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North Carolina v. McKoy9/7/1988
ate v. Smith, 305 N.C. at 706, 292 S.E.2d at 274 ("all of the evidence" did not support the existence of a mitigating circumstance; defendant thus not entitled to peremptory instruction thereon).
Defendant next contends that his rights under the Eighth and Fourteenth Amendments were violated by the trial court's allowing the District Attorney, in closing argument, to remind the jurors of their commitments not to have sympathy for defendant because he was intoxicated. The argument was as follows:
Number seven, [defendant's] ability to remember the events of December the 22nd, 1984, is actually impaired, they contend. And that's the last one. I don't know. He was drinking liquor and I told you before you were chosen as a juror that if it is shown that he's intoxicated, were you going to have sympathy, sympathetic to his cause. As I recall, you said you wouldn't. I don't know. He can remember what he did because he told the officers about it.
Defendant did not object to this argument at trial. We thus can find an abuse of discretion in the trial court's failure to intervene ex mero motu only if impropriety in the argument was "gross indeed." State v. Johnson, 298 N.C. 355, 368-69, 259 S.E.2d 752, 761 (1979). We find no gross impropriety. We have held above that the trial court did not abuse its discretion by failing ex mero motu to prohibit voir dire questions to prospective jurors regarding
their sympathies toward an intoxicated person. We likewise find no abuse of discretion in the trial court's allowing the District Attorney -- in closing argument, without objection -- to gently remind the jurors of their responses to these questions.
Defendant next contends that the trial court's sentencing instructions were erroneous and unconstitutional because they required jury unanimity on the existence of a mitigating circumstance before that circumstance could be considered for the purpose of sentencing. We find no error.
We resolved this issue contrary to defendant's position in State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), overruled on other grounds, State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988). In Kirkley, the trial court instructed the jury that "the defendant has the burden of persuading the jury as to the existence of any mitigating circumstance and if all twelve jurors are unable to agree that a specific mitigating circumstance exists they must find that it does not exist." Kirkley, 308 N.C. at 217-18, 302 S.E.2d at 156. Therefore, the jury could only find a mitigating circumstance if it unanimously agreed that it existed. The defendant argued that the court should have instructed that the jurors could only determine that a mitigating circumstance did not exist if they unanimously found that it did not exist. Id. at 218, 302 S.E.2d at 157.
We held that in a capital case "the jury must unanimously find that an aggravating circumstance exists before that circumstance may be considered by the jury in determining its sentence recommendation" and that "consistency and fairness dictate that a jury unanimously find that a mitigating circumstance exists before it may be considered for the purpose of sentencing." Id. We stated:
The consideration of mitigating circumstances must be the same as the consideration of aggravating circumstances. The unanimity requirement is only placed upon the finding of whether an aggravating or mitigating circumstance exists. With the exceptions of
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