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North Carolina v. McKoy9/7/1988
that the defendant is entitled to a new sentencing hearing as stated in the dissenting opinion of the Chief Justice for the reasons stated in his dissenting opinion.
I write separately because I disagree with the majority's treatment of two other issues which bear directly upon the guilt-innocence
phase of the trial and indirectly, if not directly, upon the jury's determination of whether the defendant should receive life imprisonment or the death penalty. My first difference with the majority relates to its treatment of the fact that both the trial court and the prosecutor informed the jury that the trial was subject to appellate review.
Defendant argued that the fact that both the trial court and the district attorney informed the jury that defendant's trial was subject to appellate review constitutes reversible error; that conveying that information to the jury fatally undermined the reliability of the jury's determination that defendant was guilty of murder in the first degree and the jury's conclusion that death was the appropriate punishment. The majority responds by reviewing this Court's decisions in State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975), and State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979), and the United States Supreme Court's decision in Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231 (1985), concluding that those cases
stand for the proposition that statements by the trial court or prosecutor that tend to dilute the jury's sense of responsibility for its determinations by suggesting that its verdict will be reviewed, or that the punishment imposed will be withheld, are impermissible and prejudicial. See 75 Am. Jur. 2d Trial § 230 (1974) (' omments . . . on the power of the court to suspend sentence or to set the jury's verdict aside, or statements that a higher court has the power to review the finding of the jury on the weight of the evidence, are calculated to induce the jury to disregard their responsibility, and are improper.').
The majority then proceeds to distinguish the above cases from the instant case. I find those cases controlling. In White, the prosecutor told the jury that " any error is made in this court, [the Supreme] Court will say." White, 286 N.C. at 402, 211 S.E.2d at 449. Here, the prosecutor argued, " here is a right of appeal to any interpretation of laws and application of laws which are present in this case."
Further, in White the court stated to the jury that "the Supreme Court will review this case." Id. at 402, 211 S.E.2d at 449. This Court concluded that by that "positive statement . . .
the jury was bound to have understood that the court assumed [that] their verdict would be guilty." Id. at 404, 211 S.E.2d at 450-51. Here, the judge told the jurors that the court reporter
will be taking down everything that's said or done during the trial so that everything is a matter of public record and then she can type up a transcript of a trial and they mail it down to the Supreme Court and the Supreme Court can review what we're doing up here in Stanly County.
The majority draws a distinction between the use of the words "will review" in White and "can review" in the instant case. The distinction, in context, is too fine. As this Court made clear in White, a jury in a capital case must weigh the evidence and find the facts on the assumption that whatever verdict they render will be the final disposition of the case. When the judge tells the jurors that the court repor
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