emphasizing that while a defendant in a capital case “is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias,” it is not an abuse of discretion for trial court to manage “the form and number of questions on the subject”
How later courts described this case
- emphasizing that while a defendant in a capital case “is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias,” it is not an abuse of discretion for trial court to manage “the form and number of questions on the subject”
- finding no gross impropriety in similar de minimis references during State’s argument at the guilt-innocence phase
- Rule 703 “permits an expert witness to rely on an out-of-court communication as a basis for an opinion and to relate the content of that communication to the [fact-finder].”
- “We find it unnecessary to address the trial court’s conclusion that defendant failed to make a prima facie case of discrimination because in this case the State voluntarily proffered explanations for each peremptory challenge.”
Written by the judges who cited it.
The opinion
Justice MITCHELL
concurring in part and dissenting in part.
I concur in the result reached by the majority in its conclusion and holdings that the defendant’s convictions for first-degree murder, robbery with a dangerous weapon and two counts of assault with a deadly weapon with intent to kill inflicting serious injury were without error. I dissent from that part of the decision of the majority vacating the death sentence entered against the defendant and remanding this case for a new capital sentencing proceeding.
I believe the majority is unwise to speculate by way of obiter dictum as to the circumstances under which testimony concerning experiments conducted by the defendant’s witness, psychologist Spurgeon Cole, might be admissible to support an opinion formed by Cole, in his capacity as an expert in clinical psychology, concerning the reliability of eyewitness identification. As the majority points out, Cole never testified to having formed an opinion. No issue concerning what evidence might under various circumstances be admissible to support such an opinion is before this Court, and I decline to join in the speculation by the majority concerning such matters. Therefore, I concur only in the result reached by the majority in finding no error in the guilt-innocence phase of the defendant’s trial.
More importantly, I disagree with the conclusion by the majority that the trial court’s error in instructing the jurors they must be unanimous before finding any mitigating circumstance to exist was not harmless beyond a reasonable doubt. Therefore, I dissent *37 from the holding of the majority vacating the sentence of death and remanding this case for a new capital sentencing proceeding.
The State concedes that the trial court’s instructions to the jury violated the Eighth and Fourteenth Amendments as construed in McKoy v. North Carolina, 494 U.S. 433 , 108 L. Ed. 2d 369 (1990). Since the error is of constitutional magnitude, the State must bear the burden of showing that it was harmless beyond a reasonable doubt. State v. McKoy, 327 N.C. 31, 44 , 394 S.E.2d 426, 433 (1990); N.C.G.S. § 15A-1443(b) (1988). Contrary to the majority, I believe that the State has borne that burden in the present case.
The majority concludes that the trial court’s erroneous unanimity instruction may have prevented a juror from finding the “mental age of the defendant at the time of this murder” to be a mitigating circumstance. Even assuming arguendo that this is so, I do not believe the trial court’s erroneous instruction was harmful to this defendant. The seven mitigating circumstances unanimously found by the jury in the present case included the mitigating circumstances that: (1) the “murder was committed while the defendant was under the influence of mental or emotional disturbance” and (2) “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.” It seems clear beyond any reasonable doubt that the jury gave the defendant the full benefit of any weight his evidence tending to show that he was of low intelligence and functioned at approximately a fourth grade level may have had, when the jury found the above two mitigating circumstances and weighed them in the defendant’s favor. The jury would have been required to do no more with this evidence, even had the jury been given proper instructions and followed them. Therefore, I believe the majority errs in vacating the death sentence and awarding a new capital sentencing proceeding in this case on the ground that, absent the McKoy error, a juror may have found the “mental age of the defendant at the time of this murder” to be a mitigating circumstance and weighed it in favor of the defendant.
Justice Meyer joins in this concurring and dissenting opinion.