State v. Locklear

*472 Justice BRADY

dissenting.

The majority’s assertion that there was a reasonable likelihood that the jury was able to “speculate” as to defendant’s fate in the sentencing proceeding ignores the contents of the record before us. Because the trial court informed the jury that a finding of mental retardation would result in a life sentence without parole, there was no prejudicial error in denying defendant’s request for special mental retardation jury instructions. Therefore, I respectfully dissent.

At the charge conference, defendant orally requested a special instruction informing the jury that finding defendant to be mentally retarded would result in a sentence of life imprisonment without the possibility of parole. This specific instruction was denied. The crux of defendant’s argument, and the majority.opinion, is based upon the illogical reasoning that the jury was allowed to speculate that defendant could possibly “go free” and escape punishment if jurors found defendant to be mentally retarded. Defendant claims, and the majority agrees, that by denying defendant’s orally requested instruction, the trial court permitted the jury to hypothesize about defendant’s fate and as a result, violated defendant’s due process and Eighth Amendment rights.

At the outset, I note that I could find nothing in the record indicating that defendant ever tendered a written request to the trial court for alternative or supplemented mental retardation jury instructions to the trial court. As a matter of law, “such requested special instructions ‘should be submitted in writing to the trial judge at or before the jury instruction conference.’ ” State v. Augustine, 359 N.C. 709, 729 , 616 S.E.2d 515, 530 (2005) (emphasis added) (quoting Gen. R. Pract. Super. & Dist. Cts. 21, para. 1, 2005 Ann. R. N.C. 18), cert. denied, 548 U.S. 925 (2006). Accordingly, this Court has repeatedly ruled that a trial court does not err when it denies oral requests for jury instructions that have not been submitted in writing. State v. McNeill, 346 N.C. 233, 240 , 485 S.E.2d 284, 288 (1997), cert. denied, 522 U.S. 1053 (1998); State v. Martin, 322 N.C. 229 , 236- 37, 367 S.E.2d 618, 622-23 (1988); see also N.C.G.S. § 15A-1231(a) (2007). Defendant’s request was made orally at the jury charge conference and it appears that no written request was ever tendered. On this *473 basis alone, this Court should conclude that the trial court committed no error in denying defendant’s requested instruction.

However, even if I choose the majority’s path and overlook defendant’s apparent failure to make a written request for special jury instructions, I still conclude that the trial court committed no error in denying defendant’s request. The appropriate standard under which to review constitutional challenges to jury instructions is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” State v. Smith, 360 N.C. 341, 347 , 626 S.E.2d 258, 261 (2006) (citations and internal quotation omitted). In demonstrating such a likelihood, the burden is upon the defendant “to show more than a possibility that the jury applied the instruction in an unconstitutional manner.” Id. at 347 , 626 S.E.2d at 261-62 (citations and internal quotation marks omitted). Furthermore, “[i]n determining whether the defendant has met the reasonable likelihood standard this Court must review the trial court’s instruction to the jury in the context of the overall charge.” Id. at 347 , 626 S.E.2d at 262 (citations and internal quotation marks omitted).

In the instant case, during the sentencing proceeding the jury heard evidence concerning mental retardation and aggravating and mitigating circumstances. After this evidence was presented, the trial court instructed the jury to deliberate and reach a verdict solely on the mental retardation issue. Both the State and defendant’s counsel presented arguments before the jury concerning mental retardation. The trial judge in this case then recited, verbatim, North Carolina Criminal Pattern Jury Instruction 150.05 when instructing the jury on mental retardation. The instruction states: “The law provides that no defendant who is mentally retarded shall be sentenced to death. The one issue for you to determine at this stage of the proceedings reads: ‘Is the defendant, Dane Locklear, Jr., mentally retarded?’ ” See 1 N.C.P.I. — Crim. 150.05 (2001) (footnote call number omitted).

Before these instructions were given, defendant orally requested during the charge conference additional instructions on mental retardation specifically stating that upon a finding of mental retardation, defendant would be sentenced to life without parole. The majority is correct that “[i]f a request is made for a jury instruction which is correct in itself and supported by evidence, the trial court must give the instruction at least in substance.” State v. Harvell, 334 N.C. 356, 364 , 432 S.E.2d 125, 129 (1993) (citations omitted). However, the majority *474 incorrectly concludes that defendant’s requested instruction was not given “in substance” to the jury. At the very outset of the sentencing proceeding, after the guilt phase and before the jury heard any evidence concerning mental retardation, the trial court instructed as follows: “Members of the jury, having found the defendant guilty of murder in the first degree, it is now your duty to recommend to the Court whether the defendant should be sentenced to death or to life imprisonment without parole.” The effect of this charge at the beginning of the sentencing proceeding was to inform the jury that only two possible sentences were available for defendant — death or life imprisonment without parole. The jurors heard every piece of evidence regarding mental retardation within the context of this instruction. Defendant’s argument that the jury was permitted to speculate that he would “go free” is contrary to the very first instruction jurors were given at the sentencing proceeding, which explicitly eliminated that possibility.

Defendant and the majority rely heavily upon our decision in State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595 (1976), to argue that the denial of defendant’s requested instructions was prejudicial error. Hammonds is noticeably distinguishable from the case sub judice. In Hammonds , this Court held that “upon request, a defendant who interposes a defense of insanity to a criminal charge is entitled to an instruction by the trial judge setting out in substance the commitment procedures outlined [by statute], applicable to acquittal by reason of mental illness.” 2 Id. at 15 , 224 S.E.2d at 604 . First, the jury in Hammonds was considering the issue of insanity, not mental retardation. However, even assuming arguendo that the Hammonds rule is applicable to defendants who claim mental retardation, application of the rule in this case is still inappropriate. In Hammonds , as this Court specifically noted, during the guilt determination phase of the trial “the fate of defendant, should he be acquitted by reason of insanity, became a central and confusing issue in the arguments of counsel.” Id. at 13 , 224 S.E.2d at 602 . Thus, the purpose of the Hammonds rule is “to remove any hesitancy of the jury in returning a verdict of not guilty by reason of insanity, engendered by a fear that by so doing [it] would be releasing the defendant at large in the community.” State v. Harris, 306 N.C. 724, 727 , 295 S.E.2d 391, 393 (1982). The *475 same fears are not present here. The jury in the instant case was not deciding the defendant’s guilt; this had already been determined in the guilt-innocence phase of the trial. Also, unlike the consequences of a verdict finding the defendant not guilty by reason of insanity in the Hammonds trial, there is no indication in the record that the question of what would happen to defendant upon the finding of mental retardation was confusing or ever in dispute. Both the State and counsel for defendant were in agreement and communicated to the jury during the sentencing proceeding that if defendant was found to be mentally retarded, he would be. sentenced to life in prison without parole. Thus, the fears the Hammonds rule was designed to eliminate were not present in the case sub judice.

Additionally, when defense counsel orally requested special mental retardation jury instructions at the charge conference, the State reminded the trial court that the instruction had previously been given at the beginning of the sentencing proceeding. The trial court then asked, “ [i]s there anything to prevent counsel for either the State or defendant arguing the law as it relates to what type of punishment would be imposed upon a finding of either mental retardation or no mental retardation?” This prompted a discussion in which the State confirmed with the trial court that counsel was entitled to argue before the jury that if it found defendant to be mentally retarded “he will be sentenced in accordance with the law of the state of North Carolina to life in prison without parole[.]” Therefore, at the time the trial judge denied defendant’s oral request, he was acutely aware that the jury had already received the same instruction and that counsel could again explain the instruction during closing arguments. “Jurors need adequate instructions, but they do not need to hear them repeated ad nauseam.” State v. Garcell, 363 N.C. 10, 60 , 678 S.E.2d 618, 649 (2009); see also State v. Gainey, 355 N.C. 73, 107 , 558 S.E.2d 463, 485 , cert. denied, 537 U.S. 896 (2002). It was reasonable and within the trial court’s discretion to deny defendant’s additional request for supplemental jury instructions based on the consideration that those instructions would be superfluous in light of the trial court’s initial instructions and arguments of counsel.

Counsel for the State and defendant informed the jury that a finding of mental retardation would result in a sentence of life imprisonment without parole. During closing arguments, counsel for the State asserted: “If Dane Locklear can prove that he is mentally retarded, then as a matter of law, he cannot be sentenced to death. And if you’ve been convicted of first degree murder, as he has been in this *476 case, he has to be sentenced to life in prison without parole.” (Emphasis added.) Likewise, defense counsel clearly explained in his closing argument that defendant would be sentenced to life without parole if the jury found defendant to be mentally retarded:

[A]s you know and you heard, when a person is mentally retarded, it doesn’t get any better. Doesn’t get any better. You know, nobody can make somebody who’s retarded smart. Can’t do it. He’s fixed that way for life. It’s a sad thing, but it is, and that’s why we have this law, 15A-2005. If we show these things, that he’s retarded, it’s a life sentence without parole. You don’t execute children. You don’t execute mentally retarded.

(Emphasis added.)

The majority opinion asserts that under State v. Spruill, “arguments of counsel do not effectively substitute for statements by the court.” 338 N.C. 612, 654 , 452 S.E.2d 279, 302 (1994) (quoting Simmons v. South Carolina, 512 U.S. 154, 173 (1994) (Souter & Stevens, JJ., concurring)), cert. denied, 516 U.S. 834 (1995). However, the majority uses this statement out of context. In Spruill , this Court referenced the above statement from Justice Souter’s concurring opinion in Simmons v. South Carolina to support the proposition that a “trial court has a duty to censor any remarks not warranted by evidence or law.” Id. This Court cited Justice Souter’s concurring remarks in relation to a trial court’s responsibility to correct misstatements of law or fact interjected by counsel during closing arguments. Spruill does not speak to whether it is sufficient for counsel to correctly inform the jury of matters of evidence and law. Even if the statement from Spruill is on point with the instant case, the majority still ignores that here, the trial court instructed the jury on the two sentencing options — life imprisonment without parole or the death penalty — at the outset of the sentencing proceeding. Thus, the remarks made by counsel during closing arguments were repetitions of instructions already given by the trial court and were not “substitutions for,” but rather elaborations of, “statements by the court.”

Finally, the majority claims that defendant was prejudiced because the State “argued that defendant’s mental retardation claim was ‘about Dane Locklear avoiding punishment.’ ” To suggest that the jury could possibly have misconstrued these statements to believe that defendant would someday be released from prison is unconvincing. When the complete statement is read in context, it is clear that the prosecutor was insinuating no such thing:

*477 So, then, you ask yourselves, well, why are they saying he’s mentally retarded now? For one reason and one reason only. If Dane Locklear can prove that he is mentally retarded, then Dane Locklear cannot face the ultimate consequences for what he has done. If Dane Locklear can prove that he is mentally retarded, then as a matter of law, he cannot be sentenced to death. And if you’ve been convicted of first degree murder, as he has been in this case, he has to be sentenced to life in prison without parole. That’s what this diagnosis is about. This diagnosis is not about Dane Locklear being mentally retarded from the time he was a child, throughout his life. This diagnosis is about Dane Locklear avoiding punishment.

The State plainly tells the jury that if defendant does not receive the death penalty “he has to be sentenced to life in prison without parole.” This remark appears just two sentences before the statement the majority finds prejudicial. “Statements or remarks in closing argument ‘must be viewed in context and in light of the overall factual circumstances to which they refer.’ ” State v. Goss, 361 N.C. 610, 626 , 651 S.E.2d 867, 877 (2007) (quoting State v. Alston, 341 N.C. 198, 239 , 461 S.E.2d 687, 709 (1995), cert. denied, 516 U.S. 1148 (1996)), cert. denied, - U.S. -, 129 S. Ct. 59 , 172 L. Ed. 2d 58 (2008). When read in context, it is clear that the State was not suggesting that if the jury found defendant to be mentally retarded he would one day be eligible for parole. Defendant was not prejudiced by these statements.

Considering that the jury was instructed at the beginning of the sentencing proceeding that defendant would either receive the death penalty or life imprisonment without parole, and that both the State and defense counsel reiterated these points during closing arguments, it is inconceivable that any juror was confused about defendant’s fate should the jury decide he was mentally retarded. As such, there is no reasonable likelihood that the jury could have applied the given instructions in a way that violated defendant’s constitutional rights. The majority has succumbed to engaging in pure speculation rather than accepting the reality of the record before us. Accordingly, I respectfully dissent.

Justice NEWBY joins in this dissenting opinion.

. As noted above, even if the Hammonds rule were directly applicable to the instant case, defendant’s instructions were given to the jury in substance.

Next, it is important to recognize that the defendant in Hammonds tendered a written request for supplemental jury instructions. See Transcript of Record at 117-24, State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595 (1976) (No. 40).