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North Carolina v. McKoy9/7/1988
(1983). As noted, the record establishes that defendant had pled guilty to second degree murder and had been sentenced to imprisonment of not less than twenty-two nor more than twenty-eight years. Defendant's prior offense thus involved the unlawful killing of another human being with malice, see State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983), and was therefore among the most serious of the many felonies "involving the use or threat of violence to the person." N.C.G.S. § 15A-2000(e)(3) (1983).
In State v. Brown, we note that the aggravating circumstance provided for in N.C.G.S. § 15A-2000(e)(3) "reflect upon the defendant's character as a recidivist." 320 N.C. at 224, 358 S.E.2d at 30. The jury in Brown found only the "prior violent felony" aggravating circumstance, id. at 219, 358 S.E.2d at 27, whereas the jury here found the additional aggravating circumstance that the offense was committed against a law enforcement officer while he was engaged in the performance of his duties. N.C.G.S. § 15A-2000(e)(8) (1983). Further, the prior violent felony in Brown was the discharge of a shotgun into an occupied building -- id. at 232, 358 S.E.2d at 34 -- a considerably less serious offense than second degree murder, the prior violent felony here. We concluded in Brown that we could not hold as a matter of law
that the death sentence was disproportionate. Id. at 231, 358 S.E.2d at 34. A fortiori, the more serious nature of the total criminal conduct of the defendant here dictates the same conclusion.
We have carefully considered the circumstances of the offense and the character and propensities of the defendant as revealed by the record, briefs, transcript and arguments. We conclude that the facts of this case, combined with defendant's history, support the jury's decision to impose the ultimate penalty of death. We thus hold that the death sentence imposed is not disproportionate within the meaning and intent of N.C.G.S. § 15A-2000(d)(2). Upon this holding the death sentence is affirmed. "This Court has no discretion in determining whether a death sentence should be vacated. State v. Jackson, 309 N.C. 26, 305 S.E.2d 703; see Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973." State v. Robbins, 319 N.C. at 529, 356 S.E.2d at 317.
No error.
Disposition
No error.
Chief Justice Exum dissenting.
I join in the dissenting opinions of Justice Martin and Justice Frye. I also dissent from the majority's position that Mills v. Maryland, 486 U.S. , 100 L. Ed. 2d 384 (1988), does not require us to overrule State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), overruled in part on other grounds, State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988); and I write separately in support of my position that Mills does require us to overrule Kirkley and its progeny.
In Kirkley the question arose for the first time in this jurisdiction as to whether a jury in a capital sentencing proceeding must agree unanimously that a mitigating circumstance existed in order to consider that circumstance in the ultimate determination of whether the defendant should live or die. At the sentencing phase of Kirkley's trial the unanimity issue was not addressed in the trial court's initial jury instructions. After some delib
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