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North Carolina v. Robinson10/3/1991
ental age of the defendant at the time of this murder" to be a mitigating circumstance. Even assuming arguendo that this is so, I do not believe the trial court's erroneous instruction was harmful to this defendant. The seven mitigating circumstances unanimously found by the jury in the present case included the mitigating circumstances that: (1) the "murder was committed while the defendant was under the influence of mental or emotional disturbance" and (2) "the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired." It seems clear beyond any reasonable doubt that the jury gave the defendant the full benefit of any weight his evidence tending to show that he was of low intelligence and functioned at approximately a fourth grade level may have had, when the jury found the above two mitigating circumstances and weighed them in the defendant's favor. The jury would have been required to do no more with this evidence, even had the jury been given proper instructions and followed them. Therefore, I believe the majority errs in vacating the death sentence and awarding a new capital sentencing proceeding in this case on the ground that, absent the McKoy error, a juror may have found the "mental age of the defendant at the time of this murder" to be a mitigating circumstance and weighed it in favor of the defendant.
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