Petition — McDougall v. North Carolina

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ypreme Court, U.S.

= i LED

82-2105

JUN 24 1983

ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

MICHAEL VAN McDOUGALL

Petitioner

-against-

STATE OF NORTH CAROLINA

Respondent

= ae FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF NORTH CAROLINA

* JAMES C. FULLER, JR.

JAMES E. FERGUSON, II

Chambers, Ferguson, Watt,

Wallas, Adkins & Fuller, P.a,

951 S. Independence Blvd.

Suite 730

Charlotte, North Carolina

28202

704/375-8461

* ATTORNEY OF RECORD

QUESTION PRESENTED

Whether the North Carolina Supreme

Court misinterpreted Lockett v. Ohio,

438 U.S. 586 (1978) by affirming a trial

court's charge in a death penalty sen-

tencing hearing in which the jury was

effectively forbidden to consider any

mitigating factors unless such factors

quantitatively outweighed the aggravating

factors?

TABLE OF CONTENTS

SC EOMS PEOSONCES . once ccccecsece

Citation to Opinions Below.........

I 5 gon a'e 9 0 4 e 000-0 00 be.¥ 008

Constitutional and Statutory

PEOVLOLONS THWVOlLVER ...cccccccses

memes OF CHO CASE ..ccccceccvece

en er eee tee uuwweess

How the Federal Questions Were

Raised and Decided Below.........

Reasons for Granting the Writ......

APPENDICES :

Opinion of the Supreme Court

of North Carolina, rendered

5 April 1983 Al

Judgment of the Supreme Court

of North Carolina, rendered

25 April 1983 Bl

North Carolina General Statutes,

Chapter 15A, Article 100,

Capital Punishment Cl

Excerpts from Trial Record;

The full transcript of the

Judge's charge to the jury D1

Excerpts from Trial Record;

Issues presented to the jury

as to punishment El

iii

TABLE OF AUTHORITIES

Cases Page

Eddings v. Oklahoma, U.S.

102 S.Ct. S69, 7/1 L.Ed.2d 1 (1982).

Lockett v. Ohio, 438 U.S. 586

Peat S e so a ce ween ee ee 30, aks S05 20

Missouri ex rel. Southern R. Co.

v. Mayfield, 340 U.S. 1 (1950)....... 19

Red Cross Line v. Atlantic Fruit

i ee Wan Be SEES «uss dvs ewenee 20

State Tax Commission v. Van Cott,

a ee Cs baa ahs Ce seh e ee en 19

State v. Pinch, 306 N.C. 1, 292

(1982), cert. denied,

G8... , 74 L.86, 28 627 (1982)....38

State v. Smith, 305 N.C. 656, 292

S.E.2d 264 (1982), cert. denied,

See Ee a

aes ove yc awarded ve 34, 38

State v. Williams, B.C. » 292

a es ), cert. denied,

see | rer ee L.Ed. 2d 622 (1982)....38

Woodson v. North Carolina, 428

MM SR Re : i Re ene 39

Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S. 562

See goes idee 6a-4 5 Ube 20h be bees 18

Federal Statutes:

28 U.S.C. §1257(3)

North Carolina Statutes:

N.C. Gen. Stat. §15A-2000 et seq.

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

MICHAEL VAN McDOUGALL

Petitioner

-against-

STATE OF NORTH CAROLINA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF NORTH CAROLINA

Petitioner, Michael Van McDougall,

respectfully prays that a writ of

certiorari issue to review the judgment

of the Supreme Court of North Carolina

in this case.

CITATIONS TO OPINIONS BELOW

The opinion of the Supreme Court of

North Carolina is reported at N.C.

___, 301 S.E,2d 308 (1982), and is

attached as Appendix A.

JURISDICTION

The opinion of the Supreme Court of

North Carolina was issued on 5 April

1983. The judgment of the Supreme Court

of North Carolina was issued on 25 April

1983, and is attached hereto as Appendix

This Court's jurisdiction is in-

voked pursuant to 28 U.S.C. §1257(3).

Petitioner has asserted below and now

asserts a deprivation of rights secured

by the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fourteenth

Amendment to the Constitution of the

United States, which provides, in

relevant part:

"[NJor shall any State deprive

any person of life, liberty,

or property, without due process

of law; nor deny to any person

within its jurisdiction the

equal protection of the laws."

and the Eighth Amendment to the Consti-

tution of the United States, which

provides:

"Excessive bail shall not be

required nor excessive fines

imposed, nor cruel and unusual

punishments inflicted."

This case also involves the North

Carolina death penalty statute, N.C.

Gen. Stat. §15A-2000 et seq., which is

attached as Appendix C.

STATEMENT OF THE CASE

On the morning of 21 August 1979,

Mecklenburg County police officers

answered a call to a Blueberry Lane

residence in Charlotte, North Carolina

where they found one young woman

seriously injured and another dead.

The police found the defendant, Michael

McDougall, in his front yard next door.

McDougall was arrested on the scene and

in September 1979 indicted with the

murder of Diane Parker, the assault

with a deadly weapon with intent to

kill of Vicky Dunno that resulted in

serious injuries, felonious breaking

and entering, kidnapping of Vicky Dunno,

and kidnapping of Diane Parker.

(R pp 3-7)*

After several preliminary hearings

and postponements, the trial began on

9 June 1980. (R pp 96-97). Defendant

raised a defense of not guilty by reason

of insanity. (R pp 60-61).

Upon this plea of not guilty, the

jury rendered verdicts as follows:

1. First degree burglary--not guilty

Kidnapping Vicky Dunno--not guilty

Kidnapping Diane Parker--guilty

> Ww ho

. 7 .

Assault with a deadly weapon of

Vicky Dunno--guilty

5. First degree murder--guilty only

under the felony murder rule.

(R pp 114-115). This verdict was

filed on 21 July 1980 (R p 114),

three days after the jury found

* All page citations in the Statement of

the Case and the Statement of Facts refer

to the Record (R p x) or Transcript

(T p x), both of which are filed in the

Office of the Clerk, North Carolina

Supreme Court.

the defendant to be sane under

specially submitted interrogatories.

(R p 113).

On 25 July 1980, after two days

additional testimony, the jury found that

there were aggravating circumstances,

that there were mitigating circumstances,

that the mitigating circumstances were

not sufficient to outweigh the aggravat-

ing circumstances, and that the aggravat-

ing circumstances called for the imposi-

tion of the death penalty. Therefore,

the jury was directed to recommend a

sentence of death. (R pp 118-19), On the

same day, Superior Court Judge Ferrell

entered judgments as follows:

1. In 79CRS67084, kidnapping of

Vicky Dunno, upon a verdict of not guilty,

the case was dismissed. (R pp 119-20).

2. In case No. 79CRS67087, first

degree burglary, upon a verdict of not

guilty, the case was dismissed.

(R p 120).

3. In case No. 79CRS47734, assault

with a deadly weapon of Vicky Dunno, upon

a verdict of guilty, defendant was sen-

tenced to not more and not less than 20

years in prison. (Rp 121)

4. In 79CRS67081, kidnapping of

Diane Parker, upon a verdict of guilty,

the defendant was sentenced to a minimum

and maximum of life to be served con-

secutively. (R pp 122-124)

5. In 79CRS47697, first degree

murder, upon a verdict of guilty and a

recommendation of death, the judge

ordered the defendant to be killed.

(R pp 124-26).

From the trial Court's judgment of

conviction and sentence of death, peti-

tioner appealed. The judgment of the

Supreme Court of North Carolina affirm-

ing the convictions and sentence has now

been filed, N.C. , 301 S.E.2d 308

(1983) (Appendix A).

STATEMENT OF FACTS

On 21 August 1979, between 2:30 and 2:45

a.m., aCharlotte police officer noticed a

flatbed truck with wooden stakes and

iron railings at an intersection, head-

ing South out of town. The officer

noticed that the truck was being driven

"in a normal manner," although he thought

it unusual that such a vehicle was on

the street at such a time. He looked

directly at the driver's face.

(T pp 1661-63).

Shortly after 3:00 a.m. the same

officer, responding to a police dispatch,

went to a residence on Blueberry Lane,

located in the same geographical area as

where he had seen the truck. There, he

saw the same truck, the driver--who he

would later identify at trial as the

petitioner--and the body of Diane Parker.

(T pp 1663-64).

The officer went into 1420 Blueberry

Lane, the residence of Diane Parker and

Vicky Dunno, where he saw "bloodstains

on the walls and doors." (T pp 1668).

Nearby, lying on the livingroom floor,

was Dunno, severely wounded. (Tp 1669).

Outside, the officer found a knife, a

piece of broken knife blade, and a pair

of eyeglasses. (T p 1670).

On that date, Diane Parker and

Vicky Dunno lived together on Blueberry

Lane, about one and a half miles from

the intersection where the officer saw

the truck. (T pp 1663, 1916). They had

retired shortly before midnight.

(T p 1921).

Between 2:30 a.m. and 2:45 a.m.,

Dunno heard the door bell ring. As she

tried to see the caller, Parker was talk-

ing through the closed front door to a

male who said that "his wife had cut

her leg real bad and that he needed

alcohol and bandages and to call a

doctor." (T p 1923). Calling for

"Diane,"’ the voice asked for help for

his wife, saying that he was "her neigh-

bor, Mike." (T pp 1924-25). Initially

the two women put alcohol and dressings

on the back porch for the caller. How-

ever, he importuned them to open the

door. Finally, Parker did. (T p 1926).

At trial, Dunno identified the caller,

whom she had seen by porch and interior

lights,as petitioner. (T p 1927),

Once inside, petitioner followed

the women into the kitchen where Parker

picked up the phone to call a physician.

However, before Parker could dial, peti-

tioner "walked over [to a spot 4-5 feet]

behind Diane. . . where we had a cutting

board, and picked up a butcher knife."

(T p 1929), He then "grabbed her by the

arm, put the knife up in front of her

face" and "told her to put down the

phone." A struggle followed on the

floor, with phone and stools knocked

about, as Parker tried to get away.

(T p 1939).

At Parker's suggestion, Dunno ran

out the front door to seek help next

door. As she rounded the porch, dew

caused her to slip. She was searching

for her glasses in the grass when defen-

dant came up, "grabbed me by the arm,

and told me I wasn't going anywhere."

(T p 1932).

At that instant, Parker appeared

with a knife in her hand, telling peti-

tioner that "if he hurt [Dunno], that

she'd kill him." Petitioner released

Dunno and, after a brief struggle, fell

to the ground with Parker. Dunno told

Parker not to fight because of the

knife. Dunno heard one knife land be-

side a nearby car. (T pp 1932-33).

Parker then "stopped struggling."

The petitioner "grabbed [Parker] by the

back of the hair, grabbed [Dunno] by the

back of the hair, and drug both of us

back inside."' Dunno suffered cuts and

bruises on knees and ankles from the

dragging. (T p 1934). Inside, she saw

that Parker was bleeding from face and

forehead. (T p 1935).

At petitioner's insistence, Dunno

gave him her car keys. "He still had

hold of Diane, and so I started out in

front of him, and the three of us went

"where peti-

back outside to the car,'

tioner "turned Diane loose." She walked

around to the back side of the car.

(T pp 1935-36). Petitioner returned

the keys to Dunno, asking for the trunk

key as he told Parker he intended to

put both "in the trunk until we got

where we were going, and then he'd let

us out.”

At Parker's suggestion, Dunno then

threw the keys into the grass. Peti-

tioner then became, "very angry that I

had thrown the keys .. ."' He pushed

Dunno to the ground and stabbed her a

mumber of times. She yelled to Parker

who ran. (T p 1937). The petitioner

"left me and ran after [Parker]." When

petitioner and Parker disappeared from

sight, Dunno went inside, locked the

door and dialed the emergency number.

(T pp 1938-39).

Police arrived shortly. Dunno

recounted the events, describing the

assailant as "tall and heavy-set had

dark hair and had on a plaid shirt."

(T p 1943).

Dunno was then taken by ambulance

to the hospital where she underwent

surgery for injuries to her lungs,

abdomen and diaphragm. She was in

intensive care for almost a week and

was released from the hospital in some-

thing over six weeks, returning to work

but still unable to lift or move about

without discomfort. (T pp 1945-46).

Petitioner pled not guilty by

reason of insanity. Petitioner's

psychiatric witnesses stated that he was

not capable cf discerning right from

wrong at the time of the incident

described above. On the night of the

stabbings, petitioner's pre-existing

emotional and psychological problems

were greatly exacerbated by the intra-

venous ingestion of a large amount of

cocaine. In a frenzy of drug-induced

dementia, the petitioner evidently re-

lived a number of childhood traumas in-

cluding mistreatment he had personally

experienced. According to the psychiat-

ric testimony, he lost all control and

began to strike out at the two victims

because he psychologically identified

them with excruciatingly vivid childhood

trauma. As he relived an incredible

childhood that included the murder of his

own father, and a grisly scene in which

his grandfather committed suicide in the

child's presence, the defendant repeat-

edly stabbed both victims. (The State's

psychiatric experts, from the State's

mental hospital, thought petitioner's

Capacity to appreciate the criminality

of his acts diminished, but suggested

he was legally sane.)

HOW THE FEDERAL QUESTION WAS

RAISED AND DECIDED BELOW

Petitioner assertedin the North

Carolina Supreme Court that the trial

court submitted penalty phase issues,

and charged the jury, in a manner that

violated Lockett v. Ohio and denied to

petitioner his right to due process of

law. This argument was briefed and argued

in the North Carolina Supreme Court

as defendant-Appellant's Question 5,

(Defendant-Appellant's Brief, p 37),

The State responded to the petitioner's

contentions, thus presenting the issue

squarely before the North Carolina

Supreme Court. (State-Appellee's Brief,

PP 29-32).

The majority rejected the peti-

tioner's argument, although without any

identifiable rationale. (Appendix A,

pp A63-A66). While noting twice that the

trial judge's charge in the penalty phase

was “not a model charge," the majority

determined that the judge's charge was

"substantially the same" as that pro-

posed by petitioner in his Brief. In

fact, as noted by dissenting Justice

Exum, that is not the case at all.

(Appendix A, pp A97-Al00). In point of

fact, the majority simply glossed over

that portion of the trial court's

charge that clashed irreconcilably with

Lockett. Ironically, the State, in its

Brief, noted the obvious conflict, but

sought to explain away the implications

of the Lockett violation. Strangely,

the majority chose to ignore the con-

flict by a generalized reference to the

entire charge: One searches in vain for

any language in the charge to justify

the majority's conclusion.

Here, the majority has not--and

could not--attempt to interpret the

North Carolina Death Penalty Statute

"solely as a matter of [local] law."

Zacchini v. Scripps-Howard Broadcasting

Co., 433 U.S. 562, 568 (1977). Rather,

the absence of any meaningful reliance

upon its own prior decisions or upon

North Carolina statutes compels the

conclusion that the North Carolina

Supreme Court interpreted the statute

because it felt “under compulsion of

federal law. . ."" Missouri ex rel.

Southern Rwy Co. v. Mayfield, 340 U.S.

1, 5 (1950).

The majority's reference to

Lockett therefore shows that, at best,

there are intertwined questions of

state and federal law that are "so

interwoven" as to make it impossible to

determine "that the judgment rests upon

an independent interpretation of State

law."' State Tax Commission v. Van Cott,

306 U.S. 511, 514 (1939). Therefore,

the North Carolina Supreme Court's treat-

ment of this question as one arising

under the federal constitution, and the

undeniable federal constitutional impli-

cations that arise under Lockett, pro-

perly present this as a primarily

federal issue that is ripe for deter-

mination. See Red Cross Line v.

Atlantic Fruit Co., 264 U.S. 109 (1924).

Since both parties below dealt

with this question directly and ex-

tensively, and since the North Carolina

Supreme Court gave full treatment to

the question, though its apparent

resolution of the issue is based entire-

ly upon a misapprehension of federal

law, the question is properly before

this court by petition for certiorari.

Finally, the question presented

affects not only theoretical constitu-

tional questions but practical implica-

tion of life or death for petitioner,

for others now on death row in North

Carolina, and, potentially, in many

other cases to come. Therefore, the

federal question is indeed a critical

ome for which both the courts and the

legislative bodies "deserve the clearest

guidance that the Court can provide."

Lockett, 438 U.c. at 602. Simply put,

it is whether a state may constitution-

ally sustain a sentencing procedure in

which a defendant is put to the burden

of proving that his mitigating factors

quantitatively outweigh the State's

aggravating factors--or face the jury's

life or death question with all matters

in mitigation removed from the jury's

consideration, The North Carolina

Supreme Court's decision in this case

not only puts the practice in this

jurisdiction on a collision course with

Lockett, it utterly fails to provide a

process that is "consistent and prin-

cipled but also humane and sensible as

to the uniqueness of the individual."

Eddings v. Oklahoma, U.S. . #8

L.Ed.2d 1, 8 (1982).

REASONS FOR GRANTING

THE WRIT

THE COURT SHOULD GRANT CERTIORARI

TO REVIEW THE NORTH CAROLINA SUPREME

COURT'S AFFIRMANCE OF A DEATH SEN-

TENCE IMPOSED IN VIOLATION OF THE

FOURTEENTH AMENDMENT .AND LOCKETT v.

OHIO WHERE THE TRIAL JUDGE REFUSED

TO ALLOW THE JURY TO CONSIDER MITI-

GATING FACTORS UNLESS THEY QUANTI-

TATIVELY OUTWEIGHED THE AGGRAVATING

FACTORS OFFERED BY THE STATE

Although not required to do so by

North Carolina's death penalty statute,

N.C. Gen. Stat. §15A-2000(b), the trial

judge presented the issues in such a

manner as to absolutely preclude any

consideration of mitigating factors un-

less the aggregate weight of the miti-

gating factors was sufficient to out-

weigh the combined weight of the aggra-

vating factors.

General Statute 15A-2000(b) requires

a jury's life or death determination to

be based upon the following consider-

ations:

1. Whether any sufficient aggra-

vating circumstances or circum-

stances as enumerated in sub-

section (e) exist;

2. Whether any sufficient

mitigating circumstance or circum-

stances as enumerated in subsection

(£), which outweigh the aggravating

circumstance or circumstances

found, exist; and

3. Based on these considerations,

whether the defendant should be

sentenced to death or to imprison-

ment in the State's prison for

life.

As written, this statute does not

remotely suggest the bizarre result

reached by the trial court. To the

contrary, the phase based upon these

considerations would normally connote

a thoughtful weighing of both aggravat-

ing and mitigating factors in making the |

awesome decision. However, this three-

prong standard did not survive a judi-

cial mutation intact. When presented

to the jury at petitioner's trial the

life/death issues were:

1. Do you find from the evidence,

beyond a reasonable doubt, the

existence of one or more of the

following aggravating circumstances?

(See Appendix E for list of issues

submitted to the jury.)

2. Do you find from the evidence

the existence of one or more of

the following mitigating circun-

stances? (See Appendix E for list

of issues submitted to the jury.)

3. Do you find, beyond a reason-

able doubt, that the mitigating

circumstance or circumstances you

have found is or are insufficient

to outweigh the aggravating circum-

stance or circumstances you have

found?

4. Do you find beyond a reason-

able doubt that the aggravating

circumstance or circumstances

you have found is or are suffi-

ciently substantial to call for

the imposition of the death

penalty?

One notes at the outset that the

jurors were to answer the questions in

order and, upon an answer sequence of

yes-yes-no-yes, the jury was absolutely

required to return a verdict of death.*

The first of the two Questions are

worded clearly and properly. Neither

causes a concern. The semantics con-

* Although styled a "recommendation,"

the jury's verdict is absolutely binding

on North Carolina trial judges who have

no discretionary authority in the

sentencing phase.

fusion that may result in a jury sen-

tencing a defendant to his or her death

against the will of the jury, and against

the law of the land, comes in the inter-

relationship of Questions 3 and 4.

As worded, Question 3 requires a

jury to quantitatively weigh the miti-

gating factors against the aggravating

factors. If the mitigating prevail in

these subjective mental scales, the case

ends and life is imposed. But, if miti-

gating loses, even by the slightest of

margins on this delicate scale, the jury

proceeds to Question 4. There is no

differentiation between a case in which

the scales tipby amote and a case with

a beam in one side's tray.

Question 4, then, drops all re-

ference to mitigating factors and

requires the jury to determine only

whether the aggravating factors--

standing alone--are sufficient to justify

the State's killing this defendant or

some other. No amount of semantic re-

visionism can becloud the logical import

of Question 4 as phrased in petitioner's

trial. Simply put, where, as here, the

jury finds the mitigating factors do not

outweigh the aggravating factors, a

juror, to follow the court's mandate

faithfully, must completely ignore the

mitigating circumstances and, in total

disregard of the mitigating circum-

stances, determine whether the aggravat-

ing circumstances warrant the death

penalty. Such an instruction is a clear

violation of Lockett's requirement that

any and all mitigating factors be con-

sidered in determining whether death or

a lesser penalty should be imposed.

To illustrate, assume some weighted

continuum between a case in which a juror

certainly would vote life and one in

which that same juror would vote death.*

In one horrible, hypothetical case, the

circumstances attendant to the murder

might "score 100"' as one of the most

atrocious crimes imaginable. In that

instance, a single mitigating factor,

while found to be present, could be so

insignificant as to "score 10."" The

differential is 90 in favor of the

aggravating and, so, by this juror's

subjective analysis, deathis appropriate,

*The example does not assume a mechanis-

tic, numerical formula imposed by the

court. Rather, it assumes a subjective

but rational process with a scale of l

to 100 used only for illustrative purposes.

In another case, recognizing all

murders to be terrible, the particular

facts could cause this hypothetical

juror to give it an aggravating "score

of only 55." In this second example,

there might be several, substantial

mitigating factors, sufficient to

"score 50."' However, in both instances

the mitigating do not outweigh the

aggravating and, so, this sample juror

must move to Question 4.

As phrased in petitioner's trial,

the juror's must now decide life or

death solely by determining the answer

to Question 4:

Are the aggravating circumstances

"sufficiently substantial to call

for the imposition of the death

penalty?

In the first hypothetical, there is

little likelihood of prejudical error in

the process since the comparative analy-

sis is so skewed in favor of the aggra-

vating. Assuming a juror at all disposed

in favor of death as a penalty, the

differential of 90 is likely to meet that

juror's death standard--the point at

which the juror's subjective analysis of

the factors pro and con lead him or her

to vote death. Yet in tne second example,

which may be petitioner's case, the

juror who would sentence to death upon a

differential of 90--or 75 or 50 or even

25--might not, probably would not, issue

a decree of death where the aggravating

factors outweigh the mitigating by only

Yet in both cases, so different

both qualitatively and quantitatively,

the sentence will be, in fact must be,

death if the aggravating factors alone

would call for death as the punishment.

Nor does the judge's charge in

petitioner's case cure the problem. To

the contrary, the jury is admonished to

answer the questions in order and the

jury is then directed to impose death if

it answers Question 3 no and Question 4

yes.

On Question 4 the trial judge's

charge did not in any way modify the

sequence of four questions that led in-

exorably to petitioner's death sentence.

The judge simply said:

On this [Fourth] issue the burden

is on the State to prove to you from

the evidence beyond a reasonable

doubt that the aggravating circum-

stances found, if any, are suffi-

ciently substantial to call for the

imposition of the death penalty.

Substantial means having substance

or weight, important, significant or

momentous. Aggravating circum-

stances may exist in a particular

case and still not be sufficiently

substantial to call for the death

penalty. Therefore, it is not

enough for the State to prove from

the evidence beyond a reasonable

doubt the existence of one or more

aggravating circumstances. It must

also prove beyond a reasonable doubt

that such aggravating circumstances

are sufficiently substantial tocall

for the death penalty, and before

you may answer "Yes," you must agree

unanimously that they are.

If you unanimously find beyond a

reasonable doubt that any aggrava-

ting circumstance or circumstances

found by you are sufficiently sub-

stantial to call for the death

penalty, you would answer this

issue "Yes."' If you do not so find,

or have a reasonable doubt, then

you would answer this issue "No."

(Appendix D at D26-D27).

Nowhere in his explanation of the

fourth question did the judge even men-

tion mitigating circumstances.

In its opinion below, the North

Carolina Supreme Court majority concluded

that the charge was "not a model

charge" but was "free from prejudicial

error.'' (Appendix A at A66). The

majority made no attempt to explain this

conclusion and pointed to no language in

the trial judge's charge which softened

the unfairly harsh and mechanical result

of Question 4. In fact, nothing in the

trial court's charge even remotely com-

plies with Lockett's admonition to con-

sider all mitigating factors in reaching

the ultimate decision. (See Appendix D).

Ironically, the North Carolina

Supreme Court did say that "the death

penalty should not be imposed where the

sentencer may be prevented from consider-

ing all mitigating circumstances in

making the ultimate life or death deter-

mination," (Appendix A at A64). Yet it is

manifestly clear that precisely such

prevention occurred. The majority's

inability to find even a line in the

judge's charge to support his true-

enough statement is a tacit acknowledge-

ment of the error of the ruling.*

In an opinion concerning the denial

of cert in Smith v. North Carolina,

U.S. , 74 L.Ed.2d 622 (1983),

Justice Stevens noted "an [a]mbiguity

*Another hint of error may be gleaned

from the initial opinion handed down in

State v. Williams at the precise moment

the McDougall opinion was conditionally

filed on 5 April 1983. The body of the

Williams opinion purported to quote at

length from McDougall. Incredibly,

those quotes included an inference that

the trial judge in McDougall had made

clear, prejudicial, and reversible error.

Williams, which apparently quoted from a

final draft of McDougall, flatly stated

that McDougall would receive a new sen-

tencing hearing. Within hours, Williams

was withdrawn to be re-written,

in these instructions that may raise a

serious question of compliance with this

Court's holding in Lockett v. Ohio, 438

U.S. 586 (1978)."" The trial court in

McDougall formulated the instructions in

precisely the manner questioned by

Justice Stevens as being inconsistent

with the holding of Lockett.

The State's brief in McDougall

demonstrates that the trial judge's in-

structions were in fact given in an

impermissible way. Indeed, the State

read the McDougall instructions in exact-

ly the manner about which Justice Stevens

expressed concern, but argued that such

an interpretation did not violate the

Constitution:

The instruction, after prefatory

language, still sends the jury back

to the aggravating factors alone to

determine if they are in themselves

sufficiently substantial to warrant

punishment by death as the trial

judge required the jury to do in the

matter now before this Court.

(State's Brief at 31) (emphasis

added)

The State went on to argue that such a

formulation of the instructions is "sub-

stantially the same" as that given in

numerous other North Carolina cases and

must therefore be acceptable.

Justice Exum, dissenting from the

majority opinion in McDougall, agreed

that the trial court incorrectly in-

structed the jury. Noting Justice

Stevens’ warning* in Smith, he noted the

*Perhaps, the opinion might better be

viewed as an expression of concern or

even as an invitation to the North

Carolina courts to deal with the question

to avoid a federal challenge. By special

motion, petitioner brought to the North

Carolina Supreme Court Justice Stevens’

opinion. Therefore, whether warning, ex-

pression, or invitation, the suggestion to

moot the issue was ignored or rejected.

same inconsistency in the majority's

view as petitioner here urges the Court

to rectify:

I believe, however, that the trial

judge's formulation of and instruc-

tion on the 4th issue constituted

error entitling defendant to a new

sentencing hearing.

(Appendix A at A97).

As Justice Exum suggests, simply

enunciating a constitutional rule of

law cannot by itself correct gross un-

constitutionality in the application of

that law. A grant of certiorari in this

case will give the Court an opportunity

to correct a misapplication of an impor-

tant and federal constitutional principle

and, in so doing, will provide much-needed

guidance on the proper interpretation in

light of Lockett, of death penalty

statutes like North Carolina's that call

for a balancing of aggravating and miti-

gating circumstances.

Recent decisions of the North

Carolina Supreme Court have made the

need for Supreme Court review in this

case even more urgent. Although the

death penalty statute calls the jury's

sentencing determination a "recommenda-

tion,'' N.C. Gen. Stat. §15A-2000(b), the

State Supreme Court has held that the

jury's "recommendation" is in fact bind-

ing on the trial court. State v. Pinch,

306 N.C. 1, 292 S.E.2d 203, cert denied,

U.S. » 74 L.Ed.2d 622 (1982);

State v. Williams, 305 N.C. 656, 292

S.E.2d 243, cert. denied, U.S... ,

74 L.Ed.2d 662 (1982); State v. Smith,

305 N.C. 691, 292 S.E.2d 264, cert.

denied, U.S. » 74 L.Ed.2d 622

(1982). Thus, the jury's affirmative

answer to Question 4 of the judge's

charge made punishment by death manda-

tory for petitioner.

These decisions of the North

Carolina Supreme Court, coupled with the

defective instruction given by the trial

judge in the McDougall case, have re-

sulted in the automatic imposition of a

death sentence that was without a full,

constitutionally-required assessment of

all relevant factors. Such a procedure

raises serious questions of constitu-

tionality not only under Lockett v. Ohio

but also under Woodson v. North Carolina,

428 U.S. 280 (1976), which held mandatory

death penalty statutes unconstitutional

because they prohibit the exercise of

any meaningful, rational judgment in the

decision to kill a defendant such as

McDougall.

CONCLUSION

Petitioner was sentenced under an

interpretation of the North Carolina

death penalty statute that directly

violates the mandate of the Constitution

as expressed by this Court in Lockett v.

Ohio. Justice Stevens recognized the

problem with the North Carolina rule in

Smith v. North Carolina. Justice Exum

pointed it out in his dissent from the

North Carolina Supreme Court's opinion

in McDougall. Even the North Carolina

Attorney General acknowledged the prob-

lem. in its Brief to the North Carolina

Supreme Court. Review by this Court

should be granted to clarify the proper

interpretation of such death penalty

statutes and to prevent a man from going

to his death under a sentence that was

imposed in a manner manifestly contrary

to the dictates of the Constitution of

the United States.

For these reasons, petitioner

respectfully prays the Court to grant

the writ of certiorari.

Respectfully submitted,

name

ww rULe

5 ©. FULLER, JR.

S E. FERGUSON, II

Chambers, Ferguson, Watt, Wallas,

Adkins & Fuller, P.A.

951 S. Independence Boulevard

Suite 730

Charlotte, North Carolina 28202

704/375-8461

ATTORNEY OF RECORD

CERTIFICATE OF SERVICE

| I certify that a copy of this

Petition was mailed to Joan Byers,

Assistant Attorney General and counsel

of record for the State of North

Carolina on 24 June 1983.

Chambers, Ferguson, Watt, Wallas,

Adkins & Fuller, P.A.

By: | File

IN THE SUPREME COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA

No. 86A81

Mecklenburg

)

Vv. )

)

MICHAEL VAN McDOUGALL )

Appeal by defendant from judgments entered

by Ferrell, Jr. at the 9 June 1980 Session of

Superior Court, Mecklenburg County.

Defendant was convicted by a jury of

assault with a deadly weapon with intent to

kill inflicting serious injury, kidnapping, and

murder in the first degree. For his conviction

of murder in the first degree, defendant was

sentenced to death. He was also sentenced to

consecutive prison terms of twenty years on the

conviction of assault with a deadly weapon with

intent to kill inflicting serious injury and

life imprisonment on the charge of kidnapping.

Defendant appeals to this Court as a matter of

right from judgments entered with respect to

his convictions of murder in the first degree

and kidnapping. Defendant's motion to bypass

the Court of Appeals for review of the judgment

entered with respect to his conviction of

assault with a deadly weapon with intent to

kill inflicting serious injury was allowed by

this Court 5 March 1982,

RUFUS L. EDMISTEN, Attorney General, by

JOAN H. BYERS, Assistant Attorney General,

for the state.

CHAMBERS, FERGUSON, WATT, WALLAS, ADKINS

& FULLER, by JAMES C. FULLER, JR., for

defendant.

MARTIN, Justice.

Evidence for the state tended to show that

at approximately 2:30 a.m. on the morning of 21

August 1979, Officer W. K. Crisler saw a flatbed

truck at the intersection of Fairview Road

and Sardis Road in the city of Charlotte. The

flatbed truck was stopped at a traffic light and

was headed away from Charlotte. The police car

also was stopped at the intersection, headed in

the opposite direction. Because in the mind

of the officer it was unusual for such a truck

to be driven at that time of night, he observed

the truck closely. It was being operated in a

normal manner. As the two vehicles passed each

other, the officer had ample opportunity to

observe the driver of the truck and later

identified him as the defendant, Michael

McDougall.

The intersection where Officer Crisler

observed McDougall was located some one and

one-half to two miles from 1420 Blueberry Lane

in the city of Charlotte. Vicki Dunno and

Diane Parker lived together in a house at 1420

Blueberry Lane. Approximately fifteen minutes

after Officer Crisler had observed the flatbed

truck, Vicki and Diane were wakened by the

ringing of their front doorbell. They went to

the front door and heard a male begging to be

admitted into the house. This person stated

that his wife had cut her leg "real bad," that

he needed alcohol and bandages for her, and that

he needed to call a doctor. He continued to beg

for help. Diane went to the bathroom and got

alcohol and bandages which she put outside the

back door. She then came back to the front of

the house. When the person began calling Diane

by name, saying that he needed to talk to her,

that he needed help, that his wife was hurt,

Diane answered for the first time. He said

that he was her neighbor Mike, that his wife

was hurt "real badly,"

and that he needed help.

After he continued pleading and begging to get

into the house, Diane Parker finally opened the

door and let him in. The person was Michael

McDougall.

The three persons went into the kitchen ;

where Vicki Dunno got the telephone directory

off the refrigerator for the purpose of calling

a doctor, While Vicki was looking up a number,

the defendant walked from the kitchen into the

" Diane

den and began to "check out the house.’

then took the telephone book from Vicki and

Started to dial for help. McDougall came back

from the den into the kitchen, walked over

behind Diane to the corner where there was a

cutting board, and picked up a butcher knife.

Vicki told Diane to look out, that McDougall

had a knife. Defendant grabbed Diane by the

arm, put the knife up in front of her face,

and told her to put down the phone. Diane

tried to get away from him and in the struggle

the two knocked over one of the kitchen stools

and the phone was knocked out of Diane's hand.

They fell to the floor. Diane told Vicki to

go next door and get help. Vicki ran out the

front door. When she got to the grass, it was

wet and she slipped, fell to her hands and

knees, and her glasses flew off. She was

searching in the grass for her glasses when the

defendant came running out of the house, grabbed

her by the arm, and told her that she wasn't

going anywhere. Diane then came out of the

house and was standing in the driveway. She

had a knife in her hand and told McDougall that

if he hurt Vicki she would kill him. McDougall

realized that Diane had a knife. He let go

of Vicki, then went over and started struggling

with Diane and got her down in the grassy area

beside the bushes. Vicki screamed and pleaded

with Diane not to fight because she knew that

McDougall had a knife. Vicki heard one of the

knives thrown down the driveway. Diane then

stopped struggling and McDougall grabbed her

and Vicki by the back of the hair and dragged

both of them back into the house. When the

three got back into the house, Diane was bleed-

ing from her forehead and nose. McDougall

was a big man, weighing about two hundred and

twenty pounds and standing six feet two inches

tall. Vicki was twenty-five years old, five

feet ten inches tall, and weighed one hundred

and thirty pounds. Diane was twenty-seven

years old, five feet two inches tall, and

weighed one hundred and twenty-five pounds,

McDougall demanded that Vicki get her car

keys. They went to her bedroom; Vicki got the

keys and gave them to him. He was still hold-

ing Diane and took the two women back outside

to the car. He gave the keys to Vicki and

asked her which key was the trunk key. He said

that he was going to put the women into the

trunk until he got where he was going and he

would then let them out. Diane told Vicki not

to give him the keys, and Vicki threw them

away. McDougall was very angry and threw Vicki

to the ground and started stabbing her. She

screamed to Diane, and Diane ran in the direc-

tion of a neighbor's house. McDougall left

Vicki and ran after Diane and caught her.

Vicki, in the meantime, got up and went

into the kitchen to call for help on the tele-

phone. She dialed the emergency number, 911,

and reported the incidents. Lynda McDougall,

the wife of the defendant, then telephoned and

asked Vicki what was happening. Vicki told her

that she had been stabbed and that her roommate

was outside with the assailant,

When the police arrived they found Diane

Parker's body sprawled in front of 1400 Blue-

berry Lane, Michael McDougall's home. Vicki

Dunno gave a description of the defendant to

the officers and told them what had happened.

An ambulance arrived and Vicki Dunno was taken

to the hospital, where she remained in intensive

care for some time. Her condition required

surgery, and she has been left with permanent

scarring as a result of being stabbed some nine

times.

Diane Parker's body was clothed only with

a nightgown, which had been pulled up to her

chest, exposing her pubic area and one breast,

Her knees were pulled up and her legs parted

wide. Her genitalia appeared to have some

liquid upon it. Diane had been stabbed some

twenty-two times. She also had other contusions

about her body. Any one of several of the stab

wounds could have caused her death. At least

two of the stab wounds entered her heart. Most

of the wounds had been inflicted while she was

in a prone position. She had cuts across the

palm of her hand which a doctor who testified

characterized as defensive type wounds. She

had lost approximately half of the volume of

her blood. Several of the wounds were from

four to six inches deep. The medical examiner

testified that in his opinion the butcher knife

which was found at the scene of the crime and

which was offered into evidence could have

caused the wounds to Diane Parker.

The officers brought in searchlights to aid

in the investigation, and once these lights were

operating the defendant came out from behind

some bushes, saying "I give up. Okay, I give

up." There was blood smeared on his person,

shirt, and pants. A blood analysis later showed

that the blood on McDougall matched Diane

Parker's blood type.

For two weeks during trial the defendant put

on extensive evidence indicating that he suffer-

ed from a cocaine induced psychosis, as well as

underlying depression and organic brain damage.

This evidence showed that he had suffered severe

and traumatic experiences as a child. For

example, his grandfather committed suicide in his

presence. Defendant's evidence indicated that he

had injected nearly five grams of cocaine before

he came to the Dunno residence. On the night of

the arrest a sample of defendant's blood was

taken; however, this blood was not analyzed until

Al0

some nine or ten months after it had been

obtained, Evidently the blood sample had become

misplaced or overlooked and no one knew of its

existence until some envelopes were being opened

during the process of the trial. On defendant's

motion the blood was sent to an expert selected

by the defendant for the purpose of analysis,

and upon an initial basic screening test, the

analysis showed that the blood contained a

residue of cocaine. However, upon a more sophis-

ticated analysis of the blood the results indi-

cated that there were no signs of cocaine or its

metabolites in the blood.

Defendant for some time suffered from amnesia

concerning the events in question but eventually

was able to provide his psychiatrist with suffi-

cient information for the psychiatrist to testify

that at the time defendant was stabbing Vicki

Dunno and Diane Parker, he thought that he was

fighting and stabbing his mother who was beating

All

him with an automobile antenna. The defendant

did not testify at trial.

Other evidence relevant to the decision will

be discussed below.

II. GUILT OR INNOCENCE PHASE

The first issue in defendant's brief refers

to the alleged denial of his constitutional

rights by the trial judge's denial of his motion

to continue the trial. Defendant's counsel at

oral argument before this Court expressly waived

this issue, stating that the issue was not one

of substance and therefore was being waived.

Defendant contends next that the trial court

erred in denying his motion to suppress the

evidence of the expert who analyzed defendant's

blood for the purpose of determining whether it

contained a residue of cocaine. This blood

sample had been taken from the defendant shortly

Al2

after he was arrested; however, it was not

analyzed until during the trial, some nine or

ten months after it had been obtained. There

is no evidence to indicate, and indeed no con-

tention is made by defendant, that the evidence

was willfully concealed in bad faith by the

district attorney. All of the evidence in-

dicates that the blood sample was simply over-

looked until it was inadvertently discovered

during the trial upon the opening of some of

the evidence envelopes. On defendant's motion

he was allowed to select an expert for the

purpose of analyzing the blood sample to

determine if cocaine or a residue of cocaine

was in the sample. This examination was done

by an expert in Salt Lake City who was flown

to Charlotte for the purpose of testifying at

the trial. A voir dire was held on defendant's

motion to suppress the testimony of the witness.

Afterwards the court denied defendant's motion

Al3

to suppress all of the testimony. The defendant

did not object to this ruling, nor did he ask

that he be allowed a continuing objection to

the questions asked in the presence of the jury.

‘Rather, the defendant made individual objections

to the testimony of the witness Peat during his

examination. Defendant's counsel lodged some

twelve objections during the direct examination

of the witness Peat. The court passed upon the

various objections as they were made in the

presence of the jury. The following questions

were asked in the presence of the jury of the

witness Michael Peat, the examiner who was

qualified as an expert in the field of chemistry

and toxicology for the purpose of testifying in

this case:

Q: Now you said the mass spectrometer would

determine or show if there were cocaine or

its metabolites in the sample that you tested.

Is that correct?

A: That is correct.

Al4

Q: And in this particular instance of test-

ing this blood sample, what results did you

get on the mass spectrometer?

A: We did not detect cocaine or its meta-

bolites in this blood sample.

The defendant did not object to this crucial

testimony.

Generally, a defendant's failure to enter an

appropriate and timely motion or objection

results in a waiver of his right to assert the

alleged error upon appeal. E.g., N.C. Gen.

Stat. S 15A-1446(b) (1978); State v. Hill,

294 N.C. 320, 240 S.E.2d 794 (1978); State v.

Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976).

However, in State v. Mems, 281 N.C. 658, 190

S.E.2d 164 (1972), this Court held that where a

voir dire was held by the court and thereafter

the court ruled that the evidence sought to be

excluded was admissible and the defendant ex-

cepted to the ruling, it was not necessary for

the defendant to renew his objection upon the

AlL5

presentation of the testimony before the jury,

although that would have been the better

practice. Here, this principle is inapplicable

because the defendant did not lodge an excep-

tion to the adverse ruling of the court upon

his motion to suppress at the conclusion of

the voir dire hearing. Nevertheless, in our

discretion we have reviewed the testimony

challenged by the defendant and find that it

was competent and that the court did not

commit error in admitting it.

Michael Peat, the witness, was qualified as

an expert in the field of chemistry and toxi-

cology for the purpose of testifying in this

trial. He conducted two tests upon the defen-

dant's blood sample which involved the use of

accepted scientific procedures--radio-

immunoassay, gas chromatography, and mass

spectrometry. The witness was qualified to

perform the tests in question, they were per-

Al6

formed in accordance with scientifically

approved procedures, and the procedures

used were scientifically reliable. There-

fore, the test results were properly

admissible into evidence. State v. Gray, 292

N.C. 270, 233 S.E.2d 905 (1977); State v.

Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974),

death sentence vacated, 428 U.S. 903, 49 L.Ed. 2d

1207 (1976). Moreover, the initial screening

test which was testified to before the jury

showed a positive reaction for the presence of

cocaine, which was favorable to the defendant.

The second test failed to reveal the presence

of cocaine or its metabolites in the blood

sample. Mr. Peat also testified that once in-

gested, cocaine and its metabolites are quickly

broken down and excreted from the human system.

There was also before the jury the testimony

of Dr. Peter Jatlow of the Yale Univeristy

Al7

School of Medicine, who was a clinical patholo-

gist. He was qualified as an expert in the

analysis of blood and urine samples for the

presence of various chemicals and has special-

ized in the study of such drugs as cocaine. He

has also done extensive research on the break-

down of cocaine in the bloodstream. Dr.

Jatlow's testimony corroborated the defendant's

contention that defendant had ingested cocaine

at the time in question. We find no prejudicial

error in the court's admitting the testimony of

the witness Michael Peat.

Defendant next contends that there was not

sufficient evidence to support the finding of

a felony upon which the jury could base its

determination of guilt of felony murder in the

first degree. Defendant also contends that the

underlying felonies relied upon by the state are

Als

kidnapping and attempted rape and that because

they were presented to the jury in the dis-

junctive, this raises a question of the unanim-

ity of the verdict. The underlying felonies

on the felony murder instructions were submitted

in the disjuntive; however, a reading of the

entire charge shows that Judge Ferrell clearly

instructed the jury that its verdict must be

unanimous as to every essential element of the

offenses charged. Early in its instructions

the the court charged the jury that "your

answers must be unanimous as to each issue and

sub-part thereof which you shall come to con-

sider." Later in his instructions, after his

final mandate, Judge Ferrell charged:

Again, I remind you that each of these

charges and any lesser-included offense

about which I have instructed you is a

separate charge and you should consider

them at all times as separate in your

deliberations.

Finally, as to any verdict which you reach

Al9

in each charge, your verdict, to be a

verdict, must be unanimous,

There can be no question but that the jury fully

understood that its verdict must be unanimous

as to each element of the offenses which were

submitted to it.

We conclude that the law as stated by

Justice Carlton in State v. Jordan, 305 N.C.

274, 279, 287 S.E.2d 827, 830-31 (1982), is

equally applicable to the facts of this case:

Defendant also alleges error in the trial

court's instructions on first degree

burglary. He contends that by instructing

the jury that defendant must have in-

tended "to commit rape and/or first degree

sexual offense" at the time of the break-

ing and entering, the trial court denied

defendant his constitutional right to a

unanimous jury verdict.

The North Carolina Constitution guarantees

a criminal defendant the right to a unani-

mous verdict. N.C. Const. art. I, $ 24;

accord, State v. Williams, 286 N.C. 422,

212 S.E.2d 113 (1975). To convict a defen-

dant, the jurors must unanimously agree

that the Statehas proven beyond a reasonable

doubt each and every essential element of

the crime charged. See In re Winship, 397

U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368

A20

(1970). Defendant contends that the use of

the disjuntive in describing the requisite

intent for burglary created the possibility

that less than all the jurors could agree

which felony the defendant intended to

commit although they might all agree that

defendant did have the intent to commit one

of the felonies and convict him of burglary.

While defendant's argument is not unreason-

able, we are not persuaded. The trial court

repeatedly instructed the jury that its

verdict must be unanimous. When the charge

is read as a whole, as it must be, it is

obvious that the trial court conveyed to the

jury that the verdicts must be unanimous as

to every essential element and that the

instruction containing the disjunctive was

a shorthand statement that the jurors must

all find that defendant had the intent to

commit rape or that they must all agree that

defendant had the intent to commit a first

degree sexual offense. While defendant is

correct as to the technical meaning of the

instruction, this Court must neither forget

nor discount the common sense and under-

standing of the trial court and the jurors.

From our examination of the charge we are

satisifed that defendant was not deprived

of his constitutional right to a unanimous

jury verdict.

We find no prejudicial error in the court's in-

structions to the jury.

Turning now to defendant's contention as to

the insufficiency of the evidence, we find

A21

plenary evidence in the record to sustain both

the charge of kidnapping Diane Parker and the

charge of attempting to commit rape upon Diane

Parker. Diane Parker was found on her back with

her legs spread wide, her feet nearly up to her

buttocks, knees raised and apart, and her night-

gown drawn up to her upper chest, exposing her

left breast. Many of the wounds were inflicted

upon Diane Parker while she was in a prone posi-

tion. An examination of Diane's nightgown in-

dicated that it had been pulled up before some

of the stab wounds were inflicted. When defen-

dant crawled out of the bushes near Diane Parker's

body, he had blood smeared upon his shirt and

pants consistent with the blood type of Diane

Parker. These facts support a reasonable in-

ference that McDougall caught Diane Parker in

the yard, knocked or threw her to the ground on

her back, pulled her nightgown up over her chest,

and parted her legs in an effort to rape her.

A22

She resisted and fought back, and McDougall

Stabbed her to death, The evidence is sufficient

to survive a motion for nonsuit on the theory

of murder during an attempted rape. State v.

Knight, 248 N.C. 384, 103 S.E.2d 452 (1958);

State v. Norman, 14 N.C. App. 394, 188 S.E.2d

667 (1972).

Moreover, the evidence is amply sufficient

to find the defendant guilty of kidnapping

Diane Parker and thus to support a verdict of

guilty of murder in the first degree upon that

felony. N.C.G.S. 15A-39(a)(3) states that:

(a) Any person who shall unlawfully confine,

restrain, or remove from one place to

another, any other person 16 years of age

or over without the consent of such person,

or any other person under the age of 16 years

without the consent of a parent or legal

custodian of such person, shall be guilty

of kidnapping if such confinement, restraint

or removal is for the purpose of:

(3) Doing serious bodily harm to or

terrorizing the person so confined, re-

strained or removed or any other person,

A23

The evidence is clear that there was a removal

and restraint of Diane Parker which was more

than an inherent inevitable part of the commis-

sion of the murder. State v. Irwin, 304

N.C. 93, 282 S.E.2d 439 (1981). The evidence

shows that once McDougall grabbed the butcher

knife in Diane and Vicki's kitchen, he continu-

ously confined, removed, or restrained the two

women until he crawled into the bushes pe

stabbing Diane to death. Clearly defendant

removed Diane from her home at knife point and

dragged her to an automobile in the driveway.

There defendant stated that he intended to put

her and Vicki in the trunk of the car and drive

them to some undisclosed place. This removal

was not inherent in the felony of murder or at-

tempted rape. It was more than a technical

asportation inherent in the commission of

another felony. State v. Fulcher, 34 N.C. App.

233, 237 S.E.2d 909 (1977), aff'd, 294 N.C. 503,

A24

243 S.E.2d 338 (1978). When Vicki threw her car

keys to the ground, defendant threw her to the

ground and began stabbing her. The two women

were terrorized. Defendant prevented Diane

from escaping from his control by catching her

as she began to run across the yard. Whereas

Vicki managed to lock herself in her house and

call for help, Diane never escaped from her kid-

napper. After he caught Diane, defendant stabbed

her until she bled to death. The evidence thus

supports a jury's finding that defendant was

guilty of the felony of kidnapping Diane and that

he murdered her in the perpetration of this

felony.

While it is true that the jury found

McDougall not guilty of the offense of kidnapping

Vicki Dunno, this does not invalidate the finding

that McDougall was guilty of kidnapping Diane

Parker. Consistency of verdicts is not a

necessity. A verdict of guilty on one count

A25

and not guilty on the other when the same act

results in both offenses will not be disturbed.

State v. Davis, 214 N.C. 787, 1 S.E.2d 104

(1938);State v. Rosser, 54 N.C.App. 660, 284

S.E.2d 130 (1981); 4 Strong's N.C. Index 3d

Criminal Law $124.5 (1976). The verdict of

kidnapping Diane Parker was fully supported by

the evidence and supports the verdict of guilty

with respect to felony murder. We find no

prejudicial error in the determination of the

guilt of defendant of murder in the first degree.

III. SENTENCING HEARING

During the sentencing hearing the state

proposed to offer evidence of a previous con-

viction of defendant for a felony involving

the use or eheeas of violence. N.C. Gen. Stat.

$15 A-2000(e)(3) (Cum. Supp. 1981). The prior

conviction was on a charge of rape in the state

of Georgia in 1974. Defendant opposed the use

A26

of the 1974 rape conviction and first argued

that it was not a final conviction because de-

fendant had fileda petition for writ of habeas

corpus moving that the conviction be set aside,

This petition was filed during the current

trial. It was only after this motion to suppress

the use of the Georgia rape conviction was

denied that defendant stipulated the certified

record of the conviction could be introduced.

Defendant, however, never stipulated that the

Georgia rape conviction involved the use or

threatened use of violence to the person.

The state further offered the testimony of

Mary Huff, the victim in the Georgia rape case,

for the purpose of showing that the crime in-

volved the use or threat of violence. After

extensive argument, the court allowed this

witness to testify. May Huff testified that in

1973 she lived next door to defendant's sister

and that prior to her rape she had seen

A 27

defendant but had never talked to him. About

4:00 a.m. on 21 November 1973, she wakened,

turned on her light, and saw defendant standing

in her bedroom doorway. She ordered defendant

to leave and began to telephone the police when

he refused. Defendant pulled out a butcher

knife, held it to her face, and threatened to

kill her and her child unless she removed her

nightgown. She complied, and defendant raped

her upon her bed. Defendant threatened to kill

her if she told his sister about the rape,

After defendant left, Ms. Huff called the

police. This testimony occupies seven pages

of the transcript. Defendant cross-examined

Mary Huff extensively, for eighteen pages of

the transcript. Defendant attacked the credi-

bility of the witness Huff and established that

he was eighteen years of age at the time of the

rape and had entered a plea of guilty to the

charge.

A28

During the sentencing hearing defendant also

produced evidence from several expert witnesses

concerning his emotional, mental, and psychologi-

cal condition. McDougall testified in his own

behalf, relating many experiences he had as a

child, particularly those concerning his being

beaten by his mother with pots, pans, golf clubs,

and a car antenna. His grandfather committed

suicide in McDougall's presence by shooting

himself with a shotgun. McDougall's father was

killed as the victim of an armed robbery.

McDougall testified that between dusk and

midnight or one o'clock in the morning on the

night of the crimes, he and a friend injected

six grams of cocaine. He said his vision was

fuzzy and he couldn't focus well as he drove

home in the early morning hours. He parked

outside his home in Blueberry Lane, but he

didn't want to go inside because his arms were

bleeding from the needle marks and he feared an

A29

argument with his wife. He decided to ask his

neighbors for alcohol to clean his arms.

McDougall knocked on the door of the

victim's house, said that he was "Lynda's hus-

' and asked for alcohol.

band from next door,’

When Diane Parker asked if he wanted her to

call a doctor, he said he didn't know why but

he said yes. Someone opened the door and he

went inside, where Diane Parker picked up the

phone to call. At that point McDougall said he

"lost everything ,” "could no ionger think," and

was "very, very scared." He picked up a knife

he saw, grabbed the phone, and asked for car

keys. He said the next thing he knew he was

outside, and when he looked at Diane Parker,

he saw his mother, who was hitting him with a

car antenna. He said something happened inside

him like an explosion in his chest, and he

jumped at her and stabbed her. He saw her

running, chased her, pulled her down, and

A30

started stabbing her again. He did that for

a long time until he felt "the thing that had

been inside" of him leaving. He stopped, sat

on his knees, and couldn't hear or focus, He

wanted to get away, but his legs wouldn't work,

so he crawled under some nearby bushes. The

next thing he knew there were many people

around, including policemen. He thought they

were after him for drugs so he came out and

said, "I give up." The police questioned him

about a woman who was dead, but he didn't

remember what had happened and didn't believe

them,

The jury found the following aggravating

circumstances:

1. The defendant had previously been con-

victed of a felony involving the use of

violence to the person. N.C. Gen. Stat.

$ 15a-2000(e)(3) (Cum. Supp. 1981).

A31

2. The murder was especiaily henious,

atrocious, or cruel, N.C. Gen, Stat.

$ 15A-2000(e) (9).

3. The murder was part of a course of

conduct by the defendant which included

the commission by defendant of another

crime of violence against another person.

N.C. Gen. Stat. S$ 15A-2000(e) (11).

The jury found the following mitigating circua-

stances:

1, The murder was committed while defen-

dant was under the influence of mental or

emotional disturbance. N.C. Gen. Stat.

$ 15A-2000(f)(2).

2. Defendant's capacity to appreciate the

criminality of his conduct or his capacity

to conform his conduct to the requirements

of the law was impaired. N.C. Gen. Stat.

$ 15A-2000(f) (6).

A32

3, There are other circumstances arising

from the evidence that have mitigating value.

N.C. Gen. Stat. S 15A-2000(f) (9).

The jury then answered the following issues:

3. Do you find, beyond a reasonable doubt,

that the mitigating circumstance or circum-

stances you have found is or are insuffi-

cient to outweigh the aggravating circum-

stance or circumstances you have found?

ANSWER: Yes.

4. Do you find beyond a reasonable doubt

that the aggravating circumstance or cir-

cumstances you have found is or are suffi-

ciently substantial to call for the imposi-

tion of the death penalty?

ANSWER: Yes.

Whereupon the jury recommended that defendant

be sentenced to death, which sentence the court

imposed.

Defendant first argues that by allowing

Mary Huff to testify during the sentencing

hearing the trial court committed prejudicial

error. During the hearing the state sought to

A33

elicit testimony from Ms. Huff relevant to the

following aggravating circumstance:

The defendant had been previously con-

victed of a felony involving the use or

threat of violence to the person. N.C.

Gen. Stat. S 15A-2000(e)(3) (Cum, Supp.

1981).

Defendant had been previously convicted of

feloniously raping Ms. Huff and feloniously

burglarizing her home. Before Ms. Huff took

the stand, the state contended at the bench

that the facts of these prior convictions showed

that each was a felony involving the use or

threat of violence to the person, Defendant

responded by arguing that under N.C.G.S. 15A-

2000(e) (3) the phrase "/ic.tony involving the use

or threat of violence to the person” must be

limited to a felony in which the use or threat

of violence to the person was an element

of the offense, Defendant contended that a prior

A34

felony conviction cannot be used as an aggra-

vating circumstance unless the use or threat of

violenc~ to the person is an element of the

offense, even though the facts show that the

commission of the offense did involve the use

or threat of violence to the person, Because

the use or threat of violence to the person

was not an element of the offense of burglary,

the defendant argued that burglary is not a

felony within the meaning of N.C.G.S. 51A-2000

(e)(3). Therefore, defendant argued, evidence

of the burglary was not admissible during the

sentencing hearing for the purpose of establish-

ing the aggravating circumstance listed in

N.C.G.S. 15A-2000(e) (3).

The trial court resolved this question in

favor of deferdant. Although the state did not

except to this ruling, we have examined the

issue in our discretion because it is likely

to arise again. We find the trial court's

A35

ruling to have been erroneous. The statute does

not state that the jury may only consider as an

aggravating circumstance those felonies in which

the use or threat of violence to the person is

an element of the offense. The statute contains

‘ which indicates an inter-

the word "involving,'

pretation much more expansive than one restrict-

ing the jury to consider only felonies having the

use or threat of violence to the person as an

element. Crimes that do not have violence as an

element may be committed by the use or threat of

violence. By using "involving" instead of

language delimiting consideration to the narrow

class of felonies in which violence is an element

of the offense, we find the legislature intended

the prior felony in N.C.G.S. 15A~2000(e) (3) to

include any felony whose commission involved the

use or threat of violence to the person. Thus

we hold that for purposes of N.C.G.S. 15A-2000

(e)(3), a prior felony can be either one which has

A36

as an element the involvement of the use or

threat of violence to the person, such as rape

or armed robberty, State v. Hamlette, 303 N.C.

490, 276 S.E.2d 338 (1981), or a felony which

does not have the use or threat of violence to

the person as an element, but the use or threat

of violence to the person was involved in its

eemisaton.*

1. For example, a defendant could commit

armed robbery, yet, for reasons satisfactory to

the district attorney, only be charged with

felonious larceny. A conviction of the larceny

charge could be an aggravating circumstance if

the state at the sentencing hearing proved that

its commission involved the use or threatened

use of violence to the person. The testimony

of witnesses would be proper to prove or rebut

the involvement of viclence. Likewise, a

defendant could be convicted of rape in the

second degree by engaging in vaginal intercourse

with a victim who is mentally defective. N.C.

Gen. Stat. $ 14-27.3 (a) (2)(1981). Violence is

not an element of the offense. If the use or

threat of violence to the person was involved,

this could be shown by witnesses to establish

the conviction as an aggravating circumstance.

Forgery, N.C.G.S. 14-119 (1981), a nonviolent

crime, may be committed by a defendant who forces

A37

Defendant's objection before this Court con-

cerns Mary Huff's testimony regarding defendant's

prior conviction for raping her. We note that

rape is a felony which has as an element the

"use or threat of violence to the person." N.C.

G.S. 14-27.2 reads in part as follows:

S$ 14-27.2. First-degree rape.

(a) A person is guilty ot vane in the

first degree if the person engages in

vaginal intercourse:

(2) With another person by force and

against the will of the other person, and:

a. Employs or displays a dangerous

or deadly weapon .. ..

Defendant was convicted of raping Ms. Huff

in Georgia, where the same general principle

applies: "A person commits the offenses of rape

when he has carnal knowledge of a female forcibly

and against her will. . .." Ga. Code Ann.

another at gunpoint to forge a signature on a

check, A38

S$ 16-6-1(a) (1982).

Defendant stipulated to the admissibility of

the certified record of his prior conviction of

the felony of rape. When the state sought to

introduce testimony of Ms. Huff concerning the

rape, defendant objected on grounds that his

stipulation foreclosed the state from offering

testimony to uenineais the prior conviction and

the fact that it involved the use or threat of

violence to her person.” The trial court ruled

that Ms. Huff could testify during the sentencing

hearing concerning the prior rape. When she took

the stand, she stated that McDougall had raped

her at knife point, threatening to kill her and

her young daughter.

2. Although defendant argued that the

felony of rape in Georgia involved the use or

threat of violence as a matter of law, he did not

so stipulate with respect to this prior con-

viction,

A39

Defendant states that as a result of allow-

ing the testimony of Mary Huff concerning the

prior rape conviction, the sentencing hearing

turned into a "mini-trial" of the prior offense.”

He relies upon State v. Silhan, 302 N.C. 223, 275

S.E.2d 450 (1981). At the outset we note that

this case was tried at the 9 June 1980 session of

superior court in Mecklenburg County and that

Silhan was not decided until 4 March 1981. There-

fore Judge Ferrell did not have the benefit of

Silhan. Moreover we do not find that Silhan

supports defendant's argument. In Silhan, we

find:

We note in this regard that the most

appropriate way to show the "prior felony"

3. If this aspect of the hearing did become

a “raucous mini-trial," it was due largely to the

efforts of defendant's counsel, Jerry Paul, during

his free-swinging, wide-ranging cross-examination

of Ms. Huff. Defendant cannot be heard now to

complain about the results of his own overzealous

actions.

A40

aggravating circumstance would be to offer

duly authenticated court records. Testimony

of the victims themselves should not

ordinarily be offered unless such testimony

is necessary to show that the crime for

which defendant was convicted involved the

use or threat of violence to the person.

There should be no “mini-Trial" at the

sentencing hearing on the questions of

whether the prior felony occurred, the

circumstances and details surrounding it,

and who was the perpetrator. Whether a

defendant has, in fact, been convicted of

a prior felony involving the use or threat

of violence to a person would seem to be a

fact which ordinarily is beyond dispute.

It should be a matter of public record.

If, of course, defendant denies that he was

the defendant shown on the conviction record,

the occurrence of the conviction, or that

the crime involved the use or threat of

violence to the person, then the state should

be permitted to offer such evidence as it has

to overcome defendant's denials.

302 N.C. at 272, 275 S.E.2d at 484 (emphasis

added).

The above statement by this Court in Silhan

may properly be’ referred to as obiter dictum.

In State v. Taylor, 304 N.C. 249, 283 S.E.2d 761

(1981) (decided eight months after Silhan), this

A41

Court was faced directly with the question

whether the state could introduce evidence con-

cerning a prior murder when the defendant had

Stipulated that he had been found guilty of the

charge. This Court found no error in allowing

such testimony.

The objection made by defendant is that,

as he had stipulated the fact of his prior

conviction, the State should not have been

allowed to introduce testimony concerning the

murder. The State argues that when proving

as an aggravating circumstance that defen-

dant was previously convicted of a capital

felony or of a felony involving the use or

threat of violence to the person (G.S. 15A-

2000(e)(2) and (3), the State should not be

limited to admission of the court record of

conviction,

We think the betterrule here is to

allow both sides to introduce evidence in

support of aggravating and mitigating

circumstances which have been admitted into

evidence by stipulation. If the capital

felony of which defendant has previously

been convicted was a particularly shocking

or heinous crime, the jury should be so in-

formed. Conversely, it could be to defen-

dant's advantage that he be allowed to offer

additional evidence in support of possible

mitigating circumstances, instead of being

bound by the State's stipulation.

A42

In Elledge v. State, 346 So.2d 998

(Fla. 1977), the Supreme Court of Florida

addressed the same question. There, as here,

appellant's counsel stipulated to the ad-

missibility of a prior conviction of defen-

dant for murder. At the sentencing hearing,

the widow of the victim was nonetheless

allowed to testify in detail about events

surrounding the crime. In deeming the tesi-

mony properly admitted, the court said:

This is so because we believe the

purpose for considering aggravating and

mitigating circumstances is to engage in

a character analysis of the defendant to

ascertain whether the ultimate penalty

is called for in his or her particular

case. Propensity to commit violent

crimes surely must be a valid consider-

ation for the jury and the judge. It is

Matter that can contribute to decisions

as to sentence which will lead to uniform

treatment and help eliminate ‘total arbi-

trariness and capriciousness in [the] impo-

sition' of the death penalty. (Citation

omitted).

Id. at 1001.

304 N.C. at 279-80, 283 S.E.2d at 780-81.

4. Although Justice Exum, the author of

Silhan, dissented in part in Taylor, he did not

dissent from this holding of the Court.

A43

In Taylor the prior felony, murder, involved

violence as an element of the offense. The hold-

ing in Taylor is in accord with the general rule

that every circumstance calculated to throw light

upon vhe alleged crime is admissible. State v.

Covington, 290 N.C. 313, 226 S.E.2d 629 (1976);

State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190

(1968); State v. Hamilton, 264 N.C. 277, 141

S.E.2d 506 (1965), cert. denied, 384 U.S. 1020

(1966).

The trial judge has ample authority to con-

trol the state's presentation of evidence in

proving that the prior felony involved the use

or threat of violence to the person. It is the

duty of the trial judge to supervise and control

the trial to prevent injustice to either party.

Greer v. Whittington, 251 N.C. 630, 111 S.E.2d

912 (1.960). The court has the power and duty

to control the examination and cross examination

of the witnesses. State v. Arnold, 284 N.C. 41,.

A44

199 S.E.2d 423 (1973); Greer, supra. The trial

judge may ban unduly repetitious and argumenta-

tive questions as well as inquiry into matters

of tenuous relevance. State v. Satterfield,

300 N.C. 621, 268 S.E.2d 510 (1980); State v.

Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971),

cert. denied, 414 U.S. 874 (1973). The extent

of cross-examination with respect to collateral

matters is largely within the discretion of the

trial judge. State v. McLean, 294 N.C. 623, 242

S.E.2d 814 (1978); Ingle v. Transfer Corp., 271

N.C. 276, 156 S.E.2d 265 (1967). The proper

exercise of this authority will prevent the

determination of this aggravating circumstance

from becoming a "mini-trial" of the previous

charge.

Defendant here argues that the state should

be limited to introducing the authenticated

record of the conviction to prove a prior felony

A45

involving the use or threat of violence to the

person. Only if defendant then challenges the

involvement of the use or threat of violence to

the person with respect to the offense would the

state be allowed to rebut this contention by the

use of witnesses. This argument overlooks the

state's duty to prove each aggravating circun-

stance beyond a reasonable doubt. N.C. Gen. Stat.

$ 15A-2000(c)(1) (Cum, Supp. 1981). Although

the introduction of the record of the prior con-

viction establishes a prima facie case where

the prior felony has the use or threat of violence

as an element and could support a peremptory in-

struction, it is not conclusive upon the jury.

Where violence is not an element of the felonious

offense, the introduction of the record of con-

viction would not create a prima facie case, In

either event, the state cannot be deprived of an

opportunity to carry its burden of proof by the

use of competent, relevant evidence.

A46

We find the rule in Taylor to be dispositive

with respect to this question, and we hold that

the involvment of the use or threat of violence

to the person in the commission of the prior

felony may be proven or rebutted by the testi-

mony of witnesses and that the state may initiate

the introduction of this evidence notwithstanding

defendant's stipulation of the record of convic-

tion.

This ruling is consistent with the opinions

of the United States Supreme Court. In Lockett

v. Ohio, 438 U.S. 586, 57 L.Ed. 2d 973 (1978),

we find:

And where sentencing discretion is granted,

it generally has been agreed that the sen-

tencing judge's "possession of the fullest

information possible concerning the defen-

dant's life and characteristics" is

"(hjighly relevant--if not essential--[to the]

selection of an appropriate sentence... ."

Williams v. New York, supra [337 U.S.],

at 247 [93 L.Ed. 1337, 69 S. Ct. 1079]

(emphasis added).

A47

The plurality concluded, in the course of

invalidating North Carolina's mandatory

death penalty statute, that the sentencing

process must permit consideration of the

“character and record of the individual

offender and the circumstances of the

particular offense as a constitutionally

indispensable part of the process of in-

flicting the penalty of death." Woodson v.

North Carolina, 428 U.S., at 304 [49 ...

L.Ed.2d 944, 96 S.Ct. 2978] in order to

ensure the reliability, under Eighth Amend-—

ment standards, of the determination that

"death is the appropriate punishment in

a specific case."

Id, at 601, 57 L.Ed.2d at 988 (citations

omitted).

"in capital cases the fundamental respect

for humanity underlying the Eighth Amend-

ment . . . requires consideration of the

character and record of the individual

offender and the circumstances of the

particular offense as a constitutionally

indispensable part of the process of

inflicting the penalty of death.”

Id. at 604, 57 L.Ed.2d at 989 (quoting Woodson

v. North Carolina, 428 U.S. at 304, 49 L..Ed.2d

at 961).

While Lockett dealt with an Ohio statute

that limited the mitigating circumstances

A48

available to a defendant, its reasoning applies

equally to the prosecution. In order to pre-

vent an arbitrary or erratic imposition of the

death penalty, the state must be allowed to

present, by competent relevant evidence, any

aspect of a defendant's character or record and

any of the circumstances of the offense that

will substantially support the imposition of

the death penalty. N.C. Gen. Stat. S 15A-

2000(b) (3) (Cum. Supp. 1981).

The assignment of error is without merit.

Defendant next argues that the trial court

erred in failing to submit to the jury in writ-

ing all possible mitigating circumstances on

the verdict sheet. We reject this argument

and find no prejudicial error in this regard.

This Court in State v. Pinch, 306 N.C. l,

292 S.E.2d 203, cert. denied, U.S. _, 74

L.Ed.2d 622 (1982), outlined the instructive

A49

guidelines established by this Court for the

trial judges of our state to follow in the sub-

mission of mitigating circumstances. We

commend them to the bench and bar. Defendant's

assignment of error is governed by the rules

in State v. Johnson, 298 N.C. 47, 257 S.E.2d

597 (1979). There it was held that if "a

defendant makes a timely request for a listing

in writing of possible mitigating circum-

stances , . .the trial judge must put such

circumstances on the written list." Id. at 72,

257 S.E.2d at 617 (emphasis added). Absent

a request to include possible mitigating cir-

cumstances on the written verdict form, the

failure of the trial judge to so do is not

error. Id.

Here defendant moved that the court submit

to the jury three statutory mitigating circum-

Stances, N.C.G.S. 15A-2000(f), and twelve addi-

tional mitigating circumstances, N.C.G.S.

A50

15A-2000(£)(9). The court placed the three

statutory circumstances on the verdict sheet.

The additional circumstances were not placed

on the verdict sheet. However, the following

question was submitted to the jury on the

verdict sheet: "Is there any other circun-

stance or circumstances arising from the

evidencewhich you deem to have mitigating

value?" The judge charged the jury on

ten of the twelve mitigating circumstances

requested under N.C.G.S. 15A-2000(f£)(9). The

jury answered this issue "yes."

Defendant failed to request, as required

by Johnson, that the mitigating circumstances

be listed on the written verdict form. The

fact that the trial judge in his discretion

listed the statutory mitigating circumstances

on the verdict form does not make it error

for him to fail to list the additional cir-

cumstances. See also State v. Rook, 304 N.C.

A51

201, 283 S.E.2d 732 (1981), cert. denied,

__U.S.___, 72 L.Ed.2d 155 (1982) (there are

no statutory or constitutional requirements

of specific findings on the mitigating circum-

Stances submitted to the jury).

We again repeat that it would be che better

practice to include on the verdict form all

mitigating circumstances that are to be sub-

mitted to the jury. Id. In so doing,

however, the trial court must also submit the

question of whether there exists "[a]ny other

circumstance arising from the evidence which

the jury deems to have mitigating value."

N.C. Gen. Stat. S15 A-2000(£)(9) (Cum. Supp.

1981). Otherwise, jurors may feel they are

prohibited from considering additional miti-

gating circumstances not listed on the verdict

sheet. Failure to submit this question could

violate the constitutional principles enunciated

in Lockett v. Ohio, supra, 438 U.S. 586, 57

A52

L.Ed.2d 973 (1978).

In addressing this assignment of error,

defendant urges that the trial court erred in

the following instruction: "The law of North

Carolina specifies the mitigating circumstances

which might be considered by you, and only

those circumstances created by statute, about

which I shall instruct you, may be considered

by you."

Standing alone this instruction is arguably

erroneous unless the phrase "only those circum-

stances created by statute" is interpreted to

include mitigating circumstances arising

under N.C.G.S. 15A-2000 (f£)(9). Certainly

this is a logical interpretation of the

phrase, and we adopt it. Moreover,

when we examine the court's charge in its

entirety, as we are required to do, no error

appears. State v. Silhan, supra, 302 N.C. 223,

A53

275 S.E.2d 450 (1981); State v. Tomblin, 276 N.C.

273, 171 S.E.2d 901 (1970); State v. Hall, 267

N.C. 90, 147 S.E.2d 548 (1966). The court,

after giving the quoted instruction, specifically

charged the jury as to each mitigating circum-

stance relied upon by defendant. This included

three mitigating circumstances specifically

listed in the statute and ten circumstances

under N.C.G.S. 15A-2000(f£)(9). In this respect

the court charged:

[Y]ou may consider any circumstances from

the evidence which you are satisfied lessens

the seriousness of the murder or suggests

a lesser penalty than otherwise may be re-

quired, such as thedefendant's character,

education, environment, habits, mentality,

propensities and record, and any other

circumstances arising from the evidence

which you deem to have mitigating value....

[The judge listed ten mitigating circum-

stances.]

So then, if you find from the evidence any

one or more of the mitigating circumstances

specifically enumerated in the preceding

paragraph or any other mitigating circum-

stance arising from the evidence which you

deem to have mitigating value, then it would

A54

be your duty to answer this sub-part (d)

"Yes." Otherwise, "No."

So then, Members of the Jury, as to this

second issue I instruct you that if you

find one or more of the mitigating circum-

stances from the evidence, it would be

your duty to answer the issue "Yes," ...

The trial court repeatedly instructed that

the jury could find any mitigating circumstance

supported by the evidence. We find no prejudi-

cial error in the challenge instruction.

Cc.

Defendant argues that the trial court erred

in charging that if the jury found that: (1)

one or more aggravating circumstances existed,

and (2) that mitigating circumstances found

by it were insufficient to outweigh the aggra-

vating circumstances, and (3) the aggravating

circumstances were sufficiently substantial

to call for the imposition of the death

penalty, it had a duty to recommend a sentence

of execution. Defendant contends that even

A55

though the jury answers the issues in the manner

required in order to impose the death sentence,

it could still exercise its discretion and

recommend a sentence of life imprisonment. This

question has been resolved by this Court con-

trary to defendant's contention in State v.

Pinch, supra, 306 N.C. 1,.292 S.E.2d 203,

cert. denied, U.S. » 74 L.Ed.2d 622 (1982);

State v. Williams, 305 N.C. 656, 292 S.E.2d 243,

cert. denied, U.S. » 74 L.Ed.2d 622 (1982);

and State v. Smith, 305 N.C. 691, 292 S.E.2d

264, cert. denied, U.S. » 74 L.Ed.2d 622

(1982). Defendant requests us to reconsider

these holdings. We decline to do so and re-

affirm these decisions with respect to this

issue. This assignment of error is meritless.

Defendant argues that the form of and in-

structions on the fourth issue submitted to the

A56

jury were erroneous. The issue reads:

4. Do you find beyond a reasonable

doubt that the aggravating circumstance or

circumstances you have found is or are

sufficiently substantial to call for the

imposition of the death penalty?

ANSWER: Yes.

This issue involves the requirement that in

making the ultimate decision between life and

death, the jury must consider any aggravating

circumstances found along with any mitigating

circumstances. The totality of the mitigating

and aggravating circumstances must be considered

by the jury in arriving at this decision. We

review the court's instructions in their

entirety in addressing this issue.

The court instructed the jury inter alia:

It is now your duty to recommend to the

Court whether the defendant will be sen-

tenced to death or life imprisonment. Your

recommendation will be binding upon the

Court. If you unanimously recommend that

the defendant be sentenced to death, the

Court will be required to impose a sentence

of death.

A mitigating circumstance is that

circumstance arising from the evidence which

does not constitute a justification or

excuse for a killing, or which reduces it

to a lesser degree of crime than first-

degree murder, but which nevertheless may

be considered as extenuating or reducing

the moral culpability of the killing, or

which makes it less deserving of extreme

punishment than other first-degree

murders..... .

The defendant has the burden of per-

suading you of the existence of any miti-

gating circumstance. The defendant must

satisfy you from the evidence taken as a

whole, not beyond a reasonable doubt,

but merely to your satisfaction, of the

existence of any mitigating circumstance.

[Y] ou. may consider any circumstance

from the evidence which you are satisfied

lessens the seriousness of the murder or

suggests a lesser penalty than otherwise

may be required, such as the defendant's

character, education, environment, habits,

mentality, propensities and record, and

any other circumstances arising from the

evidence which you deem to have mitigating

value. ...

So then, if you find from the evidence

any one or more of the mitigating circum-

stances specifically enumerated in the

preceding paragraph or any other mitigating

A58

circumstance arising from the evidence

which you deem to have mitigating value,

then it would be your duty to answer this

sub-part (d) "Yes." Otherwise, "No."

So then, Members of the Jury, as to this

second issue I instruct you that if you find

one or more of the mitigating circumstances

from the evidence, it would be your duty to

answer the issue "Yes", ...

The third issue for your consideration

reads as follows:

3. Do you find, beyond a reasonable

doubt, that the mitigating circumstance or

circumstances you have found is or are in-

sufficient to outweigh the aggravating

circumstance or circumstances you have

found?

On this issue the burden is upon the

State to prove to you from the evidence

beyond a reasonable doubt that the mitigat-

ing circumstances you find are insufficient

to outweigh any aggravating circumstances

you may have found.

If you find from the evidence one or

more mitigating circumstances, you must

weigh the aggravating circumstances against

the mitigating circumstances. In so doing,

you are the sole judges of the weight to be

given to any individual circumstance which

you find, whether aggravating or mitigating.

Your weighing should not consist of merely

A59

adding up the number of aggravating circum-

Stances and mitigating circumstances.

Rather, you must decide from all the evi-

dence what value to give to each circum-

stance, and then weigh the aggravating

circumstances, so valued, against the miti-

gating circumstances, so valued, and finally

determine whether the aggravating circum-

Stances outweigh the mitigating circum-

stances,

So then, Members of the Jury, if the

State has proven to you from the evidence

beyond a reasonable doubt that the mitigat-

ing circumstances you find are insufficient

to--that is, do not--outweigh the aggravat-

ing circumstances you find, it would then

be your duty to answer this third issue

"Yes."" However, if you do not so find, or

if you have a reasonable doubt, then it

would be your duty to answer this issue

"No > w

On this [Fourth] issue the burden is

on the State to prove to you from the

evidence beyonda reasonable doubt that the

aggravating circumstances found, if any,

are sufficiently substantial to call for

the imposition of the death penalty.

Substantial means having substance or

weight, important, significant or momentous,

Aggravating circumstances may exist in a

particular case and still not be sufficiently

substantial to call for the death penalty.

Therefore, it is not enough for the State

to prove from the evidence beyond a reasonable

A60

doubt the existence of one or more aggravat-

ing circumstances. It must also prove beyond

a reasonable doubt that such aggravating cir-

cumstances are sufficiently substantial to

call for the death penalty, and before you

may answer "Yes," you must agree unanimously

that they are,

If you unanimously find beyond a reason-

able doubt that any aggravating circumstance

or circumstances found by you are sufficiently

substantial to call for the death penalty,

you would answer this issue "Yes." If you do

not so find, or have a reasonable doubt, then

you would answer this issue "No."

If you answer this issue "No," it would

be your duty to recommend that the defendant

be imprisoned for life.

So then, Members of the Jury, finally

I instruct you for you to recommend that the

defendant be sentenced to death, the State

must prove three things beyond a reasonable

doubt, as I have defined that term, from the

evidence:

FIRST, that one or more statutory aggra-

vating circumstances existed; and,

SECOND, that the mitigating circumstances

found by you are insufficient to outweigh the

aggravating circumstances, if any, found by

you; and,

THIRD, that the aggravating circumstances,

if any, found by you are sufficiently sub-

stantial to call for the imposition of the

death penalty.

A61

. « « L£ the State has proven these

three things to you beyond a reasonable doubt,

and you unanimously so find, it would be your

duty to recommend that the defendant be

sentenced to death. If you do not so find,

or if you have a reasonable doubt to one or

more of these things, it would be your duty

to recommend that the defendant be sentericed

to life imprisonment.

Defendant contends that the form of the issue

and the jury instructions allowed the jury to

answer the issue "yes" without any consideration

of the mitigating circumstances found by the jury.

The issues submitted are based upon the

following portions of the statute:

After hearing the evidence, argument of

counsel, and instructions of the court, the

jury shall deliberate and render a sentence

recommendation to the court, based upon the

following matters:

(1) Whether any sufficient aggravating

circumstance or circumstances as

enumerated in subsection (e) exist;

(2) Whether any sufficient mitigating

circumstance or circumstances as

enumerated in subsection (f),

which outweigh the aggravating

circumstance or circumstances

A62

found, exist; and

(3) Based on these considerations,

whether the defendant should be

sentenced to death or to imprison-

ment in the State's prison for life.

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 circum-

Stance 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 out-

weigh the aggravating circumstance or

circumstances found.

1981).

The fourth issue is not an isolated, inde-

pendent question that may be answered without

reference to the other issues and circumstances

A63

of the case. This is manifested by the language

of the General Assembly--"[b]Jased on these con-

siderations" should the defendant be sentenced

to death or life imprisonment. N.C. Gen. Stat.

S 15A-2000(b) (3)(Cum. Supp. 1981). In deciding

the fourth issue, the jury must consider the

aggravating circumstances found, the mitigating

circumstances found, and the degree to which the

aggravating circumstances outweigh the mitigating

circumstances. The jury must compare the totality

of the aggravating circumstances with the totality

of the mitigating circumstances and be satisfied

beyond a reasonable doubt that the statutory

aggravating circumstar.ces found are sufficiently

substantial to call for the imposition of the

death penalty and that the death penalty is justi-

fied and appropriate.

When the charge is considered contextually,

as we have done, no prejudicial error appears.

State v. Tomblin, 276 N.C. 273, 171 S.E.2d 901

A64

(1970). Although not a model charge, the jury

was adequately instructed that before recommend-

ing the death sentence it must be satisfied that

the sentence is justified and appropriate upon

considering the totality of the aggravating

circumstances with the totality of the mitigating

circumstances found by the jury. The charge and

the sentencing procedure satisfied the require-

ments of N.C.G.S. 15A-2000 and the holding in

Lockett v. Ohio, supra, 438 U.S. 586, 57 L.Ed.2d

973 (1978), that the death penalty should not be

imposed where the sentencer may be prevented from

considering all mitigating circumstances in mak-

ing the ultimate life or death determination.

The jury is not required to assign a value

to the aggravating circumstances, subtract from

it the value of the mitigating circumstances, and

then look to the remainder to determine if that

value is sufficiently substantial to deserve the

death penalty. We reject and disapprove such a

A65

mechancial mathematical approach to the decision

of life or death.

The instructions given in this case are sub-

stantially the same as those approved by this

Court in State v. Brown, 306 N.C. 151, 293 S.E.

2d 569, cert. denied, U.S. » 74 L.Ed.2d 642

(1982); State v. Pinch, 306 N.C. 1, 292 S,E.2d

203, cert. denied, U.S. » 74 L.Ed.2d 622

(1982); State v. Williams, 305 N.C. 656, 292

S.E.2d 243, cert. denied, u.8. » 7% LE.

2d 622 (1982); State v. Rook, 304 N.C. 201, 283

S.E.2d 732 (1981), cert. denied, U.S. .

L.Ed.2d 155 (1982); State v. Martin, 303 N.C. 246,

278 S.E.2d 214, cert.denied, 454 U.S. 957, 70

L.Ed.2d 240 (1981); State v. Barfield, 298 N.C.

306, 259 S.E.2d 510 (1979), cert. denied, 448

U.S. 907, 65 L.Ed.2d 1137 (1980).

As stated earlier, although the instructions

are free from prejudicial error, they are not a

model charge. The form of the fourth issue can

A66

also be more appropriately framed. We therefore

urge the bench and bar to carefully consider the

following with respect to this question.

We note that the order and form of the issues

in capital trials have varied from case to case,

The order and form of the issues to be submitted

to the jury should be substantially as follows:

(1)

(2)

(3)

(4)

Do you find from the evidence beyond a

reasonable doubt the existence of one

or more of the following aggravating

circumstances?

Do you find from the evidence the ex-

istence of one or more of the following

mitigating circumstances?

Do you find beyond a reasonable doubt

that the mitigating circumstance or

circumstances you have found is, or

are, insufficient to outweigh the

aggravating circumstance or circum-

stances you have found?

Do you find beyond a reasonable doubt

that the aggravating circumstance or

circumstances found by you is, or are,

sufficiently substantial to call for

the imposition of the death penalty

when considered with the mitigating

circumstance or circumstances found

by you?

A67

With respect to the fourth issue we find the

following statement by the Utah Supreme Court in

State v. Wood, 648 P.2d 71, 83 (Utah), cert.

denied, U.S. » 74 L.Ed.2d 383 (1982),

quoted by the United States Supreme Court in

Smith v. North Carolina, U.S. » 74 L.Ed, 2d

622 (1982), to be instructive:

It is our conclusion that the appro-

priate standard to be followed by the sen-

tencing authority--judge or jury--in a

capital case is the following:

"After considering the totality of the

aggravating and mitigating circumstances, you

must be persuaded beyond a reasonable doubt

that total aggravation outweighs total miti-

gation, and you must further be persuaded,

beyond a reasonable doubt, that the imposi-

tion of the death penalty is justified and

appropriate in the circumstances."

These standards require that the sen-

tencing body compare the totality of the

mitigating against the totality of the

aggravating factors, not in terms of the

relative numbers of the aggravating and the

mitigating factors, but in terms of their

respective substantiality and persuasiveness.

Basically, what the sentencing authority must

decide is how compelling or persuasive the

totality of the mitigating factors are when

compared against the totality of the

A68

aggravating factors. The sentencing body,

in making the judgment that aggravating

factors "outweigh," or are more compelling

than, the mitigating factors, must have no

reasonable doubt as to that conclusion, and

as to the additional conclusion that the

death penalty is justified and appropriate

after considering all the circumstances.

The sentencing procedure in each capital case

must assure reliability in the decision that

death is the proper punishment. Lockett v. Ohio,

supra, 438 U.S. 586, 57 L.Ed.2d 973 (1978).

Appropriate instructions on the fourth issue

should be given to the jury substantially as

follows:

"In deciding this issue, you are not

to consider the aggravating circumstances

standing alone. You must consider them in

connection with any mitigating circumstances

fovnd by you. After considering the totality

of the aggravating and mitigating circum-

stances, you must be convinced beyond a

reasonable doubt that the imposition of the

A69

death penalty is justified and appropriate in

this case before you can answer the issue

‘yes.’ In sodoing, you are not applying

a mathematical formula. For example,

three circumstances of one kind do not

automatically and of necessity outweigh one

circumstance of another kind. The number of

circumstances found is only one consider-

ation in determining which circumstances

outweigh others. The jury may very properly

emphasize one circumstance more than

another in a particular ease.” You must

consider the relative substantiality and

persuasiveness of the existing aggravating

and mitigating circumstances in making this

determinaticn. You, the jury, must determine

5. State v. Melton, 307 N.C. 370, 298

S.E.2d 673 (1983); State v. Davis, 58 N.C.App.

330, 293 S.E.2d 658, disc. rev. denied, 306

N.C. 745 (1982).

A70

how compelling and persuasive the totality

of the aggravating circumstances are when

compared with the totality of the mitigating

circumstances found by you." After so

doing, if you are satisfied beyond a reason-

able doubt that the aggravating circumstances

found by you are sufficiently substantial to

call for the death penalty, it would be your

duty to answer the issue 'yes." 1f you are

not so satisfied or have a reasonable doubt,

it would be your duty to answer the issue

6. Smith v. North Carolina, Uels P

74 L.Ed.2d 622 (1982).

A71

Bench and bar should note that the fore-

going is not intended to be a complete charge on

this issue.

We find no prejudicial error in the sentenc-

ing phase of defendant's trial.

IV.

Finally, we turn to the duties required of

this Court in every capital case in which a

sentence of death has been imposed. We are

directed by N.C.G.S. 15A-2000(d)(2), (Cum. Supp.

7. Cf. State v. Smith, 305 N.C. 691, 292

S.E.2d 264, cert. denied, U.S. » 74 L.Ed.2d

622 (1982).

8. In the event the jury fails to find the

existence of any mitigating circumstances, the

jury must still answer the fourth issue. In

such case, the jury must determine whether the

aggravating circumstances found by the jury are

of such value, weight, importance, consequence,

or significance as to be sufficiently substantial

to call for the imposition of the death penalty.

Substantial circumstances may be contrasted with

circumstances that are enuous, flimsy, abstract,

imaginary, deceptive, or negligible.

A72

1981) to determine:

(1) Whether the record supports the

jury's findings of any aggravating circum-

stance or circumstances upon which the sen-

tencing court based its sentence of death;

(2) Whether the sentence was imposed

under the influence of passion, prejudice or

any other arbitrary factor; and

(3) Whether the sentence of death is

excessive or disproportionate to the penalty

imposed in similar cases, considering both

the crime and the defendant.

We have thoroughly reviewed the transcript,

record on appeal, briefs of the defendant and the

State, as well as the recorded oral arguments of

counsel before this Court. After so doing, we

find that the record fully supports the aggra-

vating circumstances found by the jury. We hold

that the death sentence wasnot imposed under the

influence of passion, prejudice or any other

arbitrary factor. There is no indication in the

transcript or record that any impermissible

factor influenced the imposition of the death

sentence,

A73

We must next determine whether the sentence

in this case is excessive or disproportionate to

the penalty imposed in similar cases, In our

opinion in State v. Douglas Williams, Jr.,

(No. 277A82, Edgecombe County, filed 5 April

1983), this Court set forth the pool of cases to

be considered in proportionality review of

sentences in capital cases. Williams also

States the method of such review. The pool of

cases for a proportionality review is composed

of all capital cases tried after the effective

date of our capital punishment statute, 1 June

1977, in which there were convictions of murder

in the first degree, regardless of the sentences

imposed, and which have been reviewed on appeal

by this Court. In making this review, this Court

will rely upon its own case reports of the pool

Of cases, together with the transcript, record

and briefs when necessary. See, Williams, supra.

A74

Upon review of the transcript, record, briefs

and recorded oral arguments, we do not find the

death sentence in this case disproportionate when

compared with the pool of similar cases. In

carrying out his review we have considered both

the crime and the defendant. N.C. Gen. Stat.

$ 15A-2000(d)(2), (Cum. Supp. 1981). In so

doing, we have complied with the constitutional

requirement that individualized consideration

be given to the defendant before the death

sentence can be upheld. Lockett v. Ohio, supra,

438 U.S. 586, 57 L.Ed.2d 973 (1978). In con-

sidering the defendant, we note that the jury

found as statutory mitigating circumstances that

defendant was under the influence of mental or

emotional disturbance when he committed the

murder, and that the defendant's capacity to

appreciate the criminality of his conduct or to

conform to the requirements of law was impaired.

A75

N.C. Gen, Stat. S 15A-2000(f)(2)and (6). While

these findings are often persuasive on the jury

in recommending life ieprisonnent,” they are not

conclusive.*° It is also apparent from the

transcript and record that, although there is

evidence to the contrary, these mitigating cir-

cumstances may have resulted from the defendant's

voluntary injections of cocaine. The trial court

instructed the jury that defendant could be under

9, See State v. Adcox, 303 N.C. 133, 277

S.E.2d 398 (1981); State v, King, 301 N.C. 186,

270 S.E.2d 98 (1980); State v. Myers, 299 N.C.

671, 263 S.E.2d 768 (1980); State v. Ferdinando,

298 N.C. 737, 260 S.E.2d 423 (1979); State v.

Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979);

State v. Poole, 2958 N.C. 254, 258 S.E.2d 339

(1979); State v. Crews, 296 N.C. 607, 252 S.E.2d

745 (1979).

. 10. State v. Rook, 304 N.C. 201, 283 S.E.2d

732 (1981), cert. denied, __U.S.__, ~ 72 L.Ed. 2d

155 (1982); State v. Hutchins, 303 N.C. 321, 279

S.E.2d 788 (1981); State v. Johnson, 298 N.C. 47,

257 S.E.2d 597 (1979).

A76

a mental or emotional disturbance as a result

of the "consumption of drugs." Likewise, with

respect to impaired capacity, the jury was

instructed that this condition could be caused

by "drug intoxication.” In this case, although

finding the existence of these two mitigating

circumstances, the jury could have reasonably

given them less weight in making the ultimate

decision of life or ‘sath than did the juries

in the cases cited in footnote 9,

The jury found the existence of three

aggravating circumstances: defendant had been

previously convicted of a felony involving the

use of violence to the person, the murder was

especially heinous, atrocious or cruel, and the

murder was part of a course of conduct which

included a crime of violence by defendant

against another person, Vicki Dunno. N.C. Gen.

State. S 15A-2000(e)(3), (9) and (11), (Cum,

Supp. 1981). Two of these aggravating circum-

A77

stances could not have been caused or influenced

in any way by defendant's emotional state or di-

minished capaci:y. The transcript and record do

not support the theory that this murder was the

product of defendant's unfortunate childhood or

a deficient personality exacerbated by the

voluntary injection of cocaine.

After voluntarily injecting cocaine, defen-

dant gained entry into the home of Diane Parker

and Vicki Dunno by cunning, guile and mis-

representation. Once in their home, he commenced

a campaign of terror against the two young women,

cutting, stabbing and slashing them with a

butcher knife. There is no reason to repeat here

the gory details of the crime.

No duty of this Court is more serious or

important than the review of a sentence of death.

With this in mind, our careful comparison of this

crime and this defendant with similar cases leads

us to the conclusion that the death sentence

A78

imposed upon this defendant is not dispropor-

tionate or excessive. We find nothing in our

review that would justify treating this defen-

dant differently from those defendants who were

given death sentences which this Court has up-

held since 1 June 1977. Nor does our review of

the life sentence cases in the pool of similar

cases lead us to the conclusion that defendant

should receive a life sentence. Our review

discloses a meaningful basis for distinguishing

this case from those in which life sentences

were imposed. Lockett v. Ohio, supra, 438 U.S.

586, 57 L.Ed.2d 973 (1978); Harris v. Pulley,

692 F.2d 1189 (9th Cir. 1982), cert. granted,

43 C.C.H. S. Ct. Bull. B1442 (21 March 1983).

We do not find the death seuience in this case

to be inappropriate as a matter of law. We

decline to exercise our discretion to set aside

the death sentence imposed,

Defendant was also convicted of assault on

A79

Vicki Dunno with a deadly weapon with intent to

kill inflicting serious injury, and kidnapping

of Diane Parker. Although he gave notice of

appeal of these convictions, defendant does

not bring forward any assignments of error or

make any argument with respect to these charges

in his brief. We find no error in these

convictions.

The result is:

No. 79CRS47734--assault with a deadly

weapon with intent to kill inflicting serious

injury--NO ERROR.

No. 79CRS67081--kidnapping--NO ERROR.

No. 79CRS47697--murder in the first

degree--NO ERROR in guilt determination; NO

ERROR in the sentencing phase.

Justice Frye took no part in the consider-

ation or decision in this case,

A80

No. 86A81 - State v. McDougall

Justice Exum dissenting as to sentence.

I concur fully in the majority's treatment

of the guilt phaseof this case. With respect

to the sentencing phase I dissent and vote to

remand for a new sentencing hearing.

In my view the trial court failed to exercise

sufficient control over the direct examination

and cross-examination of the witness Mary Huff

so that her testimony resulted in a "mini-trial"

of the Georgia rape case, a phenomenon which we

sought to warn against in State v. Silhan, 302

N.C. 223, 273, 275 S.E.2d 450, 484 (1981), and

which the majority today agrees should not be

allowed to occur. The primary danger of the

mini-trial is that it distracts the jury from

its appointed task of determining whether defen-

A81

dant will live or die by focusing too

much of its attention on the question of

defendant's guilt or degree of culpability in

some prior crime. If permitted, the practice

could also greatly extend the time required

for sentencing hearings to unreasonable lengths

as each prior conviction of defendant is, in

turn, relitigated.

In Silhan the state at the sentencing hear-

ing offered testimony tending to show that

defendant had been convicted in another county

for various crimes involving violence. The

aggravating circumstance defined by G.S. 15A-

2000(e) (3), that "defendant had been previously

convicted of a felony involving the use of

"was not sub-

threat of violence to the person,'

mitted to the jury. Apparently, as we concluded

in Silhan, the state offered this testimony to

rebut defendant's contention that he had no

significant prior criminal history. In ordering

A82

a new sentencing hearing for other reasons, we

noted in Silhan that the state would be able to

use these other convictions to prove the sub-

section (e)(3) aggravating circumstance. With

concern about the state's use of witnesses to

prove the prior convictions and in order to

guard against this practice except where

necessary, we said in an effort to guide the

trial court at the new sentencing hearing:

We note in this regard that the most

appropriate way to show the ‘prior felony'

aggravating circumstance would be to offer

duly authenticated court records. Testi-

mony of the victims themselves should not

ordinarily be offered unless such testimony

is necessary to show that the crime for

which defendant was convicted involved the

use or threat of violence to the person.

There should be no ‘mini-Trial' at the

sentencing hearing on the questions of

whether the prior felony occurred, the

circumstances and details surrounding it,

and who was tie perpetrator. Whether a

defendant has, in fact, been convicted of

a prior felony involving the use or threat

of violence to a person would seem to be a

fact which ordinarily is beyond dispute.

It should be a matter of public record. If,

of course, defendant denies that he was the

A83

defendant shown on the conviction record,

the occurrence of the conviction, or that

the crime involved the use or threat of

violence to the person, then the state

should be permitted to offer such evidence

as it has to overcome defendant's denials.

302 N.C. at 272, 275 S.E.2d at 484 (emphasis

supplied).

I strongly disagree with the majority that

this language in Silhan "may properly be re-

ferred to as obiter dictum." It is no more

dictum than the majority's present instruction

to the trial court with regard to the proper

form and instructions on what it refers to as

the "fourth issue" in a capital sentencing pro-

ceeding. Indeed, the majority relies on the

italicized portions of the above Silhan passage

to sustain its decision here. Furthermore, the

majority agrees that a mini-trial of the pre-

vious charge ought not to be permitted to occur,

The majority states, and I agree, that the proper

exercise of the trial judge's authority to con-

A84

trol both the direct examination and cross-

examination of a witness "will prevent the

determination of [the prior conviction] aggra-

vating circumstance from becoming a 'mini-trial'

of the previous charge."

The majority concludes, however, that the

trial judge in this case did properly exercise

his authority to this effect. I disagree with

this conclusion.

The trial judge here permitted the witness's

direct examination by the state to continue until

it now occupies more than six pages in the

transcript. The examination covers such details

of the prior offense as the victim's age, size

and weight; marital status; victim's residence

next door to defendant's sister; the time of the

offense; defendant's size and weight; and

various details involving the act of sexual

intercourse with the victim, including defen-

dant's statements during the act and whether

A85

defendant ejaculated. This rather extensive

direct examination which would have been appro-

priately complete for the trial of the rape

itself prompted an extensive cross-examination

by defendant which occupies some nineteen pages

of the record. The cross-examination ranges

over such subjects as the victim's estrangement

from her husband at the time of the rape; the

manner in which defendant gained antry into the

victim's home; certain prior inconsistent state-

ments allegedly made by the victim; the victim's

alleged possession with her husband of certain

pornographic movies; and the manner in which

defendant exited the victim's home.

An extremely small portion of both the

direct examination and the cross-examination

dealt with the question of defendant's use or

threat of violence to the victim of the Georgia

rape. Although the majority agrees that this

would have been the only appropriate purpose for

A86

the testimony, nevertheless it somehow concludes

that Judge Ferrell did not commit error in allow-

ing the wide-ranging direct examination and

cross-examination on subjects irrelevant and im-

material to the only appropriate evidential

inquiry, Suffice it to say that if what occurred

at this sentencing hearing did not constitute a

"mini-trial" on the Georgia rape conviction,

then I am hard put to conceive of what would be

a mini-trial.

Finally, the majority relies on State v.

Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981)

(Taylor II), to sustain its decision on this

point. What happened in Taylor II bears no

resemblance to what happened in the instant case.

Defendant in Taylor II had, in fact, been con-

victed of the first degree murder of Cathy King

at the 25 September 1978 Session of Johnston

Superior Court. State v. Taylor, 298 N.C. 405,

259 S.E.2d 502 (1979). (Taylor I).

A87

The murder in Taylor I was prosecuted as a

capital case. The record reveals that only one

aggravating circumstance was submitted to the

jury, i.e., was the murder "especially heinous,

atrocious or cruel." Although the jury answered

this aggravating circumstance affirmatively, it

also found the existence of the mitigating cir-

cumstance that the murder was committed while

defendant “was under the influence of mental or

emotional disturbance." The jury found beyond

a reasonable doubt that the mitigating circum-

stance was insufficient to outweigh the aggra-

vating and that the aggravating was sufficiently

substantial to call for the imposition of the

death penalty. Nevertheless, it recommended life

imprisonment. This Court found no error in

defendant's conviction in Taylor I.

In Taylor II, relied on by the majority here,

the state was permitted to offer the testimony

of the pathologist who performed the autopsy

A88

on the body of Cathy King, the victim in Taylor

I. The record in Taylor II reveals that the

pathologist testified simply as follows:

I did an autopsy on the body of Cathy

King on January 3, 1978. I found six

separate gunshot wounds. We found two on

the chest, one on the left side below the

neck, and one on the right side. There was

one on the left arm and one on the right

hand, The wounds were very close indicating

that the gun was properly several feet away

when it was fired, rather than a few inches,

In my opinion, her death was a result of

the gunshot wounds that I have described,

There was no cross-examination of the pathologist.

The brief testimony of the pathologist in

Taylor II was not permitted to degenerate into a

mini-trial of defendant's guilt of the Cathy

King, Taylor I, murder. Silhan was not referred

to in Taylor II. There is no hint in Taylor II

that this Court intended to, nor in my view did

it, retreat from what it said in Silhan on this

subject.

In Taylor II the state argued that it should

be permitted tooffer this brief testimony

A89

of the pathologist, a disinterested witness,

to show not only that defendant Taylor had pre-

viously been convicted of first degree murder,

but also that this murder was accompanied by an

aggravating circumstance, i.e., the murder was

"especially heinous, atrocious or cruel,"

G.S. 15A-2000(e) (9), which qualified the murder

as potentially deserving of the death penalty.

This Court in Taylor II agreed essentially with

this argument, holding that "[i]f the capital

felony of which defendant has previously been

convicted was a particularly shocking or heinous

crime, the jury should be so informed." 304

N.C. at 279, 283 S.E.2d at 780. Taylor II does

not hold that testimony will be admissible to

show any and all circumstances of the commission

of every crime defendant's conviction of which

is sought to be offered as an aggravating cir-

cumstance. Taylor II holds only that when the

prior crime is a capital crime, i.e., first

A90

degree murder, then brief testimony will be

allowed to show those aggravating and miti-

gating circumstances which were found by the

jury in the prior case to have existed.

Finally, there was no necessity for offer-

ing any testimony for the purpose of showing

that defendant's Georgia rape conviction was

a crime involving violence or threat of violence

to the victim. The majority notes that defen-

dant's Georgia rape conviction was obtained

under section 16-6-l(a) of the Georgia Code

which provides, "Aperson commits the offense

of rape when he has carnal knowledge of a

female forcibly and against her will... ."

Ga. Code Ann. $ 16-6-l(a) (1982). This Court

said, moreover, in Taylor II, 304 N.C. at 279,

283 S.E.2d at 780: "Nothing else appearing,

rape involves the use of threat of violence to

the person.” Thus, defendant's Georgia rape

conviction was "of a felony involving the use

A91

or threat of violence to the person" as a matter

of law. Defendant's stipulation that he had been

so convicted was in law also a stipulation that

the crime involved violence or threat of violence

to the person.

There being no necessity then for the state

to prove this element through the testimony of

witnesses, I think it was error prejudicial to

defendant to permit any testimony at all on this

point.

The Fair Sentencing Act, now our statutory

scheme for sentencing most classes of felons,

was recently enacted by our General Assembly.

See Comment, The North Carolina Fair Sentencing

Act, 60 N.C. L. Rev. 631, 631 n. 1 (1982). It

supportsmy position that testimony in a capital

sentencing hearing should be permitted on the

prior conviction aggravating circumstance only |

if necessary to show that the prior conviction

did involve the use or threat of violence or

A92

that a prior conviction for first degree murder

was accompanied by statutory aggravating or miti-

gating circumstances, or both. This Act provides

for presumptive sentences to be imposed for each

felony conviction unless aggravating or mitigat-

ing circumstances are shown which might justify

a greater or lesser sentence. One of the statu-

tory aggravating circumstances is that "[t]he

defendant has a prior conviction of convictions

for criminal offenses punishable by more than

60 days' confinement." G.S. 15A-1340.4(a) (1) (0).

Subsection (e) of this statute provides:

A prior conviction may be proved by

Stipulation of the parties or by the

original or a certified copy of the court

record of the prior conviction. The original

or certified copy of the court record,

bearing the same name as that by which

the defendant is charged, shall be prima

facie evidence that the defendant named

therein is the same as the defendant be-

fore the court, and shall be prima facie

evidence of the facts set out therein.

Because the legislature has soclearly stated its

intent as to how prior convictions should

A93

ordinarily be proved in the Fair Sentencing Act,

I am satisfied the legislature had a similar

intent with regard to the proof of prior felony

convictions in our capital punishment sentencing

statute.

State v. McCormick, 397 N.E.2d 276 (Ind,

1979), also supports my position on this ques-

tion. In McCormick the Indiana Supreme Court

considered provisions of the Indiana capital

sentencing statute which permitted the state

to prove as aggravating circumstances the

following (numbered as they appear in the

statute):

(7) The defendant has been convicted of

another murder.

(8) The defendant has committed another

murder, at any time, regardless of whether

he has been convicted of that other murder.

(9) The defendant was under a sentence

of life imprisonment at the time of the

murder.

397 N.E.2d at 278 (citing Ind. Code $ 35-50-2-9

A94

(b) (Burns 1979)). The Indiana Supreme Court

concluded that subsection eight of the sentenc-

ing statute violated the Due Process Clause of

the Fourteenth Amendment of the United States

Constitution. The Court reasoned that this

subsection would permit the state to try during

the sentencing phaseof a capital case another,

unrelated murder. The Court concuded that this

procedure would be so inflammatory and im-

permissibly prejudicial in the sentencing phase

it would deny defendant due process. The Court

considered subsection eight to be qualitatively

different from subsections seven and nine of

the statute. It said, 397 N.E.2d at 280-81:

Similarly, evidence introduced to

prove subparts (7) and (9) also does not

carry with it the emotional and preju-

dicial impact which would cause the death

penalty to be imposed capriciously. Gregg

v. Georgia, (1976) 428 U.S. 153, 96 S.Ct.

2909, 49 L.Ed.2d 859. Subparts (7) and

(9) concern whether '[t]he defendant has

been convicted of another murder’ and

whether '[t]he defendant was under a sen-

tence of life imprisonment at the time of

A95

the murder.’ Evidence of these aggravating

circumstances will almost always be in the

form of court or prison records. Unlike

a complete presentation of evidence regard-

ing an unrelated murder, this evidence, in

the context of this sentencing procedure,

would not be of an inflammatory and im-

properly prejudicial nature. See Spencer

v. Texas, (1967) 385 U.S. 554, 87 S.Ct.

648, 17 L.Ed.2d 606.

Thus, permitting the sentencing phase of a

capital case to degenerate into a mini-trial or

retrial of a previous offense, as happened here,

may raise serious constitutional questions.

Clearly, permitting such a retrial is contrary

to the legislature's intent.

For the reasons stated in my dissenting

opinion in State v. Pinch, 306 N.C. 1, 38,

292 S.E.2d 203, 230 cert. denied, U.S. » 74

L.Ed.2d 622, 103 S.Ct. 474 (1982), I also

disagree with the majority's position that it

was not error for the trial judge to instruct

the jury that it had a duty to recommend death

A96

if it answered the various issues submitted

favorably to the state. I continue to think

that a jury never has a duty to recommend death

no matter how it answers the issues. It may

not recommend death unless it answers the issues

in a certain way. Even if it answers these

issues that way, however, the jury ought still

be permitted to recommend life as, indeed,

juries did in State v. King, 301 N.C. 186, 270

S.E.2d 98 (1980), and State v. Taylor, supra,

298 N.C. 405, 259 S.E.2d 502 (Taylor I).

I concur with the majority's view of the

manner in which the issues should be submitted

in a capital case as set out in Part III D of

its opinion. I believe, however, that the trial

judge's formulation of and instruction on the

fourth issue constituted error entitling defen-

dant to a new sentencing hearing. The jury

A97

was told on this issue to determine the substan-

tiality of the aggravating circumstances standing

alone and without regard to and not discounted

by the mitigating circumstances.

Justice Stevens, in a concurring opinion

on a denial of certiorari, Pinch v. North

Carolina, _U.S.__,_ 74 L.Ed.2d 622-23, 103

S.Ct. 474, 475 (1982), elisa aad that such an

instruction might be contrary to the holding

in Lockett v. Ohio, 438 U.S. 586 (1978). He

wrote:

In each of these three capital cases

the trial judge instructed the jury that

it had a duty to impose the death penalty

if it found: (1) that one or more aggra-

vating circumstances existed; (2) that

the aggravating circumstances were suffi-

ciently substantial to call for the death

penalty; and (3) that the aggravating cir-

cumstances outweighed the mitigating cir-

cumstances. There is an ambiguity in these

instructions that may raise a serious ques-

tion of compliance with this Court's hold-

ing in Lockett v. Ohio, 438 U.S. 586, 57

L.Ed,2d 973, 98 S. Ct. 2954, 9 Ohio Ops

3d 26 (1978).

A98

On the one hand, the instructions may

be read as merely requiring that the death

penalty be imposed whenever the aggravating

circumstances, discounted by whatever miti-

gating factors exist, are sufficiently

serious to warrant the extreme penalty.

Literally read, however, those instructions

may lead the jury to believe that it is re-

quired to make two entirely separate in-

quiries: First, do the aggravating circum-

stances, considered apart from the mitigat-

ing circumstances, warrant the imposition

of the death penalty? And second, do the

aggravating circumstances outweigh the mit-

igating factors? It seems to me entirely

possible that a jury might answer both of

those questions affirmatively and yet feel

that a comparison of the totality of the

aggravating factors with the totality of

mitigating factors leaves it in doubt as

to the proper penalty. But the death

penalty can be constitutionally imposed only

if the procedure assures reliability in

the determination that ‘death is the appro-

priate punishment in a specific case.'

Lockett, supra, 438 US, at 601, 57 L Ed 2d

973, 98 S Ct 2954, 9 Ohio Ops 3d 26

(plurality opinion), quoting Woodson v.

North Carolina, 428 US 280, 305, 49

L Ed 2d 944, 96 S Ct 2978 (1976) (opinion

of Stewart, Powell, and Stevens, JJ.).

The petitions for certiorari in these

three cases request the Court to review the

decision of the Supreme Court of North

Carolina affirming the death penalty in

A99

each case. I do not criticize the Court's

action in denying certiorari because the

question whether the instructions to the

juries are consistent with Lockett remains

open for consideration in collateral pro-

ceedings. Moreover, even if relief may not

be warranted in these cases, the North

Carolina judiciary may find it appropriate

to make slight changes in the form of its

instructions to avoid the ambiguity I have

identified.

__U.S.__, 74 L.Ed.2d at 622-23, 103 S.Ct. at

474-75 (footnote ommitted).

The majority recognizes that this kind of

instruction is not contemplated by the statute.

Justice Stevens is of the opinion that it may

be unconstitutional. I agree with both of these

positions and would give defendant a new sen-

tencing hearing on the strength of this error

committed by the trial judge.

A100

(a)

NORTH CAROLINA GENERAL STATUTES

CHAPTER 15A, ARTICLE 100

CAPITAL PUNISHMENT

Separate Proceedings on Issue of Penalty.

(1) Upon conviction or adjudication of guilt

(2)

of a defendant of a capital felony, the

court shall conduct a separate sentencing

proceeding to determine whether the

defendant should be sentenced to death or

life imprisonment. A capital felony is

one which may be punishable by death,

The proceeding shall be conducted by the

trial judge before the trial jury as soon

as practicable after the guilty verdict is

returned, If prior to the time that the

trial jury begins its deliberations on the

issue of penalty, any juror dies, becomes

incapacitated or disqualified, or is dis-

charged for any reason, an alternate juror

shall become a part of the jury and serve

(3)

in all respects as those selected on the

regular trial panel. An alternate juror

shall become a part of the jury in the

order in which he was selected. If the

trial jury is unable to reconvene for a

hearing on the issue of penalty after

having determined the guilt of the accused,

the trial judge shall impanel a new jury

to determine the issue of the punishment,

If the defendant pleads guilty, the sen-

tencing proceeding shall be conducted

before a jury impaneled for that purpose.

A jury selected for the purpose of deter-

mining punishment in a capital case shall

be selected in the same manner as juries

are selected for the trial of capitalcases,

In the proceeding there shall not be any

requirement to resubmit evidence presented

during the guilt determination phase of

(4)

(b)

the case, unless a new jury is impaneled,

but all such evidence is competent for

the jury's consideration in passing on

punishment. Evidence may be presented as

to any matter that the court deems rele-

vant to sentence, and may include matters

relating to any of the aggravating or

mitigating circumstances enumerated in

subsections (e) and (f). Any evidence

which the court deems to have probative

value may be received.

The State and the defendant or his counsel

shall be permitted to present argument for

or against sentence of death. The defen-

dant or defendant's counsel shall have the

right to the last argument.

Sentence Recommendation by the Jury.

Instructions determined by the trial judge to be

warranted by the evidence shall be given by the

court in its charge to the jury prior to its

deliberation in determining sentence. In all

cases in which the death penalty may be author-

ized, the judge shall include in hisinstructions

to the jury that it must consider any aggravat-

ing circumstance or circumstances or mitigating

circumstance or circumstances from the lists

provided in subsections (e) and (f) which may

be supported by the evidence, and shall furnish

to the jury a written list of issues relating

to such aggravating or mitigating circumstance

or circumstances,

After hearing the evidence, argument of counsel,

and instructions of the court, the jury shall

deliberate and render a sentence recommendation

to the court, based upon the following matters:

(1) Whether any sufficient aggravating

circumstance or circumstances as

enumerated in subsection (e) exist;

(2) Whether any sufficient mitigating cir-

cumstance or circumstances as enumerated

sts JUDGMENT

SUPREME COURT OF NORTH CAROLINA 1983

STATE OF NORTH CAROLINA

)

vs. . No. 86281 Mecklenburg County

MICHAEL VAN McDOUGALL )

This cause came on to be argued upon the transcript of the record from the

Superior Court Mecklenburg County:

Upon consideration whereof, this Court is of opinion that there is no _ error

in the record and proceedings of said Superior Court.

It is therefore considered and adjudged by the Court here that the opinion of

the Court, as delivered by the Honorable HARRY C. MARTIN, ASSOCIATE Justice, be

certified to the said Superior Court, to the intent that the PROCEEDINGS BE HAD

THEREIN IN SAID CAUSE aCCORDING TO LAW AS DECLARED IN SAID OPINION

(IN ALL INDICTMENTS )

And it is considered and adjudged further, that the Defendant Do Pay

the costs in this Court incurred, to wit, the sum of ***EIGHTY-ONE AND 00/100

dollars ($81.00), and execution issue therefor, Certified to Superior Court

this 25th day of April 19 83. J. GREGORY WALLACE

By: s/ Peggy N. Byrd, Deputy Clerk

in subsection (f), which outweigh the

aggravating circumstance or circum-

stances found, exist; and

(3) Based on these considerations, whether

the defendant should be sentenced to

death or to imprisonment in the State's

prison for life.

The 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 individu-

ally polled to establish whether each juror

concurs and agrees to the sentence recommenda-

tion returned.

If the jury cannot, within a reasonable time,

unanimously agree to its sentence recommendation,

the judge shall impose a sentence of life im-

prisonment; provided, however, that the judge

shall in no instance impose the death penalty

when the jury cannot agree unanimously to its

sentence recommendation,

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 circum-

stance 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.

(d) Review of Judgment and Sentence.

(1) The judgment of conviction and sentence

of death shall be subject to automatic

(2)

review by the Supreme Court of North

Carolina pursuant to procedures estab-

lished by the Rules of Appellate Pro-

cedure. In its review, the Supreme

Court shall consider the punishment im-

posed as well as any errors assigned on

appeal.

The sentence of death shall be over-

turned and a sentence of life imprison-

ment imposed in lieu thereof by the

Supreme Court upon a finding that the

record does not support the jury's

findings of any aggravating circumstance

or circumstances upon which the sen-

tencing court based its sentence of

death, or upon a finding that the sen-

tence of death was imposed under the

influence of passion, prejudice, or any

other arbitrary factor, or upon a find-

ing that the sentence of death is ex-

cessive or disproportionate to the

penalty imposed in similar cases, con-

sidering both the crime and the defen-

dant. The Supreme Court may suspend

consideration of death penalty cases

until such time as the court determines

it is prepared to make the comparisons

required under the provisions of this

section.

(3) If the sentence of death and the judg-

ment of the trial court are reversed on

appeal for error in the post-verdict

sentencing proceeding, the Supreme

Court shall order that a new sentencing

hearing be conducted in conformity with

the procedures of this Article.

(e) Aggravating Circumstances.

Aggravating circumstances which may be con-

sidered shall be limited to the following:

(1)

(2)

(3)

(4)

(5)

The capital felony was committed by a

person lawfully incarcerated.

The defendant had been previously con-

victed of another capital felony.

The defendant had been previously con-

victed of a felony involving use or

threat of violence to the person.

The capital felony was committed for the

purpose of avoiding or preventing a law-

ful arrest or effecting an escape from

custody.

The capital felony was committed while

the defendant was engaged, or was an

aider or abettor, in the commission of,

or an attempt to commit, or flight after

committing or attempting to commit, any

homicide, robbery, rape or a sexoffense,

arson, burglary, kidnapping, or aircraft

piracy or the unlawful throwing, placing,

or discharging of a destructive device

or bomb.

(6) The capital felony was committed for

pecuniary gain.

(7) The capital felony was committed to dis-

rupt or hinder the lawful exercise of

any governmental function or the en-

forcement of laws.

(8) The capital felony was committed against

a law-enforcement officer, justice,

former judge or justice, prosecutor or

former prosecutor, juror or former

juror, or witness or former witness

against the defendant, while engaged in

the performance of his official duties

because of the exercise of his official

duty.

(9) The capital felony was especially

heinous, atrocious, or cruel,

(10) The defendant knowingly created a great

c10

risk of death to more than one person

by means of a weapon or device which

would normally be hazardous to the lives

of more than one person,

(11) The murder for which the defendant

stands convicted was part of a course

of conduct in which the defendant

engaged and which included the commis-

sion by the defendant of other crimes

of violence against another person or

persons.

(f) Mitigating Circumstances.

Mitigating circumstances which may be con-

sidered shall include, but not be limited to,

the following:

(1) The defendant has no significant history

of prior criminal activity.

(2) The capital felony was committed while

the defendant was under the influence

Cll

(4)

(5)

(6)

(7)

(8)

of mental or emotional disturbance.

The victim was a voluntary participant

in the defendant's homicidal conduct

or consented to the homicidal act.

The defendant was an accomplice in or

accessory to the capital felony

committed by another person and his

participation was relatively minor.

The defendant acted duress or under the

domination of another person.

The capacity of the defendant to appre-

ciate the criminality of his conduct or

to conform his conduct to the require-

ments of law was impaired.

The age of the defendant at the time of

the crime.

The defendant aided in the apprehension

of another capital felon or testified

truthfully on behalf of the prosecution

C12

in another prosecution of a felony.

(9) Any other circumstance arising from

the evidence which the jury deems to

have mitigating value.

C13

CHARGE OF THE COURT TO THE JURY:

Members of the Jury, having found the defendant,

Michael Van McDougall, guilty of first-degree murder

on the first phase, or guilt determination phase of

the trial, this second phase or sentencing proceeding

has been required under the law of North Carolina.

It is now your duty to recommend to the Court whether

the defendant will be sentenced to death or life im-

prisonment. Your recommendation will be binding upon

the Court. If you unanimously recommend that the de-

fendant be sentenced to death, the Court will be re-

quired to impose a sentence of death. If you unani-

mously recommend a sentence of life imprisonment,

the Court will be required to impose a sentence of

imprisonment in the State's prison for life.

There is no requirement in this phase of the

proceeding that evidence offered during the first

phase again be offered. All the evidence presented

before you in both phases of the case is for your

consideration in this sentencing proceeding; and you

are to recall, consider, and weigh all of the

evidence offered during the first and second phase

of the case.

In arriving at the facts in the case, you may

believe all or part or none of what any witness has

had to say from the witness stand. And you are the

sole judges of the weight to be given the testimony

of any witness who has appeared before you. Again,

it is your duty to recall, consider, and weigh all

of the evidence in both phases of the case, and to

take your own recollection as to what the evidence

was in the case.

Your duty is to find the facts from the evidence

in the case and to those facts, whatever you find

them to be, to apply the law given you in the course

of these instructions.

It is my duty to declare and explain the law

arising on the evidence, and to summarize the evi-

dence to the extent necessary to explain the appli-

cation of the law to the evidence. I heretofore on

the first phase of the trial during my instructions

to you gave you my recollection in a brief summary

of what the evidence tended to show. I will not

again repeat that brief summary. It is your duty to

recall, consider, and weigh all of the evidence.

As the Court recalls, the State of North

Carolina offered evidence which it contends tends to

show:

That the defendant was convicted of rape in the

State of Georgia on March 11, 1974. That the defen-

dant, previous to stabbing Diane Parker, stabbed

Vicki Dunno with a knife. That he had dragged Vicki

Dunno and Diane Parker into their residence. That

he told Diane Parker he would kill her if she didn't

put down a knife she had. That he subsequently

chased after her and stabbed her with a knife some

twenty-two times. That Vicki Dunno told Diane

Parker to run.

As the Court recalls, the defendant offered

evidence tending to show, and which he contends does,

in fact, show, that the defendant, since the death

of his grandfather, has experienced hallucinations

in the form of his grandfather's voice. That on

August 20 and 21, 1979, he injected a quantity of

cocaine intravenously. That he saw his mother

striking him with a car antenna, and that he ex-

ploded and stabbed her. That he saw his mother run-

ning to his house and chased her and stabbed her.

That he didn't recall for many months the stabbings

or what he had observed. This his capacity to ap-

preciate the wrongfulness of his conduct and to con-

form it to the requirements of law was impaired.

That is some of the evidence offered by the

State and the defendant. What, if anything, the

evidence shows is for you, the jury, to say and

determine.

Your recommendation in this phase of the case

is to be based upon your consideration of and an-

swers to certain questions which will be submitted

to you. These questions, a copy of which you have

before you, read as follows:

1. Do you find from the evidence, beyond a

reasonable doubt, the existence of one or more of

the following aggravating circumstances?

a. Has the defendant previously been convicted

of a felony involving the use of violence to the

person?

b. Was the murder in this case committed for

the purpose of avoiding or preventing a lawful ar-

rest?

c. Was the murder in this case especially

heinous, atrocious, or cruel?

d. Was the murder in this case part of a course

of conduct by the defendant which included the com-

mission by the defendant of another crime of violence

against another person?

2. Do you find from the evidence the existence

of one or more of the following mitigating circum-

stances?

a. Was the murder in this case committed while

the defendant was under the influence of mental or

emotional disturbance?

b. Was the defendant's capacity to conform his

conduct to the requirements of law impaired?

c. Was the age of the defendant at the time of

the murder in this case a mitigating factor?

d. Is there any other circumstance or circum-

stances arising from the evidence which you deem to

have mitigating value?

3. Do you find, by a reasonable doubt, that the

mitigating circumstance or circumstances you have

found is or are insufficient to outweigh the aggra-

vating circumstance or circumstances you have found?

4. Do you find beyond a reasonable doubt that

the aggravating circumstance or circumstances you

have found is or are sufficiently substantial to call

for the imposition of the death penalty?

Depending upon your answer to these questions

submitted to you, then you would be called upon to

recommend whether the punishment for the defendant,

Michael Van McDougall, shall be death or life

imprisonment.

The first question for your consideration reads

as follows:

1. Do you find from the evidence, beyond a

reasonable doubt, the existence of one or more of

the following aggravating circumstances?

On this same issue, the burden of proof is upon

the State to prove to you, the jury, from the evi-

dence and beyond a reasonable doubt the existence of

one or more of the aggravating circ:mstances sub-

mitted to you for your consideration. As to any such

circumstance, you must agree unanimously that it has

been proven to you beyond a reasonable doubt.

A reasonable doubt is not a mere possible doubt,

for most things that relate to human affairs are open

to some possible or imaginary doubt. But rather, a

reasonable doubt is a fair doubt based on reason and

common sense and growing out of some evidence or lack

of evidence in the case.

An aggravating circumstance is a fact or group

of facts which adds weight to, increases, or magni-

fies a particular murder, which tends to make a

specific murder particularly deserving of the maxi-

mum punishment prescribed by law. The law of North

Carolina specifies the aggravating circumstances

which might justify a sentence of death, and only

those circumstances provided by statute about which

I instruct you may be considered by you. Under the

evidence in this case, four possible aggravating cir-

cumstances may be considered by you. I will not ex-

plain the applicable law as to each of these circum-

stances.

The first circumstance you may consider reads

as follows:

a. Has the defendant previously been convicted

of a felony involving the use of violence to the

person?

As to this circumstance, the burden is upon the

State to prove to you from the evidence beyond a

reasonable doubt that the defendant previously had

been convicted of a felony involving the use of

violence to the person.

The crime of rape is a felony involving the use

of violence to the person. A person has been previ-

ously convicted if he has beenconvicted and not merely

charged, and if his conviction is based on conduct

which occurred before the events out of which this

murder arose. A conviction means a finding of guilt

of a particular crime by a judicial authority, whether

such finding was based upon a plea of guilty or a

verdict of a jury after a plea of not guilty.

If you find, Members of the Jury, from the evi-

dence beyond a reasonable doubt that on or about

March 11, 1974, Michael Van McDougall had been con-

victed of rape of Mary Huff in the State of Georgia,

and that such conviction was previous in time to the

murder in this case on August 21, 1979, it would be

your duty to find this aggravating circumstance, and

you would indicate so by answering this sub-part(a)

"Yes.'"' If you do not so find, or have a reasonable

doubt as to one or more of these things, you will

not find this aggravating circumstance, and you would

indicate by answering this sub-part (a) "No."

The second circumstance you may consider reads

as follows:

b. Was the murder in this case committed for

the purpose of avoiding or preventing a lawful

arrest?

As to this circumstance, the burden is upon the

State to prove to you from the evidence beyond a

reasonable doubt that the defendant committed the

murder in this case for the purpose of avoiding a

lawful arrest.

A murder is committed for such purpose if the

defendant's purpose, or at least one of the purposes

motivating the killing, was the defendant's desire

to avoid subsequent detection and apprehension for

his wrongful conduct. In a broad sense every murder

silences the victim, thus having the effect of aiding

the perpetrator in the avoidance or prevention of his

arrest. Therefore, before you could find the exis-

tence of this circumstance, you must be satisfied

from the evidence beyond a reasonable doubt that at

least one of the purposes motivating the killing was

the defendant's desire to avoid detection and appre-

hension. The existence of such a motivation may be

inferred from the circumstances proven in evidence,

such as the nature and manner of the killing, the

conduct of the parties previous to, at the time of,

and subsequent to the killing, the declarations or

statements of the parties, and other relevant circum-

stances. However, the mere fact of a death is not

sufficient to warrant such a finding.

D10

So, if you find from the evidence, beyond a

reasonable doubt, that at the time of the commission

of the murder in this case, that it was, in fact,

the defendant's purpose to avoid or prevent his ar-

rest for the commission of the crime of kidnapping

or assault with a deadly weapon with intent to kill

inflicting serious injury, by killing Diane Parker,

it would be your duty to find this aggravating cir-

cumstance, and you would indicate so by answering

this sub-part (b), 'Yes."" If you do not so find,

or if you have a reasonable doubt as to one or more

of these things, you would not find this aggravating

circumstance, and you would indicate so by answering

this sub-part (b), 'No."

The third circumstance you may consider reads

as follows:

c. Was the murder in this case especially

heinous, atrocious, or cruel?

As to this circumstance, the burden is upon the

State to prove to you from the evidence beyond a

reasonable doubt that the murder is this case was

especially heinous, atrocious, or cruel.

D11

A person of ordinary sensibility could fairly

characterize almost every murder as "especially

heinous, atrocious or cruel."' Not every murder is

especially so. Before you may find the existence

of this circumstance, the State must prove beyond a

reasonable doubt that the brutality involved in the

murder in this case exceeds that normally present

in any killing.

The words "especially heinous, atrocious, or

cruel" mean extremely or especially or particularly

heinous or atrocious or cruel. Heinous means hate-

ful, odious, and reprehensible, and it also means

extremely wicked or shockingly evil. Atrocious means

marked by or given to extreme wickedness, brutality

or cruelty, marked by extreme violence or savagely

fierce, outrageously wicked and vile. Cruel means

designed to inflict a high degree of pain, utterly

indifferent to or enjoyment of the suffering of

others.

For you to find this murder to have been "espe-

cially heinous, atrocious, or cruel," it must have

been done without conscience and pitiless and so as

D12

to be unusually torturous to Diane Parker, that is,

in the nature of torture or serious physical abuse

of Diane Parker before death.

So then, Members of the Jury, if you find from

the evidence beyond a reasonable doubt that the

murder of Diane Parker was especially heinous,

atrocious, or cruel, then it would be your duty to

find this aggravating circumstance, and you would

indicate so by answering this sub-part (c) "Yes."

If you do not so find, or have a reasonable doubt

as to one or more of these things, you will not find

this aggravating circumstance, and you would indicate

so by answering this sub-part (c) "No."

The fourth circumstance you may consider reads

as follows:

d. Was the murder in this case part of a course

of conduct by the defendant which included the con-

mission by the defendant of another crime of violence

against another person?

As to this circumstance the burden is upon the

State to prove to you from the evidence beyond a

reasonable doubt that the murder in this case was a

D13

part of a course of conduct by the defendant which

included the commission by the defendant of another

crime of violence against another person.

The murder of Diane Parker would have been part

of a course of conduct by the defendant if you find

beyond a reasonable doubt that an assault with a

deadly weapon with intent to kill Vicki Dunno by the

defendant was part of a continuous series of acts or

continuous conduct on the part of the defendant which

established that there existed in the mind of the de-

fendant a plan, scheme, system or design which in-

volved both the murder and the assault. In other

words, a murder is part of such a course of conduct

if it and the other crime of violence are both part

of a pattern of the same or similar acts repeated

over a period of time, however short, which estab-

lish that the defendant had a plan, scheme, system

or design which involved both the murder and the

assault.

Assault with a deadly weapon with intent to kill

inflicting serious injury is a crime of violence, and

if such crime was committed against one other than

D14

the victim of the murder, it would be the commission

of another crime of violence against another person.

So, if you find from the evidence beyond a

reasonable doubt that in addition to killing Diane

Parker, the defendant, Michael Van McDougall, on or

about August 21, 1979, stabbed Vicki Dunno with a

knife with intent to kill her inflicting serious

injuries upon her, and that this crime was included

in the same course of conduct in which the killing

of Diane Parker was also a part, then it would be

your duty to find this aggravating circumstance, and

you would indicate so by answering this sub-part (d),

"Yes.'"' If you do not so find or if you have a rea-

sonable doubt as to one or more of these things, you

will not find this aggravating circumstance, and you

would indicate so by answering this sub-part (d) "No."

Now, Members of the Jury, as to this first issue,

if you unanimously find from the evidence beyond a rea-

sonable doubt that one or more of the aggravating

circumstances submitted to you exist, and have so

indicated by answering "Yes" as to those aggravating

circumstances which you find, then it would be your

D1S5

duty to answer the first issue "Yes" in the blank

space provided immediately under th. first issue.

If you do not unanimously find from the evidence be-

yond a reasonable doubt the existence of at least

one of the aggravating circumstances submitted to

you, then it would be your duty to answer this first

issue "No" in the blank space provided immediately

under the first issue.

If you answer the first issue "No,"' you would

not consider the remaining issues, and you must then

recommend that the defendant be sentenced to life

imprisonment. If you answer the first issue "Yes,"

you would then proceed to a consideration of the

second issue, which reads as follows:

2. Do you find from the evidence the existence

of one or more of the following mitigating circum-

stances?

A mitigating circumstance is that circumstance

arising from the evidence which does not constitute

a justification or excuse for a killing, or which

reduces it to a lesser degree of crime than first-

degree murder, but which nevertheless may be

D16

considered as extenuating or reducing the moral

culpability of the killing, or which makes it less

deserving of extreme punishment than other first-

degree murders. The law of North Carolina specifies

the mitigating circumstances which might be con-

sidered byyou, and only those circumstances created

by statute, about which I shall instruct you, may

be considered by you.

The defendant has the burden of persuading you

of the existence of any mitigating circumstances.

The defendant must satisfy you from the evidence

taken as a whole, not beyond a reasonable doubt, but

merely to your satisfaction, of the existence of any

mitigating circumstance. If you are so satisfied,

you would answer "Yes" as to that circumstance;

otherwise, "No."

I will now explain to you the applicable law as

to each of these circumstances. The first circum-

stance you shall consider reads as follows:

a. Was the murder in this case committed while

defendant was under the influence of mental or emo-

tional disturbance?

D17

Being under the influence of mental or emotional

disturbance is similar to being in a heat of passion

upon adequate provocation. Generally, heat of pas-

sion upon adequate provocation means that a person's

state of mind, mental or emotional, was at the time

so violent as to overcome his reason, such that he

could not form a deliberate purpose and control his

actions, and which may consist of anything which has

a natural tendency to produce such passion in a per-

son of average mind or disposition. However, as to

this circumstance, a person may be under the influ-

ence of mental or emo

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