State v. Stephens12/5/1997
performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589, 100 S. Ct. 2521 (1980)); accord State v. Davis, 325 N.C. 607, 621-22, 386 S.E.2d 418, 425 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268, 110 S. Ct. 2587 (1990). Because "a prospective juror's bias for or against the death penalty cannot always be proven with unmistakable clarity," this Court must defer to the trial court's judgment concerning whether a prospective juror would be able to follow the law. State v. Miller, 339 N.C. 663, 679, 455 S.E.2d 137, 145, cert. denied, ___ U.S. ___, 133 L. Ed. 2d 169 (1995).
In the case sub judice, the full text of the voir dire clearly indicates that both prospective jurors Vinson and Holder clearly expressed their personal opposition to the death penalty without any equivocation. Under these circumstances, the trial court did not abuse its discretion by excusing these prospective jurors for cause. Furthermore, the trial court did not abuse its discretion in denying defendant's request to attempt to rehabilitate prospective juror Holder. Whether to allow defendants an opportunity to rehabilitate a prospective juror challenged for cause lies within the trial court's discretion. State v. Flippen, 344 N.C. 689, 697-98, 477 S.E.2d 158, 163 (1996); State v. Burr, 341 N.C. 263, 281, 461 S.E.2d 602, 611 (1995), cert. denied, ___ U.S. ___, 134 L. Ed. 2d 526 (1996) ; State v. Daughtry, 340 N.C. 488, 509, 459 S.E.2d 747, 757 (1995), cert. denied, ___ U.S. ___, 133 L. Ed. 2d 739 (1996). Prospective juror Holder unequivocally demonstrated that his opposition to the death penalty would substantially impair his ability to perform his duties as a juror. This assignment of error is without merit.
PRESERVATION ISSUES
Defendant in his seventh assignment of error seeks this Court's reconsideration of its prior decisions upholding the constitutionality of our pattern instruction imposing a "duty" upon the jury to return a recommendation of death if it finds the mitigating circumstances insufficient to outweigh the aggravating circumstances and the aggravating circumstances sufficiently substantial to call for the death penalty. State v. DeCastro, 342 N.C. 667, 467 S.E.2d 653, cert. denied, ___ U.S. ___, 136 L. Ed. 2d 170 (1996); State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650, 115 S. Ct. 750 (1995); State v. Syriani, 333 N.C. 350, 428 S.E.2d 118, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341, 114 S. Ct. 392 (1993); State v. McDougall, 308 N.C. 1, 301 S.E.2d 308, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 173, 104 S. Ct. 197 (1983); State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622, 103 S. Ct. 474 (1982). Upon consideration of defendant's argument and authorities cited, we find no compelling reason for this Court to overrule our previous holding on this issue. This assignment of error is overruled.
In his eighth assignment of error, defendant asserts that his constitutional rights were violated by the trial court's instruction to the jury that mitigating circumstances must outweigh aggravating circumstances and thereby directing the jury to answer Issue III affirmatively if it found the mitigating circumstances were of equal weight to the aggravating circumstances. Issue III on the Issues and Recommendation as to Punishment form provides: "Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found is, or are, insufficient to outweigh the aggravating circumstance or circumsta
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