State v. Jennings

Justice FRYE

concurring in guilt-innocence phase and dissenting in sentencing phase.

I agree with the majority that, in the guilt-innocence phase of her trial, defendant received a fair trial, free from prejudicial error. Accordingly, I vote to uphold the jury’s verdict finding defendant guilty of the first-degree murder of her husband. I cannot agree, however, with the majority’s conclusion that defendant’s capital sentencing proceeding was free of prejudicial error. Accordingly, I vote for a new capital sentencing proceeding. In the penalty phase of the trial, three aggravating circumstances were submitted to the jury. As they appeared on the verdict sheet, 1 the aggravating circumstances were: (1) Was the murder committed while the defendant was engaged in the commission of or while attempting the penetration of the anus with an object? (2) Was the murder committed for pecuniary gain? and (3) Was the murder especially heinous, atrocious or cruel? The jury answered “yes” to each aggravating circumstance.

The jury found four mitigating circumstances: (1) Defendant has no record of criminal convictions; 2 (2) Defendant has been a peaceful person in the community in which she lives; (3) Defendant has no prior record for violent crimes; and (4) Defendant’s childhood history, background and record show no indication of a habitually violent nature. After weighing the aggravating circumstances against the mitigating circumstances, the jury concluded that the mitigating circumstances were insufficient to outweigh the aggravating circumstances, and that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty. *638 The jury recommended, and the trial court imposed, a sentence of death.

, Defendant argues that each of twelve alleged errors in the penalty phase of her trial entitles her to a new capital sentencing proceeding. I need not decide whether any one error, standing alone, warrants a new sentencing proceeding. As Justice Meyer said for a unanimous Court in a recent case involving trial error:

Although neither of the trial court’s errors, when considered in isolation, might have been sufficiently prejudicial to warrant a new trial, we are of the opinion that cumulatively they are sufficiently prejudicial that we are unable to say that defendant received a fair trial, and therefore a new trial is required.

State v. White, 331 N.C. 604, 610-11 , 419 S.E.2d 557, 561 (1992). Likewise, I conclude that cumulative errors in the sentencing phase of defendant’s capital trial were sufficiently prejudicial to require a new capital sentencing proceeding.

I first consider defendant’s assignment of error as it relates to the trial judge’s instructions for the pecuniary gain aggravating circumstance, N.C.G.S. § 15A-2000(e)(6) (1988). Defendant filed a written objection to the use of this aggravating circumstance, arguing, in part, that it was “unconstitutional[ly] vague and overbroad . . . as applied in this case.”

Nevertheless, the trial judge instructed the jury as follows:

A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for having committed the crime, or as a result of the death of the victim.

If you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant stood to benefit from the remaining partnership accounts at the Merrill-Lynch in the name of the decedent, you would find this aggravating circumstance, and would so indicate by having your foreman write, ‘Yes,’ in the space after this aggravating circumstance on the form. If you do not so find or have a reasonable doubt as to one or more of these things, you will *639 not find this aggravating circumstance and will so indicate by having your foreman write, ‘No,’ in that space.

See N.C.P.I. — Crim. 150.10 (1990).

Defendant argues that the underlined portion of the instruction is constitutionally defective because it does not require that defendant kill the victim for the purpose of obtaining money. The instruction allows the jury to find this aggravating circumstance if defendant stood to gain financially by her husband’s death, even if this financial gain were merely incidental to his death, defendant argues. The State argues that this instruction is not constitutionally defective and should be upheld. I agree with defendant.

In reviewing the constitutionality of jury instructions in a capital case, the critical question is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, — U.S. —, —, 116 L. Ed. 2d 385, 399 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 , 108 L. Ed. 2d 316, 329 (1990)). To satisfy this “reasonable likelihood” standard, a defendant must show more than a “possibility” that the jury applied the instruction in an unconstitutional manner, but a defendant need not establish that the jury was “more likely than not” to have misapplied the instruction. See Boyde, 494 U.S. at 380 , 108 L. Ed. 2d at 329 .

The gravamen of the pecuniary gain aggravating circumstance is that “the killing was for the purpose of getting money or something of value.” State v. Gardner, 311 N.C. 489, 513 , 319 S.E.2d 591, 606 (1984) (emphasis added); State v. Oliver, 302 N.C. 28, 62 , 274 S.E.2d 183, 204 (1981). It is this financial motivation which “aggravates” the murder, that is, which sets this type of murder apart from other murders as being more egregious and therefore more worthy of the ultimate penalty of death. Certainly, as implicitly recognized by the State, the underlined portion of the instructions sweeps too far in that it directs the jury to find this aggravating circumstance on the mere fact that defendant “stood to benefit” financially from the death of her husband. As noted by defendant at oral argument, the surviving spouse of virtually every marriage will have some incidental financial gain from the death of his or her spouse. The contested language ignores the essence of the pecuniary gain aggravating circumstance: that the defendant killed the victim for the purpose of financial gain.

*640 The State argues, however, that when read in conjunction with the first paragraph, the instruction in this case is not constitutionally defective. I disagree. The first paragraph of the instruction states:

A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for having committed the crime, or as a result of the death of the victim.

(Emphases added.)

In this case, the State argues, the pecuniary gain aggravating circumstance was properly submitted to the jury because there was evidence from which the jury could find that this killing was motivated, at least in part, by defendant’s desire to collect the remaining $21,000 in her husband’s Merrill Lynch account. The majority notes that there was substantial evidence tending to show that the murder was committed for the purpose of pecuniary gain. I view the question — not as one of sufficiency of the evidence to support the aggravating circumstance — but whether, given the conflicting evidence, the jury was properly instructed on the law to be applied in reaching its decision. There was no evidence that defendant was “compensated” for the death of her husband, as in a killing-for-hire situation; nor was there evidence that defendant actually took money or other things of value from the person or presence of her dead husband, as in an armed robbery situation. Thus, jurors were asked to decide under this first paragraph whether defendant intended or expected to receive money as a result of her husband’s death. When read in conjunction with the second paragraph, I conclude there is a “reasonable likelihood” that the jury applied this instruction in an unconstitutional manner, that is, in a manner which allowed it to find this aggravating circumstance without regard to whether defendant killed the victim for the purpose of obtaining the money. The pecuniary gain instructions were therefore unconstitutionally vague and overbroad as applied in this case.

In another assignment of error, defendant argues that the first aggravating circumstance as it appeared on the verdict sheet— “Was the murder committed while the defendant was engaged in the commission of or while attempting the penetration of the *641 anus with an object?” — was improperly submitted to the jury because it is not one of the eleven aggravating circumstances enumerated in N.C.G.S. § 15A-2000(e). I agree.

Before turning to the merits of this argument, I note that the State argued in its brief and at oral argument that defendant did not object to the submission of this aggravating circumstance at trial and therefore has not preserved her right to appellate review on this issue. See N.C. R. App. P. 10(b). The State is correct that defendant made no objection at trial. Because this error is so fundamental to the proper functioning of our capital sentencing scheme, however, we should address it as though defendant objected at trial. See N.C. R. App. P. 2; see also State v. Fowler, 270 N.C. 468, 472 , 155 S.E.2d 83, 86 (1967) (when considering a capital case, this Court may review “any errors that appear in the record, whether excepted to and assigned or not”).

The only aggravating circumstances upon which the State may rely when seeking the death penalty are those enumerated in N.C.G.S. § 15A-2000(e). N.C.G.S. § 15A-2000(e) (1988). (“Aggravating circumstances which may be considered shall be limited to the following . . . .") (emphasis added); State v. Taylor, 304 N.C. 249, 257 , 283 S.E.2d 761, 768 (1981), cert. denied, 463 U.S. 1213 , 77 L. Ed. 2d 1398 (1983). The aggravating circumstance at issue here, as it appeared on the verdict sheet, is not among the eleven enumerated in N.C.G.S. § 15A-2000(e). Therefore, submission of this aggravating circumstance as a basis for the death penalty was error.

Judging from the oral instructions, it is obvious that the trial judge was relying on N.C.G.S. § 15A-2000(e)(5), which reads, in pertinent part:

(5) The capital felony was committed while the defendant was engaged ... in the commission of, or an attempt to commit ... a sex offense.

The crime of sexual offense is divided into first-degree and second-degree sexual offense. See N.C.G.S. §§ 14-27.4 -.5. Again, judging from the oral instructions, it is clear that the trial judge was relying on N.C.G.S. § 14-27.5(a)(l), second-degree sexual offense, which reads, in pertinent part:

*642 (a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:

(1) By force and against the will of the other person

“Sexual act” is defined in N.C.G.S. § 14-27.1(4), in pertinent part, as “penetration, however slight, by any object into the genital or anal opening of another person’s body.”

In his oral instructions to the jury, Judge Butterfield correctly explained this aggravating circumstance as follows:

Now, ladies and gentlemen, a sexual offense involves the penetration of the victim’s anus by force or by threat of force and was sufficient to overcome any resistance which the victim might make, and that the victim did not consent, and it was against his will.

The aggravating circumstance, as it appears on the verdict sheet, however, does not require the penetration of the victim’s anus be by force or against the victim’s will; instead, only penetration is required. What appears on the verdict sheet as an aggravating circumstance does not constitute the crime of sexual offense, and is therefore not one of the eleven exclusive aggravating circumstances set out in N.C.G.S. § 15A-2000(e). Although sexual offense was correctly defined during oral instructions, we have no way of knowing whether jurors based their decision on what they heard from the judge, or instead, whether they based their decision on the erroneous, nonstatutory aggravating circumstance appearing on the verdict sheet.

In another assignment of error, defendant argues that the trial court erred by submitting both of the following aggravating circumstances: (1) the capital felony was committed during a sex offense, N.C.G.S. § 15A-2000(e)(5) (1988); and (2) the capital felony was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9) (1988). Defendant argues that it was error to submit both of these aggravating circumstances because the evidence of the sex offense was included in the evidence of especially heinous, atrocious, or cruel. Although I disagree with defendant that it was error to submit both of these aggravating circumstances, I believe that the trial judge erred by failing to instruct the jury that it could not use the same evidence to find both aggravating circumstances.

*643 It is improper for the trial court to submit two aggravating circumstances supported by the same evidence. State v. Quesinberry, 319 N.C. 228, 239 , 354 S.E.2d 446, 453 (1987) (murder committed for pecuniary gain and murder committed while defendant engaged in commission of a robbery); State v. Goodman, 298 N.C. 1, 29 , 257 S.E.2d 569, 587 (1979) (murder committed to disrupt or hinder lawful exercise of governmental function or enforcement of laws and murder committed for purpose of avoiding or preventing lawful arrest or effecting escape from custody). The submission of two aggravating circumstances based on the same evidence is improper because it “amount[s] to an unnecessary duplication of the circumstances enumerated in the statute, resulting in an automatic cumulation of aggravating circumstances against the defendant.” Goodman, 298 N.C. at 29 , 257 S.E.2d at 587 .

I find this case distinguishable from Quesinberry and Goodman . Unlike those cases, there was not a complete overlap of evidence between the two aggravating circumstances in this case. Furthermore, I agree with the State that there was evidence other than the sexual offense which would have supported the proper submission of the aggravating circumstance of especially heinous, atrocious, or cruel. I therefore reject defendant’s argument that it was error to submit both of these aggravating circumstances.

However, I agree with defendant that there is a reasonable likelihood that a jury would find the sexual offense alleged, the forced penetration of the anus with an object against the will of the deceased, to be also especially heinous, atrocious, or cruel. This would result in the “cumulation of aggravating circumstances against the defendant.” Id. To avoid this cumulation, the trial court, at a new sentencing proceeding, should instruct the jury in such a way as to ensure that jurors will not use the same evidence to find both aggravating circumstances.

I recognize that, judged in light of the State’s evidence, this was a particularly brutal and senseless murder. However, whenever the State seeks to impose society’s ultimate punishment, it is the responsibility and duty of this Court to ensure that a defendant, no matter how horrific the crime, is afforded a fair sentencing proceeding in accord with our capital sentencing procedures as set forth in N.C.G.S. § 15A-2000. Given the three errors outlined above, errors touching upon each of the three aggravating circumstances found by the jury as a basis for recommending a sen *644 tence of death, I cannot say that defendant received such a fair proceeding. Accordingly, while upholding the jury verdict of guilty of the crime charged, I would vacate defendant’s death sentence and remand this case to Superior Court, Wilson County, for a new capital sentencing proceeding consistent with N.C.G.S. § 15A-2000.

Chief Justice EXUM joins in this concurring and dissenting opinion.

. The verdict sheet is the piece of paper jurors take with them to the jury room. Printed on the verdict sheet are the issues which the jurors must decide. In the sentencing phase of a capital trial, jurors write “yes” or “no” beside each issue. For example, in this case, jurors wrote “yes” after the question: “Was the murder committed while the defendant was engaged in the commission of or while attempting the penetration of the anus with an object?”

. Although submitted to the jury as a statutory mitigating circumstance (N.C.G.S. § 15A-2000(f)(l) (1988)), the submitted circumstance is nonstatutory since it relates to convictions while the statute relates to “no significant history of prior criminal activity.”