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North Carolina v. Robinson10/3/1991
eversible error for the trial judge not to intervene ex mero motu where the argument is so grossly improper as to be a denial of due process." State v. Zuniga, 320 N.C. 233, 257, 357 S.E.2d 898, 914, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). Upon review of the record, we conclude that the arguments of the prosecutors were not so grossly improper as to constitute a denial of defendant's due process rights. Thus, we find no reversible error.
III.
SENTENCING PHASE
In his next five arguments, defendant contends that the trial court committed several errors during his sentencing proceeding. Since we find defendant is entitled to a new sentencing proceeding under McKoy, we address only that issue.
The trial court instructed the jury both verbally and in writing that in order to find the existence of any mitigating circumstance, the jury's finding must be unanimous. In McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, the United States Supreme Court held that such instructions in a capital case violated the eighth and fourteenth amendments of the federal Constitution. The State concedes McKoy error, but argues it was harmless. Because the error is of constitutional dimension, the State bears the burden of demonstrating that it was harmless beyond a reasonable doubt. State v. McKoy, 327 N.C. 31, 44, 394 S.E.2d 426, 433 (1990); N.C.G.S. § 15A-1443(b) (1988). We conclude the State has failed to meet its burden.
The trial court submitted and the jury unanimously found three aggravating circumstances: (1) defendant had been previously convicted of a felony involving the threat of violence to the person; (2) the murder was committed while defendant was engaged in
the commission of a robbery; and (3) the murder was part of a course of conduct in which the defendant engaged and that course of conduct included the commission by defendant of other crimes of violence against other persons. N.C.G.S. § 15A-2000(e)(3), (5), (11) (1988).
The trial court submitted nine possible mitigating circumstances to the jury. The jury unanimously found seven. It did not, however, find two: (1) that the mental age of the defendant at the time of the murder is a mitigating circumstance; and (2) any other circumstance or circumstances arising from the evidence which the jury deems to have mitigating value. Thus, when weighing the mitigating circumstances against the aggravating circumstances to determine if the latter were sufficiently substantial to call for the imposition of the death penalty, individual jurors did not include these two mitigating circumstances.
We need only address the "mental age" circumstance to resolve this issue. Although this circumstance is not listed in N.C.G.S. 15A-2000(f), "our cases plainly indicate that the mentality of a defendant is generally relevant to sentencing and that it can, with supporting evidence, be properly considered in mitigation of a capital felony." State v. Pinch, 306 N.C. 1, 28, 292 S.E.2d 203, 224, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), overruled in part on other grounds, State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), overruled in part on other grounds, State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988); see also State v. Fullwood, 329 N.C. 233, 235, 4
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 North Carolina DUI Attorneys
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