State v. Bacon

*117 Justice Meyer

concurring in result.

I concur only in the result reached by the majority. I do not concur in the majority’s new definition of the pool of cases employed by this Court in its proportionality review in death cases. The majority has added a category of cases not heretofore included, that is, cases in which this Court has not reviewed either or both the guilt-innocence phase or the capital sentencing proceeding — most of which not only have not been reported and thus not tracked in the citators (Shepard’s, Insta-Cite, Auto-Cite, etc.), but which also, in some instances, might not have even been transcribed by the trial court reporter.

In State v. Goodman, 298 N.C. 1 , 257 S.E.2d 569 (1979), this Court noted that it would not engage in proportionality review until and unless it first finds both phases of a defendant’s trial free from prejudicial error. The Court noted that “[o]nly then can we have before us the true decision of the jury to which we feel great deference should be accorded.” Id. at 35 , 257 S.E.2d at 590 .

In State v. Williams, 308 N.C. 47 , 301 S.E.2d 335 , cert. denied, 464 U.S. 865 , 78 L. Ed. 2d 177 , reh’g denied, 464 U.S. 1004 , 78 L. Ed. 2d 704 (1983), this Court defined the manner in which it would conduct proportionality review and defined the pool of cases it would consider in conducting such review. We first established the appropriate pool.

In comparing “similar cases” for purposes of proportionality review, we use as a pool for comparison purposes all cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury’s failure to agree upon a sentencing recommendation within a reasonable period of time.

Id. at 79, 301 S.E.2d at 355 (second emphasis added). Immediately thereafter, in State v. Jackson, we clarified our Williams holding and further limited the pool of cases to those cases in which this Court has found no error in both the guilt-innocence and sentencing phases. State v. Jackson, 309 N.C. 26, 45 , 305 S.E.2d 703, 717 (1983).

Until today, it has been quite clear to everyone that post-trial review by this Court of the trial court’s final disposition of the case was the essential factor that qualified a case for inclusion in the pool. Under the majority’s decision in this case, cases in which there is a *118 new sentencing hearing as a result of the direct appeal or post-conviction relief, in which the defendant receives a life sentence will be included in the pool, although there has been no review whatever by this Court of the new sentencing proceeding. The same is true for cases in which new trials are ordered and life sentences are entered automatically because either (1) no aggravating circumstance is found, or (2) the jury fails to find that the aggravating circumstance or circumstances found are sufficient, when compared to the mitigating circumstances found, to call for the imposition of the death penalty. In such cases, there will have been no capital sentencing proceeding, and furthermore, there will have been no review whatsoever of the guilt-innocence phase.

In such cases as these, there is no review of the new and final proceeding by this Court, and no record on appeal has been made up; indeed, the transcript of the proceeding may not have even been typed, and, of course, there is no formal reporting of the results in the citators. Such cases are of little or no value in performing a proper proportionality review.

The majority has, by its opinion in this case, included in the pool this new and totally unreliable category of cases that will make the pool more unwieldy, more unreliable, and even more difficult to use.

The problems with the new category of cases can be illustrated by reference to a particular case, specifically included in the pool by the majority opinion, which has a remarkably similar factual situation to the case at bar. The case is State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673 , cert. denied, 479 U.S. 870 , 93 L. Ed. 2d 166 (1986), in which the defendant engaged in the brutal killing of a Marine sergeant. The jurors in the sentencing phase of Gladden’s original trial found the only submitted aggravating circumstance, that the capital felony was “especially heinous, atrocious, or cruel.” N.C.G.S. § 15A-2000(e)(9) (1988). The jurors found no mitigating circumstances and returned a recommendation that the defendant be sentenced to death.

This Court affirmed Gladden’s death sentence. However, subsequent to the final disposition of Gladden’s direct appeal by this Court and the denial of his petition for certiorari by the United States Supreme Court, 315 N.C. 398 , 340 S.E.2d 673 , cert. denied, 479 U.S. 871 , 93 L. Ed. 2d 166 , Gladden filed a motion for appropriate relief in the Superior Court, Onslow County, alleging, inter alia, ineffective assistance of his trial counsel during the sentencing phase of his orig *119 inal trial. After an evidentiary hearing, the hearing judge found that Gladden’s trial counsel, during the sentencing phase of the trial, was deficient to the extent that it prejudiced Gladden so seriously as to deprive him of a fair sentencing hearing and, on 7 December 1988, ordered a new capital sentencing proceeding. At the resentencing, the jury, having failed unanimously to find the existence of any aggravating circumstance, was not permitted to consider the death penalty and, as instructed, recommended a sentence of life imprisonment. On 2 November 1989, Gladden was sentenced to life imprisonment. Because the motion for appropriate relief was filed and disposed of in the Trial Division and was not the subject of any appeal or petition, the case did not again reach the Appellate Division, and the record of the filing and disposition of the motion does not appear in the published subsequent history of the case. This would be true even if the resentencing jury had been allowed to consider the death penalty but failed to recommend it. Having verified that Gladden’s death sentence, previously affirmed by this Court, is, by reason of a post-conviction matter, no longer in effect, that he has subsequently been resentenced to life imprisonment, and that the resentencing proceeding has not been reviewed by this Court, State v. Gladden should not be included in our pool of cases for purposes of proportionality review.

This Court has not heretofore determined what treatment cases such as Gladden should receive in regard to their status in the pool of cases for proportionality review. If this Court affirms a death sentence and the United States Supreme Court denies a petition for certiorari in the case, it is no longer tracked in the citators unless, for some reason, it is again reviewed by a court in our Appellate Division or in the federal courts. If a subsequent motion for appropriate relief is filed and is either denied or allowed in our Trial Division, any number of possible results may follow, some of which would bring the case back to our Appellate Division but some of which, such as was the case with Gladden , would not. When the latter occurs and the subsequent history is not tracked in the citators, this Court is not aware of the results unless it makes an investigation of the matter, 1 *120 which, while difficult for the Court, is far more difficult for practicing attorneys unfamiliar with the case. Arguably, for this reason alone, cases like Gladden should not be included in our pool of cases for proportionality review purposes.

There are, however, other good and valid reasons not to include such cases in the pool. For a variety of reasons, retrials and new sentencing hearings are not mirror images of the original proceedings and frequently bear little resemblance to them. Witness dispersion and unavailability, a victim’s reluctance or unwillingness to relive the experience of the trial, fading memories, lost evidence, and missing transcripts are just a few of the factors that account for the differences, particularly where the new trial or sentencing hearing occurs long and, in some cases, many years after the original trial. The evidence is often not the same and is often weaker.

The record in this very case demonstrates the point. Many of the State’s witnesses in the first trial did not testify in the resentencing. Defendant procured substantial expert psychiatric testimony that was not presented at the first trial. Defendant presented a different picture of himself — one scarred by his poor upbringing in a dysfunctional family, a far different picture than he presented at the original trial. Though, here, in spite of these differences, the jury again recommended a sentence of death, the point is that different evidence was presented.

Defendant argues that the administrative problems can be overcome by our requiring the Clerk of the Superior Court to furnish this Court a copy of the sentencing issues and recommendations and the judgment entered in each capital sentencing hearing from which no appeal occurs. While this could provide us with a record of the aggravating and mitigating circumstances submitted and those found, such a record is entirely inadequate for a proper proportionality review. Simply knowing the circumstances submitted and those found does not explain the interplay between the various bits of evidence considered, the relative strengths and weaknesses of the evidence in support of each circumstance, or the weight a juror or jurors might give to each point or other aspects of the defendant’s character in reaching a final recommendation.

This Court does not simply compare aggravating and mitigating circumstances presented and found with those presented and found *121 in other cases in the pool. In State v. Williams, 308 N.C. at 81 , 301 S.E.2d at 356 , we specifically indicated that this Court would “rely upon [its] own case reports” and review all the material, including the complete record and the briefs of the parties, in making comparisons, rather than merely review a specified number of identity points.

I consider it the better course, when engaging in a proportionality review following a determination of no error in both phases of a death case, to exclude from our pool of cases any case in which an earlier death-affirmed case has undergone a new trial or new sentencing hearing that has not been reviewed by this Court. This rule should apply whether the resentencing jury was or was not permitted to consider the sentence of death.

I would state our rule with regard to all similarly situated cases thusly: Capitally tried cases in which a new trial or a new capital sentencing proceeding has been ordered on direct review or on collateral attack, such as habeas corpus or motions for appropriate relief in state or federal court following review on direct appeal by this Court, are removed from the pool for purposes of proportionality review. If the new capital sentencing proceeding results in a sentence of death, the case does not return to the pool until it has been reviewed by this Court, and the new proceeding has been found to be without error. If the majority feels that returning only the death cases to the pool skews the pool, then the solution would be not to return such cases to the pool regardless of the outcome of the final proceeding. The pool will always consist of more than enough cases to fulfill its purpose without these cases.

Much of the difficulty in performing our proportionality review in capital cases results from the fact that the pool is constantly growing and constantly changing, with cases leaving and returning to the pool depending on the results of post-conviction attacks in state and federal trial courts and review of those decisions on appeal. Because the pool is constantly changing by reason of cases leaving and reentering, it is not as dependable and reliable a yardstick for determining the proportionality of a death sentence as originally envisioned. Today’s majority’s decision and its redefinition of the pool exacerbates the problem. The majority may have created an undesirable, if not completely unworkable, administrative and procedural nightmare not only for the Court, but also for the attorneys who handle appeals in capital cases.

. This Court has initiated procedures to discover such cases at the earliest possible time. We review on a monthly basis the list of inmates on death row to determine if an inmate has been removed. If an inmate has been removed, we investigate to determine whether it is by reason of some post-conviction relief granted in the Trial Division. If so, then the case is tracked for further development, and the case is deleted from the proportionality pool. We have also requested that the Warden of Central Prison (where all the death row inmates are housed) inform us when such an occur *120 rence comes to Ms knowledge. Further, we have requested that the Clerks of Court in our one hundred counties inform us whenever post-conviction relief is granted in the Trial Division changing the status of a death row inmate.