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North Carolina v. Robinson5/6/1994
death penalty.
The instructions given to the jury with regard to how to determine this issue were as follows:
In deciding this issue, you are not to consider the aggravating circumstances standing alone. You must consider them in connection with any mitigating circumstance found by one or more of you.
When making this comparison, each juror may consider any mitigating circumstance or circumstances that juror determined to exist by a preponderance of the evidence.
Defendant contends that each juror should consider any mitigating circumstance found by any of the jurors when weighing the aggravating and mitigating circumstances and that these instructions violate the rule in McKoy v. North Carolina that a sentencing jury may not be precluded from giving full and free consideration to evidence of mitigation. McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990). We decided this issue otherwise in State v. Lee, 335 N.C. 244, 439 S.E.2d 547 (1994). In that case, we stated that
Were we to adopt this reading of McKoy and its progenitors, we would create an anomalous situation where jurors are required to consider mitigating circumstances which are only found to exist by a single holdout juror. We do not believe that the decisions in McKoy or Mills intended this anomalous result. The jury charge given in this case did not preclude the jurors from giving effect to all mitigating evidence they found to exist.
{PA}
Page 121} Id. at 287, 439 S.E.2d at 570. We continue to adhere to our decision in Lee, and for the foregoing reasoning, defendant's assignment of error on this issue is overruled.
In a related assignment of error, defendant contends that this instruction, which is given to the jury in similar form for Issue Three, is flawed because it instructs the jury that it "may consider any mitigating circumstance or circumstances that juror determined to exist." (Emphasis added.) Defendant contends that this instruction violates the rule that a juror may not be precluded from considering mitigating evidence. However, in both Issues Three and Four, prior to those portions of the instructions about which defendant complains, the jury is first instructed that it " must " consider the aggravating and mitigating circumstances.
Again, this issue was decided adversely to defendant in State v. Lee, where we stated that
The rule of McKoy is that jurors may not be prevented from considering mitigating circumstances which they found to exist in Issue Two. Far from precluding a juror's consideration of mitigating circumstances he or she may have found, the instant instruction expressly instructs that the evidence in mitigation must be weighed against the evidence in aggravation.
335 N.C. at 287, 439 S.E.2d at 569-70. Accordingly, defendant's assignment of error on this issue is overruled.
In his next assignment of error, defendant contends that the trial court erroneously instructed the jury with regard to the concept of mitigation. The trial court instructed the jury as follows:
A mitigating circumstance is a fact or group of facts which do not constitute a justification or excuse for a killing, or reduce it to a lesser degree of crime than first degree murder, but which may be considered as extenuating or reducing the moral culpability of the killing, or making it less deserving of extreme punishment than other first degree murders.
Defendant argues that
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