North Carolina v. McKoy9/7/1988
, vacated the judgment, and remanded for further consideration in light of Mills. See Jones v. Maryland, 310 Md. 569, 530 A. 2d 743 (1987), cert. granted and judgment vacated, U.S. , 100 L. Ed. 2d 916 (1988). We recognize that "a denial of a petition for a writ of certiorari . . . carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review." Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 94 L. Ed. 562, 566 (1950) (Frankfurter, J., opinion re: denial of certiorari); see also Singleton v. Commissioner of Internal Revenue, 439 U.S. 940, 944, 58 L. Ed. 2d 335, 336 (1978) (Stevens, J., opinion re: denial of certiorari). We do not suggest that the denial of certiorari in Holden and Gardner alone indicates that the Court decided that the defendants' arguments in those cases were without merit. However, we view the Court's action on Jones and its different treatment of Holden and Gardner, all in the immediate wake of Mills, as some indication that our capital-sentencing procedure differs sufficiently
from Maryland's that Mills does not control the question presented here.
In light of the foregoing precedent from the United States Supreme Court and from this Court, the differences between our capital-sentencing procedure and the Maryland procedure addressed by the Supreme Court in Mills, and the Supreme Court's treatment of Jones, Holden, and Gardner in the immediate wake of Mills, we are unable to conclude with any degree of certainty that Mills rendered our capital-sentencing procedure constitutionally infirm. We believe our clear, stable, considered procedure, established by Kirkley and adhered to in its progeny, is properly responsive to the requirement that capital-sentencing schemes provide for both individualized sentencing and guided sentencer discretion. We thus continue to adhere to our decisions in Kirkley and its progeny and hold that the instructions in question were without error.
Defendant raises the following "preservation" issues:
(1) He contends that the trial court erred in denying his motion to require the State to disclose potential aggravating circumstances it intended to rely upon at sentencing. Such disclosure is not required. State v. Holden, 321 N.C. 125, 153-54, 362 S.E.2d 513, 531 (1987), cert. denied, U.S. , 100 L. Ed.
(2) He contends that the trial court erred in placing the burden of proving the existence of mitigating circumstances on him rather than on the State. This was not error. State v. Brown, 320 N.C. 179, 216, 358 S.E.2d 1, 25, cert. denied, U.S. , 98 L. Ed. 2d 406 (1987).
(3) He contends that the trial court erred in instructing the jury that it must recommend a death sentence if it answered issue four affirmatively. This was not error. State v. McDougall, 308 N.C. 1, 26, 301 S.E.2d 308, 323-24, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 173 (1983).
(4) He contends that the trial court erred in sentencing him to death because N.C.G.S. § 15A-2000(e)(3) is unconstitutionally vague and overbroad, both facially and as applied. The argument is without merit. State v. Brown, 320 N.C. at 213-14, 358 S.E.2d at 23-24.
(5) He contends that N.C.G.S. § 15A-2000 in its entirety is unconstitutional. The argument is without merit. State v. Brown, 315 N.C. 40, 60-61, 337 S.E.2d 808, 823-24 (1985), cert. denied,
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