holding that the trial court's violation of a statute which derived from Eighth Amendment protections was "a violation of both our statute and the Eighth Amendment," and was prejudicial unless it was harmless beyond a reasonable doubt
How later courts described this case
- holding that the trial court's violation of a statute which derived from Eighth Amendment protections was "a violation of both our statute and the Eighth Amendment," and was prejudicial unless it was harmless beyond a reasonable doubt
- vacating and remanding where a police officer erroneously testified that the defendant remained silent when faced with an accusation of murder because the State's purpose for presenting the testimony was to demonstrate to the jury that defendant did not deny the accusation, allowing the jury to infer guilt and lack of remorse
- “Regardless of whether defendant requests submission of this mitigating circumstance or objects to its submission to the jury, mitigating circumstance (f)(1
- “Evidence in the present case, though not offered by defendant, tended to show that defendant had some history of prior criminal activity.”
Written by the judges who cited it.
The opinion
Justice Meyer
dissenting.
I do not agree that the failure to give the instruction on the “no significant criminal history” mitigating circumstance, N.C.G.S. § 15A-2000(f)(l) (1988), in the case at bar constitutes reversible error. The evidence before the court precluded the submission of that circumstance.
I believe that the facts reflected in the record on appeal indicate a significant history of criminal activity. The record reflects that defendant used drugs illegally and admitted from the witness stand that he had been convicted of larceny, receiving stolen goods, and forgery within the last ten years. Not only is defendant’s criminal activity recent, it is “significant” because much of it involves criminal activity similar to the crime with which he is charged in this case. Accordingly, I believe the trial court properly declined to submit the (f)(1) mitigating circumstance in this case.
In addition, without regard to the outcome of this particular case, I wish to comment on a problem highlighted by the case.
Heretofore, we have required, as we have in this case, the trial judge to review all the evidence in the record concerning defendant’s prior criminal activity, regardless of when, for what purpose, and by whom it was submitted, and then to determine, ex mero motu, whether such evidence warrants submission of mitigating circumstance N.C.G.S. § 15A-2000(f)(l); this must be done without regard to defendant’s position on the issue. State v. Wilson, 322 N.C. 117, 143 , 367 S.E.2d 589, 604 (1988).
After our considerable experience with this particular mitigating circumstance, I now conclude that this requirement places our trial judges in the untenable position of having their decision on this question frequently assigned as error whether they submit the circumstance or fail to submit it on evidence that, from case to case, appears similar. See, e.g., State v. Mahaley, 332 N.C. 583 , 423 S.E.2d 58 (1992) (error in trial court’s failure to submit mitigating circumstance when evidence showed defendant had engaged in illegal drug activity and larceny of money and credit cards to support a drug habit); State v. Turner, 330 N.C. 249 , 410 S.E.2d 847 (1991) (submission of mitigating circumstance (f)(1) proper where record showed defendant had been *369 convicted of four misdemeanors, including receiving stolen goods, larceny, worthless check, and assault with deadly weapon, and had engaged in criminal activity, including possession of marijuana, theft, sale of marijuana to victim which led to fatal altercation, and possession of sawed-off shotgun); State v. McNeil, 327 N.C. 388 , 395 S.E.2d 106 (1990) (proper to submit mitigating circumstance (f)(1) despite defendant’s prior conviction for voluntary manslaughter), cert. denied, 499 U.S. 942 , 113 L. Ed. 2d 459 (1991); State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589 (error not to submit mitigating circumstance (f)(1) even though defendant had prior conviction for second-degree kidnapping of wife); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808 (1985) (proper to submit mitigating circumstance (f)(1) over defendant’s objection even though evidence revealed defendant’s criminal history included six counts of felonious breaking and entering, six counts of felonious larceny, five counts of armed robbery, and one count of felonious assault), cert. denied, 476 U.S. 1165 , 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570 , 364 S.E.2d 373 (1988); State v. Stokes, 308 N.C. 634 , 304 S.E.2d 184 (1983) (proper not to submit mitigating circumstance where history included several larcenies, several breaking and enterings, possessing and using marijuana all within a five-year period), appeal after remand, 319 N.C. 1 , 352 S.E.2d 653 (1987) (court submitted mitigating circumstance (f)(1) at resentencing hearing). In the instant case, the majority likewise concludes that the trial court committed error in failing to submit this circumstance when the evidence showed that defendant had used drugs illegally and had been convicted of larceny, receiving stolen goods, and forgery.
I have come to believe that it is time for the legislature to revisit this issue. It is well established that in a capital sentencing proceeding, the defendant has the burden of proof on all mitigating circumstances, the standard of proof being by a preponderance of the evidence, State v. Holden, 321 N.C. 125 , 362 S.E.2d 513 (1987), cert. denied, 486 U.S. 1061 , 100 L. Ed. 2d 935 (1988); State v. Johnson, 298 N.C. 47 , 257 S.E.2d 597 (1979).
In any case, the party bearing the burden of proof on an issue has both the burden of producing evidence in support of the party’s position on that issue and the burden of persuading the trier of fact that because of such evidence, the issue should be answered in the party’s favor. Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 30 (4th ed. 1993). In a criminal case on an issue on which the defendant has the burden of proof, the defendant’s burden of produc *370 tion may be satisfied by the defendant’s own evidence or by evidence offered by the State. State v. Oliver, 334 N.C. 513 , 434 S.E.2d 202 (1993); State v. Phipps, 331 N.C. 427 , 418 S.E.2d 178 (1992); State v. Brogden, 329 N.C. 534 , 407 S.E.2d 158 (1991); State v. McQueen, 324 N.C. 118 , 377 S.E.2d 38 (1989); State v. Mash, 323 N.C. 339 , 372 S.E.2d 532 (1988); State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188 (1988).
In light of the evidentiary principles governing the defendant’s burden of proof as to mitigating circumstances, I believe that the following principles should govern the submission of mitigating circumstance (f)(1).
First, defendant should retain the burden of producing evidence in support of mitigating circumstance (f)(1). Second, defendant may meet this burden of production by offering evidence himself or by relying on evidence offered by the State. Third, if defendant, in order to meet his burden of production, relies on evidence offered by the State, he should be required to expressly so advise the trial court. If defendant offers evidence of his prior criminal activity in support of mitigating circumstance (f)(1), or expressly relies on evidence offered by the State, he should be deemed to have proffered evidence in support of mitigating circumstance (f)(1).
If defendant proffers evidence in support of mitigating circumstance (f)(1), the trial court must submit the circumstance for the jury’s consideration. If defendant fails to proffer evidence in support of this circumstance in the manner prescribed above, then he should be deemed to have waived any right he might have had to have this circumstance submitted at trial and should not be permitted to assign as error on appeal the failure of the trial court to submit it.
I recognize that requiring the trial judge to submit mitigating circumstance (f)(1) when defendant proffers evidence in support of it is somewhat unusual in that it removes from the trial judge the obligation to make the determination in the first instance of whether the evidence supports submission of the circumstance. I believe, however, that such an approach is warranted because this particular mitigating circumstance has the unusual attribute of being self-policing. A defendant will know that if he proffers evidence in support of this circumstance, the State may offer evidence in rebuttal. A defendant will not want this circumstance to be submitted and will not want to proffer evidence in support of it unless he thinks a reasonable jury would find the circumstance in his favor based on the true state of defendant’s prior criminal activity. To have this circumstance sub *371 mitted when defendant’s prior criminal activity is such that a reasonable jury will likely reject the circumstance will work to defendant’s detriment.
Further, whether someone’s “prior criminal activity” is “significant” is a completely subjective inquiry. What is “significant criminal activity” to some will be “insignificant criminal activity” to others. Like “beauty,” what is “significant criminal activity” lies in the eye of the beholder.
For these reasons, I conclude that it is proper and would be the better practice to leave submission of this circumstance to the discretion of the defendant.
I now conclude, contrary to our previous holdings, that evidence offered by the State for other purposes, such as other crimes evidence under North Carolina Evidence Rule 404(b) or evidence of criminal convictions to prove an aggravating circumstance under N.C.G.S. § 15A-2000(e), should not provide the basis for an instruction on or support the submission of mitigating circumstance (f)(1). For it to become such evidence, it should be proffered by defendant for the purpose of supporting submission of mitigating circumstance (f)(1).