State v. Boyd

Justice EXUM

dissenting as to sentence.

The evidence shows defendant, in a public place and in full view of several witnesses, including the victim’s mother, stabbed to death the person whom he professed to love the most. The central question at the sentencing hearing was: “Why?” The state argued the crime was motivated by defendant’s mean selfishness. Defendant, argued the state, killed the victim because he did not want anyone else to have her if he could not. This is a motive theory that is easy to sell in this kind of case. It may be the truth. Defendant’s motive theory was different, less apparent to the average observer, and probably more difficult to sell. It was a theory which does not excuse the crime but which might have mitigated it in the eyes of the jury. Defendant’s motive theory *437 was, in a nutshell, this: Defendant had suffered a number of severe personal losses during his life. He lost his father, his grandfather, his friends, and his liberty. The thought of losing Wanda was so unbearable that defendant considered killing himself. The act of killing Wanda, the one closest to him, was, in effect, an act of self-destruction. Perhaps this is not the truth.

The question before us is not which motive theory, the state’s or the defendant’s, is more worthy of belief. That question is for the jury. The question is whether defendant should be permitted to offer evidence in support of his theory. The majority says not and affirms a death sentence imposed after a hearing at which defendant was precluded from proffering his theory in mitigation because Professor Jack Humphrey’s testimony upon which the theory wholly rested was excluded from the jury’s consideration. I cannot join in this decision. Neither reason nor precedent provide any support for it.

The majority concludes Professor Humphrey’s testimony is inadmissible because it finds his opinions to be “of questionable scientific import or value in mitigation” and to suggest merely “that defendant’s act in murdering Wanda Hartman was predictable.”

Many expert opinions in controversial areas are not only “questionable”; they are often vigorously questioned by opposing experts in courts of law. That an expert’s opinions may be “questionable” has never been a ground for excluding them from evidence. It goes to the weight not the admissibility of expert testimony.

Generally experts are permitted to give their opinions if through study or experience they are better qualified than the jury to have an opinion on the particular subject under inquiry. N.C. Gen. Stat. § 8-58.13 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.

An expert’s opinion is admissible if it is “based on the special expertise of the expert, that is, . . . the witness because of his ex *438 pertise is in a better position to have an opinion on the subject than is the trier of fact.” State v. Sparks, 297 N.C. 314, 325 , 255 S.E. 2d 373, 380-81 (1979); accord, State v. Wilkerson, 295 N.C. 559, 568-69 , 247 S.E. 2d 905, 911 (1978).

The record demonstrates that Professor Humphrey was a duly qualified expert criminologist. He received his doctorate in sociology “with a concentration in criminology” in 1973 from the University of New Hampshire. He is a full professor at the University of North Carolina at Greensboro where he teaches courses in criminology, criminal justice, juvenile delinquency, and deviant behavior. He has published books entitled: Panorama of Suicide, based on a federally funded project on suicide in New Hampshire; Administration of Justice; and is presently working on a book, Deviant Behavior, which is due to be published “in the next year or so.” He has worked with Dr. Page Hudson, North Carolina’s Chief Medical Examiner, “on various projects . . . having to do with violent and unexplained death. Many of those papers . . . are co-authored with Dr. Hudson.” Professor Humphrey has participated in various professional meetings “delivering papers on matters of suicide and homicide and other forms of violence.” Since 1968 his professional studies “have concentrated almost solely on violent death.”

Clearly criminology is an area of “scientific, technical, [and] specialized knowledge.” It is defined by Webster’s Third New International Dictionary as “the scientific study of crime as a social phenomenon, of criminal investigation, of criminals, and of penal treatment.” According to The Columbia Encyclopedia (3d ed. 1963), criminology has “[s]ince 1910 . . . become a science with the introduction of intensive research and statistical analysis. . . . Criminology as a study also embraces environmental, hereditary, or psychological causes [of crime]. . . .”

Most recently Professor Humphrey conducted a study and coauthored a report based thereon with Professor Stewart Palmer, “one of the leading figures in homicide research in the United States and author of Psychology of Murder, the Violent Society.” This study, done in cooperation with the North Carolina Department of Corrections, was directed essentially to two questions. One was, “Do homicide offenders over the course of their lifetime suffer more [stressful life events] than do non-violent felons?” The second was, “Is there a difference between offenders who kill *439 family members or someone close to them as opposed to people who kill strangers or mere acquaintances?” After conducting studies of some 272 homicide offenders and 192 non-violent offenders incarcerated in the North Carolina Department of Corrections, Professors Humphrey and Palmer concluded that “homicide offenders tend to experience more stressful events than do non-homicide offenders over the course of their lifetime prior to the commission of the crime.” More importantly, for purposes of this case, the professors also considered a “major finding” to be that “people who tend to kill those close to them tend to experience more loss in their lives than those who kill strangers.” (Emphasis supplied.)

The import of Professor Humphrey’s testimony was not that defendant’s act was predictable. Indeed, he never so testified. His testimony was directed toward explaining defendant’s conduct and establishing defendant’s motive for the murder. Professor Humphrey was prepared to testify:

The more loss in someone’s life, the more likely they are to become self-destructive. And it seems that killing a family member or killing a close friend is an act of self-destruction. They are, after all, killing something that is part of them, very close to them, very important to their self. They are destroying them. So in the act of killing another person they are in fact destroying part of their self, a self-destructive act.

Professor Humphrey interviewed defendant. He was prepared to testify that during this interview defendant related a life “which seemed to involve an inordinate amount of losing things, losing his father, losing his grandfather. He didn’t have very many friends, and those he had he kept losing them. As his life progressed he lost his liberty. He was incarcerated, repeatedly. . . . [T]he one predominate factor seemed to be repeated losses.” When asked about the offense in question, defendant said, “The most important thing he had at the moment was this relationship with his girlfriend, and ... he was on the verge of losing that, at the time the crime was committed.” Defendant further volunteered information that before the homicide “he would wake up in the middle of the night with thoughts of killing himself.”

Professor Humphrey was prepared to testify that “what struck me is the consistency of Mr. Boyd’s life with what we found to be true of homicide offenders in general. It seemed pret *440 ty obvious that what was true of the group of people who had killed someone close to them was especially true of Mr. Boyd.” This was “[m]ainly . . . the accumulation of loss throughout their lives, and this tendency to be self-destructive.”

Professor Humphrey was prepared to testify that people like defendant “who are threatened with loss ... of someone very close to them, wife, girlfriend, . . . become depressed . . . and depression is in a sense anger turned toward yourself. . . . Those people who destroy someone or something at that point will not destroy a stranger, will not indiscriminately kill. They don’t constitute a threat to the public. They constitute a threat to that which they fear losing the most, the person closest to them. And it is that person who is unfortunately in harm’s way. And having extended that aggression toward other people they are in fact aggressing toward themselves. They are destroying that which they fear losing the most. ... A desperately needed part of their life.”

Under our rules governing the admissibility of expert testimony, Professor Humphrey’s testimony was competent on the question of defendant’s motive. He was a duly qualified expert criminologist by training, study and experience, and he was in a better position to have opinions on this question than the jury. The jury, of course, would have been free to reject his opinions. There is, however, no legal reason for excluding them from the jury’s consideration.

Decisions of the United States Supreme Court have been replete with references which point consistently to the proposition that a death sentence may not be constitutionally carried out if the sentencing authority is not permitted to consider all aspects of a defendant’s character, mentality, emotional makeup, record, and circumstances of the crime which might tend to mitigate the offense in the eyes of the jury. Eddings v. Oklahoma, 455 U.S. 104, 116 (1982) (“background and mental and emotional development of a youthful defendant [must] be duly considered in [a capital sentencing proceeding]”); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (“[T]he Eighth and Fourteenth Amendments require that the sentencer [in a capital sentencing proceeding] not be precluded from considering, as a mitigating factor, any aspect of the defendant’s character or record or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less *441 than death”); Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (a process for imposing a death penalty is unconstitutional if it “excludes from consideration in fixing the ultimate penalty of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of human kind”).

This Court in interpreting our statute has said: “The circumstances of the offense and the defendant’s age, character, education, environment, habits, mentality, propensities and criminal record are generally relevant to mitigation,” recognizing, of course, that evidence which is “repetitive or unreliable ... or lacking in an adequate foundation” may be excluded. State v. Pinch, 306 N.C. 1, 19 , 292 S.E. 2d 203, 219 (1982). The Court has further said, “Evidentiary flexibility is encouraged in the serious and individualized process of life or death sentencing. See Williams v. New York, 337 U.S. 241 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949). However, as in any proceeding, evidence offered at sentencing must be pertinent and dependable, and, if it passes this test in the first instance, it should not ordinarily be excluded.” Id. at 19, n. 9.

Professor Humphrey’s testimony meets all these requirements for admissibility. It was not repetitive. It was based on scientifically conducted criminological studies, including an interview with defendant, done in accordance with the dictates and discipline of this science. It was pertinent and no less reliable or dependable than similar expert testimony ordinarily admitted every day in courts of law. The testimony was proffered to mitigate the crime. The testimony was sufficient to permit, but not require, the sentencing jury reasonably to infer that defendant did not murder the victim out of meanness or selfishness but rather out of a sense of unbearable personal loss in which the killing was in defendant’s mind an act of self-destruction. It was only in the light of Professor Humphrey’s testimony that evidence which the jury heard regarding the defendant’s other losses made sense. As defendant aptly puts it in his brief, without Professor Humphrey’s testimony, “the entire structure of the defendant’s theory of mitigation was shattered into little pieces. Presented only as broken bits, there was virtually no hope that the defendant could convince the sentencing jury that his was a case arising out of the ‘frailties of human kind’ which called for compassion and mitigation of the ultimate penalty of death.”

*442 Although it is not entirely clear from its opinion, the majority apparently also holds that even if it was error not to admit Professor Humphrey’s testimony, the error did not prejudice defendant. An error of constitutional dimension, as I think this was, is prejudicial, ie. reversible, unless an “appellate court finds that it was harmless beyond a reasonable doubt.” N.C. Gen. Stat. § 15A-1443(b). Other errors are reversible if “there is a reasonable possibility that, had the error . . . not been committed, a different result would have been reached at the trial. . . .” N.C. Gen. Stat. § 15A-1443(a). Since Professor Humphrey’s testimony was the linchpin of defendant’s theory of mitigation and given his impressive academic credentials, there is a reasonable possibility that admission of his testimony would have produced a different result at trial. Clearly, I cannot conclude beyond a reasonable doubt that its exclusion was harmless.

Because of the exclusion of Professor Humphrey’s testimony, defendant is entitled to a new sentencing hearing.

Justice MARTIN joins in this dissenting opinion.