Appendix — MICHAEL E. E. PINCH v. NORTH CAROLINA (No. 82-5353)

TATE of Nort

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STATE v. PINCH

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Che as, N.C., 292 5.F.242603

J Constitutional Law @2 267

Carolina Jury @ »33(2.1)

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204 N.C 292 SOUTH EASTERN

10. Criminal Law @1168(2)

of

a

substantiate defendant's claim of prosecuto-

In absence anything in record to

J

rial misbehavior in refusing to allow State's

eyewitnesses to be interviewed by a medical

expert who had been appointed to assist in

'

preparation and evaluation of defendant's

ntor if ri defe nee, reve al wils not Ware

ra tod

ll. Criminal Law #o1168(2) é

Where there Was | evider i’ ti ling

to WwW that defense ¢ jt | t ly ‘ip

eve he tata’s Lit we a far tatyad FP.

j : ; j + Pury

: ~ of ; , ‘i ows with ‘ od il

PT) } } hh ‘ le ‘ ’

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i it

preparation and evaluation of defendant's

tae Ph fi; ih ly to bv re) ted on

‘ f ,/ ‘ ‘ ? ey's ‘ r lireet

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‘ ‘ ‘ ‘ " oe Aya \™ ite

+} ‘, , torial -~ -

j . j j f

9 ‘ yy reve | wha t oe trated

12. Criminal Law HH6'A

Where bar y of proceeding

eld trial « a) ¢ he ’ ‘ "

f r low ! 4 ‘ , ‘» ' itt ey to

re t tyes eve )¢ 5 AY able for fr}

‘ ‘ oa exnere | 1 Pang

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’ any? t . yi? ote COX ds rt 4 fy ‘

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13. Criminal Law @ of 1), 641.1201)

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‘% , ‘ at te \! 1 | ter ny t Witne 5

; ‘ \ r ‘ ik M4 4 or t, ‘ iv or

rela ip a trar i pt to « xpert for his f r

lation of opinion upon extent of defend

int pair ant fr , niny ition att e

if r nes, tr a] a ri's te} 1! of pretrial

’ tion for order lirecting district attorney

to make eyewitne es available for inter

views with expert did not deprive ce fend:

ant of effective assistance of counsel or a

fair trial

’

REPORTER, 24 SERIES

14. Criminal Law @1153(4)

Scope of cross-examination rests Jat

ly within discretion of trial court, and

rulings thereon will not be disturbed absent

a clear showing of abuse or prejud

'

15. Witnesses @268(1)

Defendant's constitutional rights of

confrontation and due process were not un

law lly restricted by trial court's Lain

ing prosecutor's objections to defendant's

ox nation of State's witnesses con

Cé ya nt of beer cdr ink by def nt

ght of fers, his level of int \

‘ ! sture of hia behavior in | t of

f at ', ‘ ‘es error in ¢ 7 +’

imiting scope of cross-examination

16. Criminal Law *LITO'AG)

Defendant had no cause for t

;

n appeal of trial court's sustension of |

ition of State’s witne : ‘ i"

’ ( heer a ‘k by datandant ")

e of his behavior where def t

effect vely received benefit of « a

ght after in t} Al, in eral . ‘,

‘ { ally wnswered | f

lofonan el cl pite | tor’ ‘

‘ ‘ i] t's tA t f,

p tor did not a? trike

| ,

i+ ‘ 1 not ad } ; te

j ‘ 1 therm

17, Homicide @»164 ’

Trial « t's exc} ne re ‘

\t ' f | fi, ty t's ju ; Nn tO @vte t

’ iu] wit is to whether r

‘ e | j Ny toxicated at f

their leaths WAS pe per in t) it q ‘

‘ err d irrelevant matteo; which had no

} r \| tet Vay J to pr ma n fa t ify ‘ it

lefendant’s trial for mutder

18. Criminal Law ¢@

*1170(4)

nt was not prejudiced

court's ex ion ON recross-examinati of

lefendant’'s question to expert medical wit

ness as to whether victims we re \e j lly

intoxicated at time of their death where

witness had already repeatedly stated dur-

ing his direct, cross and redirect examina

STATE v. PINCH

N.C. 205

Clte as, N.C, 292 S$.6.24 203

tions that the blood alcohol levels of: both

victims indicated at

death,

their intoxication

19. Criminal Law @°438(1)

ar fense coun el's que tioning of wit.

¢!

ness about whether witness was influenced

by alcohol he had drunk on night of mur

ders, as to whether withne had over eon

defendant when he was not high” nde 1S

or a ohol, \ | ato whether ef end nt nd

1 police officer earlier in evening of mur

iT tid t k toe it } f na

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t vingg a G { tx j } ‘ ;

int toy tior ypairene t at t e he

tea ly i ¢} \! mete

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20, Criminal Law itd

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petently framed to elicit: witne { n

about defendant's general tonxication

} ad pon pre a val caning of that

tar ‘ . ‘ el } / i? ! °

al 1 did } pery Te g evs in?

efforts ¢ re t his intoy tlor ofs ‘

:

21, Criminal Law @91166.22(2), 1171.103)

Tn | ‘ie f A,f ! ‘' ‘ft, ‘ ‘ a)

, b ' j . \*

t b t trial of existence of

. } iwf f n } ‘ fi

of ¥O ! ie) ca” ders, there

'

d not possibly be any titutional

ty yere , or pre) Ving i P inne of

esther prosecutor or trial irt ‘ np

presumption of existence of those very

srrie ole ‘ te r barge f f Lceyree

ior

22. Criminal Law @ °1166.22(7), 1171.3

Where trial court's ar 1 pron tors un

of pre ption of existence of slice and?

uplawfulness in ct iat pre of first eyree

'T irder did not alleviate in any manner

State's overall burden of proving existence

of every element of first degree murder

beyond w reasonable doubt, there could

possibly be any constitutional transgres-

sions or prejudice in remarks of cith ¢ pros-

vcutor or trial court concerning such pre

sumption

23. Stipulations @=14(10)

Illustrative relevancy of photographs

depicting appearance of victims’ bodies at

time of forensic pathologist's examination,

which directly corresponded to forensic pa

Nlified by

to cnuse of

tholopist’s testimony, was not n

u y,

def nd

cle ath

ant’s “stipulation” as

24. Criminal Law @438(5)

. ‘

state introduction of ten p! top j

dey ‘ing Appearance of murder viet :

brcved ie it ft e of for c | ithol t's wx

t \ not an introduction of an

per } Y ONCE ve nu her of pt to

graphs under circumstances of case

5, Criminal Law (38(7)

} \ tive f ree of photogr p ‘ \,

pictions of unattractive markings of vic

' 9’ \ lent aly iths, i eon by ox np

for pathologist, was not outweiyhed by

'

their té ' y to re} Yee the ‘ boilitue or

t e the sym ithy of the viewer: thus,

introduction of pt tographs into evidence

nope tion f first-depree der was

{ error

26. Criminal Law ¢€ »1037,101)

| ite laenes of ohioet 1 tato's

i P '

od j™ ite ore OW for oxiste ‘ f j

'

proprict hich make it plain that trial

{ rt at ed its d retion in fai) j to cor

rect prejudicial matters ex mero tu

27. Criminal Law @ »720(9)

In view of testime ny of eyewitn that

defendant had a grin on his face when he

hot victims and testin ny of police officer

that defendant had told him that his only

regret about the death of one victim was

that he would not be able to kill him apain,

district attorney's remarks during closing

argument about defendant's enjoyment of

ings were not improper but were sup

ported by evidence and reasonable inferene-

es therefrom.

28. Criminal Law @728(5)

District attorney's statements during

final argument describing what defendant

A3

206 N.c hon SOUTH EASTERN

must have teen thinking as he sat quietly

r '

behind bar holding shotgun immediately

prior to killings were not so prejudicial that

trial court was required to take corrective

action even in absence

of

Criminal Law @728(5)

an objection

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t y d paray pr) ti it 1 of de

fi lant n il wh r od f lew

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¢ was entirely warranted by evidences

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M4. Crit il Law (@ 6.201)

jentiary flexibility raged it

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35. Criminal Law @@986,.2(3)

As in any proceeding, evidence offered

at

pendable and,

sentencing

instance, it should not ordinarily be ex

ed. GS. § 15A-200 Ka)(3)

36, Criminal Law 996(1.1)

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gating factors for jury's

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Wha a)

40. Criminal Law J56.2(3)

Trial court « ectly sustains j

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, jf ‘ ry ‘ ‘ thy ig } - y ‘ P

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fi i e| tu ipt to e} t n ;

y.° . ’ i

fr 1a f ychiatrist ab it whether lef

ant w ld by hle to ad) st to fi; j

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must be pertinent and «i

if it passes such test in firs

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i

STATE v. PINCH

N.C. 207

Cite as, N.C, 292 $.£.24203

where such an opinion would have con-

cerned a matter totally irrelevant to sen-

tencing of defendant convicted of two first-

degree murders since, regardless of his abil:

ity to adjust to prison life, defendant was

already subject to mandatory imposition of

life imprisonment G.S. §§ 14-17, 15A-

20042), 154-2002.

41. Criminal Law @=469

Even assuming that defendant's ability

to cope in prison had some slight relevance

to his sentencing following conviction of

two first-degree murders, psychiatrist's

opinion about whether defendant would be

able tt Hine? OO if

Ubu ict

fo r ation in recs a for a conciu +e that

he 4 better q! lified ‘nh } ave an opinion

n th bject than the jury G.S §& 15A

2000

42. Criminal law

Whe re

poy avi ; a

f ild not render ar 4 M ut de fend.

} t 1 Of i 4 20707

ant’s blood alcohol level at time of shootings

within a reasonable degree of medical cer-

t,t ‘ ,

ce, although relevant, was un-

lacked probative value, and

: ;

operly excluded at sentencing

GS. § 154-2000

aritipy

43. Witnesses ® +266

General rule that truthfulness

aU 5 Ol any

aspect of any witness’s testimony may be

uttacked on cross-examination applies to all

trial proceedings, including both guilt and

sentencing phases in capital cases

44. Criminal Law @1171.8(2)

Defendant's abil ty to afford alcohol

and drugs bore upon gredibility of his self-

serving statements about their constant

use, introduced as mitigating factors in sen-

tencing phase of capital case, so that prose-

tor’s repeated questioning of defendant

money to buy all the

beer and drugs he allegedly consumed did

npt constitute prejudicial error despite de-

fendant’s contention that the persistent

questioning about money improperly sug-

gested to jury that he must have committed

other criminal offenses to support his hab-

its

cu

as to specific source «

45. Witnesses @>280, 282'4

Persistent nature of prosecutor's ques-

tioning of defendant during sentencing

phase of capital case as to source of money

used to buy all the beer and drugs which

defendant said he had taken every day for

five years was not abusive in light of de-

fendant’s evasive and unresponsive an-

swers. !

46. Witnesses @%277(2)

Scope and fairness, of cross-examina-

tion of defendant during sentencing phase

matter left to @

{ capital case was a

discretion of trial judge, and prosecutor had

a right to sift or press defendant in order '

get a direct and clear response to

‘

ti ms as to source of money us« | to + iy

the beer and drugs which defendant said he

had taken eve ry day for five years

47. Criminal Law @730(3)

Although de fendant’s obje tior to pr

, , !

ecutor’s inferential inquiry during sent

ing phase of capital case as to whether

t

Stealing was specific source of money ued

tr

to buy all the beer and drug

which de

ant said he had taken every day for five

years was well take in that juestior

amounted to speculative insinuation of prior

, ‘

criminal ce nduct with no ascertainable

good-faith factual basis, Trial court's

prompt sustension of defendant's object

to Gisay proved question sufficiently averted

4

any prejudice to defendant in

"T day’ . '

that it was a single impropriety

48. Criminal Law @21171,1(2)

Prosecutorial statements are not

in an isolated vacuum on appeal; fair

must be given to context

which remarks were made and to overs!!

, ideration

factual circumstances

ferred.

to which they ¢

v

j

49. Criminal Law @700 » :

Prosecutor of a capital case has a du'v

to pursue ardently the goal of persuading

jury that facts in evidence warrant im posi-

tion of ultimate penalty. GS. §°15A

20004 a) 4).

AS

208 N.C.

50. Criminal Law @=724(2)

. District attorney's comment during

jury argument in penalty phase of capital

case that defendant was “not Jack the Rip-

per yet” did not overstep bounds of permis-

sible argument where comment was tem-

pered by prior explanation to jury that it

could consider any facts or circumstances

which it deemed to have mitigating value,

including defendant's admitted lack of sig-

nificant criminal history. G.S. § 15A-—2000.

51. Criminal Law @°713

District attorney's expressions during

jury argument in penalty phase of capital

case concerning his belief in death penalty

and propriety of imposition in instant case

did not overstep hounds of permissible ar-

Guiment in view of fact that such expres-

sions had to be weighed with his frequent

reminders to jury that it would have to

tet what appropriate punishment

determine

should be. G.S. § 154-2000.

52. Criminal Law @2724(2)

District attorney's

during jury argurnent

characterization

in sentencing phase

of capital case of defendant's mind as a

“cesspool” could not be deemed unfair in

light of defendant's own admissions that he

killed victims intentionally and maliciously

simply because one of victims had wrong:

y worn insigenia or emblem of defend-

ants motorcycle pang sometime in the past.

S § 154-2000,

2

53. Criminal Law @©723(1)

District attorney's statement to jury

during sentencing phase of capital case that

Id not have hesitated to give defend-

ant his “just reward” right there on the

if it had actually witnessed murders,

it wou

Spot

although disapproved, was not an inflam-

matory invitation for jury to act like a

lynch mob in light of fact that district

attorney noted that law did not work that

way. GS. § 15A-2000.

4. Criminal Law @1171.1(6)

District attorney's complaints during

jury argument in sentencing phase of capi-

tal case about ea he could not bring in

family members to testify about “trials and

travails” of murder victims’ lives, in con-

292 SOUTH EASTERN REPORTER, 2d SERIES

trast to all of evidence about defendant's

family and personal history received in mit-

igation, contained nothing inherently preju-

dicial since district attorney was merely re-

minding jury that, although it did not know

much about him, it should also carefully

consider value of victim's life in making its

life or death decision about defendant. GS.

§ 15A--2000.

55. Criminal Law ¢2796

Common sense, fundamental fairness,

and judicial economy dictated that any rea-

sonable doubt concerning submission of a

Statutory or requested mitigating factor be

resolved in defendant's favor to insure the

accomplishment of complete justice at first

sentencing hearing. GS. § ISA ~- 2000.

56. Criminal Law ¢1172.9

Same standard of appellate review con-

tinues to apply whether ‘trial court commits

error at guilt phase or penalty phase; thus,

a new sentencing hearing will not be or-

dered-for erroneous failure to submit a mit-

igating circumstance if that error was

harmless\beyond a reasonable doubt. GS

§ 15A-1443(b).

57. Criminal Law #21177

Defendant demonstrates reversible er-

ror in trial court's omission or restriction of

% statutory or timely requested mitigating

circumstance in a capital case only if he

affirmatively establishes that particular

factor was one which jury could have rea-

sonably deemed to have mitigating value,

that there was sufficient evidence of exist.

ence of factor, and that, considering case as

a whole, exclusion of factor from jury's

consideration resulted in ascertainable pre}-

udice to defendant. G.S. § 15A—2000.

58. Criminal Law @=956.2(1)

Mentality of a deféndant is generally

relevant to sentencing and it can, with sup-

porting evidence, be properly considered in

mitigation of a capital felony. G.S. § 15A-

2000.

59. Homicide #31)

Although fact that dbfendant had

scored 66 on an intelligence test unquestion-

: |

STATE vy, PINCH

N.C. 209

Cite as, N.C., 292 S.E.2d 203

Ably related to defendant's mentality, and

defendant would have been entitled to an

instruction about specific intelligence quo-

tient if he had tendered properly worded

request therefor, defendant's evidence, in-

cluding testimony of psychiatrist that de-

fendant’s other tests indicated his 1.Q. was

probably a little higher than 66 and fell at

least into low-normal range of intelligence,

did not authorize submission of instruction '

to jury during sentencing phase of capital

case as to his “relatively low mentality.”

G.S. § 154-2000.

60. Homicide @>341

ies court’s ©

ing phase =

mission, during sentene-

capital case, of defendant's

requested instruction on his “relatively low

ment ality” was not prejudicial, despite psy-

chiatrist’s testimony that defendant's intel-

ligence suction! fell at least into low-nor-

telhi

mal range of inte or

have elected to conside

since jury could

er such factor under?

trial court’s instruction permitting jury to

evaluate any other circumstances arising

from evidence — ig deemed to have

mitigating value. § 15A~2000(1)(9).

61. Homicide ¢>31]

Psychiatrist’s testimony during sen-

tencing phase of capital case that defendant

had “psych: logical problems” and was “a

very passive person that exhibits some

chronic depression in terms of how he fune-

tions in life,” but that defendant was “not

and that there

was no evidence “that he was an angry

acting out type person that you ordinarily

find in people that are prone to, violence”

did not support submission upon trial

court’s own motion of statutory mitigating

circumstances that defendant committed

murders while he was “under the influence

of a mental or emotional disturbance,”

G.S. § 15A-2000(f)(2).

62. Homicide = 341

Trial court’s failure to submit sua

sponte, during sentencing pliase, statutory

mitigating circumstances that defendant

committed murders while he was “under

the influence of a mental or emotional dis-

turbance” did not constitute prejudicial er-

basically a violent person”

« A?

ror since jury could have elected to consider

such factor pursuant to trial court's instruc-

tion upon open-ended provision of capital

punishment statute permitting jury to eval-

uate any other circumstances arising from

evidence which it deemed to have mitijat-

ing value. G.S. § 15A-2000(f)(2, 9).

63. Criminal Law 16]

Submission of each of two killings as

an aggravating circumstance for the other

under the “course of conduct” provision of

capital punishment statute at initial sen-

tencing hearing jointly held on dual capital

convictions did not violate protection

against double jeopardy. U.S.C.A.Const

Amends. 5, 14; GS. § ISA 2000 11).

a

O41. Criminal Law e161

Thrust of concept of double jeopardy

that a defendant may not be unfairly S| ‘be

jected to multiple prosecutorial atte oye to

obtain a conviction or a certain penalty f

same offense nor may a defendant receive

multiple punishment for same offense.

U.S.C._A.Const.Amends. 5, 14.

65. Criminal Law #163

Principle of double jeopardy does not

pre veng prosecution from relying, at sen-

tencing phase of capital case, upon a related

course of criminal conduct by difandaat as

an aggravating factor to enhance punish-

ment of defendant for another distinct of-

fense, and this is so irrespective of whether

defendant was also convicted of another

capital charge arising out of that very same

course of criminal conduct and subjected to

separate punishment therefor. U.SCA.

Const.Amends. 5, 14; G.S. § 154-2000.

66. Criminal Law @2796

Trial court's direction to jury in sen-

tencing phase of capital case that it need

not specify which mitigating circumstances

on written list it found, while not the better

practice, did not constitute error, G.S.

§ 15A-2000.

67. Criminal Law @=884

Jury may not arbitrarily or capriciously

impose or reject a sentence-of death; in-

stead, jury may only exercise guided discre-

tion in making underlying findings required

y

_— - ia FT

C

210 N.C.

for a recommendation of death penalty

within carefully defined set of statutory

criteria that allows them to take into

account the nature of the, crime and the

character of the accused, GS. § }5A-

200X%(b, ¢).

68. Criminal Law @796 ;

Jury was correctly informed during

sentencing phase of capital case that it had

a duty to recommend a sentence of death if

it made the three findings necessary to

support such a sentence under capital pun-

ishmment statute cs S. § ISA 200M e),

69, Homicide ¢ mT

Sub mis ; nN to Wid ms sentence iy ip phase

inge circumstance

that t jurders were ¢ spet ‘ally heinous, atro-

of $, oF crue] te appr priate only when

itality be-

present in any ki iting,

as a whole portray commis-

which was conscic

there is evidence of excessive

yond that normally

or w) wn fact Ss

sion of a erin c neeless,

pitiless or unnecessarily tortuous to victim.

GS. § 15A-2000(¢)(9).

70. Homicide @ #354

Evide: ant's careful execu-

tion of delitwrate and premeditated plan for

ce of defend

murder and that deaths of both unsuspect-

ing victiins were not instantaneous and in-

volved infliction of unusual physical or psy-

chological torture Was sufficient to support

finding of jury that murders were especial-

ly des wanton under capital pun-

G.S. § 15A-2000(eX9).

j icable and

ishment statute.

71. Criminal Law @1206(1)

Death sentence review mandated by

capital punishment statute provides a suffi-

cient constitutional safeguard against un-

constitutional imposition of cruel and un-

usual punishment. G.S. § 15A-2000(dX2).

72. Criminal Law @= 1206(2) ~

intended ultimate emphasis of propor-

tionality review of a de ath sentence under

capital punishment statute is upon indepen-

dent consideration of individual defendant

and nature of crime or crimes which he has

committed, G.S. § 15A-2000%d\2).

292 SOUTH EASTERN REPORTER, 2d SERIES

73, Criminal Law @1206(1)

Bifurcated trial proceedings of capital

punishment statute, in which same jury de-

termines both guilt and/punishment issues,

and resultant use of challenges for cause to

excuse therefrom prospective jurors who

are unequivocally opposed to death penalty,

are constitutional, G.S. § 154-2000,

74, Criminal Law @1206(1)

Submission in appropriate cases, of suf-

ficiently clear statutory aggravating cir-

cumstance of capital punishment statute

that capital felony is “especially heinous,

or cruel” is constitutional, GS

2000¢e)(9),

atrocious,

§ 15,

75. Criminal Law @ °1206(1)

‘lacing burden on defendant, in cupital

¢, to persuade jury, by a preponderance

of the evidence, that a particular mit

circumstance exists is constitutional.

§ 154-2000,

gating

GS

In relevant part, the evidence

State tended to show the following.

October 1979, defendant, a nineteen year

old white male, was walking on Merritt

Drive in Greensboro with his friend Jimmy

Eanes when he happened to mect Freddie

Pachaco. Defendant did not like Pachaco

because he had been friendly with a girl

defendant liked and had, without proper

entitlement, worn the personal insignia

(“colors”) of a motorcycle gang on his jack-

et. On this occasion, defendant told Fanes

that he “hated that punk” (Pachaco) and

wanted to fight him right then and there.

This did not occur, however, because Pacha-

co was conciliatory and offered defendant

some marijuana, The group then went toa

trailer where they smoked marijuana and

drank beer. Sometime later, Pachaco asked

defendant outright whether he was “after”

him. Defendant replied that he was not

and further said that “if (he) was going to

kick [Pachaco’s) ass, [he] would have al-

ready done it.”

for the

On 16

On the following day starting at about

noon, several people began to congregate at

the trailer, where defendant apparently

lived, to drink beer and listen to music,

‘

A8

STATE v. PINCH .

N.C. 21]

Cite os, NC, 292 5 0.240203

‘

The merrymakers included Jimmy Eanes, .

Shawn Feeney, Keith Way, Billy Stanley

and Leslie Hearl (who later married Stanley

before trial). Pachaco and his friend Tom-

my Ausley also unexpectedly joined the

party and bought two cases of beer. Ev-

erybody was calm and pleasant and seemed

to be having a good time. However, de-

fendant told several of his friends during

the course of the party that he disliked, or

didn’t have “much use for", Pachaco and

said he would like to kill him. Later in the

evening, defendant took Feeney's shotgun

and fired it at the clothesline three times.

A deputy sheriff came to the trailer to

investigate the disturbance, but he soon de-

parted after talking to defendant.

Upon defendant's suggestion, everyone

decided to leave the trailer and go to the

Stroker Motorcycle Clubhouse, which was

located in some woods near Wendover Ave-

nue in Greensboro. Defendant had rea-

soned that they could make as much noise

as they wanted to out there and get more

beer besides. [It was approximately 10:00

p.m.) While everyone prepared to move,

defendant quickly slipped out to a nearby

trailer where he borrowed a shotgun. He

returned with the gun and told Eanes to

ride with Pachaco and Ausley to make sure

they got to the clubhouse me entire party

then proceeded to the re: in various

vehicles, caravan style En route, defend-

ant retained the shotgun and told his com-

panions that he was going to kill Pachaco

and Ausley,

When the group arrived at the clubhouse,

defendant opened the door while he contin-

ued to hold the shotgun. Once inside, the

members of the party played games, drank

beer and listened to music. Billy Stanley

and Leslie Hearl left the company and went

into an adjacent room to have sexual inter-

course, While everyone else engaged in

these various recreational activities, defend-

ant sat silently behind the bar with the

shotgun in his lap. Sometime later, defend-

ant gave his knife to EXnes and instructed

him to cut Pachaco’s jugular vein and prom:

ised to back him up with the shotgun.

Eanes attacked Pachaco but only succeeded

in cutting him on the throat. Pachaco be-

came emotional at this point but did not

fight back, Ausley attempted to help Pa-

chaco and was confronted by Eanes who

threw a chair at him, At this point in the

evening's events, the testimony of the eye-

witnesses differed somewhat. Neverthe-

less, the overall weight of that testimony

combined with the evidence of defendant's

own pre-trial statements to law officers

tended to show the following occurrences.

Immediately after the throat-slashing: in-

cident between Eanes and Pachaco, defend-

ant raised the shotgun and pointed it at

Pachaco, Pachaco told defendant, “I will

go down ‘aughing.” Without saying a

word, defendant shot him in the chest. De-

fendant then turned toward Ausley, whom

he ).ad never seen before that day. Ausley

pleaded with defendant and said, “don't

shoot me,” “[n]o, not me.” Defendant shot

him anyway. Pach.co was still moaning.

Defendant walked over to where he lay

helple ss on the floor and shot him ajrain at

point blank range just below the heart.

Pachaco and Ausley died from the gunshot

wounds, During the shootings, defendant

had “a sort of grin” on his face,

Defendant, apparently with a full realiza-

tion of what he had just done, walked ae

side to the porch of the clubhouse and tok

Feeney and Way that he had “blown away”

two dudes. He then directed everyone to

help him dispose of the bodies. The besties

were placed in an a utomobile which Eanes

drove to Causey Street and abandoned in a

ditch, Defendant did not return to his rvsi-

dence; instead, he went home with Stanley

and Hearl. On the way, he told Stan'ey

that he had killed Pachaco and Ausley ‘«.

cause he “didn’t have any use for people

like that.” Defendant was not upset and

seerned to have no regrets aleut the mur-

ders. He went to sleep. The next day,

Stanley and Hearl returned to the club

héuse at defendant's behest and cleaned up

the blood on the floor, Another member of

the Stroker motorcycle gang painted the

steps to conceal bloodstains,

The bloody car and belies of Pachaco and

Ausley were discovered in the early morn-

212 N.C.

ing hougs of 19 October 1979, Defendant

took a bus to’California where he was sub-

sequently arrested on 23 January 1980, De-

fendant waived extradition on 4 February

1980 and was picked up by, two officers of

the Gre nsboro Police Department two days

later, During the flight back to North Car-

olina, defendant made a full confession to

the murders, [He was advised of his consti-

tutional rights and exceuted the required

waiver form }

fondant present lependent evi-

fence during the guilt determination phase

of the proceedings. The defense did, how-

ever, elicit evidence during « examina

tion of ps tion {nesses tending to

how that defendant was drunk when the

killings o ec

he ry f 1 cefendant b t\ { two

‘ ts of first-cegree murder. The State

re lon its evid e pres ted dur ng the

guilt phase of the trial 1 did not offer

idd tional evidence d ng the sent neing

hearing. The State did, however, argue

that the murders were « pee ally heinous

because defendant committed them for

sport and ement. In addition, the

State contended that the killing é f the eigh-

teen-vear-old Ay ley Was parti 3] irly de Spi-

cable | e defe ndant had s} rf him in

cold blood as he begged and pleaded for his

ite On t} ther hand, defendant offered

nuch evidence tigation of his criminal

acts, ng the following fact his

youth: the divorce of } arents during his

ld} wud; his hy dr py oat 1 ales hol

abuse since the age of twelve; his leaving

home at the ape of thirteen (from that time

on, he had lived on his own); his low intelli.

gence; his psychological pre sain of de-

pression, conflicts in relationships and poor

jur i nent; and his feelings of remorse over

the killing of Ausley. In its instructions

upon the «

court subse

sentencing phase of the case, the

iitted two circum-

(1) the

especia ly heinous, atrocious

G.S. 15A-200e)9); and (2) each

murder was part of a course of conduct in

aggravating

Stances for the jury's consideration:

rm were

or cruel,

1. The State was ur

spond in like

iderstandably forced to re-

kind with a 90 page brief,

Al0

292 SOUTH EASTERN REPORTER, 2d SERIES

which defendant committed a erime of vio-

lence against another person, G.S. 15A

2000(e)(11), The court also submitted ten

mitigating circumstances to the jury. The

jury subsequently found one or more of the

mitigating factors but also unanimously

forind them to be outweighed by the forego

ing aggravating circumstances beyond a

reasonable doubt. The jury therefore ree-

ommended imposition of the death penalty

for both murders, and the court so ordered

Additional facts, which become relevant

to defendant's specific assignments of error

all be incorporated into the « pinion

Atty. Gen. Rufus L. Edmisten by Asst

Atty. Gen, Joan H Byers, Rak sh, for the

State,

Ay }* late Defe ler Adam Su nand Ann

B Peterson, Raleigh, pro hac vice for de

fi dan ‘} pellant

COPELAND, Justice

Defendant hee forward many

ments of error whic

new trial of these

ing hearing, or

he ex ntends require a

crime S$, OF A new sentenc

i hoth We di

agree and af

firm the sentences of death imposed upon

the j iry’s recommendations

At the utset, we must note that defend

ant’s Ay pellate eC insel filed a brief wh r

109 pages long.’ A defendant who stand

convicted in a capital ¢

case 1S, of « ifsc,

entitled to effective and diligent advocac

in the presentation of his appeal. However,

defendant's brief seems unduly lengthy and

Common sense dictate

that there must be an end to what can be

said in behalf of any cause and that good

judgment and prudence should

quite repetitious.

prevail ir

the legal art of brief-writing.? Indeed, the

volume of a brief should always be an accu

rate reflection of the substance of the arpu-

ments presented therein. We therefore ex.-

hort practitioners before this Court to seck

excellence first, the

preparation of briefs and remind them that

the ability to be direct and concise is a

not excessiveness, in

2. Our Rules of Appellate Procedure do not seta

formal limit upon the length of a brief,

STATE vy, PINCH

N.C 213

Cite as, NC, 202 8.6.24 209

formidable weapon in the arsenal of appel-

"tate advocacy, We now direct our attention

to the merits of the case and address de-

fendant’s arguments in the order in which

they appear in his brief,

GUILT PHASE: I--V

I.

Forty-two veniremen were examined

over a period of five days before a jury of

twelve was impanelled to try this case

During the selection process, the trial court

excused eight prospective jurors for cause

due to their stated opposition to the death

penalty, Defendant contends that the trial

court's action deprived him of his constitu.

tional rights of due process and trial by

jury. The record painly refutes this aAryU-

[1,2] The apy licable constitutional stan-

tlard } s the exvouse of

for cause if it is « stabl

tential juror

shed that he “would

automatically vote against the imposition of

capital punishment without regard to any

’ ,

arr ay

evidence that might be developed at the

Witherspoon v. [Ili-

nois, 391 U.S. $10, $22 at n. 21, 88 S.Ct,

1770, 1777 at n. 21, 20 L. Ed.2d 776, 785 at n

21 (1968): see Stute v. Cherry, 298 N.C. 86,

257 S.E.2d 551 (i979), cert, denied, 446 US.

941, 100 S.Ct. 2185, 64 L.Ed 2d 796 (1980).

It is unmistakably clear that seven of the

eight potential jurors were properly ex-

cused according to this standard after they

trial of the case

each stated unequivocally that, even before

hearing any evidence

not under impose the

death penalty upon this defendant. State

v. Oliver, 302 N.C. 28, 39-40, 274 SE 2d 183,

19) (1981). It is equally clear that the

remaining juror, Mary Neal, was also cor-

rectly removed from the panel when, after

some initial equivocation, she finally stated

that she did not “believe” that she could

impose the death penalty regardless of the

evidence. The court thereupon asked her,

“Do I understand that you could not even

in the Case, they could

any

circumstances

3, This “single” argument in defendant's bref

really addresses four distinct issues (howbeit

with @ common denominator: the intoucation

defense). Clarity of review is enhanced by the

All

before you hear the testimony under any

cireurnstances, impose the death penalty?”

Ms, Neal replied, “No, I just don’t think so.”

Considering her answers contextually, we

find that Ms. Neal expressed a sufficient

refusal to follow the OF a of capital

punishment, which might become applicable

to the case, State v. Avery, 299 N.C. 126,

137, 261 S.F.2d 803, 810 (1980); see State v.

Taylor, 304 N.C. 249, 266, 288 SE 2d 761,

773 (1981).

[3] The excuse of these jurors for cause

did not deprive defendant of his constitu.

tional rights to trial by a jury representing

a cross-section of the community of due

process of law. State vo Ave ry, supra, 299

N.C. at 137-38, 261 SE 2d at $10; State v

Cherry, supra, 298 N.C. at 106, 257 S F.2d at

54. We add, moreover, that the

need for manifest. It

irdity and a

mockery of our law to have permitted these

would

their excuse wis

\

would have amounted to an a

jurors to sit on a case where imposition of

the death penalty was an available sentene.

For, if capital case? could be

tried by juries which included ‘persons firm.

ing option,

ly opposed to the maximum prescribed pen

alty sought by the, State, the separate sen.

tencing hearing mandated by GS. 15A

2000 would almost certainly become a futile

and meaningless exercise, contrary to the

expressed will of our citizenry in the enact.

ment of capital punishment leyistation

i

At trial, defendant contested the premed-

tation and deliberation elements of first

degree murder primarily through the pre

sentation of an intoxication defense. De-

fendant believes that he was unconstitu-

tionally deprived of the substance of this

defense by certain improper comments of

the prosecutor and a series of erroneous

rulings by the trial court.? We are not so

persuaded and overrule these assignments

of error.

Separate staternent of each question and its

corresponding argument. See NC. Rules of

Appellate Procedure, Rule 28(b)(3) [Revised

Rule 28(b)(5) (Supp. 1981))

292 SOUTH EASTERN REPORTER, 2d SERIES

. ne Wmrer the

1 ( g argument to the

rv. the ad

argue to the jury that the facts did

, ‘ ’

] y e district attorney tated, in perti- upport a credible defense of intoxicat

nant « s she fall . . . ' ar enn ¢ .

f part, the te wing see State v Noell, aA N.C 670, 202 S.}

’ f ’ ue c O74

NT want to « ide that Mi 150 (1974), death sentence vacated. 428 |

» ; ’ ‘ . t ‘ ‘

Cl a A G 1k because he sid in 102, 96 Ct 13, 49 L.Ed “4 1205 (19

+ tat ‘ et e that he vas. he’ " uw ' ! ‘

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STATE v. PINCH N.C. 215

Cite as, N.C., 292 S.£.24 203

obstruct defense attempts to conduct inter- (13) In this context, the trial court did

views with any witnes es; h wever, a re- all that it could reasonably do by initia y

versal for this kind of professional miscon- roviding the defense with $1500 in stat

cuct is only warranted when it is clearly unds to hire the medical expert. In der

‘ ‘ nr? s ‘ ’ . imtor

demonstrated that the prosecutor affirn ing the motion to compel the interviews, thi

. " ! +) inf +} ‘

a ’ rm . " € . , '

tively instructed a witness not to co perate © irt reminded the defense tha ne arn

‘

P ‘ ‘ iA } }

4 i s ne P ’ rey ior * en ‘ i r

with the defense. State v. Ma n, 295 N, HEL So6 SVEMAION COUIC Dé eG

+} ttand +} ia} 1 ties i

4¢ ’ ‘ro ) ‘ + ne exper atlenge ce tria ar or i

84, 587-88, 248 S.E.2d 241, 244 (1978), cert pert I the tri

+} ‘ , ~* 1 tne ‘ ¢f

wd 4 1c OCA ( ‘% 7 ‘ ‘ ‘ awd ‘ I y ‘ if

4, 440 1 184, 9 Si 1797, 60 : ,

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for the pre-ina erviews was actually b e 28(b)(3). supra, te4. We haves eihe

filed after the y Sele nf ess had al ess reviewed these except s and find that

cacy bes nfane y three work g ays be j ne prose tors obje S$ were 5 pe eu

fore he f trial f the matter actually com sned within the trial irt’s discre F<

’

ay

Al3

216. N.C 292

SOUTH EASTERN REPORTER, 2d SERIES

; ly ant Illy t

ances, the witnesses the overly broad and legally ring

. a8 .

ctua ly ar vereq the jus t ns f defer U que ition to I anes about wh ther he

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ae te the pr ecutor s bjections ever seen def ndant when he a

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i the tria rts § et ereorl (ex ugh on drugs or aicono KCK

¥ '

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t ‘ {rib ‘ } 1 the fe lant “wt } ly W yi t y

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STATE v. PINCH Nita”) wee

a ‘

Cheats, N.C, 202 84 $203

oy? | ur ( ‘ t ed ? ng testified at tr it it Une | r

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ind four hich defendant had essentially neonseious or in some state ke

r _

tated, both in prose nd poem, that it hurt Record at 226-87

a | | ow» ¢} ce ryn by! of taking ‘ } }

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222 N.C

dence warrant imposition of the ultimate

penalty. GS. 15A-2000(a)4); State v.

Myers, 299 N’C. 671, 680, 263 S.E.2d 768,

774 (1980); State v. Johnson, 298 N.C. 355,

367, 259 S E.2d 760 (1979); State v.

Westbrook, 279 N.C. 18, 37, 181 S.E.2d 572,

583 (1971), death sentence vacated, 408 U.S. :

939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972).

[50-54] In this ca e,

nee

752,

it is evident that

sha Aie? ‘ + *" = ¢ sarmstal ruse

tne Ciserict attorney argue { OF Capital pun-

chrnent f lofandant’e mitre fer convict ns

with much wim and vigor. Record at 306

. ; ’ .

WwW Cant ry ‘ } if lant’s assert ns,

hy Lover A¢ Pw eve t t the a {r 4

** ° } . ,

evs ze t ve tep the

} f per bY, g ent = ’

* b tae ‘ ‘ - Pa ,

‘ ‘ ‘ T ‘ ‘ ;

t ‘ } ‘

‘ ’ , ’ , } i :

Lex we are , ex) that he gid not say

, * hoe i ‘ ‘ =

ything which would nt to a gr

riot z me that Paina nt

i e ’

4 Manne 7 we Othe } ner vert” ter

. ad ih ” pees

i + , ’ ’ }

pered by ¢t prior expianation to the jury

hae of ; w ff ‘ , .

ay 4 cr any facts or ii

‘ . 4 4 Le) . ‘ <7 3 ft ive ° . ” ,. 4

’ '

‘ re af nt’s ac tted L

é nil ‘ ° . 4 tne T i ‘ ‘

‘ " ‘ ’ ; e

’ '

sttornev's exnre neerning his belief

- 6 i ‘ ate te} a | f ue

>? i ’ Ps | } pert ’ ’ >

ari? + fr, one ve lae ‘ thes ry that

‘ 74 ‘ Care i "\e

” t ;

‘ i ‘ ‘ ‘ at ‘ Ph

‘ s ‘ ; Lio 83 i , .

e | ent | 7 pare

fata y < th 279 N ( 143. 181] SF 41 458

, “* ad ’

Late’ ‘ 4 r ter t n of lef nt

‘ ,

| ' 00} t be deemed un

‘ ° - ‘ ¢ Fes @"%. ‘ ;

t ° > aes

that he killed the tims intentionally }

* , >|

, ‘ 9 ° ¢

> . ‘ i 4 ‘ ‘ {

ne ° or ¢ o} ’

$ ‘ , » ‘ ve \ !

The tats one e the ry +) at it t nae

4

eward” right there on the spot if it had

‘ ’ ,

actually witnessed the : fers, although

give “\ a Whe e e nne ° nfar te

ty)! ¥eG VY » wi é s\

n Fd 4 ” ' . }

ry vilation for the ry to act .ike a lynch

12 For exa ple, the district att ey stated

1 don't + “ hat you wi fe is ay

propnate | gkecst to you, with ail due

‘ ner ‘ t+) ne © >

resnect > the ¢ t $ appro; ate to be

cwarded with the t ate sanction that our

‘ P ‘

aw 2es

a 2

j

A20

s

SOUTH EASTERN REPORTER, 24 SERIES

mob. The district attorney noted that the

law did not work that way. ent

was a colorful attempt to emphasize the

cruelty and callousness with which defend

His comm

ant killed the victims. Finally, there was

nothing inherently prejudicial in the district

attorney's complaints about how he could

not bring in family members to testify

fy

P } “ aa an aAvar 99 ’ iH ,

about the “trials and travails” of Pachaco's

; :

life, in contrast to al! of the evidence abeut

lefendar ae family and pers nal } tory ‘

eived in tipation The district att ‘

WAS merely re r ling the iry that,

though it did not know much about

hould ) efully nsider the \ f

the vict ’ if nj L rit ‘ P

‘, ’ ‘ P ed. ; '

'

'

K.~-X]

Defendant tendered in writing the f

r ¢ r tae , ° ’ at

‘ 7 LC Tj I t ; "

1 The defendant has j {

} ‘ ry p f ; rior erin a} tivity

» , + . } ° .

- ; t t ty f « ‘

appre ate the er ty ‘ ‘

r ty «af = } i ’ +}

a) ;

ents of WV nN} re i

q The sre fe #t i, ¢ ‘ ’

Pier, fe ‘

4 T} ‘ fi nts ‘ ’

t ability ediately afta

rect ! po at, i re th ’ ,ft ’ .

i; oer ’ = $6

* ‘ ‘ ‘ ‘ ]

ther y ling es a g ee

neident

g The fendant ‘

i?

’ ° ¢ ‘ ,

7 The fendant ‘

t ha eased the e of

Irus id ble to functior th

aturity and responsibility

7 The di fer lant lacks ‘ at f i }

has a relatively low mentality

We're all people of great ability and

science, and I ask you to consider what

appropriate for this act. Consider what

justice for Michael Pinch and for what he did

Consider the two dead boys that he Ieft in }

wake

STATE v. PINCH

Cite as, N.C., 292 S.£.24 203

8. The environment in which the de-

fendant lived until the time of his arrest

; Hy otal are

was infused with violence and accepted

or ?

violence as an [sic] problem-solving tech-

nique

" a] *

9. The defendant's childhood history,

background, and record shows no indica-

tion of a habitually violent nature.

10. Any other circumstances or cir-!

cumstances arising from the evidence

which you, the jury deem to have miti-

gating value. Record at 275

With the exception of the last portion of

er ep ng defendant's “rela-

tively low tality,” the trial rt hon-

ed defe t’s request and tted all

‘, f ot : ‘ ‘ et v fa tors ¢ thy ry.

’ . . thee the tein) pe there.

} ‘ tw (1) f ig to

‘ . *. ’ ‘ 9 «

wW , i " +

, ‘ f » @ } , * vy

5 t upon

, ,. ‘ 4 , ! . . , - . *

ting « ’ ‘ ‘G 15A dew i?)

t t] if ‘ Ths wie . } he

A e the arty 0 f » ¢-!} rs

‘ ae e” We lode that de.

fendant's tentions % be sustained

*} 4

Court prev ly est ed in-

tructive guid for the trial judges of

ir State to f w in the sul n of

fivvatine - ? ecw 6h

PUNE , HR ios

V ipon the evidence in a given

capita e as well as those specified in

G.S. 15A~-200QKf). First State v. Good-

, we 1 that, dithough the jury’s « Nn.

} ‘ es ? mes tor role ant the

‘ f thy e or the character

ft fendant y not be restricted, the

‘ oe ® i ¢ fo the yb

» 4 ‘ ‘ , ss ‘;, ‘

"he evict é | irch out every ble

j ry |

ere? ich °° rep he find ¢

« welt J sy Btie af 4s U

b t f t ? t ig y lue,” ‘ i ‘ 4 y whe mn the

trial court instructs the jury upon the open-

ended px n of GS. 15A-2000(f)(9) and

th loes not hinder it from evaluating on

ts own anything of mitigating value. 298

N.C. 1, 33-34, 257 S.E. 569, 589-90 (1979).

Second, in State v. Johnson, we held that

the trial court must include additional fac-

tors, which are timely requested by the

defendant, on the written list submitted to

N.C.

the jury if they are “supported by the evi-

dence, and ... are such that the jury cou!

reasonably deem‘them! to have mitigatin

value..." 298 N.C. 47, 72-74, 257 S.F2

597, 616-17 (1979) (emphasis added). Third,

in State v. Hutchins, we held that, althe igh

. '

the trial court has a fundament to

al duty

eclare and explain the law arising upon

‘

d

the evidence, it is not required to instruct

i } imet e

» has the

ird suff

the et.

:

1g

21

“ae 7

J ry ‘

} smd)

fer “7 al ’ ‘

(95,56) The rules of the foreyoing

ssi me PE Le A cad + t

i lj tical, and we ere!

x et e iz 74 e tine ‘ +}

t al juGcpes to adhere

t han nraetite ' ae

eluily when pre ng over the trial of

: as '

spit es noreover, -y must ) tn t

: i

it that 1 sense, fundamental f

nd judicial economy dictate that any

re 1 Goubt concerning the sul

yy a eeecdas . netad re , no ¢

0} a sta sOry OF requested itipat ig f

tor be re lved in the de fendant’s favor t

re

é e the accomp! ent of complete ji

; t é

tice at the first tencing hearing. Never

theless, the same standard of appellate r:

:

; ’ er

view continues to apply whether the tr

‘ Pus :

wt t. ° * a? , , , > .

. > ‘ ‘ > en ?. * i ¢ ;

te, 4 4 an ’

the p alty { e, thus, a new nite r

} ng wil not be ordered for the error

is failure to submit a mitigating « f

stance if that error + harmless beyond a

é

, oa sen

re ible doubt GS. 15A-144 b): é

state v, Williams (J), $ N.C. 394, 4%

P ‘ an on reobeco , ,

on™ B).2d 43i, 4 ree | (]98]) fer: (*

‘ [Ar ‘ °°

n Oot ayppra ta

3 '

was prejudicial and re new sente

. ‘ +,' ”

‘ , ] ul

ng nearing), otate v. Taylor, supra i

a? . “" , ‘ . s<¢ re e -

v.C. at 285-88, 283 S.F.2d at 783-85 (err:

neous submission of appravating circun

fance wae not nreindicial

oan. am ,

{57) The sum of the matter is tt

7 ° , re; ! rr ;

defendant demonstrates reversible error j

the trial tourt’s omission or restriction of a

ee ,

statutory or timely requested mitigating

"circumstance in a capital case only if he

affirmatively establishes three things: (1)

224 N.C 292 SOUTH EASTERN REPORTER, 2d SERIES

‘ '

that the particular factor was one which dicial since the trial court told the } y it

the jury could have reasonably deemed to could evaluate “[ajny other circumstances

have mitigating value (this is presumed to or circumstancesfarising from the evidence

be so when the factor is listed in G.S. 15A

which you, the jury deem to have mitijrat

;

\ - ‘ "” ‘

MX f)); (2) that there was sufficient evi- ing value GS. 15A-2000(f)(9)

1 ‘ of t) or tence o! the factor; at 1 (3) P

‘ ' - - ‘ ‘ ‘ '

that, f cring the case as a wi Cc, the (61, 62) For similar rea ns, we t

exe) n of the factor from the jury's con lefendant’ intention that the trial rt

1 ted ir t ] ‘ } ' ref ine ‘

J t } ‘ ha | ii I hhh } | { \

ite té | of t ne uf ’ t ti 4 y é ( ! i fy

the ‘ ‘ , f } ‘ Bitar ‘ ‘ ‘ ‘ ! 1, lied nn + +)

' v's ° vi j

Pas " ‘ ‘ iv ¢ ( . 1A ¢ { 9) 1, {

. ) / ’ P ‘ ’ ‘ ‘ ' i+ ia f } ‘ v

| j ‘ ‘ . \4

¢ ‘ ‘ ‘ } 1 wy

i ‘

: , P ‘ e «¢ bie ,

(» A so or i f } he f ‘

‘ ‘ ¢ ‘ ‘ a f j Hl, . tetpd + ‘ of ‘ ‘

y | i A |

‘ ‘ ‘ j ’ ' , '

) ’ ‘ ; ‘ A) '

‘ ‘ ‘ ‘ ‘ \ P } ‘ e +} ‘ 4

‘ ‘ ‘ ‘ an | ‘ 4 ‘ ‘

i ’ : ye }

‘ ta? sie Wf ‘ } ’ ’ ‘ ‘

\ ‘ . ‘ ‘

; i 4 ;

‘; ‘ 4 { . ‘ +) ‘ Py

*’ \ ! fe i ? ‘ ‘ ¥ ‘ \ te ‘

} } ,

‘ ‘+ f ‘ ‘ ‘ ‘ ¢ ‘, .«“ ¢4

‘ ‘ , f ,

/ ' ‘ j ‘ ‘

‘ ; ‘ ‘ ‘ ’

‘ ‘ ‘ ’

; or ] ‘ i p ‘

; ‘ ‘ ‘ ’ .

¢ i ‘

r

‘ P

) ’ ‘ } '

‘ ‘ ; ;

‘ f

fas , ‘y , q la WS i ‘/

’ ’ ava t ‘ - f

e ¢ ‘ ‘ ' ; ? p i

’ ] ’ ’ e =i °

‘ ‘ r ‘ ‘

’ ; ‘ff ! ‘

’ ‘ ‘ .

,

‘ f — P

, , ‘ . f ‘ ° : 7

f ‘

‘ ‘

f ’ ; ‘ | , 7 ’ i ‘ ‘

‘ a8

i» ‘ ‘ ‘ , j ‘ ‘

. ‘ y ’ ;

? ‘ j ‘ ‘ ‘ ‘ if j * ‘ lf wt ‘

‘ } ‘ ‘ ‘ . W Ay

‘ ‘ ‘ ‘ ‘ ‘ ‘ ry , f f \ ‘ i] rs ’ ,

( ely . ‘ or at 4 : 4 ‘ ‘ { | 7

‘ i

‘ if ‘ ‘ ‘ A, ‘ : lor re ‘* " ‘ ’ ‘

/ ‘ \ \ “ ‘ te ee

i’é j i ‘ tL? yr ri t r ‘ d

i

t rie f al art of yn" } fie as a bona f tal

>. ‘

try ve * mx ft t ‘ ‘7 e ly ‘ t 7 list ri f nie

i

. a tellig tobe | s caaial stathte Compare bales

) y vith relatively low rayl f. pra (evidence that fi t }

‘ } ] } v9 \

i) ‘ { ¥, yf 3 t at tine } rs ‘) ’ > Jy «@ tate ’ 1)

‘ . »t ; ‘ore ref ng ‘ ‘ t ps) itr te pave ece Of ‘ ‘

thes ry va tb oct | v4 ¢ the f, nt > | a 4 ‘ i] i i, . ‘

; } : . lpn} r if ;

t ce} y ju otala v. . . spra (def { Wa

&'

od

ming that

0%.

ety

n

;

‘

i

i

j

"

‘

‘

‘

‘

‘

o ee

‘ ‘

STATE yv. PINCH N.C. 995

Ta

Che aa N.C, 292 $.6.24 203

Again, even as-

ild

have

), its fail-

te prejudicial

ry could have elected to

+}

frial

LO0OC D9)

”

lo the contrary, we find no constitutional

authority mandating a con t

the submission of G.S. 15A-20000K11) in

aggravation of both murders violated de

. , :

fendant's protection against double j« par-

ay, ind we decline to ad pt 1 posit vhich

Ww ild prevent the fa ri} trat i vial

horns ‘4

wbility of ¢ jual justice for « ] ‘ ’

'

e,

T

. © }

, od “4 |™ at the ‘ !

» 9 i + ‘

j ore , { ’ ;

f ad ‘ f

f / f ’ ‘ f

y ) y

’ f ‘ +) : ‘

‘

‘

‘ } , f ,

} y |

{ r}

i ys tty Ait tat t

’ } ‘ i ’

i Bs i ,

‘ f ; { ‘

; ’ j

1/11) vf 1s

, ;

‘ > t ’

‘ } ;

; , . ‘ t

i

There Sand

}

pres et yed

f .

(64) 5 |

‘ ‘

‘

P 2

‘ ; ‘ t +

' ‘ ’

i 4 ‘ ’

} }

—

tive ‘ ’ ‘

f ? ‘ ‘; ‘

' ’, 4

,

i

, ; ‘

‘ y’ ‘ i sof

' j j

’

‘ ’ zi " 4

’ ;

* fa 7 ; V4 ’

i

‘

f ¢} e i¢

MM ‘ J e

’ f y e Olea > ¢

ie y (dil N

243 SZ) ] VW ‘ ‘ f .

' ect ’ ‘ t ‘

: > ¥ ' 4

Fact fede ‘

' re

‘ ‘

f aa | bi va } r ine rig . >

fA ‘ + ef ‘

ste «

ce fe v , $ (] 4 {

t2d 43 1981)

]

‘

*

(

b

226 N.C.

SN.G. 223, 275 S.F.2d 450 (1981), addressed

the double jeopardy implications which

arise in the event a new trial or a new

sentencing hearing is required in a capital

case after the jury has already decided the

punishment issue either for or against the

defendant. Such is,plainly not the situation

here, and we need not search out hidden

nuances of the double jeopardy clause in

order to decide the case before us. It is

sufficient to recognize that the thrust of

the concept of double jeopardy is that a

defendant may not be unfairly subjected to

multiple prosecutorial attempts to obtain a

conviction or a certain penalty for the same

offense nor may a defendant receive multi-

ple punishment for the same offense. See

Bullington v. Miswuri, supra; State v. Sil-

han, supra.

(65) Regardless of the formula utilized,

the jury's consideration of a defendant's

commission of “other crimes of violence," in

making its ultimate penalty recommenda-

tion for that defendant's conviction of a

related but separate capital offense, is not

logically equivalent to the defendant receiv.

ing multiple punishment for the same

crime, This is expecially true where, as

here, the prosecution relies on an additional

aggravating circumstance which is also sub-

sequently found by the jury. In short, the

principle of double jeopardy has not

evolved, as defendant argues, to the point

that it prevents the prosecution from rely-

ing, at the sentencing phase of a capital

cas’, upon a related course of criminal con-

duct by the defendant as an aggravating

factor to enhance the punishment of de-

fendant for another distinct offense, and

this is so, irrespective of whether the de-

fendant was also convicted of another capi-

tal charge arising out of that very same

course of criminal conduct and subjected to

separate punishment therefor, See, eg,

State v. Hutchins, 303 N.C, 321, 347, 279

S.E.2d 788, 804 (1981) (reciprocal ag rrava-

tion of two first-degree murders under G.S.

15A-2000(e(11)), See also State v. Cherry,

298 N.C. 86, 113, 257 S.F.2d 551, 563 (1979),

cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64

L. Eid.2d 796 (1980) (discussing the use of an

underlying felony, which accompanies the

A24

fun 4

. 292 SOUTH EASTERN REPORTER, 2d SERTES

commission of a premeditated murder, as an

aggravating circumstance under G.S. 15A-

2000¢e5)). “

In conclusion, we hold that the enhance-

ment of defendant's penalty on the one

hand for Pachaco’s murder did not result in

an unconstitutional duplication of defend-

ant’s penalty on the other hand for Ausley's

death, and vice versa, simply becausg de-

fendant's overall violent conduct was sub

mitted in aggravation on each hand under

G.S, 15A-2000(eX11), It is the very fact

that defendant killed two people, and not

just one, that aggravates the nature of his

crimes, and it was entirely proper for the

jury to consider this fact in determining

whether defendant should pay the ultimate

price for each life he took.

NUL.

(66) Defendant assigns error to the trial

court's direction to the jury that it noed not

specify which mitigating circumstances on

the written list it found. This same issue

was recently addressed at length in State v,

Rook, where we stated: “While defendant

tnakes a good argument that it is the better

practice, and we agree, to require the jury

to sjacify mitigating factogs found and not

found for the henefit of this Court in re-

viewing the appropriateness of the death

penalty, we find no such requirement in our

statutes.” 304 N.C, 2), 231, oR3 Sod

782, 751 (1981), cert. denied, US.

102 S.Ctu. 1741, 72 LEd2d 155 (1982).

Moreover, in State v. Taylor, we also found

“no merit in defendant's contention that

since the jury had to answer each ayyravat-

ing circumstance ‘specifically but did not

have to answer which mitigating cireurn-

stances they found, that placed undue em-

phasis on the aggravating circumstanors,”

304 N.C, 249, 285, 253 S.F2d 761, 783 (191)

It suffices to say that defendant's similar

contentions must be overruled pursuant to

the binding authority of both Rook and

Taylor.

XIV,

Both the prosecutor and the trial court

advised the jury that it had a duty to

j

: - STATE

. PINCH '

4

N.C. 227

Cite as, N.C. 292 S.£.24 203

recommend a sentence of death if it found

‘three things: (1) that one or more statutory

aggravating circumstances existed; (2) that

the aggravating circumstances were sub-

stantial enough to warrant the death penal-

ty; and (3) that the aggravating circum-

stances outweighed the mitigating circum-

stances beyond a reasonable doubt. On the

other hand, the jury was also advised that it

had the duty to recommend a sentence of

life imprisonment if it did not find any one

of those three things. These directions to

the jury were based upon the statutory

criteria set forth in GS. 18A-200Xb) and

(c) and conformed to the N.C. Criminal Pat-

tern Jury Instructions § 150.10 (1980).'6

Nevertheless, defendant assigns error to

the foregoing on the basis that such instrue-

tions “prejudicially withdrew from the jury

its final option to recommend a life

sentence notwithstanding its earlier find-

ings." Defendant's Brief at 75. This'as-

signiment lacks merit.

(67,68) The jury had no such option to

exercise unbridled discretion and return a

sentencing verdict wholly inconsistent with

the findings it made pursuant to G.S, 15A

200K(¢). The jury may not arbitrarily or

capriciously impose or reject a sentence of

death. Instead, the jury may only exercise

guided discretion in making the underlying

findings required for a recommendation of

the death penalty within the “carefully

defined set of statutory criteria that allow

them to take into account the nature of the

crime and the character of the accused.”

State v. Johnson, 298 N.C. 47, 63, 257 S.E.2d

597, 610 (1979); see State v. Barfield, 298

N.C. 306, 349-52, 259 S.F.2d 510, 541-43

(1979), cert. denied,,448 U.S. 907, 100 S.Ct.

3050, 65 LEd2d 1137 (1980). Moreover,

defendant's contention was implicitly an-

16. Similar instructions About the jury's duty to

return a cestain sentencing verdict, based upon

its affirenative findings under GS. 15A-2000(c),

were given in three other ceath cases previous-

* ly decided by our Court, in which no corre-

sponding exception or assignment of error was

raised on appeal: State v. Barfield, 298 NC.

306, 259 SE 2d $10 (1979), cert. denied, 448

US. 907, 100 SCt 3050, 65 L.Ed2d 1137

(1980), State v. Martin, 303 N.C. 246, 278

swered in State v, Goodman, 298 N.C. 1, 257

S.E.2d 569 (1979), in which this Court over-

ruled an assignment of error alleging that

the trial court had erred in failing to in-

struct the jury that it could stil! recommend

life imprisonment even though it found that

the aggravating, circumstances outweighed

the mitigating ones. Justice Britt, speak.

ing for the Court in Goodian, explained

that;

{1} would be improper to instruct the

jury that they ‘may, as defendant sug-

gests, disregard the procedure out!ined by

the legislature and impose the sanction of

death at their own whim. To do so would

he to revert to a system pervaded dy

arbitrariness and caprice, The exercise

of such unbridled discretion by the jury

under the court's instruction would be

contrary to the rules of Furman ([v. Geor-

gia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Fd.2d 346) and the cases which have

followed it. .

Id. at 35, 257 S E.2d at 590. For these

reasons, we hold that the jury was correctly

informed that it had a duty to recommend a

sentence of death if it made the three find.

ings necessary to support such a sentence

under G.S. 185A 200%¢),"7

XV.

The trial court instructed the jury upon

the statutory aggravating circumstance of

G.S. 15A-200X%e)9), that the murders were

“especially heinous, ‘atrociéus, or cruel.”

Defendant essentially contends that the evi-

dence did not support the existence of this

factor and that the trial court's instruction

upon it thus violated the Eighth Amend.

ment,

(69) In accordance with the dictates of

the Fighth Amendment, our Court has ad-

SE 24 214, cert. denied, e« US . 102

S.Ct 431, 70 L Fd.24 340 (1981), and State »

Rook, 304. N.C 20), 283 S$ E 20732 (1981). cert

denied, —-~ US ~ 102 SCr s74h, 72

L.Ed 24 155 (1982).

“17, There is no consgitutional infirmity in such

an instruction. See, eg Jurek v. Tewas, 428

U.S. 262, 96 S.Ct. 2959, 49 L.Ed 24 929 (1976)

(cited in the dissent).

.

228 N.C.

‘hered to the position that the aggravating

circumstance of*G.S, 15A-2000(e)9) “does

not arise in cases in which death was imme-

diate and in which there was no unusual

infliction of suffering upon the. vim,”

State v. Rook, 304 N.C. 201, 226, 283 S.E.2d

732, 747 (1981), cert. denied, ~—- U.S. -,

102 S.Ct. 1741, 72 L.Ed.2d 155 (1982); s

Godfrey v. Georgia, 446 U.S. 420, 100 § Ct

1759, 64 L.Fd.2d 398 (1980); see, eg., State

Hamlette, 302 N.C, 490, 504, 276 S.F.2d

338, 347 (1981) (submission of G.S. 15A-

2000Ke9) was erroneous), Instead, our

Court has made it clear that the submission

of G.S. 15A-% eX9) is appropriate only

vhen there is evidence of excessive brutali-

ty. beyond that normally present in any

killing, or when the facts as a whole portray

the com n of a crime which was con-

eless, pitiless or necessarily tortu-

ous to t victim. State v. Goodman, 298

N.C. 1, 257 S.E.2d 569 (1979); see, eg.,

State v. Martin, 303 N.C. 246, 278 $.E.2

214, cert. denied, - US. , 102 $.Ct.

431, 70 L.Ed.2d 240 (1981); State v. Oliver,

302 N.C. 28, 274 S.E.2d 183 (1 = It is,

therefore, plain that an issue concerning the

riety of the submission of this aggra-

factor is resolved according to the

peculiar surr ling facts of the capital

case under « deration.

(70) Fx g the e at bar, we hold

that there was {ficient evidence whereby

the jury id have re ably concluded

that the irders of Pachaco and Ausley

were especially j } ible and wanton un

der GS. 15A~-2000(eX9) The evidence

howed that defendant carefully executed a

deliberate and premeditated plan for mur-

der, We have: already set out the details of

the murders at length in the beginning of

the oan Nn, eh it would be repetitious to

summarize them again here. It suffices to

that the

victims were

Say

deaths of the unsuspecting

not instantaneous and that

both killings involved the infliction of un-

“usual physical or psychological torture.

Each victim essentially witnessed (or heard)

the shooting of the other and was helpless

to prevent this unprovoked horror. The

killing of Pachaco was excessively brutal in

that defendant, having already shot him

A26

- his ‘ite

. 292 SOUTH. EASTERN al 2d SERIES

once, walked over to where he lay moaning

on the floor and shot him again at point

blank range. The killing of Ausley was

merciless and conscienceless in that defend-

ant shot him as he begged and pleaded for

Defendant seemed to enjoy the

killings, and he showed no remorse for what

he had done at that time. In fact, defend-

ant callously evaluated his conduct in his

subsequent announcement to his compan-

ions that he had away two

dudes.” Viewing the oper peiinaer of the

“just blown

$3 AS A whi

murders le, we hold that the trial

court correctly instructed the it upon

G.S. 15A-2000(e)(9).

KV

nee of death

t be “excessive

or disproy rvionate )

y imposed in similar cases, con-

ad '

sidering both the crime and the defendant.”

G.S. 15A-2000(dX2). , Defendant argues

that the infliction of the death penalty for

these murders wi vuld be excessive and di:

proportionate bites ishment. We disapre

All — considered, we cannot say, as a

natter of ae that this defendant is some

how less deserving of capital | ishment

than the! other occup ants of death row

See, © B ae v. Taylor, 204 N.C. 249, 283

S.E.2d 761 (1981); State v. Rook, 304 N&

201,

US

ved,

712 L.Ed.2d 155

283 § B. 2d 332 (1981), cert. de:

102 S.Ct. 1741,

(1982); State v, Hute hins, 303 N.C. 321, 279

S.E.2d 788 (1981); State v. Martin, 303 N.C

246, 278 S.E i 214, cert. denied, US

, 102 S.Ct. 431, 70 'L.Ed.2 ce 240 (1981);

State + Petal 301 N.C°273, 271 S.B.2d

286 (1980), cert. denied, d

S.Ct. 1731, 68 L.Ed.2d 220 (1981); State »

Barfield, 298 N.C. 306, 259 S.E.2d 510

(179), cert. denied, 448 U.S, 907, 100 S.Ct.

3050, 65 L.Ed.2d 1137 (1980). The facts of

the instant case spéak {or themselves and

we shall not disturb thé factual findings

made by the jury under G.S. 15A -2000(c) in

reaching its recommendations for the death

penalty in this case.

450 Ay S. 1025, 101

{71,72) Within this argument, defend-

ant also urged this Court to adopt several

‘

bo grave v. PINCH

N.C. 229

Clte as, N.C, 292 §.£.24 203

‘procedures to assist appellate review of the

proportionality of the death sentence in a

particular case. It would serve no useful

purpose to address each suggestion here.

Instead, we believe that all of the matters

raised by defendant are adequately answer-

ed by our two-fold determination that: (1)

the review mandated by GS. 15A-

2000(d)(2) (supra) provides a sufficient con:

stitutional safeguard against the unconsti-

tutional imposition of cruel and unusual

punishment, and (2) the intended ultimate

emphasis of proportionality review under

G.S. 15A-200(d}2) is upon the independent

consideration of the individual defendant

and the nature of the crime or crimes which

he has committed.

XVIL—XIX. ,

(73-75) The final three “arguments”

presented by defendant's appellate counsel

ask us to re-examine the constitutional va-

lidity of several prior cases without advane-

ing a single good, logical or compelling rea-

son for doing so. Such spurious disputa-

tions lack merit, do not warrant discussion

and are not well received. Even so, we

shall take this opportunity to reaffirm to-

day the constitutionality of the following

aspects of our capital sentencing procedure:

(1) the bifurcated trial proceedings of G.S.

5A~2000, in which the same jury deter-

mines both the guilt and punishment issues,

and the use of challenges for cause to ex-

cuse therefrom prospective jurors who are

unequivocally opposed to the death penalty;

(2) the submission of the sufficiently clear

statutory aggravating circumstance of GS.

1SA~2000(eX9), that the capital felony is

“especially heinous, atrocious, or cruel,” in

sppropriate cases; and (3) the placement of

the burden upon the defendant of persuad-

ing the jury, byba preponderance of the

evidence, that a particular mitigating cir-

cumstance exists. State v. Rook, 304 N.C.

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

U.S. ——~, 102 S.Ct. 1741, 72 L.Ed.2d 155

(1982); State v. Avery, 299 N.C. 126, 261

S.E.2d 803 (1980) (and cases cited in part I

of the opinion, supra); State v. Barfield,

298 N.C. 306, 259 S.E.2d 510 (1979), cert.

denied, 448 U.S. 907, 100 S.Ct. 3050, 65

A2?

L.Ed.2d 1137 (1980); State v. Johnson, 298

N.C. 47, 257 S.E.2d 597 (1979); State vv.

Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979),

XX.

The decision to take a life pursuant to the

law, for the life of another, or others,

wrongfully taken, is a very grave and sol-

emn matter, Thus, this Court accords the

utmost diligence and care in its review of

capital cases, In the instant case, we have

fully considered all of the arguments in

defendant's brief, which encompassed the

multitudinous assignments of error and ex.

ceptions in the record on appeal. We are

convinced that both phases of defentant's

trial were competently conducted without

the accompaniment of constitutional defect

or prejudicial error, and we so hold,

We also hold that the judgments of death

were lawfully jmposed. The evidence : ip

ported bina of the aggravating cir-

cumstances listed in G.S. 154. 200¥e\9)

and (11). There is no indication that the

jury recommended capital punishment un-

der the influence of passion or prejudice.

Finally, the’ penalties imposed do not seem

excessive or disproportionate considering

the premeditated and callous manner in

which defendant calmly shot and killed two

people in cold blood, suddenly and without

any provocation by ther, for reasons exhib-

iting a wanton disregard for. human life.

Indeed, the record impels the conclusion

that justice has teen done in every respect,

In sum, we have noJauthcrity or cause to

disturb the duly entered judgments of

death. | .

NO ERROR.

MITCHELL, J., did not participate in the

consideration or decision of this case.

CARLTON, Justice, concurring.

I concyve with the, majority opinion.

However, I] wish to add that 1 agree with’

the views “expressed by Justice Exum in

section V. of his dissenting opinion. In my.

opinion, the comparison pool for proportion-

ality review for first degree murder cases

{+ ,

V

(

930 N.C.

“should include all cases tried uncer the

present death penalty statute shich have

- been affirmed on appeal by this Court, re-

gardiess of the’ punishment imposed. 1

think it is time for this Court to address

this issue +

BRANCH, ©. J., joins in this concurring

_ Opinion, :

EXUM, Justice, dissenting as to sentence,

. Fr

1 find. myself, first, in strong disagree-

ment with the majority on an extremely

important new question dealing with the

construction of our death penalty statute.

The majority holds, after somewhat cursory

treatment and a barebones analysis, that

under the statute, GS. 15A-2000, if the

jury finds: (1) the existence of one or more

statutory aggravating circumstances, (2)

that the aggravating circumstance{s) so

found are sufficiently substantial to call for

the death penalty and (3) the aggravating

circumstance(s) outweigh the mitigating

circumstances, then the jury must return »

the death penalty. Nowhere, of course,

does the statute so provide. The majority

construes the statute in this way on the sole

ground that otherwise the statute would be

subject to the constitutional attack that a

jury could decide between life and death in,

its unbridled discretion. Yet decisions i

the United States Supreme Court, none o

which are mentioned in the majority's dis-

cussion, have made it abundantly clear that

the majority's interpretation, is not constitu-

tionally required.

In one of its first cases construing qur

death penalty statute, this Court noted,

“(t)he first maxim of statutory construction

is to ascertain the intent of the legislature.

To do this, this Court should consider the

statute as a whole, the spirit of the statute,

the evils it was designed to remedy, and

what the statute seeks to accomplish.”

State v. Johnson, 298 N.C. 47, 56, 257 S.F.2d

597, 606 (1979). In Johnson, this Court

recognized that our death penalty statute

was enacted following a quintet of cases all

decided by the United States Supreme

A28

a is

"992 SOUTH EASTERN REPORTER, 2d SERIES!

Court on 2 July 1976. These cases struck

down mandatory death penalty statutes in

Notth Carolina, Woodson v. North Carolina,

428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944

(1976) (plurality opinion), and Louisiana,

Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct,

3001 49 L.Ed.2d 974 (1975) (plurality opin-

jon), but sustained death penalty statutes

which, in varying degrees, sought to control

the discretion exercised in capital sentenc-

ing in Georgia, Gregg v. Georgia, 428 U.S.

153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)

(plurality opinion); Florida, Proffitt v.

‘lorida, 428 U.S. 242, 96 S.Ct. 2960, 49

L.Fd.2d 913 (1976) (plurality opinion); and

Texas, Jurek v. Texas, 423 U.S. 262, 96 S.Ct.

2950, 49 L.Fd.2d 929 (1976) (plurality opin-

ion). This Court noted in Johnson that

these five cases “made clear that neither

unbridled, unguided discretion nor the ab-

sence of all discretion in the imposition of

the death penalty is constitutionally permis-

sible.” 298 N.C. at 58, 257 S.F.2d at 607

(emphasis supplied), After further discus-

sion of United States Supreme Court deci-

sions and various provisions of the Model

Penal Code, upon which our statute was

largely based, this Court concluded in John-

son, 298 N.C. at 63, 257 S.E2d at 610:

In summary, there are a number of

controlling factors governing the inter-

pretation of our death penalty statute.

Unbridled discretion in the imposition of

the sentence is not permitted. On the

other hand, sentencing juries must have

some discretion to determine in a rational

and consistent manner those cases in

which the death penalty should be im-

posed. Juriesjare to he guided in this

process by a carefully defined set of stat-

utory criteria that allow them to take

into account the nature of the crime and

the character of the accused. Thorough

jury instructions, which incorporate and

reflect the definitions accorded to these

criteria and which are fully applied to the

facts of each case, must be given. In

each case the process must be directed

toward the jury's having a full under-

standing of both the relevant aggravat-

ing and mitigating factors and the neces-

mee

STATE v. PINCH

N.C. 23]

Cite as, N.C, 292 S.F.24 203

sity of balancing them against each other

in determining whether to impose the -

death penalty. Lastly, any imposition of

the death penalty by the jury should be —

searchingly reviewed by the appellate

courts to insure the absence of ,unfair-

ness, arbitrariness or caprice in the result.

Regarding the question before us, the

‘atatate, G.S. 15A-2000, provides in perti-

nent part as follows:

(b) Sentence Recommendation by the

Jury.—-... In all cases in which the

death penalty may be authorized, the

judge shall include in his instructions to

the jury that it must consider any aggra-

vating 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 furn ‘ish to the jury a

written list of issues relating to such ag-

gravating or mitigating circumstance or

circumstances.

After hearing the evidence, argument

of counsel, and instructions of the court,

the jury shall arene and er 8

sentence recom

based upon the following matters:

(1) Whether any sufficient aggravat-

ing circumstance er circumstances as

enumerated in subsection (e) exist;

(2) Whether any sufficient mitigating

circumstance or circumstances as enu-

merated in subsection (f), which out-

weigh the aggravating circumstance or

circumstances found, exist; and

(3) Based on these considerations,

whether the defendant should be sen-

tenced to death or to imprisonment in

the State's prison for life.

(e) Pin idings in Support of Sentence of

Death.-- When the jury recommends sen-

tence of death, the foreman of the jury

shall sign a writing on behalf of the jury

which writing shall show:

(1) The statutory aggravating circum-

stance or circumstances which the jury

finds beyond a reasonable doubt; and

1. Although the jury Is not required by statute

to answer these questions unless they recom-

A29

iv]

(2) That the statutory aggravating cir-

cumstance 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 circuinstances found.

{Emphases supplied.)

In essence, then, the statute provides that

in determining whether to impose death or

life imprisonment thé jury “must consider”

certain aggravating and mitigating circum-

stances; that the jury's sentence recom-

mendation shall be “based upon” the suffi-

ciency of the aggravating cireurnstance(s)

and the tnitigating. circumstance(s) and

their relative weights; and that “when the

jury recommends a sentence of/death,” it

must sign a writing in which three ques

tions are answered affirmatively and unani-

mously beyond a reasonable doubt.

From this statutory scheme the leyisla-

tive intent clearly emerges. The legislature

has sought to strike a balance between fair-

ness to the individual defendant and con-

sistency among the cases in which the death

penalty is imposed. It has fae a stat-

ute which avoids the two extremes of man-

datory death penalties or unbridled discre-

tionary action by juries. The legislature

inte snded for the jury to consider: first, the

sufficiency of the aggravating circurn-

stance{s); second, whether any mitigating

circumstance{s) exist which outweigh the

aggravating circumstance(s); and third,

based on these considerations whether to

recommend a death’ sentence or life impris-

onment. Only when the jury determines to

recommend death is the jury required to

sign a writing which shows its affirmative,

unanimous findings that one or more statu-

tory aggravating circumstances exist be-

yond a reasonable doubt, that they are suf-

ficiently substantial to make the death pen-

alty appropriate and that the mitigating’

circumstances do'not outweigh the aggra-

vating circumstances.’ Subsection (b)..

mend death,!I believe documentation of the

|

232 N.C.

States in two places that the jury's sentence

recommendation is to be based-on these

considerations, not decreed by them. There

is nothing in this schemd to suggest a legis-

lative intent to_require the jury to return a

sentence of death even if it should answer

the three crucial subsection (c) issues af-

firmatively, just hs there is nothing in the

Statute which permits a jury to ignore the

delineated considerations in its delibera-

tions. To hold, as does the majority, that if

affirmative answers in writing to these

three issues are prerequisite to a jury's rec-

ommendation o a ath, then death must be

recommended: when the prerequisites are

met is, logically, a non sequitur,

‘This logical trap is easily sprung; it

caught me in my dissent in State v. Rook,

304° N.C. 201, 283 S.E.2d 732 (1981), cert.

denied, U.S. , 102 S.Ct. 1741, 72

L.Fd.2d 155 (1982), where I lapsed into

the same fallacy now being urged by the

majority.2 In Rook, however, both my dis-

sent and the majority opinion were address-

ing a different question, ie, whether the

jury was required to specify which mitigat-

ing factors it found to exist. The question

now being addressed was not raised in

jury's findings in every capital sentencing pro-

ceeding, whether.they recominend death or life,

is necessary for this Court's use in conducting

its proportionality review required under GS.

1SA-2000(d)(2).

2. tn Rook, supra, | wrote:

Indeed, in Georgia, the jury may retufn a

Geath sentence upon finding one or more

aggravating circumstances, no matter how it

regards the mitigating circumstances. In

contrast, under our statute the jury may re-

turn a death sentence recommendation only

if it finds: (1) the existence of one or more

aggravating circumstances; (2) that the ag-

gravating circumstance(s) found by it are

sufficiently substantial to call for the imposi-

tion of the death penalty; and (3) that: the

mitigating circumstances are insufficient to

outweigh the aggravating circumstances.

The clear import of our statute is that a jury,

eo Upon finding the requisite existence of aggra-

vating circumstances and their sufficient sub-

Stantialilty, may not recommend life impris-

onment unless it further finds that the miti-

gating circumstances are sufficient to out-

weigh the aggravating circumstances.

304 N.C. at 242-43, 283 S E.2d at 757 (empha-

sis Original) (footnote omitted).

A30

292 SOUTH EASTERN REPORTER, 2d SERIES

Rook, and any peers | about it was not

necessary to the dissent. With the benefit

of briefing, argument and my own research,

I am convinced that fny initial conclusion on

the point here in issue, as 1 expressed it in

Rook, was wrong, just as I believe the ma-

jority’s similar conclusion is wrong. The

conclusion is not less a non sequitur because

I once subscribed to it. 7

Our trial judges initiallyproperly con-

strued the statute to mean that if the jury

answered the three issues affirmatively it

could, but was not required to, recommend

the death penalty. The first Pattern Jury

Instruction promulgated after the statute

provided that if the jury answered the cru-

cial issues affirmatively théen it “may ree-

ommend the death penalty.” N.C.P.1.Crim.

150.10, p. 5 (June 1977) ‘emphasis supplied).

A subsequent revision of the instruction

emphasized this point by providing that the

jury “may, although [it) need not, recom-

mend that the defendant be sentenced to

death.” - N.C.P.1.Crim. 150.10, p. 4 (Replace-

ment, May 1979). These instructions, or a

variation of them, have been followed in a

large number of death penalty cases.

3. See; eg., State v. Silhan, 302 N.C. 223, 275

S.E.2d 450 (1981) (R. at 192, “you may recom.

mend death”), State v. Detter, 298 N.C. 604,

260 S.E.2d 567 (1979) (R. at 238, “you may

recommend"), State v. Jghnson, 298 N.C. 355,

259 S.E2d 752 (1979) (R, at 11), “you may

recommend”); State v. Spaulding, 298 NC

149, 257 S.E.2d 39) (1979) (R. at 333, “Based

upon these considerations as instructed by the

court, you will advise the court whether the

defendant should be sentenced to life imprison-

ment or death"); State’v. Cherry, 298 NC. 86,

277 S.E.2d 551 (1979), cert. denied, 446 US

$41, 100 S.Ct. 2165, 64 L.Ed. 24 796 (1980) (R.

at 341, “Based upon these considerations as

instructed by the Court, you will advise the

Court whether the defendant should be sen-

tenced to life imprisonment or death”); State v.

Goodman, 298 N.C. 1, 257 §.E.2d $69 (1979) (R

at 185, “you may then recommend the death

penalty”), State v. Jones, 296 N.C. 495, 251

S.E.2d 425 (1979) (R. at 276,.“you may--dur

are not compelied to—recommend the death

penalty”).

Other cases reviewed by this Count have con

tained instructions which went even further ‘

telling the jury that the death sentence was not

mandated by affirmative answers to the crucia!

issues. For example, in State v. Oliver, 302

.

STATE v. PINCH

N.C. 233

Cle as, N.C, 292 S.£.24 203

After our decision in State v. Goodman,

298 N.C. 1, 257 S.E.2d 569 (1979), the Pat-

tern Jury Instruction for our trial judges

was changed so as to provide that if the

jury answered the three issues affirmative-

ly, it would be its “duty to recommend that

defendant be sentenced to death.” N.C.P.1.

Crim. 150.10, pp. 3-4 (Replacement, May

i980). The case cited in support of this

change in the instruction is Goodman.

The issue in Goodman, however, was not

whether the jury should be told it has a

“duty” to recommend the death penalty if it

answers the three issues affirmatively and

The issue in Goodman was

whether, as the defendant contended, the

trial court “should have explained to the

jury that it had the option of returning a

recommendation of life imprisonment even

unanimously,

if aggravating circumstances were found to

outweigh mitigating circumstances.” Brief

for Defendant Appellant at 15-16. Defend-

ant argued thst “(i]t should be incumbent

upon the tral Court to explain in detail

that no mandatory recommendation of the

death penalty is required regardless of find-

ings as to aggravating and mitigating cir-

cumstances set forth in the statute.” Jd.

Thus, defendant Goodman was arguing

that the trial court should be required to

explain to the jury that, it could, in effect,

ignore the considerations which by statute

it must consider in recommending a life or

death sentence. This goes far beyond the

permissive instruction actually given and

upheld in Gaadman, ie, the instruction that

if the jury answered the three subsect! un (c)

issues affirmatively and unanimously, it

“may then recommend the death penalty.”

(R. at 185).

NC 28, 274 S F.2d 183 (1981) (R. at 668), the

jury was told:

Uniess you have answered Issues One,

Two, Four “yes” you must recommend that a

defendant in a given case be sentenced to life.

Only if you have answered issues One, Two

and Four “yes” may you recommend that a

defendant be sentenced to death. Even then,

though, you are not required to do so. You

stil may secommend life imprisonment.

However, if you answered Issues One, Two

and Four “yes” you are, on further delibera-

tions, satisfied beyond a reasonable doubt

A31

The state's brief in Goodman recognizes

that “the Court left the jury with the

understanding that, even should they find

more aggravating than mitigating circum-

stances, they could still recommend life im-

prisonment. . At no point did the Court

state that the jury could not recommend

life imprisonment when the aggravating

circumstances outweighed the mitigating.

What the Court was saying was that (even

where such aggravati & circumstances ap-

peared to be more substantial than mitijnut-

ing circumstances) the jury could still rec-

ommend life imprisonment.” Brief for the

state at 19-20,

The Court in Goodman answered the

fendant’s argument as follows, 208 N.C. at

34-35, 257 S.E.2d at 590:

His argument is that without such in-

struction the jury will mathematically

balance the two types of factors aguinst

each other and will impose the death pen-

alty whenever aggravating circumstances

outnumber mitigating ones. We do not

agree that this is the manner in which

jury will reach its decision on this impor-

fant question or that the instruction for

which defendant contends is req juired by

our statute.

It must be emphasized that the deliter-

ative process of the jury envisioned by

G.S. 15A-2000 is not a mere countir ig

‘process. State v. Dixon, supra (283 So.2d

1, Fla); State v. Stewart, supra [197

Neb. 497, 250 N.W.2d 849). The jury is

charged with the heavy responsibility of

subjectively, within the parameters set

out by the statute, assessing the appropri-

ateness of ithposing the death penalty

upon a particular defendant for a particu

lar crime. Nuances of character and cir-

;

that the only just punishment for this defend.

ant is--a given defendant in a given case, is

the death penalty, then you may so recom

mend it; realizing, of course, the tremendous

responsibility which rests on your shoulders

when you make that recominendation.

See, also, State v. Hutchins, 303 N.C. 321, 179

S.E.2d 788 (1981) (KR. at 231, “you would then

further deliberate upon your-sentence rece m-

mendation”), State v. Small, 301 N.C. 407,472

S.E.2d 128 (1980) (R: at 618, “Even though you

are not required to do so, yo may still recom.

mend life in prison”),

ec

234 N.C.

“* cimstance cannot be weighed in a precise

mathematical formula. -

‘ "At the same time, we believe that it

would be improper to instruct the jury

that they may, as defendant suggests,

disregard the* procedure outlined by the

legislature and impose the sanction of

death at their own whim. To do so would

be to revert to a system pervaded by

arbitrariness and caprice. The exercise

of such unbridled discretion by the jury

under the court's instruction would be

contrary to the rules of Furman [v. Geor-

gia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Ed.2d 346) and the cases which have

followed it. For these reasons defend-

ant’s seventh assignment of error is over-

ruled.

(Emphases supplied.)

The majority's conclusion on this point in

the instant case as well as the change in the

Pattern Jury Instruction are based on a

misreading of Goodman. Goodman simply

recognized that, under the instructions as

given, there would be no cause for the jury

“mathematically” to balance the aggravat-

ing against the mitigating and “impose-the

death penalty whenever aggravating cir-

cumstances outnumber mitigating’ ones.”

Goodman cautioned that juries should not

be instructed in a manner which would

cause therm to “impose the sanction of death

at their own whim.” Goodman does not

support the proposition that a jury has a

duty to impose the death penalty whenever

it concludes that the statutory aggravating

circumstances are sufficiently substantial to

call for it and that the mitigating circum-

stances are insufficient to outweigh the ag-

gravating. Goodman recognizes that given

such determinations, a jury may yet opt for

life imprisonment and notes that there is no

way to. escape some subjectivity in deciding

4. Indeed, juries have answered the crucial sub-

section (c) issues affirmatively and yet either

e recommended life imprisonment, State v. King,

301 N.C, 186, 270 S.E2d 98 (1980); State v.

Taylor, 298 N.C. 405, 259 S.E.2d $02 (1975); or

were unable unanimously to agree on a sen-

tence, thus requiring the judge to impose a life

sentence pursuant to G.S. 15A-200Q(b). State

v. Shan, 302 N.C. 223, 275 $.£. 2d 450 (1981),

on resentencing in Columbus Superior Court

A‘$2

292 SOUTH EASTERN REPORTER, 2d SERIES

who shall live and who shall die. Juries are

called on in this kind of decision, we said in

Goodman, to consider “[nJuances of charac-

ter and circumstarice [which] cannot be

weighed in a precise mathematical formu-

la.”

It is for this reason that a jury ought not

be required to return the death panalty

simply because it answers the crucial sub-

section (c) issues affirmatively. Conscien-

tious juries may determine that these issues

ought to be answered affirmatively and yet,

because of circumstances of the case,

“nuances,” if you will, not subject to articu-

lation in a statute or a verdict and not

perhaps articulable by the jurors them-

selves, feel impelled to recommend that the

death penalty not be imposed.4 We should

not construe our statute to require such a

jury, nevertheless, to impose it.

Our statute is designed simply to insure

that certain specific (subsection (c)) prereq-

uisites are met before the death penalty is

imposed. Its only prerequisites for the im-

position’ of life imprisonment are that the

jury base such a decision (subsettion (b)) on

a weighing against each otheg of various

aggravating and mitigating circumstances

which it may find to exist... Although the

jury may not recommend death without

specifically, and in writing, answering sub-

section (c) issSes affirmatively, even if it

does so it may yet recommend life.

The United States Supreme Court has

made it quite clear that these kinds of

death penalty or life imprisonment decisions

do not result in the unbridled discretionary

determinations found wanting in Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Ead.2d 346 (1972) (per curiam). In Bull-

ington v. Missouri,/451 U.S.\430, 101 S.Ct.

1852, 68 L.Ed.2d 270 (1981), the Court had

(Case No. 79CRS1943), State v. Easterling, 400

N.C.°594, 268 S.E.2d 600 (1980)..

At least one jury has found ambiguity in the

“Issues and Recommendation as to Punish-

ment” form generatiy submitted to juries delib-

erating on sentences in capital cases. State v

Lake, 305 N.C. 143, 286 S.E.2d 541 (1981) (copy

found in Case No. 80CRS5530, Onslow Supen.

or Court).

STATE v. PINCH

N.C. 235

Clie as, N.C., 292 S.6.24 203

Aefore it a Missouri death penalty statute

very similar to ours. In Bullington, the

Supreme Court noted that a Missouri jury

“is instructed that it is not compelled to

impose the death penalty, even if it decides

that a sufficient aggravating circumstance

or circumstances exist’and that it or they

are not outweighed by any mitigating cir-

cumstances or circumstances.” 451 U.S. at

434-85, 101 S.Ct. at 1855-56. Although the

question was not raised, there is no sugges-

tion in Bullington that such a statute would

be constitutionally infirm.

In Gregg v. Georgia, supra, 428 U.S. 153,

96 S.Ct. 2009, 49 L.Ed.2d £59, the Supreme

Court considered a Georgia death penalty

statute which provided that the jury could

return a sentence of death only if it found

the existence of one of ten statutorily speci-

fied aggravating circumstances. The jury

was not required to return a death sentence

even if it found the existence of one or

more of the ten statutorily specified aygra-

vating circumstances and was “not required

to find any mitigating circumstance in os-

der to make a recommendation of mercy.”

Id. at 197, 96 S.Ct at 2936. On appeal of

his death sentence, defendant argued that

because a Georgia jury had “the power to

decline to impose the death penalty even if

it finds that one or more statutory aggra-

vating circumstances are present,” the stat-

ute violated the Furman prohibition against

unbridled discretion. Id. 428-U.S. at 203, 96

S.Ct. at 2939. The United States Supreme

Court answered by saying:

This contention misinterprets Furman

Moreover, it ignores the role of the

Supreme Court of Georgia which reviews

each death sentence to determine wheth-

er it is proportional to other sentences

imposed for similar crimes. Since the

proportionality requirement on review is

intended to prevent caprice in the deci-

sion to inflict the penalty, the isolated

5. The questions are these:

ql) whether the conduct of the defendant

that caused the death of the deceased was

_ committed deliberately and with the reasona-

ble expectation that the death of the de-

ceased or another would result;

A33

decision of a jury to afford mercy does

not render unconstitutional death sen-

tences imposed on defendants who were

sentenced under a system that does not

create a substantial risk of arbitrariness

or caprice.

428 U.S. at 203, 96 sc at 2939 (emphasis

supplied). In answering defendant's con-

tention that there were other discretionary

decisions which could be. made in the pro-

cessing of a murder case Which would result

in some candidates for the death penalty

actually escaping it, the Supreme Court

said: ©

Nothing in any’ pf our cases suggests

that the decision to afford an individual

defendant mercy violates the Constitu-

tion. Furman held only that, in order to

minimize the risk that the death penalty

would be imposed on a capriciously select-

ed Voc of offenders, the decision to

impose it had to be guided by standards

so that the sentencing authority would

focus on the particularized circumstances

of the crime and the defendant.

423 US. at 199, 96 S.Ct. at 2937, Mr.

Justice White, joined by the Chief Justice

and Mr. Justice Rehnquist, said in a concur-

ring opinion in Gregg:

The Georgia Legislature has plainly made

an effort to guide the jury in the exercise

of its discretion, while at the same time

permitting the jury to dispense mercy on

the basis of factors too intangible to

write into a stafute, and I cannot accept

the naked assertion that the effort is

bound to fail.

428 US. at 222, 96 S.Ct. at 2947 (emphasis

supplied).

Finally, in Jurek v. Texas, supra, 428 US.

262, 96 S.Ct. 2950, 49 L.Ed.2d 929, the Su-

preme Court considered a Texas statute

which required the jury to impose the death

sentence if it answered three questions af-

firmatively.$ The attack made on the! Tex-

(2) whether there is a probability that the.

defendant would commit criminal acts of vio-

lence that would consiitut® a continuing

threat to society; and

« (3) if raised by the evidence, whether the

conduct of the defendant in killing the ce-

j

236 N.C. :

“as statute was that it created a mandatory

death penalty in violation of the principles

‘laid down in Woodson v. North Carolina,

supra, 428 U.S. 280, 96 S.Ct. 2978, 49

L.Ed.2d. 944, and Roberts v. Louisiana, su-

pra, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d

974. The Supreme Court struggled with

this question because the Texas statute ap-

peared to have no provision for the jury to

consider mitigating circumstances. “Thus,”

the Court said, “the constitutionality of the

Texas procedure turns on whether the enu-

merated questions allow consideration of

particularized mitigating factors.” 428

U.S. at 272, 96 S.Ct. at 2956. The Court

concluded that the jury’s consideration of

mitigating circumstances, under the inter-

pretation given the second question by the

Texas Court of Criminal Appeals, was en-

compassed in its decision on that question.

See supra note 5. Therefore, the Court

concluded that the statute was not subject

to the “mandatory death sentence” attack.

Apparently under the ratfonale of Jurek,

the majority's interpretation of our statute

would pass constitutional muster. But Iam

satisfied that the interpretation for which ]

argue is more solidly supported in the deci-

sions of the United States Supreme Court;

" whereas the majority's view, which could be

supported only by Jurek, is at least consti-

tutionally suspect.

Assuming that we are free under the

United States Constitution to opt for either

interpretation, we should adopt the one

which most nearly comports with the legis-

lature’s intent as that intent is revealed in

the plain words of the statute. The legisla-

ture has developed a statutory scheme de-

signed to accommodate the twin “goals of

measured, consistent application and fair-

ness to the accused.” Eddings v. Oklahoma,

—— US. --—--, ——--, 102 S.Ct. 869, 874, 71

L.Ed.2d 1, 8 (1982). In Goodman, supra, 298

N.C. 1, 257 S.E.2d 569, we held that instruc-

etions which, in effect, explained to the jury

that it could ignore the procedure devised

ceased was unreasonable in response to the

provocation, if any, by the deceased.

See 428 U.S. at 269, 96 S.Ct. at 2955 (quoting

Tex.Code Crim.Proc., art. 37.071(b) (Supp.

1975-76)).

A34

“292 SOUTH EASTERN REPORTER, 2d SERIES |

by the legislature were Le authorized by

our statute and would be contrary to the

Furman standards. Likewise, instructions

that tell the jury’ they must impose the

death penalty if they answer certain ques-

tions affirmatively and unanimously are not

authorized by our statute and fail to give

appropriate weight to inarticulable, intangi-

ble “[njuances of character and circum-

stances.” State v. Goodman,: supra, 298

N.C. at 34, 257 S.F.2¢ at 590,

Our statute, like the Supreme Court said

of its decision in Lockett “is the product of

a considerable history ‘reflecting the law's

effort to develop a system of capital punish-

ment at once consistent and ‘principled but

also humane and sensible to the uniqueness

of the individual.” Eddings v. Oklahorna,

supra, ~~~ U.S. at —~—, 102 S.Ct. at 874, 71

L.Fd.2d at 8, Both the instructions disap.

proved in Goodman and those given in the

instant case upset the statute's fine ‘ly tuned

balance between consisteri¢y and sensibility

to the uniqueness of an individual. The

instruction sought’ by the defendant in

Goodman tilts too much in favor of individ-

ualized consideration at the expense of con-

sistency; whereas the ‘instruction given

here tilts too much in favor of consistency

at the-expense of individualized considera-

tion.

The instruction most in keeping with the

legislative design and Which ought to be

given in all cases is that recommended by

the Superior Court Judges’ Pattern Jury

Instruction Committee in May 1979. In

that instruction jury members are told that

if they answer the crucial issues affirma-

tively and unanimously, “you may, although

you need not, recommend that the defend-

ant be sentenced to death.” N.C.P.1.Crim.

150.10 at 4,

¢

II.

At least two jurors were excluded for

cause in the instant case in violation of the

6. Lockett v. Ohio, 438 U.S, 586, 604, 98 S.Ct.

2954, 2964, 57 L.Ed 2d 973-(1978) (plusality

opinion).

a

STATE v. PINCH

Cite as, N.C., 292 $6.24 203

‘limitations imposed by Witherspoon v. Illi-

nois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed'2d

776 (1968), an opinion by Mr. Justice Stew?

art. Some particularly pertinent language

of this landmark case bears repeating, 391

USS. at 519-23, 88 S.Ct. at 1775-77:

ishment can do little more

‘tion of life or death.

A man wuo opposes the death penalty,

no less than one who favors it, can make

the discretionary judgment entrusted to

him by the State and can thus obey the

oath he takes as a juror. Buta jury from

which all such men have been excluded

cannot perform the task demanded of

i. anh [A] jury that must choose: be-

tween life imprisonment and ¢ apital pun-

and must do

nothing less—-than express the conscience

of the community on the ultimate ques-

[A] jury com-

posed exclusively of ... . people {who be-

lieve in the death penalty) cannot speak

for the community. Culled of all who

harbor doubts about the wisdom of capi-

tal punishment--of all who would be re-

luctant to pronounce the extreme penal-

ty--such a jury can speak only for [those

who believe in the death penalty).

If the State had excluded only those

prospective jurors who stated in advance

of trial that they would not even consider

returning a verdict cf death, it could ar-

- gue that the resulting jury was simply

‘neutral’ Wiin respect to penalty. But

when it swept from the jury all who

expressed conscientious or religious scru-

ples against capital punishment and all

who opposed it in principle, the State

crossed the line cf neutrality, In its

quest for a jury capable of imposing the

death penalty, the State produced a jury

uncommonly willing to condemn a man to

die.

Specifically, we hold that a sentence of

death cannot be carried out if the jury

that imposed or recommended it was cho-

sen by excluding veniremen for cause

simply because they voiced general objec-

tions to the death penalty or expressed

conscientious or religious scruples against

its infliction. No defendant can constitu-

tionally be put to death atthe hands of a

tribunal so selected,

N. C. 237

To execute (such! a] death sentence would

deprive him of his life without due proc-

ess of law. (Footnotes omitted.] [Em-

phasis supplied. ), '

Furthermore, id. at "522- 23h n. 21, 88 S. Ct. at

1771 n. 21, ;

a prospective juror cannot be expected to

say in advance! of trial whe ther he would

in fact vote for the extreme penalty in

the case before him. The most that can

be demanded of a venireman in this re-

gard is that he be willing to consider all

of the penalties provided by state law,

and that he not be irrevocably committed,

before the trial has begun, to vote

against the penalty of death regardless of

the facts and circumstances that might

emerge in the course of the proceedings.

If the voir dire testimony i in @ given case

indicates that veniremen were excluded

on any broader basis’ than this, the death

sentence cannot be carried out .

We repeat, however, that nothing we

say today bears upon the powér of a

State to execute a defendant sentenced to

death by a jury from which the only

veniremen who were in fact excluded for

cause were those who made unmistakably

clear (1) that‘they would automatically

vote against the imposition of capital

punishment without regard to.any evi-

dence that might ‘be developed at the

trial of the case before them, or (2) that

their attitude toward the death penalty

would prevent them from making an im-

partial decision as to the defendant's

guilt. [Emphasis original.)

The test applicable to this case then, un-

der Witherspoon, for excuses for cause on

death penalty opposition grounds is that, the

prospective juror must make.it “unmistak-

ably clear” that he or she would “automati-

cally” vote against the death penalty “with.

out regard to any evidence that might, be

developed at the trial of the case.” A j juror

who has scruples, or reservations, or whio is”

even opposed to capital punishment, but

who is not “irrevocably committed, before

’

A35

238 N.C.

the trial has begun, to vote against {it}

regardless of the facts and circumstances”

that might be drought out at trial, may not

-be excused for cause. Neither may a juror

who states merely that he or she has “‘a

fixed opinion. ‘against’ capital punishment”

or that he or*she does not “ ‘believe in’

capital punishment” be excused for cause,

because such juror may yet “be perfectly

able as a juror to abide by exisung law--to

follow conscientiously the instructions of a

tria! judge and to consider fairly the imposi-

tion of the death sentence in a. particular

case.” Boulden v. Holman, 394 U.S. 478,

483-34, 69 S.Ct. 1138, 1141-42, 22 L.Fd.2d

433 (1969). Jurokts may be excused for

cause, however, if their opposition to the

death penalty is so strong that th ey cannot

take an oath to “follow the law” in trying

the case. Lockett v. Ohio, 438 U.S. 586,

595-96; 98 S.Ct. 2954, 2959-60, 57 L.Ed.2d

973 (1978) (plurality opinion).

The United States Supreme Court's latest

decision applying Witherspoon is Adams v.

Texas, 448 US. 38, 100 S.Ct. 2521, 65

L.Ed.2d $81 (1980). In Adams the Court

made it clear that Witherspoon must be

followed even under post-Furman guided

discretion capital sentencing procedures.

Adams held that because of Witherspoon

limitations jurors may not be excured for

cause on the ground that their opposition to

the death penalty might “affect” their de-

liberations on issues of fact which might

arise in the case? The Court said, 448 US.

at 46-47:

[A] Texas juror’s views about the death

penalty might influence the manner in

which he performs his role but without

exceeding the ‘guided jury discretion,’ 577

§.W.2d, [717] at 730, permitted him under

Texas law. In such circumstances, he

- could not be excluded consistently with

Witherspoon.

«It said, further, 448 US. at 49-50, 100 S.Ct.

at 2528-29, that jurors were improperly ex-

cluded

who stated that they would be ‘affected’

by the possibility of the death penalty,

but who apparently meant only that the

7. See supra note § and accompanying text.

A36

292 SOUTH EASTERN REPORTER, 2d shies

potentially lethal consequences of their

decision would invest; their deliberations

with greater seriousness and gravity or

would involve them emotionally. Others

were excluded only because they were

unable positively to state whether or not

their deliberations would in any way be

‘affected! But neither, nervousness, emo-

tional involvement, nor inability to deny

or confirm any effect whatsvever is

equivalent to an unwillingness or an ina-

bility on the part of the jurors to follow

the court’s instructions and obey their

oaths, regardless of their feelings alout

the death penalty. The grounds for ex-

cluding these jurors were consequently

insyfficient under the Sixth and Four-

teenth Amendments. Nor in our view

would the Constitution permit the exclu-

sion of jurors from the penalty phase of a

Texas murder trial if they aver that they

will honestly find the facts and answer

the questions in the affirmative if they

are convinced beyond reasonable doubt,

but not otherwisé, yet who frankly con-

cede that the prospects of the death pen-

alty may affect what their honest judg-

ment of the facts will be or what they

may deem to be a reasonable doubt.

Such assessments and judgments by jur-

ors are , inherent in the jury system, and

to exclude all yorers who would be in the

slightest way’ affected by the prospect of

the death penalty or by their views alout

such a penalty would be to deprive the

defendant of the im; vartial jury to which

he or she” is, entitled under’ the law.

If only one j for is excused for cause, in

violation of Witherspoon limitations, a sen-

tence of death cannot stand. Davis v. Geor-

gia, 429 U.S. 122, 97:S.Ct. 399, 530 L.F4.2d

339 (1976) (per curiam). The Davis Court

noted, 429 U.S. at 123, 97 S.Ct. at 399:

Unless a venirgman is ‘irrevocably com-

mitted, before the trial has begun, to vote

against the penalty of death regardless of

the facts and circumstances that imight

emerge in the course of the proceedings,’

391 U.S. at 522 n. 21 (88 S.Ct. at 1777 n.

21), he cannot be excluded; if a venire-

STATE v. PINCH

er me re 7

N.C. 239

Cite as, N.C, 292 $.£.24 203

, man is improperly excluded even though

not so committed, any subsequently im-

posed death penalty cannot stand.

This Court held in State v. Bernard, 288

N.C. 321, 325, 218 S.E.2d 327, 330 (1975),

that a juror could not. be excused merely

because “he thought he would automatical-

ly vote against the imposition of the death

penalty regardless of the evidence.” (Em-

phasis original.)

Finally, the meaning of the voir dire col-

loquy is that which would be given it by the

prospective juror rather than one trained in

the law. “The critical question, of course; is

not how the phrases employed in this area

have been construed by courts and commen-

tators. What matters is how they might be

understood—or misunderstood --by prospec.

tive jurors.” Witherspoon v. Illinois, supra,

391 US. at 515-16 n. 9, $8 S.Ct. at 1773 0. 9

(qu ted with approval in Poulden A Hol-

man, supra, 394 U.S. at 481-82, 89 S.Ct. at

1149),

Turning now to the challenges for cause

here under attack, I am satisfied that pro-

spective juror Mary Neal was excused for

cause on broader grounds than Witherspoon

permits. Neal, after an extended colloquy

with the prosecutor, never expressed any

categorical opposition to the death penalty.

She simply said that she would have to be

absolutely certain of a defendant’s guilt

before she could vote to impose it. That

portion of the colloquy which accurately

reflects her attitude is the following:

Q. Do you have any objection to the

death penalty?

A. Well, that’s a hard question to an-

swer.

Q. Yes, ma‘am.

A. I've never been able to answer it

like a cut dried thing. It’s hard for me,

very hard for me to make decisions, I've

“never been able to make decisions very

. well. I had someone to help me, but I'm

hard to convince too. I almost have to

sce something before I could really say

so. That's the only way I know to an-

swer you. ‘

A37

Q. Let me ask that question a differ:

ent way, Mrs. Neal, if you're a member of

this jury and we get to the second part of

the trial, that means you've already

found him guilty of murder in the first

degree in one or both cases, based on the

evidence in this case, what happened in

this case and based on the law that Judye

Walker gives to you, as he tells"you the

law, if you deem it to be appropriate,

could you impose the death penalty?

A. 1 don’t think so, I really don’t be-

lieve so,

Q. I understand this is-a tough area,

but we have to inquire about this now

and everyone is entitled to their own

opinion, Are you saying, ma'am, that

you could not and you would not vote to

impose the death penalty in this case,

regardless of the evidence?

A. 1 don't know. I guess if it was

proven to me, I guess J could.

Q. If what was proven to you?

A. 1 would have to be—I would have

to absolute know for sure, I mean no

doubt whatsoever,

\

Q. Asa juror, can you envision a situ-

ation where you would impose the death

penalty, you're not going to be an eyewit-

ness, you're going to have to act on what

other people tell you they saw or heard

A. Okay, already proven guilty-—if |

went along with the guilty part, if 1

decided they were guilty.-no, I will not.

Q. You could not impose the death

penalty regardless of what the evidence

is?

A. IJ don’t believe so.

MR. WANNAMAKER: If your Honor

please, we challenge for cause.

THE COURT: I understand, Mrs.

Neal. I know this is very difficult for

you, but it’s necessary to have your can-

did and frank answers and I thank you

for them.

Do I understand that you,could not

even before you hear the testimony under

any circumstances, impose the death pen-

alty?

MARY D. NEAL: No, I just don’t

think so. * ;

240 N.C.

At most, Nal's attitude toward the death

penalty “affected” her deliberations on the

guilt phase of the case in the sense that she

would -have to be absolutely certain of de-

fendant’s guilt. “(PJrospects of the death

penalty may affect what [a juror's) honest

judgment of the facts will be or what {a

juror) may deem to be a reasonable doubt,”

Adams v. Texas, supra, 448 US. at 50, 100

S.Ct. at 2529, without the juror’s subjection

on that ground to a challenge for cause.

Neal never “

and didn't “think” she could vote for death

She never s tid, absolute] ‘, that she could or

would not. She should not have been ex.

cused for cause.

Prospective juror Frank Rogers said, “I

don't go for [the death penalty) too much"

and “I don't think much of the death penal-

ty.” He never said he was categorically

opposed to the death penalty. When asked

whether he could consider imposing the

death penalty, the fol! wing occurred:

A. I can consider, but as] say--

Q. You tell me you would consider it

but then you wouldn't do it, is that what

you are saying?

MR. HARRISON: Objection.

A. (By witness) I sdid I would lean

toward life imprisonment, if you want me

to tell the truth about it, that’s what I’m

doing. ry

At that point, the court intervened as fo}.

lows:

THE COURT: Mr. Juror, are you say-

ing that before you have heard any evi-

dence in this case, Mr. Rogers, if the

defendant should be found guilty of ei-

ther charge of murder in the first degree,

without hearing any evidence, that under

no circumstances would you return a vere

dict which would result in the imposition

of the death penalty?

MR. ROGERS: That is true.

Thus Rogers did not say that he could or

would not impose the death penalty or that

he would automatically vote for life impris-

A38

‘Ny

{

292 SOUTH EASTERN REPORTER, 2d SERIES ,

onment, regardless of evidence that might

be introduced at the trial. He said he could

not impose it under any circumstances

“without hearing any evidence,” Obvious-

ly, the learned trial judge was attempting

fo ask Rogers whether he could impose it

under any circumstances regardless of what

evidence adduced at trial might show, and

to one trained in the law that is what the

court’s question might mean, To Rogers, a

layman, the question could mean no more

than what the words actually used by the

trial judge would ordinarily convey. Pog.

er's position, then, was simply that he could

hot impose the death px nalty until he at

least had heard some evidence in the case,

The thrust of the entire colloquy seems to

be that, depending on what the « vidence

adduced tended to show, Re gers could con-

sider the death penalty, that he tended to.

9

favor life imprisonment, but that he would

not convince himself on way or the other

without hearing some evidence’ Royers

should not have heen excused for Cause,

I.

The majority concludes that the trial

court did not err in refusing to submit both

in his instructions and on the written list

defendant's “relatively low mentality” as a

mitigating circumstance because there was

no evidence to suppgrt it and; even if there

had been supporting evidence, the error

could not have been prejudicial. As the

majority correctly notes, a defendant's low

mentality, if it exists, is “properly con-

sidered ‘in mitigation of a capital felony.”

I cannot agree with the majority that the

evidence does not ‘support defendart's “rel.

atively low mentality” mitigating cireum-

stance, Defendabt's psychiatric witness,

Dr. Billy Royal, testified that defendant

scored 66 on an intelligence test; but, he

said, “(we felt that his other tests indicated

that his 1.Q. was probably a little higher

than that and fell at least into the low-nor-

mal range of intelligence.” ‘Apparently the

majority concludes that any intelligence

quotient which is within a “nor:nal range"

cannot be considered by a jury in a capital

case unless it is proffered by the defendant

STATE v. PINCH

N.C. PAIL

Cite as, N.C., 292 S.£.24 203

73 ah absolute score-on an intelligence test.

The majority conciudes that if it is prof-

fered under the label “relatively low men:

tality,” rather than as a‘raw score, it may

not be considered.

I simply cannot subscribe to, nor do I

really understand, the distinction drawn by

the majority. Any kind of’ absolute score

on an intelligence test, in order to be mean-

ingful to a lay jury or for that matter to

lawyers and judges, needs explanatioh by

competent expert testimony. The testimo-

ny in this case was that defendant's intelli-

gence was in the “low-normal range.” De-

fendant asked that his “re! latively low men-

tality” be submitted as a miti igati ing circum-

stance. The evidence supports that he did

have a “relatively low mentality.” It

should be for the jury to assess this quality

in terms of its mitigating effect. It is not

for the court to say that the jury could not,

as a matter of law, consider a person's

“relatively low mentality” as a mitigating

circumstance because the mentality is with-

in the outer limits of “normal.” To me, the

phrase “relatively low mentality” accords

—" with the evidence which Was intro-

the lee aa range pea perforce have a

relatively low mentality. Contrary to the

majority's conclusion, the terms are synony-

. mous,

Neither on this record am I able to say

that not permitting the jury to consider this

mitigating circumstance was harmless be-

yond a reasonable doubt. Not to permit a

jury to consider any relevant mitigating

circumstance is an error of constitutional

“dimensions Eddings v. Oklahoma, supra,

— US. -, 102 S.Ct. 869, 71 L.F4.2d4 1;

Lockett v. Ohio, supra, 438 U.S. 586, 98

S.Ct. 2954, 57 L.Ed.2d 973. Before we can

deem such an error harmless, we must be

satisfied “that it was harmless beyond a

reasonable doubt.” Chapman v. California,

, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d

705 (1967); G.S. 15A-1443(b). The burden

is upon the state to so demonstrate. Id.

Of the ten mitigating circumstances sub-

mitted, we know from the record only that

the jury found “one or more.” We do not

292 St26-4 ;

A39

know how many beyond one it found. It is

possible that the jury found only one miti-

gating circumstance to exist out of the list

of ten. If it did, the failure to submit an

additional ‘mitigating circumstance which

should have been submitted and which the

jury could have found to exist might well

have made a difference in the jury's ulti-

mate recommendation. .At least I cannot

say beyond a reasonable doubt that it would

not have made a difference.

‘The United States Supreme Court has

recently recognized that a youthful defend-

ant’s mental development is a significant

mitigating circumstance. Eddings v. Okla-

homa, supra, was a capital case in which,

under Oklahoma procedure, the sentencing

decision was made bythe trial judge. The

judge, after hearing evidence, found all of

three alleged aggravati metances to

exist beyond a reasonable doubt. He also

found that the youth uf the defendant (age

sixteen) was a mitigating circumstance “of

great weight.” The trial judge, however,

did. not believe he could consider “the fact

of this young man's violent background.”

Id. at , 102 S.Ct. at 873, 71 L.Ed.2d at 7

(emphasis original). For failure of the trial

judge to consider this additional mitigating

circumstance, the United States Supreme

Court set aside the death penalty and re-

manded for further proceedings. The

Court said, id. at , 102 S.Ct. at 877, 71

L.Fd.2d at 12:

{JJust as the chronological age of a minor

is itself a relevant mitigating factor of

great weight, so must the background

and mental and emotional development

of a youthful defendant be duly con-

sidered in sentencing.

plied.) -: ’

In the case at bar the trial judge's refusal

to submit and instruct on defendant's “rela-

tively low mentality” as a “mitigating cir-

cumstance deprived the defendant of his

right to have the jury consider his “mental.

development.” The error was ‘not

cured by submitting to the jury. the catchall

language of the tenth mitigating circume-

stance when it was unaccompanied by any

specific instruction relating to the particu-

:

ng circu

(Emphasis sup-

242 N.C.

lar circumstance of defendant's low mental-

ity. has ;

For the foregoing reasons, | vote to var

cate the death sentence imposed in this case

and to remand for a new sentencing hear-

ing. 1 concur'in the majority's conclusion

that there was no prejudicial error in the

jruilt phase of the case,

Vv.

This is yet another in a growing number

of cases in which a majority of the Court

has affirmed the death penalty and in con-

ducting its statutorily mandated “propor:

tionality review” of the death sei.ence has

failed toa advise the bar of the manner in

which it conducts such a review, The ma-

jority, unlike courts in other jurisdictions

which have statutes similar to ours, has yet

to toll the har whether its review is based

on comparisons with those cases in which

the death sentence was imposed at trial and

affirmed on appeal, or with those cases in

whieh the jury could have recommended the

death penalty but instead recommended life

imprisonment and which have been re-

viewed on appeal, or with cases from some

other kind of pool, It.is time for the major-

ity to deefare itself on this important ques-

‘ion, and | urge it to use as a pool for

comparison purpoms all cases tried under

the new death penalty statute, whether the

jury recommended death or life imprison-

ment and which have been reviewed on

appeal by this Court,

The statute, GS, 15 -2000(d) 2), requires

us to impose a life sentence if we find that

a death sentence imposed by the trial court

"is excessive or disproportionate to the pen-

alty imposed in similar cases, considering

both the crime and the defendant.” This

language is identical to language in Geor-

ya's death penalty statute, See GaCode

,Annot. § 27-2597(¢X3) (1978), The Georgia

Supreme Court looks to all appealed murder

cases, whatever the sentence imposed, in

making its comparisons, Ross v, State, 233

8. The Georgia Supreme Court also noted “that

nothing in the statute forecloses this court dur-

ing the course of its independent review from

examining non-appealed cases and cares in

A4O0

292 SOUTH EASTERN REPORTER, 2d SERIES

Ga. 361, 365-66, 211 S.E.2d 356, 359°(1974),

cert. denied, 428 U.S, 910, 96 S.Ct, 8222, 49

L.Fd.24 1217 (1976) In sustaining the

Georgia death penalty statute, the United

States Supreme Court relied on the Georgia

Supreme Court's proportionality review

safeguard, -Of it, the United States Su-

preme Court said in Gregg v. Georgia, su-

pra, 423 US, at 206, 96 S.Ct, at 2940;

In particular, the proportionality review

substantially eliminates the possibility

that a person will be sentenced to die by

the action of an aberrant jury, Ifa time

comes when junes generally do not im-

pose the death sertence in a certain kind

of murder case, the appellate review pro

cedures assure that no defendant convict.

ed under such circumstances will suffer a

sentence of death, (Emphasis supplied.|

The Florida Supreme Court in conducting

its proportionality review also compares all

appealed murder cases, including those

where a sentence less than death was im

posed, It has concluded that ignoring life

sentences imposed in factually similar cases

would make its review procedure constitu.

tionally defective, MeCaskill v, State, 344

So 2d 1276 (Fla.1977) (per curiam)

The plain words of our statute require

that we compare the case before us not only

with similar cases in which the death penal

ty has been imposed but with similar cases

in which the jury was permitted to consider

it but decided instead to recommend life

imprisonment, The basic purpose of pro

portionality review is to make sure that the

death sentence in the case before us is not

“excessive” to sentences “imposed in similar

cases.” If we look for comparison only to

cases in which the death penalty has been

imposed, the sentence in the case under

review could never be excessive because one

death sentence never “exceeds” another, It

is only by comparing the case being re-

viewed in which a death sentence was im-

posed with other similar cases in which life

was imposed that we can determine wheth-

offense.” Ross v. St#te, supra, 233 Ga. as MP

which the defendant apn guilty tow le ses

211 S.E.2d at 359,

STATE v. WILLIAMS

N.C. 243

Cite as, N.C, 292 S..24 243

‘er the death penalty in the case being re-

viewed is really excessive to the penalty

being imposed in similar cases. For, to

reiterate what the Supreme Court said in

Gregg v. Georgia, supra, if there are certain

kinds of murder cases in which our juries

are generally not: recommending death,

then an occasional death sentence imposed

in those kinds of cases ought to be set aside

by this Court?

We ought not limit ourselves only to

eases where the death sentence was im-

posed and affirmed, To do so means that

ask whether the case

is a8 bad as the other de:

nded us

but also to determ

under review

erving of the death per

} f ne } }

Ases im Ww rh lige envence ave Peer in

under revie Ww

The

we only

mes

mination

her the «¢

whet ase ig more

alty than similis

$y od The tatute s pin mh iA

huires that we p

ne Of the

wo, the latter is the more

meaningful and is probably constitutionally

required

Further, by using only other death sen-

tence cases affirmed on appeal, the Court

limits the pool er CASOS

noe the eff

rept

seve rely

available

for comparison, Sir

i etive date of

our capital punish tute, 7 June 1977,

there have been only six such cases

ment stat

See

State v. Taylor, 304 N.C, 249, 283 SF 2d 761

(1981); State v, Rook, supra, 304 N.C, 20),

4103 N.C. 82)

2; State v. Hutchins, supra,

279 S.F.2d 788: State v. Mar-

tin, 303 N.C, 246, 278 S.F.2d 214, cert. de-

nied, US , 102 S.Ct 431, 70

lL. F.2d 240 (1981); State v. McDowell, $01

N.C, 279, 271 8. F.2d 226 ( 1980). cert, denied,

450 U.S, 1025, 101 §.Ct. 1731, 68 L.Bd.2d 22

(1981); State v. Barfield, 298 N.C, 306, 259

S.F.2d 510 (1979), cert de nied, 448 U.S, 907,

100 § Ct. 3050, 65 L.Bad.2d 1137 (1980), The

statute requires that we compare factually

“similar” cases, Similar cases for compari-

9 In my dissenting opinion in State v. Rook,

supra, 304 NC. at 245 46, 283 SF 2d at 758

59, | pointed out that rarely do juries in this

state impose the death penalty in cases where a

defendant was found to have been under the

influence of a mental or emotional disturbance

or whose capacity to appreciate the criminality

A4l

SON purposes are simply not present in such

a small sampling. The Court should want

to expand, rather than restrict, the pool of

cases so that truly similar cases will be

more quickly available and we can bey in to

make the comparisons which the statute

requires, 4

» The bar is entitled to know upon what

basis we are conducting the proportionality

review mandated by the statute, Defend

ant Pinch has expressly and reasonat y re.

quested that we provide this knowledye

We should grant the request, We should

not continue to keep the manner in which

wet perform this ity shrouded in: yotery

Sar.

( fatre wees)

‘iy ow ow

STATE of North Carolina

vy,

Larry Darnell WILLIAMS,

No, TOAR8},

Supreme Court of North Carolina

June 2, 1982

Defendant was convicted before the

Superior Court, Gaston County, Frank W

Snepp, Je., J., of first-degree murder under

the rh dtepaped re !

The de

Supr eme Co irt,

and was sentences

to death endant appealed lhe

snide J., held that ))

record clearly supported jury's guilty ver-

dict and its finding of the ayyravated cir.

cumstance upon which sentencing court

based its sentence of death, and (2) sentence

of death was not excessive or disproportion.

ate to pe nalty imposed itr. similar cise,

considering both crime and defendant

of his conduct of to conform his conduct ve

was impaired, | supgested+that this ¢

should be slow to affirm death penalties in

which either of these mitigating circumstances

was found to exist because the penalty no

well be excessive to the penalty imposed gener:

ally by juries in these kinds of cases

JUDGMENT

SUPREME COURT OF NORTH CAROLINA

FKEKMX 19.81...

STATE_OF NORTH. CAROLINA.

v8.

Pe acat cece _‘webetihinenhichaiogs .Guilford...........County.

MICHAEL_ EDWARD. PINCH

This cause came on to be argued upon the transcript of the record from the Superior Court Guilford County:

Upon consideration whereof, this Court is of opinion that there is...~q—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 del*vered by the

Honorable 11. WILLIAM COPELAND, @ssociate . Justice, be certified to the said Superior Court, to the intent that trex

PROCEEDINGS BE HAD THEREIN IN. SATD CAUSE ACCORDING TO LAW AS DECLARED. IN SAID OPINION _

ee

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

the costs of the appeal in this Court incurred, to wit, the sum of

# #* £ONE-HUNDRED FORTY-EIGHT AND 50/100**** dollars ($.148.50._),

and execution issue therefor. Certified to Superior Court this —....29n day of prance L9G2....,

A TRUE COPY

CE ieboaaeee

Clerk of the Swpreme Court.

APPENDIX C

North Carolina Genera’? Statutes,

Chapter 15A, Article 100

Capital Punishment

(N.C. Gen. Stats. $§154-2000, 2001, 2002 and 2003)

§

THE GENERAL STATUTES OF NORTH CAROLINA

1981 CUMULATIVE SUPPLEMENT

Voluthe 1C

SUBCHAPTER XV. CAPITAL PUNISHMENT.

Arricte 100.

Capital Punishment.

15A-2000. Sentence of death or life imprisonment for cap-

ital felonies; further proceedings to determine

sentence,

(a) Separate Proceedings on Issue of Penalty.

Upon conviction or adjudication of guilt 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

leath.

The proceeding shall be conducted by the trial judge before the trial

jury as soon as practicable after the guilty verdict is returned. If prio:

to the time tha’ the trial jury begins its deliberations on the issue of

penalty, any juror dies, becomes incapacitated or disqualified, or is

Cl

‘e discharged for any reason, an alternate juror stall become a part of the

jury pi serve 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 pg after having determined the puilt of

the accused, the trial judge shall impanel a new jury to determine the

Ffthe defendant pleads guilty, the sentencing

proceeding shall be conducted before a jury impaneled for that

purpose. A jury selected for the purpose of determining punishment in

a capital case shall be selected in the Same manner as juries are

selected for the trial of capital cases,

Pall not be any requirement to resubmit

evidence presented during the guilt determination phase of 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 relevant to : entence,

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,

(4) The State and the defendant or his counsel shall be permitted

Present argument for or against sentence of death. The defendant or

cefendant’'s counsel shall te the right to the last ar vument

(b) Sentence Recommendation by the Jury, —~ Instructions . etermined 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 al!

*ases in which the death penalty may be authorized, the judge shall include in,

‘is instructions to the jury that it must consider any aggravating circumstance

\¢ Circumstances or mitigating circumstance or circumstances from the list:

Provided in subsections (e)and (Nf which may be supported by the evidence, and

Shall furnish to the jury a written list of issues relating to such aggravating

oF mitigating circumstance or circumstances

After hearing the evidence, argument of counsel, and instructions of

court, the jury shall deliberate and render a sentence recommendatio to

fourt, based upon the following matters:

(1) Whether any sufficient Apgravating circumstance or circumstdhees ac

enumerated in subsection (e) exist: P

(2) Whether any sufficient mitigating circumstance or circumstances as

enumerated in subsection (f), whic outweigh the aggravating circum.

Stance or circumstances found, exist; and

(3) Based on these considerations, whether the defendant should be sen.

tenced 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

ofthe jury, the jury shall be individually polled to establish whether each juror

foncurs and agrees to the sentence recommendation returned.

If the jury cannot, within a reasonable time, unanimously agree to its sen-

tence recommendation, the judge shall impose a sentence of fife Imprisonment;

Provided, however, that the judge shallin no instance impose the death penalty

when the jury cannot agree unanimously to its sentence recommendation,

(c) Findings in Support of Sentence of heath, -~ When the jury recommends

@ sentence of death. the foreman of the jury shall sign a writing on behalf of

the jury which writing shall show:

(1) The statutory ag avating circumstance or circumstances which the

jury finds beyond a reasonable doubt; and

(2) That the statutory aggravating circumstance or circumstances found

by the jury are sufficiently substantial to call for the imposition of the

death penalty; and,

the

oh

*

1e@

C2

Q? \

(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 review by the Supreme Court of North Carolina pursuant

to procedures estab ished by the Rules of Appellate Procedure. In its

review, the Supreme Court shall consider the punishment imposed as

well as any errors assigned on appeal.

(2) The sentence of death shall be overturned and a sentence of life impris-

onment imposed in lieu thereof by the Supreme Court upon a finding

that the record does not support the jury’s findings of any aggravatin

circumstance or circumstances upon which the sentencing court ‘ee,

its sentence of death, or upon a finding that the sentence of death was

imposed under the influence of passion, prejudice, or any other arbi-

trary factor, or upon a finding that the sentence of death is excessive

or disproportionate to the penalty imposed in similar cases, con.

sidering both the crime and the defendant. 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) Ifthe sentence of death and the judgment 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 con-

ducted in conformity with the procedures of this Article

fe) Aggravating Circumstances, Aggravating circumstances which may

be considered shall be limited to!the following:

(1) The capital felony was committed by a person lawfully incarcerated,

(2) The defendant had been previously convicted of another capital! felony

(3) The defendant had been previously convicted of a felony involving the

use or threat of violence to the person.

(4) The capital felony was committed for the purpose of avoiding or

preventing a lawful arrest or effecting an escape from custody

(5) 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 fhomicide, y}

robbery, rapefor a sex offense}‘arson, burglary, kidnapping, or aircraft

piracy or the unlawful throwing, placing, or discharging of a destruc.

tive device or bomb.

(6) The capital felony was committed for pecuniary gain.

(7) The capital felony was committed to disrupt or hinder the lawful exer.

cise of any governmental function or the enforcement of laws.

(8) The capital felony was committed against a law-enforcement officer,

employee of the Department of Correction, jailer, fireman, judge or

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 risk of death to more than

one person by means of a weepon 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 commission by the defendant of other crimes of violence against

another person or persons.)

—Yfiracketed portion added by a amendment of June 22, 1981, effective upon

ratification. 1981, Sess. Laws, c. 652.

2 Bracketed portion added by 1979 amendment, effective January 1, 1980.

1979 Sess. Laws, c. 682, ss. 9, 14. {

3 Bracketed portion added by amendment of May 14, 1979, effective upon

ratification. 1979 Sess. Laws, c. 565.

c3

' ' ¥

!

(f) Mitigating Circumstances, — Mitigating circumstances which may be

considered 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 of mental or emotional disturbance.

(3) The victim was a voluntary vepaler ne in the defendant’s homicidal

conduct or consented to the homicidal act.

(4) The defendant was an accomplice in or accessory to the capital felony

committed by another person and his participation was relatively

minor.

(5) The defendant acted under duress or under the domination of another

erson. ve

(6) The capacity of the defendant to appreciate the criminality of his con-

duct or to conform his conduct to the requirements of law was

impaired.

(7) The age of the defendant at the time of the crime.

(8) The defendant aided in the apprehension of another capital felon or

testified truthfully on behalf of the prosecution in another prosecution

of a felony.

(9) Any other circumstance’ arising from the evidence which the jury

deems to have mitigating value. (1977, ¢. 406, s. 2: 1979 c 565, 8 1,

¢. 682, s. 9; 1981, ¢. 652, s. 1.)

GENERAL STATUTES OF NORTH CAROLINA

1978 Replacement Volume 1C

§ 15A-2001. Capital offenses; plea of guilty. — Any person who has been

indicted for an offense punishable by death may enter a plea of guilty at any

time after his indictment, and the judge of the superior court having jurisdiction

may sentence such person to life imprisonment or to death pursuant to the

procedures of G.S. 15A-2000, Before sentencing the defendant, the presiding

judge shall impanel a jury for the limited purpose of hearing evidence and

termining a sentence recommendation as to the appropriate sentence pursuant

to GS. 154-2000. The jury's sentence recommendation in cases where the

€ : bd , » ce

d ant pleads guilty shall be determined under the same procedure of GS

154-2000 applicable to defendants who have been tried and found guilty by a

§ 15A-2002. Capital offenses; jury verdict and sentence. If the

recommendation of the jury is that the defendant be sentenced to death, the

judge shall impose a sentence of death in accordance with the provisions of

Chapter 15, Article 19 of the General] Statutes. If the recommendation of the

jury is that the defendant be imprisoned for life in the State’s prison, the judye

Shall impose a sentence of imprisonment for life in the State’s prison. (1977, c.

496, s. 2.)

§ 154-2003. Disability of trial judge. — In the event that the trial judge shall

become.disabled or unable to conduct the sentencing proceeding provided in this

Article, the Chief Justice shall designate a judge to conduct such proceeding.

(1977, ¢. 406, s. 2.)

C4

Voir Dire

Voir Dire

Testimony

Testimony

Excluded

port

Motion

Medi

Pro-Tr

Order

Testi

ons

to

cal

tal

|

‘

kxc

reaamination

Examination

of

of

APPENDIX D

erpts from

Trial

of Juror Neal

of Juror Rogers

Sherry Olivey

Louise Nj

lefendant's F

3 and 4

of

aon

xhibits 1,

Allow Witness Interview

Expert

Votion

Heard

(denving Motion)

hony

of

Dr.

Allen

ngs

Sher row

and

by

Rees rra

D1

D2

p4

D6

D9

VOIR DIKE EXAMINATION OF PROSPECTIVE JUROR MARKY D. NEAL:

Q. {Hv Mr.

Attorney] Now, at the

the trial, if the jury

first degree murder as

or aS to both of them,

the second part of the

tencing part. Now, at

Walker,

Wannamaker,

Assistant District

conelusion of the first part of

finds Michael Pinch guilty of

to either one of these killings

then we go at that point into

trial. That's called the sen-

that time, his Honor, Judge

will give the jurv further instructions with

regard to the applicable law and with regard to the

procedure you are

that you

death

so far?

two sentences

of are the

follow me

A. Yes, 1

WV. Deo

penalty?

you Nave

A. Well, that's

We Yes, ma'am,

A. I've never

dried Lhbing. tee

make decisions, I've

verv well, 1 had

convince too. !

could really sav

ANSwer VOUes

and

SO.

We

wav.

Let me

We

death

do vou?

First of all,

the penalty

or

As Well, there

hard to save 1

something done, 1

Just

Saw

W. Let

“Mrs. Neal,

to the second

already found

in one or both cases,

case, what happened in

ine ask

if vou're a

part of

that Judge Walker yives to vou,

law, if vou deem it to

the death penalty?

A. I] don't think

pennlty

anv

been

never

Someone

Almost

That's

ase vou

Benerally,

agnin, |

yuess

would

that

the

him yuddtyv

based

to follow in determining whieh one

of two possible sentences vou will

impose. Now, those

are to consider and impose one

and life imprisonment. Do von

think So,

objeetion to the death

hard question to answer,

able to answer it like a

hard for me, verv hard for to

been able to make decisions

to help me, but I'm hard to

have Lo something before 1

the only wav I know to

cut

me

sec

that question ina different

don't

is

you have anv objection to

that what vou're saving

reallv don't know.

if you knew for a faet,

mo along with it.

it’s

if |

question

member of

trial,

of murder in the

in an different way,

this jurv and we pet

that means vou've

first degree

on the evidence in this

this case and hased on the law

as he tells vou the

be appropriate, conld vou impose

so, 1 really don't believe so.

Dl -

ei \

). I understand this is a tough area, but we have

to inquire about this now and evervone is entitled to

their own opinton. Are you saving, matam, that vou

could not and you would not vote to impose the death

penalty in this case, regardless of the evidence,

A. I don't know. 1 guess if it was proven to me,

] guess I conld.

YW. If what was proven to you?

A. i would have to be «= TI would have to absolute-

ly know for sure, ! mean no coubt whatsoever.

We Now understand you would have already found

him puiltv of murder in the first degree or we would

not be al the sentencing phase, so his puill would

nave been established or vou would not have found him

muditv,. AL this point vou would be determining what

sentence to tmpose hased an the law that the Judge

Rives vou and based on the faets, based on what he did,

what vou've already found him to have done, At that

point, conld you impose the death penaltv if von found

it to be appropriate ad in accordance with the law

that the Court @ives vou or would vou not «= would vou

Simply nol impose the death oenalty under any

elireums tances? I have to Kind of keep after vou on

this point because it 18 crueial,.

A. I still don't know, I'd rather not.

U. You would rather not - CAN You envision a

Situation where vou could impose the death penalty?

A. Like I said, if | saw it happen.

0. You mean if vou were an evewitness to the

crime?

A. Night.

W. You are not going to he that.

A. That's right.

YW. As a juror, can vou envision an situation where

you would impose the death penalty, vou're not going to

be an evewitness, vou're going to have to act on what

Other people tell vou thev saw or heard.

Rs Okav, wlready proven wuiltv «- if IT went along

with the guilty part, if I decided they were guilty --

no, | will not.

YQ. You could not impose the death penalty

reyardless of wiat the evidence is?

A. l don't believe so.

MH. WANNAMAKEK: If vour Honor please, we challenge

for cause.

Tre COURT: 1 understand, Mrs. Neal. I know this

is very difficult for vou but it's necessarv to have

your candid and frank answers and I thank vou for them,

VolK

Do I understand that vou could not even before von

hear the testimony under any circumstances, impose the

death penalty?

MARY D,. NEAL: No, I just don't think se,

THE COURT; All right, that is a challenge for

cause.

EXCEPTION NO, 17, Woh 9-102,

DIRE RXAMINATION OF PROSPECTIVE JUHOK FRANK JI, ROGERS:

W. [Mv Mr. Wannamaker, Assistant District

Attorney ] Now, let me talk to von a little bit ahout

the law in this ease and tell vou a few rules of law for

the purpose of being able to ask vou a few specifie

questions that are necessary to be asked in this par-

Licular case. Tam going to repeat some of what Judge

Walker said to you for the putpose of framing these

questions. Firstly, a8 he indicated, the procedure for

trving a first degree murder case in North Carolina is a

{wo phase or a bifurcated trial. The first thing we do

after we select this Jurv 38 we trv the issue of whether

or not Michael Pineh is yurltly or not. The sole thing

for the jurv's consideration 18, 18 “iehael VPineh gualey

of first degree murder or is he @uiltv of some lesser

erime that the Court may instruet vou on, or is he not

muiltyv.

Now, if the jurv renders a verdict of guilty of

murder in the first degree, we then go to the second

phase of the trial and onlv if the jurv reaenes that

verdict. The second pnase of the trial is. known as the

puntshment or sentencing phase. At that point, the jurv

and at will be the same jurv unless something transpires

that omkes that jurv.unable to, the jurv will receive

additional instrnuetions from the Judge, Judge Walker,

will hear additionally from the laywers in the case and

probably hear additional evidence, Atl that time, if the

State establishes that there is an ageravating

circumstance, the jurv's dutv will he to consider the

Imposition of one out of two possible sentences, that

iS, the death penalty and life imprisonment.

Now, having said all of that, if von are selected

4s ao member of this jurv and assuming that the jury

returns a verdict of murder in the first degree, guilty,

and we yet to the second phase, can you consider the

imposition of both the death penalty as well as life

imprisonment?

A. That death penalty, I don't go for that too

much.

Q. Okav, let me go at it a different wav. Do von

have any religious, moral, ethical or anv beliefs

opposed to the imposition of the death penalty?

A. Not really, except mv own convictions.

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\

Q. I'm asking vou now for your opinion and your

convictions?

A. I sav I don't think much of the death penalty.

Q. Okay. Let me go back and try it again. The

law is that if the jury returns a verdict of first

degree murder, and during a sentencing phase the State,

me, esiablishes that there are aggravating circumstances

as the Court will explain in his instructions as a

matter of law as to what those are, then it is the

jury's duty, sworn duty, to consider both. Now, after

considering both you render the verdict that you and the

other jurors deem appropriate, but vour duty is to eon-

sider imposing both. Can you do that?

A. l can consider, but as IT sav --

0. You tell me vou would consider it) but) then vou

wouldn't do it, is that what vou are saving?

MH. HAKHISON: Objection.

A. (Hy witness) | said | would lean toward life

imprisonment, if you want me to tell the truth about it,

that's what I'm doing.

YQ. Yes, Sir, I certainly do and | appreciate it

and this i8 a difficult thing to ask.

THE COUKT: Let we ask him,

MK, WANNAMAKEH: Yes, Sir.

THE COUXT: Mr. Juror, are vou saying that before

you have heard any evidence in this case, Mr. Rogers, if

the defendant should be found guilty of either charge of

murder in the first degree, without hearing any

evidence, that under no circumstances would vou return a

verdict which would result in the imposition of the

death penalty?

MK. NOGEHS: That is true.

THE COURT: Challenge for cause allowed,

EXCEPTION NO. 7

Mii, WANNAMAKER: That's mv line, ves, | would

challenge him for cause. Kpp. 66-68.

TESTIMONY OF SHEHKY OLIVEY:

While Michael was living with us I observed

him using drugs and alcohol. 1 observed him using

MDA, drinking beer, liquor, quaaludes, valium,

crank. 1 can honestly say that he drank or, took

something every day that I've known him. that

includes aleohol. I did not see him offer anv

violence to anvone, or threaten anvone. Michael

was nol a social drinker. He alwavs went to the.

‘max on evervihing to where he couldn't walk anymore

or was passed out. I have seen him when he has

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gone too far in the use of alcohol or the use of

drugs. 1 have seen him take alcohol or drugs to

the point where he is unconscious or in some state

like that.

Q. Can you relate any occasion?

A. Yes. We were over at a friend's house

one Sunday afternoon --

MR, WANNAMAKER: Excuse me a minute. I'm

potng to object to that.

THE COURT: Objection sustained,

EXCEPTION NO 128

Oo. Do you have anv eA acar on any

occasion, where he’ took an overdose of drugs?

A. Yes I have.

MR, WANNAMAKER: Objection.

W. During the period of time that he -- what

period of time did he live with you?

A. Latter part of summer of 1978 Lill about

the middie of summer of 1979.

W. During this time, did vou -«- do you have

anv knowledge of any overdose of drugs --

Mie WANNAMAKER: Objection.

THE COUKT: Well, just a minute. Objection

sustnrined.

EXCEPTION NO, 329

0. In the month of January 1979 ~«- excuse

me, Strike that. In the month of January, 1980,

did you have ocension to visit Michael Pinch in the

hospital? |

MK. WANNAMAKPR: Objection.

THE COURT: Well, overruled.

MK. WANNAMAKER: Three months after the crime,

THE COUKT: Overruled as to that question.

A. Yes, I did.

Y. Which hospital?

A. Cone Hospital.

Q. And -- and did vou have occasion to talk

to Mr. Pinch?

A. He wasn't able to talk. He was itn <--

MK. WANNAMAKEK: Objection, if your Honor

please. Votion to strike all of that.

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O <

THE COURT: Motion to strike allowed, Don't

consider the answer, members of the jurv.

EXCEPTION NO, 130

0. Do vou know why he was in the hospital?

THE COURT: Objection sustained,

MK, WANNAMAKEK: Objection. Kpp. 246-288,

She was also asked about what feelings he had

expressed lo her about his erime:

l have been in the courtroom throughout this

trial. I have been everv dav. Since Michael Pineh

has been confined in the jail, I have talked to him

more than a couple of times.

Y. What statements, if anv, bas he made to

you ahout bis feelings about what happened on

October 18, Lary?

Mi, WANNAMARER: Objeetlion.

THE COURT: Sustained.

EXCEPTION NO, 152. Kp. 24H.

SESTIMONY OF LOUISE NIXON:

DIKECT RXAMINATION by Mr. Foochs:

(Hep. 2AY)

Sinee February 1980 T have corresponded with

Michael constantliv. In Michael's letters to me he

made statements about his attitude about what he

happened itn October of 1979, I probably received

up to sixteen letters from Michael. [Defendant's

Exhibit one through five are marked for iden-

tification and exhibited to District Attorney]

[Defendant's Exhibit No. 1 handed to the witness]

Defense exhibit is a letter from my son addressed

Lo me and dated February 15, 1978 in Greensboro.

It 18 postmarked February 18, 1480. Inside the

envelope there is a letter from mv son. The letter

is dated February 14th.

MH. WANNAMARKEH: Object.

THE COURT: What are your grounds for your

objection?

MH, WANNAMAKER: May I approach the ps dhe

THE COURT: Mold up on that, and in thé

interest of time -- I don't mean to hurry vou <-

give you an opportunity to be heard. I thought vou

might get on to something to else. Rp. 291.

CONTINUATION OF DIKECT EXAMINATION ‘OF LOUISE NIXON

BY MR, HARKISON:

[Mr. Wannamaker [Assistant District Attorney],

Mr. Harrison and Mr. Enochs [Defense Counsel },

approach the bench and discuss the letters written

by the defendant to Louise Nixon]

THE COURT: All right. Now the State has

Objected to, No. 1, the letter, Now 1. Let Mrs.

Nixon come back to the stand. Open No. 1, Is

there anvthing in that that I allowed?

[The witness, Louise Nixon, returned to the

Witness stand. ]

rit COURT: Objection 1S sustained as to

No. 1. Now are vou offering No. 2?

EACRPTION NO, 143

MH. ENOCHS: Yes, sir.

rit COURT: Is there anvthing --

MH. RNOCHS;: Offering Defendant's Exhibit

‘ . Le

MK, WANNAMAKEH: Objection.

Pith COURT: Objection 18 sustained.

CONTINUATION OF DIKECT EXAYVINATION OF LOUSTE NIXON

HY WH ENUOCHS

wefense Exhibit No. 3 is a letter from mv son.

The letter {s« postmarked “Way 2 ae 149RO | hel ieve,.

The ink 1S smenred, It could be Mareh, [The wite

vss opens the envelone and removes the contents ]

AnsSide the envelope 18 a letter from mv son,

MH, WANNAMARERH: : lodge a veneral objection

to No. 4, if your Honor please,

i). “rs. Nixon, I would ask vou to read --

'

THE COUNT: Wait just a minute? Did I rule

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r

Tite COURT: Objection 1s sustained except to

portion indicated on the letter to counsel, which

objection 18 overruled;

This text is long and has been trimmed here. Open the source document for the complete record.