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North Carolina v. Robinson10/3/1991
--/REF--> 394 S.E.2d at 433. Since we began reviewing cases for McKoy error, the Court has found two such cases. State v. Laws, 328 N.C. 550, 402 S.E.2d 573 (1991) (individual polling of jurors disclosed unanimity of rejection of submitted mitigating circumstance); State v. Roper, 328 N.C. 337, 402 S.E.2d 600 (1991) (jury found all fifteen mitigating circumstances submitted). The other twenty-six cases handed down by this Court as of 5 September 1991 have found the McKoy error not to be harmless beyond a reasonable doubt. In each of these cases, the Court has found credible evidence supporting at least one submitted, but unfound mitigating circumstance. And in each of these cases, this Court has chosen not to usurp the jury function by weighing she mitigating circumstances against the aggravating circumstances ourselves in order to determine whether the defendant should live or die. As we stated in a recent case:
We have not thought it our function, in resolving the harmlessness issue, to surmise how one of more jurors might weigh the aggravating and mitigating evidence, which is capsulized in the form of individually submitted "circumstances.
This function, we continue to believe, is solely for the trial jurors who hear the evidence and are properly instructed on the law.
State v. Lloyd, 329 N.C. 662, 668, 407 S.E.2d 218, (1991). Although the mitigating circumstances under consideration in Lloyd were statutory, this Court has granted a new sentencing hearing when only nonstatutory circumstances were at issue. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) (new sentencing proceeding ordered even though the only mitigating circumstance not found by the jury was the "catch-all").
Given the testimony by defendant's expert witness, we cannot say beyond a reasonable doubt that no reasonable juror could have found this evidence to be credible and given it mitigating value. Furthermore, we cannot say beyond a reasonable doubt that no reasonable juror, upon weighing this circumstance along with the other mitigating circumstances, could have concluded that life imprisonment rather than death was the appropriate punishment. We conclude, therefore, that defendant is entitled to a new sentencing proceeding because the State has failed to meet its burden of satisfying this Court that the erroneous unanimity instructions were harmless beyond a reasonable doubt.
Defendant's remaining arguments relate to issues that defendant acknowledges have previously been decided by this Court contrary to his position. Nonetheless, he brings these arguments forward to preserve for further appellate review. Since we have previously decided those issues contrary to defendant's position, defendant's related arguments are overruled. See State v. Smith 328 N.C. 99, 139, 400 S.E.2d 712, 735 (1991); State v. Payne, 327 N.C. 194, 210, 394 S.E.2d 158, 166 (1990), cert. denied, U.S. , 112 L. Ed. 2d 1062 (1991).
We find no error in the guilt phase of defendant's capital trial; however, we find McKoy error in the sentencing phase. We therefore vacate the sentence of death and remand the case to Superior Court, Guilford County, for a new capital sentencing proceeding in the first-degree murder case.
For the reasons stated, we find no error in the robbery with a dangerous weapon conviction, and the assault with a deadly weapon with intent to kill inflicting serious injury
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