Opinion

State v. Burr

  • 341 N.C. 263
  • 461 S.E.2d 602
  • 1995 N.C. LEXIS 403
Court
Supreme Court of North Carolina
Filed
Sep 8, 1995
Status
Published
Author
Whichakd
On the bench
Orr, Whichakd, Frye
Cited by
32 cases

concluding that the death penalty was.proportionate in a case in which an infant was shaken and beaten to death by the mother’s boyfriend

How later courts described this case

  • concluding that the death penalty was.proportionate in a case in which an infant was shaken and beaten to death by the mother’s boyfriend
  • "Based on the overwhelming amount of evidence that the killing was especially heinous, atrocious, or cruel, assuming arguendo the admission of this statement was error, any such error was necessarily harmless beyond a reasonable doubt."
  • death sentence proportionate for murder of a four-month-old child where the jury found as the only aggravating circumstance that the murder was especially heinous, atrocious, or cruel

Written by the judges who cited it.

The opinion

Justice Whichakd

concurring in the result in part.

On issue XX, I do not agree that the prosecutor did not misstate the law in his explanation of Issue Three of the capital sentencing proceeding. For the reasons stated in Justice Frye’s dissenting opinions in McCarver and McLaughlin, both filed simultaneously herewith, I believe the prosecutor’s statement that the jury must be unanimous to answer Issue Three in the negative was incorrect.

In this case, however, unlike in McCarver and McLaughlin, the misstatement was by the prosecutor, not the judge. Further, there was no objection to the statement at trial, so the standard of review is whether the error was so egregious as to require the trial court to intervene ex mero motu. I do not believe the misstatement rose to that level, nor do I believe that, in the total context presented, there is any serious possibility the statement had an effect on the jury’s decision. I therefore concur in the result reached on this issue in the opinion for the Court, though disagreeing with the reasoning.

Justice FRYE joins in this concurring opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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