stating "to inform the jury that its failure to agree on determinative issues will result in a sentence of life imprisonment would be an open invitation to the jury— or a single juror—to avoid its responsibility to fully deliberate and to force a recommendation of life by the simple expedient of disagreeing"
How later courts described this case
- stating "to inform the jury that its failure to agree on determinative issues will result in a sentence of life imprisonment would be an open invitation to the jury— or a single juror—to avoid its responsibility to fully deliberate and to force a recommendation of life by the simple expedient of disagreeing"
- no prejudice to defendant results from a trial court’s failure to allow defense counsel to elicit additional information from a prospective juror where defendant does not exhaust his peremptory challenges
- “[W]e find no indication in the record of ‘an absolute impasse’ between the client and the defense team as it concerned trial tactics. At no time did [the] defendant voice any complaints to the trial court as to the tactics of his defense team.”
- State entitled to inspect and copy incomplete personality test which provided expert witness with some “raw data”
Written by the judges who cited it.
The opinion
Justice Frye
concurring in part and dissenting in part.
I concur in the Court’s decision finding no prejudicial error in defendant’s trial and conviction of first-degree murder and robbery with a dangerous weapon. I dissent only as to the capital sentencing proceeding.
I find nothing in the North Carolina Constitution or in our death penalty statute requiring a jury in a capital sentencing proceeding to be unanimous in order to give a negative answer to an issue requiring a positive finding as a prerequisite to a recommendation that a person be sentenced to death. This is the effect of the majority’s holding as to the first issue in the capital sentencing proceeding. I therefore dissent as to this issue.
The majority first relies upon Article I, Section 24 of the North Carolina Constitution for the proposition that any jury recommendation requiring a sentence of death or life imprisonment must be unanimous. This section simply says that:
*410 No person shall be convicted of any crime but by a unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.
N.C. Const, art. I, § 24. This section requires a unanimous verdict of a jury in open court in order to convict a person of a crime. In this case, as in all capital cases in North Carolina, we do not get to a capital sentencing proceeding until after a jury has convicted the defendant of the capital crime by a unanimous verdict in open court. The majority’s proposition relates to any sentencing recommendation, not a conviction. Thus, I do not find the majority’s conclusion to be supported by Article I, Section 24 of the North Carolina Constitution.
The majority cites N.C.G.S. § 15A-2000(b) in support of the same proposition. Note, however, that the proposition is stated in terms of any jury recommendation. The recommendation can be one of only two sentences: life imprisonment or death. Under N.C.G.S. § 15A-2000(b), the jury must hear the evidence, arguments of counsel, and instructions of the court before deliberating and delivering a sentence recommendation to the court. This sentence recommendation (life imprisonment or death) must be based upon the jury’s consideration of:
(1) Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) exists; [and]
(2) Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f), which outweigh the aggravating circumstance or circumstances found, exists[.]
N.C.G.S. § 15A-2000(b) (Supp. 1994). Thus, under N.C.G.S. § 15A-2000(b), before the jury may recommend, it must first consider whether any enumerated sufficient aggravating circumstances exist, whether any enumerated sufficient mitigating circumstances exist, and whether those mitigating circumstances outweigh the aggravating circumstances.
In order to facilitate the jury’s consideration of the matters mandated by the statute, the court gives the jury four issues to answer. In order to facilitate the jury’s recommendation, the court gives the jury one question to answer. For convenience, and to assist the jury in understanding and following the court’s instructions, the court gives the jury a form to take into the jury room. It is labeled: Issues and Recommendation as to Punishment.
*411 N.C.G.S. § 15A-2000(b) says that “[t]he sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors. Upon delivery of the sentence recommendation by the foreman of the jury, the jury shall be individually polled to establish whether each juror concurs and agrees to the sentence recommendation returned.” Note again that the language of the statute is that the “sentence recommendation” must be unanimous. There is no express provision in N.C.G.S. § 15A-2000(b) requiring unanimity as to the jury’s consideration of matters leading to its recommendation.
The majority next relies on a quote from Justice Kennedy’s concurring opinion in McKoy v. North Carolina, 494 U.S. 433 , 108 L. Ed. 2d 369 (1990). In McKoy , the United States Supreme Court held that North Carolina’s capital sentencing scheme’s unanimity requirement as to mitigating circumstances “violates the Constitution by preventing the sentencer from considering all mitigating evidence.” Id. at 435 , 108 L. Ed. 2d at 376 . Concurring in the judgment, Justice Kennedy said:
Jury unanimity, it is true, is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury’s ultimate decision will reflect the conscience of the community. Yet the unique interaction of the elements of the sentencing statute in issue here can allow the same requirement of unanimity to produce a capital sentence that lacks unanimous support of the jurors, and, more than this, is thought to be inappropriate by 11 of the 12.
Id. at 452 , 108 L. Ed. 2d at 387 . The second sentence of Justice Kennedy’s concurring opinion makes it clear that, at least in some circumstances, requiring unanimity as to one of the issues the jury must consider in making a sentencing recommendation may result in a capital sentence thought to be inappropriate by some, if not most, of the jurors. Thus, I do not believe that, even if Justice Kennedy had spoken for a majority of the Supreme Court, his views would support the majority’s rule set forth in this case that the jury must be unanimous to answer “no” to Issue Three-
The majority’s ultimate rationale for requiring the jury to be unanimous to give a negative answer to Issue Three is that this requirement prevents the jury from evading its duty to make a sentence recommendation. I do not accept this rationale, and I find nothing in our Constitution, our capital sentencing statute, or our cases to support it. The cases cited by the majority require unanimity in the jury’s rec *412 ommendation as to sentence, and I agree with the rationale of those cases. However, they are not controlling on the question here which relates to an issue the jury must answer before making a recommendation as to sentence. I now consider defendant’s argument.
For his first assignment of error in the sentencing phase of his trial, defendant contends that the trial court committed reversible error in giving an erroneous answer to a question by the jury and then refusing to instruct the jury that it did not need to be unanimous in order to give a negative answer to Issue Three on the written Issues and Recommendation as to Punishment form. I agree.
Under subsection (c) of N.C.G.S. § 15A-2000, if the jury recommends a sentence of death, the jury foreman is required to sign a writing on behalf of the jury setting out specific findings in support of the jury’s recommendation. Subsection (c) provides:
(c) Findings in Support of Sentence of Death. — When the jury recommends a sentence of death, the foreman of the jury shall sign a writing on behalf of the jury which writing shall show:
(1) The statutory aggravating circumstance or circumstances which the jury finds beyond a reasonable doubt; and
(2) That the statutory aggravating circumstance or circumstances found by the jury are sufficiently substantial to call for the imposition of the death penalty; and,
(3) That the mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found.
N.C.G.S. § 15A-2000(c) (Supp. 1994).
The language of this subsection is mandatory: “the foreman . . . shall sign a writing on behalf of the jury which writing shall show” the three requirements set out in this subsection. Id. (emphasis added). If the writing does not show that these requirements have been met, the jury may not recommend, and the judge may not impose, a sentence of death. Thus, unanimity is required in order for the jury to find the statutory requisites to the recommendation of a sentence of death, and unanimity is required for the recommendation itself. In short, while N.C.G.S. § 15A-2000(b) requires the jury recommendation to be unanimous, N.C.G.S. § 15A-2000(c) requires that both the jury’s *413 recommendation of death and the findings in support thereof be unanimous.
In compliance with subsection (c) of N.C.G.S. § 15A-2000, Issue Three on the written Issues and Recommendation as to Punishment form submitted to the jury in this case was as follows:
Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found by one or more of you is, or are, insufficient to outweigh the aggravating circumstance or circumstances found unanimously by you in Issue One?
The trial court correctly instructed the jury:
If you unanimously find beyond a reasonable doubt — you’ll notice, unanimously, twelve person decision — If you unanimously find beyond a reasonable doubt that the mitigating circumstances found are insufficient to outweigh the aggravating circumstances found, you would answer Issue Number Three, “Yes.” If you do not so find, or have a reasonable doubt as to whether they do, you would answer Issue Number Three, “No. ”
(Emphasis added.)
After several hours of deliberation, the jury sent a question to the judge regarding Issue Number Three. The question read: “Must there be twelve votes, ‘Yes,’ or twelve votes, ‘No,’ to reach a unanimous decision?” After conferring with the parties, the judge had the jury return to the courtroom, and the following colloquy occurred between the judge and the foreman of the jury:
The Court: The answer to that is, Yes, it must be a unanimous twelve person decision as to any answer you reach to that issue, whether it be Yes or whether it be No. It must be a unanimous twelve person decision.
Does that answer your question?
Juror Basinger: Yes, sir.
One more question, if I may ask. If there is not a unanimous decision, what steps are taken then as to the paper? Unless I’m reading it wrong — the reason that I’m asking because the way that the question is stated I might look at it totally different than juror number one would look at it and that’s the reason we came out to ask because we want to be sure of what we were reading.
*414 The Court: Well, the answer is that it must be unanimous twelve person decision. If what you’re saying is — you understand that it can’t be a majority vote, it must be a unanimous twelve person decision. So I’m going to ask you to continue deliberations with that instruction in mind. Does that answer your question?
Juror Basinger: Yes, sir.
The Court: If you’ll step back there and keep trying, please.
After the jury resumed deliberations and the court adjourned awaiting the jury verdict, defendant objected to the judge’s instruction and indicated that if all the jurors do not agree on the answer to Issue Three, then the answer to that question is “No.” Thus, a unanimous decision is not required to answer “no” to Issue Three. The colloquy continued:
The Court: The State need to respond to that?
Mr. Kenerly: Your Honor, I think it’s just a question of syntax. It’s an awkwardly worded question. But if they’re not unanimous then we would just say that they cannot answer that question, but not that they would answer it, No. They can only answer it Yes or No if they’re unanimous in whichever way they decide.
Mr. Russell: Your Honor, if that was the case, we could just strike the word “unanimous” from Issue Three.
Your Honor, I know it’s kind of convoluted but in more simple terms if they do not all agree, then they do not find Issue Number Three. If they do not all agree, they cannot answer Yes to Issue Number Three. But they don’t all have to agree, No.
I believe that the foreman asked a follow-up question, what happens if we all do not agree or all cannot agree? I think that therein lies the answer. The answer is that if you don’t agree unanimously, then the answer to the question is No.
The Court: That is a very interesting argument and I certainly see the logic in it, but I don’t believe that’s a correct statement of the law as it now exists. So until I see some definitive direction from a higher court, I would feel compelled to deny that motion or that request. I’ll certainly note that objection for the record.
I believe that defendant’s attorney correctly stated the law when he told the judge, “if they do not all agree, then they do not find Issue Number Three. If they do not all agree, they cannot answer Yes to Issue Number Three. But they don’t all have to agree, No.” Defendant’s position is consistent with N.C.G.S. § 15A-2000(b) and *415 (c), the court’s initial instruction in this case, and the instructions on the Issues and Recommendation as to Punishment form. Furthermore, defendant’s position is not inconsistent with the federal or state constitutions, or any decision of this Court that I have been able to find.
The State contends that the question in this case is controlled by State v. Green, 336 N.C. 142 , 443 S.E.2d 14 (1994). I find that Green is distinguishable from the instant case. In Green , the defendant was charged with first-degree murder of two persons. Aftér deliberations, the jury asked: “Does [the jury] decision have to be unanimous on both recommendations?” Id. at 176 , 443 S.E.2d at 35 . This Court held that “[t]he trial court correctly informed [the] jury that any recommendation [it] made as to sentencing must be unanimous.” Id. at 178 , 443 S.E.2d at 35 (emphasis added). In Green , the jury was questioning whether it would have to be unanimous in its sentencing recommendations on each of the two murder charges. The correct answer was “yes”; the jury must be unanimous in its sentencing recommendation of life or death. However, the question in this case was not whether the sentencing recommendation must be unanimous but whether the jury must be unanimous in order to give a negative answer to Issue Three, an intermediate step the jury must take prior to reaching a unanimous sentencing recommendation. Accordingly, this case is not controlled by Green .
If the jury does not unanimously agree that the mitigating circumstances are insufficient to outweigh the aggravating circumstances, or if any member of the jury has a reasonable doubt as to whether the mitigating circumstances are insufficient to outweigh the aggravating circumstances found by the jury, the answer to Issue Three is “no.” To put it simply, the jury must be unanimous to answer Issue Three “yes, ” but unanimity is not required to answer “no.” 1 “If the jury cannot, within a reasonable time, unanimously *416 agree to its sentencing recommendation, the judge shall impose a sentence of life imprisonment; provided, however, that the judge shall in no instance impose the death penalty when the jury cannot agree unanimously to its sentence recommendation.” N.C.G.S. § 15A-2000(b).
In this case, the jury was given two alternative instructions upon which to base its decision: the initial correct instruction required the jury to be unanimous in order to find that the mitigating circumstances were insufficient to outweigh the aggravating circumstances, while the subsequent instruction erroneously required the jury to be unanimous in order to answer the question in the negative. When a jury is given two alternative instructions upon which to base its decision, one of which is improper, the matter must be remanded for a new proceeding. See State v. Pakulski, 319 N.C. 562, 574 , 356 S.E.2d 319, 326 (1987). This result is required because the appellate court cannot determine upon which instruction the jury relied in reaching its decision and, therefore, assumes the jury relied on the erroneous, improper instruction. Id. This Court is “not at liberty to” assume upon which instructions defendant’s sentencing jury relied. State v. Belton, 318 N.C. 141, 162 , 347 S.E.2d 755, 768 (1986). “[T]he Court [construes] the ambiguity in favor of defendant.” Id. This is especially true where, as here, the erroneous instruction is given in response to a question, from the jury, which indicates that the answer to the question may determine whether defendant is sentenced to life imprisonment or death. Since the jury may have relied on the erroneous instruction to make its recommendation of a sentence of death, I cannot find the error harmless beyond a reasonable doubt. I would thus find the error prejudicial, vacate defendant’s sentence of death, and remand the case to Superior Court, Cabarrus County, for a new capital sentencing proceeding in accord with N.C.G.S. § 15A-2000.
Justice WHICHARD joins in this concurring and dissenting opinion.
. The majority also seems to decide that the jury must be unanimous in order to answer “no” to Issues One and Pour. As to Issue One, the majority’s decision seems contra to (1) State v. Kirkley, 308 N.C. 196, 219 , 302 S.E.2d 144, 157 (1983) (“The unanimity requirement is only placed upon the finding of whether an aggravating . . . circumstance exists.”); (2) the North Carolina Pattern Jury Instruction, N.C.P.I. — Crim. 150.10 (1990) (“If you do not unanimously find beyond a reasonable doubt that one of these facts existed, you would answer Issue One-A ‘No[.]’ ”); and (3) Justice Meyer’s dissenting opinion in State v. Hightower, 331 N.C. 636, 648 , 417 S.E.2d 237, 244 (1992) (Meyer, J., dissenting) (“I conclude that defendant is entitled to a new sentencing hearing based on the trial court’s erroneous instruction that the jury could not reject the sole aggravating circumstance submitted unless the jurors unanimously agreed that the evidence presented did not prove the existence of the aggravating circumstance.”). .