# State v. Kirkley > Supreme Court of North Carolina · May 3, 1983 · 308 N.C. 196 URL: https://www.frixlaw.com/law-library/cases/9588716 ## Case - **Full name:** State of North Carolina v. Clinton Rondale Kirkley - **Court:** Supreme Court of North Carolina - **Decided:** May 3, 1983 - **Citations:** 308 N.C. 196; 302 S.E.2d 144; 1983 N.C. LEXIS 1158 - **Precedential status:** Published - **Opinion:** Concurring in part by Exum - **Judges:** Exum - **Cited by:** 89 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by State v. Shank, 322 N.C. 243 (1988). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9588716 ## How later opinions describe it (automated extraction) - holding that trial court did not abuse discretion by failing to impose life sentence after jury had not reached unanimous verdict after seven-and-a-half hours of deliberation because that was reasonable period of deliberations given number of issues confronting jury - holding that trial court did not abuse discretion by fading to impose life sentence after jury had not reached unanimous verdict after seven-and-a-half hours of deliberation because that was reasonable period of deliberations given number of issues confronting jury ## Opinion text Justice EXUM concurring in part and dissenting in part. On the guilt phase of this case I believe defendant is entitled to a new trial in the homicide cases for failure of the trial court to instruct the jury on the combined effect of his mental illness and his alcohol and drug induced intoxication on his capacity to premeditate and deliberate. I concur in the result reached by the majority on the sentencing phase of the case, but I disagree with the majority’s conclusions on some of the questions presented. Guilt Phase On the guilt phase it is important to note that in the homicide cases defendant’s entire defense rested on his alleged inability to premeditate and deliberate. Even more important, the evidence upon which defendant relied tended to show that this inability was due not to his mental impairment, standing alone, or to his intoxication, standing alone; rather it was due to the combined effects of both his intoxication and his mental impairment. Much of defendant’s evidence was designed to show the large quantity of alcohol and drugs he had consumed during the several days preceding the killings. It was left, however, to defendant’s principal witness, Dr. Selwyn Rose, qualified as an expert psychiatrist, to tell the jury about defendant’s mental illness and the combined effect of this illness and defendant’s intoxication. Dr. Rose testified that in his opinion defendant at the time of the homicide “was intoxicated, and that he suffered from serious underlying mental illness, and that both of these conditions were *226 present at the time of the offense.” In Dr. Rose’s opinion defendant suffered from “a borderline psychosis, borderline schizophrenia of the schizoid type. . . .” Upon his examination of defendant Dr. Rose also found “some evidence of a long-term depression .... [L]ife was a difficult problem for [defendant] and he stayed depressed much of the time and dealt with that depression by his own treatment, which was taking drugs,.” Finally, Dr. Rose made it clear that in his opinion defendant at the time of the homicides was unable to premeditate and deliberate “because of the intoxication from drugs and because of his underlying personality problems, severe mental illnesses. ... He wasn’t able to reach that level of thinking which we call premeditation and deliberation, which involved a fairly high level of thinking process, and he was not able to do that kind of thinking at that time.” Dr. Rose made it clear that defendant’s mental condition standing alone would not have had this effect. When asked whether defendant’s mental condition “by itself, absent any drug involvement, resulted] in the shootings,” he replied, “I don’t think it did.” He further testified that the intoxication, standing alone, would not have affected his ability to premeditate and deliberate. When asked whether his opinion about defendant’s condition at the time of the homicides was based on his “looking solely at the drugs that he has been shown to have taken,” the doctor replied: No. The drugs were considered in an interaction with this explosive personality. . . . The issue was how did the drugs affect that person at that time, and the way they affected it was they blew the cover, the control system, and the rage, the anger, came pouring out. So it was the combination of the two that was essential. This testimony by Dr. Rose was the sole foundation of defendant’s entire defense in the homicide cases. Yet the trial court failed in its final jury instruction to mention defendant’s mental condition as being relevant on the issue of premeditation and deliberation. On this issue the trial court instructed the jury only that it could consider “the evidence with respect to defendant’s intoxication or drugged condition.” In light of defendant’s evidence that his inability to premeditate and deliberate was caused not by his liquor and drug induced intoxication, standing *227 alone, nor by his mental illness, standing alone, but by the combined effects of both, I think the trial court’s instructions on this aspect of the case so severely undercut the only defense proffered as practically to nullify it altogether. Defendant was thereby denied a fair trial on this, the only real issue in the homicide cases. Had the defense on the premeditation and deliberation issue rested entirely on intoxication, the instructions would have been sufficient. Had the defense rested entirely on defendant’s mental impairment, defendant would have been entitled to no instruction at all since a majority of this Court held in State v. Cooper, 286 N.C. 549 , 213 S.E. 2d 305 (1975), over the cogent dissent of then Chief Justice Sharp, a case in which neither the author of the majority opinion nor I participated, that mental illness alone, short of legal insanity, cannot negate the elements of premeditation and deliberation in a homicide case. This Court has continued to follow Cooper in a series of cases beginning with State v. Wetmore, 287 N.C. 344 , 215 S.E. 2d 51 (1975), death penalty vacated, 428 U.S. 905 (1976), and ending with State v. Anderson, 303 N.C. 185 , 278 S.E. 2d 238 (1981). Whether Cooper and its progeny were correctly decided is a question which continues to plague me. Here, however, we do not have to overrule Cooper and its progeny in order to decide the issue presented correctly. For here the question is not whether mental illness alone can negate the elements of premeditation and deliberation. The question is whether such illness when combined with the intoxicating effects of alcohol and drugs can negate such elements. Clearly, it seems to me, the answer to this issue should be yes. Indeed, State v. Propst, 274 N.C. 62 , 161 S.E. 2d 560 (1968), seems to so hold. In Propst , defendant was convicted at trial of first degree murder and sentenced to life imprisonment. He offered evidence that at the time of the killing he had drunk a considerable amount of whiskey and that he also suffered from schizophrenia. Although the trial court instructed the jury on defendant’s mental illness insofar as it might have made out a complete insanity defense, the trial court said nothing about defendant’s intoxication as it might have rendered defendant unable to premeditate and deliberate. This Court concluded that the failure was error warranting a new trial. The Court said: In our view, the evidence as to defendant’s intoxication is insufficient to support a finding that he was so drunk that *228 he was utterly unable to form an actual, specific intent to kill, after premeditation and deliberation, and was insufficient to support a finding that defendant was utterly unable to form a specific intent to shoot Taylor. Even so, when considered in connection with [some evidence of self-defense] and in connection with the testimony as to defendant’s mental status and nervous condition, we think the testimony relating to his intoxication was competent for consideration as bearing upon whether the State had satisfied the jury from the evidence beyond a reasonable doubt that defendant had unlawfully killed Taylor in the execution of an actual, specific intent to kill, formed after premeditation and deliberation, and for consideration as bearing upon whether the State has satisfied the jury from the evidence beyond a reasonable doubt that defendant intentionally shot Taylor and thereby proximately caused his death. In our view, the court, in charging the jury, should have referred to the evidence relating to defendant’s intoxication and should have given instructions as to how it should be considered. 274 N.C. at 72-73 , 161 S.E. 2d at 568 (emphasis original). For failure, therefore, of the trial court to instruct the jury as to how defendant’s intoxication when considered in connection with his mental illness might have affected his ability to premeditate and deliberate, I think defendant is entitled to a new trial in the homicide cases. Since this trial began before 1 October 1981, defendant did not have to object at trial to this failure in order to raise it on appeal. See N.C. App. R. 10. I also think the district attorney’s unnecessarily vituperative remarks about Dr. Rose during closing argument should be more vigorously censured by this Court than the majority has done. This kind of language used with reference to a qualified psychiatric expert under the circumstances presented has no place in a court of law. I see nothing in Dr. Rose’s testimony which would remotely suggest, let alone justify, this kind of attack on him personally. Indeed, his conclusions were largely corroborated during the sentencing phase by the testimony of Dr. James Groce, a psychiatrist who examined defendant at Dorothea Dix Hospital. Dr. Groce expressed the opinion that defendant had “some impairment from a mental illness” and had “been chronical *229 ly depressed for some time.” Dr. Groce felt that defendant was “suffering some impairment, both from the effects of his depression, his emotional state, and the intoxication that he was experiencing with more than one intoxicant.” In Dr. Groce’s opinion this impairment “would have impaired his reasoning, his judgment, and his control of his behavior.” Sentencing Phase With regard to the sentencing phase I concur in the result reached by the majority. I believe, however, contrary to the conclusion of the majority, that error warranting a new sentencing hearing was committed when the trial court, in effect, instructed the jury that it must unanimously agree that a particular mitigating circumstance existed before it could consider that circumstance. Indeed, the state concedes in its brief that such an instruction may be constitutionally suspect under Lockett v. Ohio, 438 U.S. 586 (1978). The state’s brief says: Lockett v. Ohio, 438 U.S. 586 (1978), holds that a statute that prevents the sentencer in all capital cases from giving independent weight to aspects in mitigation creates a risk that a death penalty will be imposed in spite of factors which call for a less severe penalty and thus is unconstitutional. It would seem manifestly improper, then, not to permit members of a jury to consider a factor in mitigation simply because all members of the jury were not satisfied with the defendant’s showing concerning a particular mitigating circumstance. It would also make any sentencing procedure unmanageable if each time a jury deadlocked on an issue a new sentencing hearing was required. It is the State’s position that only those mitigating circumstances found unanimously to exist should be listed on the verdict sheet recommended in State v. Rook, 304 N.C. 201 , 283 S.E. 2d 732 (1981), cert. denied, --- U.S. --- (1982). However, no juror should 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, supra. While the state’s position on this question might pass constitutional muster, I think the better practice would be to in *230 struct: (1) unanimity is not required in order to answer the question of the existence of a mitigating circumstance favorably to defendant; (2) such an issue should be answered unfavorably to defendant only if all jurors agreed to so answer it; (3) such an issue should be answered favorably to defendant if any juror would so answer it with an indication on the verdict form as to how many jurors so voted; and (4) in the final balancing process each juror would be free to consider only those mitigating circumstances which he or she were persuaded existed in the case. The vice in the instructions here under consideration, which the majority apparently approves, is that the jurors were led to believe that no mitigating circumstance could be considered by any juror unless all jurors agreed that it existed. The instruction occurred when the jury, after deliberating, returned to the courtroom for a question. The question was: “Does the decision of the jury have to be unanimous on an individual circumstance in Issue Three [the issue in which all of the mitigating circumstances were individually listed and answered]”? In response to this question, the court said: I instruct you that the defendant has the burden of persuading all twelve jurors, unanimously, that a given mitigating circumstance exists. The jury must unanimously agree in order to find the existence of a given mitigating circumstance. ... If the defendant satisfies you of the existence of a mitigating circumstance — satisfies all twelve of you — then it is your duty to answer the issue as to that mitigating circumstance ‘Yes.’ If the defendant fails to satisfy you of the existence —to satisfy the twelve jurors of the existence —of that mitigating circumstance, then it is your duty to answer it ‘No.’ ... You must unanimously agree to find the existence of a mitigating circumstance. There were no other substantive instructions on this question. Thus I am satisfied that the jury thought that unless it unanimously agreed on the existence of a mitigating circumstance, no juror could then consider that circumstance in the ultimate balancing process. The state concedes that the instructions, if so interpreted by the jury, might run afoul of Lockett . I think they clearly do. The state argues, however, that since the jurors found “all factors in *231 mitigation except for a series of factors which were simply the negative of aggravating circumstances not present in the case,” the instruction could not have prejudiced defendant. In each homicide case, however, at least some jurors failed to find that defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct with the requirements of the law was impaired. Likewise, at least some jurors failed to find that defendant’s age at the time of the commission of the offense was mitigating. Consequently, I don’t think the state’s argument that the error, if any, was not prejudicial has merit. I also think error which should result in a new sentencing hearing was committed in the form and manner of submission of the issues, for the reasons stated in my dissenting opinion in State v. McDougall, No. 86A81, filed 5 April 1983. I believe, too, that in the jury selection process Witherspoon error was committed which would entitle defendant to a new sentencing hearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9588716. Public record. Not legal advice.