at 779 , and when considered with evidence at the guilt phase, the jury already had before it “a clear record of what must be described as this defendant’s unconscionable acts toward so many of his victims.” 304 N.C. at 278 , 283 S.E. 2d at 779 . This is not the case here. The evidence of which defendant here complains is evidence of a number of serious but nonviolent felonies. Furthermore, I would not agree that because evidence of prior convictions was admitted in the guilt phase on cross-examination of a testifying defendant, permitting the jury to consider the same evidence at the sentencing phase on the question of defendant’s sentence is *75 rendered harmless beyond a reasonable doubt. During the guilt phase such evidence was admitted for the limited purpose of impeaching defendant’s credibility. This does not justify permitting the jury to consider this evidence on the question of defendant’s sentence. The jury may not so consider it unless authorized to do so by the capital sentencing statute, N.C.G.S. § 15A-2000. As I have demonstrated, this statute did not authorize consideration in this case of defendant’s prior nonviolent felony convictions on the question of his sentence.

I also think it was error to permit testimony which, in effect, re-tried defendant for an earlier felonious assault committed in Virginia on James Caposella. Defendant had been tried, convicted and punished for this crime in Virginia. He stipulated that he had been convicted of this felonious assault and that it was a crime which involved violence to the person. Upon this stipulation the state was entitled to have the aggravating circumstance that defendant had been previously convicted of a felony involving violence to the person, N.C.G.S. § 15A-2000(e)(3), answered in its favor.

The statute permits the state to establish the existence of such a conviction, nothing more. The purpose of this aggravating circumstance is to show the sentencing jury defendant’s status as one previously convicted of a violent crime. That one previously convicted of a violent crime again commits a violent crime means, in essence, that the person has not yet learned the lesson the law desires to teach. That person properly may be sentenced more severely the second time. This, however, is the only sense in which the prior offense may be considered as bearing on the punishment for the second offense. The statute does not permit the state to offer evidence of the details of the prior crime. Those details were offered and taken into consideration when defendant was tried, convicted, and punished for that crime. The statute permits the capital sentencing jury to know only that defendant has been previously convicted of a crime involving violence to another person. The reason for the limitation is to preclude the possibility that the capital sentencing jury will, upon hearing the details of the prior crime, become so incensed by its gravity that it will impose the death penalty as punishment not only for the capital crime under consideration but also for the prior violent of *76 fense. This is not and cannot constitutionally be the purpose of the prior violent offense aggravating factor.

While I concur in the result reached by the majority that it was proper to submit the especially heinous aggravating circumstance, I do not agree that there is evidence supporting those facts which the majority uses to distinguish this case from State v. Jackson, 309 N.C. 26 , 305 S.E. 2d 703 (1983). There is no evidence as to when, where, or under what circumstances the victim was shot or that she suffered before the shooting, as the majority says, “a prolonged period of terror and anguish . . . .” There is, however, evidence that the victim bled to death and could have lived and remained conscious for as long as fifteen minutes after the fatal wounds were inflicted. I think this fact, in itself, is enough to distinguish this case from Jackson and would support the submission of the especially heinous aggravating circumstance.

Justice FRYE joins in this dissent.