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State v. Stephens12/5/1997
stics similar to a 357 Magnum.
In his first assignment of error, defendant contends that the trial court erred in instructing the jurors, in the sentencing phase, that they were required to consider only those statutory mitigating circumstances that they deemed to have mitigating value. Defendant thus argues that he is entitled to a new sentencing proceeding because there is a reasonable likelihood such instruction led the jurors to believe they could accord no mitigating value to the statutory mitigating circumstances. We conclude the jury could not have been so misled.
The trial court's instructions to the jury, when read as a whole and viewed in light of the Issues and Recommendation as to Punishment forms, did not misinform jurors of their duty to weigh any statutory mitigating circumstance which they found to exist when considering their recommendation of a life imprisonment or death sentence. A reasonable interpretation of the instructions, construed contextually, could not have misled jurors to believe they could disregard any statutory mitigating circumstances found to exist. A jury charge must be construed contextually and will be upheld when the charge as a whole is correct. State v. Chandler, 342 N.C. 742, 751-52, 467 S.E.2d 636, 641, cert. denied, ___ U.S. ___, 136 L. Ed. 2d 133 (1996).
Reading the entire charge in context, the instructions in question could not have had the effect of confusing issues of statutory and nonstatutory mitigating circumstances for the jury. Since defendant was on trial for three separate murders, the trial court gave three separate instructions on mitigating circumstances. The trial court, in each of the three cases, submitted and instructed on three statutory mitigators: that defendant had no significant history of prior criminal activity, N.C.G.S. § 15A-2000(f)(1); that the capital felony was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2); and that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired, N.C.G.S. § 15A-2000(f)(6). The (f)(4) mitigator, that the murder was committed by another and defendant was only an accomplice and his participation was relatively minor, was submitted with respect to one of the murders. In all three cases, the jury answered "yes" with respect to the (f)(1) and (f)(2) statutory mitigators while at the same time rejecting the (f)(6) mitigator, and the jury rejected the (f)(4) mitigator in the one case. Further, in each case, the trial court submitted eighteen nonstatutory mitigating circumstances and the catchall provision, and the jury in each case found that eight of these both existed and had mitigating value. The jury thus demonstrated its discernment in light of the instructions.
With regard to each of the statutory mitigating circumstances in each case, the trial court instructed the jurors that they "will find this mitigating circumstance " if they find particular factual matters exist, and that if one or more of the jurors find "by a preponderance of the evidence that this circumstance exists you would so indicate by having your foreperson write, yes, in the space provided after this mitigating circumstance on the Issues and Recommendation Form." (Emphasis added.) This was a correct instruction and specifically informed the jurors that each was a "mitigating circumstance" if one or more of them found it to exist.
We do note that in one instance the trial court partially mixed the statutory and nonstatutory standards. After instructing the jury on the facts that would support the (f)(1) mitigator, the no significant history
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