State v. Stephens12/5/1997
nces found?" Defendant acknowledges that this Court has previously decided this issue adversely to defendant's position and upheld the constitutionality of this instruction. State v. Keel, 337 N.C. 469, 493-94, 447 S.E.2d 748, 761-62 (1994), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147, 115 S. Ct. 1270 (1995). We find no basis for reversing our prior holding in this regard. This assignment of error is overruled.
Next, defendant contends in his ninth assignment of error that the trial court erred in its instructions in not allowing the jury to consider evidence as mitigating if it found that the nonstatutory mitigating circumstance had no mitigating value. It is well established under North Carolina law that the instruction given by the trial court in this regard is correct and not in violation of the state or federal Constitution. State v. Womble, 343 N.C. 667, 694, 473 S.E.2d 291, 307 (1996) , cert. denied, ___ U.S. ___, 136 L. Ed. 2d 719 (1997). This instruction does not limit or prevent the jury's consideration of any relevant evidence in mitigation. It simply requires the jury to find both the existence of the nonstatutory circumstance and that it has mitigating value. We therefore reject this assignment of error.
In his tenth assignment of error, defendant argues that the trial court erred in denying defendant's motion to require the prosecution to disclose the aggravating circumstances that it intended to rely upon during the sentencing phase of the trial. This Court has consistently held that "a defendant is not constitutionally entitled to an enumeration of aggravating factors to be used against him: statutory notice as contained in N.C.G.S. § 15A-2000(e) is sufficient." State v. McLaughlin, 323 N.C. 68, 84, 372 S.E.2d 49, 61 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990) ; accord State v. Taylor, 304 N.C. 249, 257, 283 S.E.2d 761, 767 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, 103 S. Ct. 3552 (1983). This assignment of error is overruled.
In his eleventh assignment of error, defendant contends that the trial court erred in denying defendant's motion to prohibit district court Judges from excusing prospective jurors outside of defendant's presence. The district court's excusal or deferral of prospective jurors prior to trial did not violate defendant's constitutional right to be present at all phases of his trial because his trial had not yet begun. The district court properly conducted this preliminary, administrative process pursuant to statute, and such process was not part of the defendant's capital trial. State v. Geddie, 345 N.C. 73, 92, 478 S.E.2d 146, 155 (1996), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 66 U.S.L.W. 3255 (1997); State v. McCarver, 341 N.C. 364, 379, 462 S.E.2d 25, 33 (1995), cert. denied, ___ U.S. ___, 134 L. Ed. 2d 482 (1996); State v. Cole, 331 N.C. 272, 275, 415 S.E.2d 716, 717 (1992). This assignment of error is overruled.
Defendant's twelfth assignment of error is that the course of conduct aggravating circumstance is unconstitutional because it is vague and overbroad. This Court has repeatedly held that North Carolina's capital sentencing scheme contained in N.C.G.S. § 15A-2000 is constitutional on its face and as applied. State v. McKoy, 327 N.C. 31, 37-39, 394 S.E.2d 426, 429-30 (1990); State v. Barfield, 298 N.C. 306, 343-54, 259 S.E.2d 510, 537-44 (1979) , cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137, 100 S. Ct. 3050 (1980). This Court has also held the course of conduct aggravating circumstance is constitutional and is not vague or overbroad. State v. Cole, 343 N.C. 399, 421, 471 S.E.2d 362, 373 (1996), cert. denied, ___ U.S. ___, 136 L. Ed. 2d 624 (1997); State v. William
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