North Carolina v. McKoy9/7/1988
in Caldwell, viz, "state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court," id. at 330, 86 L. Ed. 2d at 240, thus is not present here.
For the foregoing reasons, we do not find White, Jones, and Caldwell controlling. Instead, we conclude that this case is more
like State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977). The trial court in Finch remarked: " ake what the court says about the law, and what it is in the case. If the Court is wrong, then the Court of Appeals will let that be known. Somebody will straighten that out, but you take your instructions from the Court." Id. at 135, 235 S.E.2d at 821 (emphasis in original). We held that these statements did not suggest that the verdict would be reviewed or that the mandated punishment would be withheld; they simply informed the jury that the law, as stated by the trial court, could be reviewed. Id. at 137, 235 S.E.2d at 822.
Here, as in Finch, nothing in the statements by the court or the prosecutor could reasonably be construed to diminish the jury's responsibility for its decisions. The trial court only informed the jury that this Court " can review" the case. (Emphasis added.) "Mere reference to the process of appellate review does not invalidate a death sentence." Mazzan v. State, 733 P. 2d 850, 851 (Nev. 1987). Viewed in context, the prosecutor's argument stressed the jury's role as the final factfinder rather than diluting its sense of responsibility for its verdict. See id. at 851 ("argument did not shift responsibility to the appellate court, but rather heightened the sentencing jury's awareness of the gravity of its task"); Riley v. State, 496 A.2d 997, 1025 (Del. 1985), cert. denied, 478 U.S. 1022, 92 L. Ed. 2d 743 (1986) ("In no sense may it reasonably be said that the prosecutor was either misstating the law, misleading the jury as to its role, or minimizing its sentencing responsibility."). We thus conclude that the trial court did not abuse its discretion by allowing the argument. State v. Huffstetler, 312 N.C. 92, 111, 322 S.E.2d 110, 122 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). These assignments of error are overruled.
Defendant next contends that the trial court erred by allowing the prosecutor, during voir dire, to "stake out" the jurors by obtaining commitments from them to disregard defendant's intoxication in determining the existence of premeditation and deliberation and to reject his voluntary intoxication defense. Defendant failed to object to the prosecutor's questions at trial. Ordinarily, such failure constitutes a waiver of the right to assert the alleged error on appeal. State v. Oliver, 309 N.C. 326, 334, 307 S.E.2d 304, 311 (1983). However, in light of our practice of scrupulous review in death sentence cases "to the end [that] it
may affirmatively appear that all proper safeguards" have been afforded the defendant, State v. Whitley, 288 N.C. 106, 108, 215 S.E.2d 568, 570 (1975) (quoting State v. Fowler, 270 N.C. 468, 469, 155 S.E.2d 83, 84 (1967)), we elect to review the issue.
The prosecutor asked several prospective jurors whether they would be sympathetic toward a defendant who was intoxicated at the time of the offense. The questions varied slightly, but the thrust of each was:
If it is shown to you from the evidence and beyond a reasonable doubt that defendant was intoxicated at the time of the alleged shooting
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