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State v. Davis12/21/2000
ust prove seven things beyond a reasonable doubt. First, that the defendant took property from the person of Joyce Miller or in her presence. Second, that the defendant carried away the property. Third, that Joyce Miller did not voluntarily consent to the taking and carrying away of the property. Fourth, that the defendant knew that he was not entitled to the property. Fifth, that at the time of the taking the defendant intended to deprive Joyce Miller of its use permanently. Sixth, that the defendant had a firearm or other dangerous weapon in his possession at the time he obtained the property. . . . And seventh, that the defendant obtained the property by endangering or threatening the life of Joyce Miller with the firearm or other dangerous weapon.
During deliberations, the jury requested that the trial court reinstruct it on armed robbery. The trial court repeated the State's requested (e)(5) instruction in full. Defendant again objected. The jury subsequently found the (e)(5) circumstance to exist.
Defendant contends that the essence of the (e)(5) circumstance is that it provides for greater punishment when a capital felony is committed while a defendant is engaged in the commission of other dangerous felonies. Defendant further argues that the trial court failed to instruct the jury on this essential timing element.
In describing the State's burden, the trial court enumerated seven things the State was required to prove beyond a reasonable doubt in order to show that defendant committed the murder while engaged in the commission of armed robbery. The seven things comprised the elements of armed robbery and did not require a finding that the murder was committed while engaged in the commission of the armed robbery. The consequence of the trial court's instruction is that the State was able to prove (e)(5) without proving that the murder occurred while defendant was engaged in armed robbery. N.C.G.S. § 15A-2000(e)(5).
Following the charge, the trial court compounded its error by stating, "So, I charge that if you find, from the evidence and beyond a reasonable doubt, that on or about May 24th, 1996 [the seven elements of armed robbery were satisfied] . . . you would find this aggravating circumstance and so indicate by writing `yes' in the space after the aggravating circumstance . . . ."
We note that the pattern jury instruction on (e)(5) provides as follows:
If you find from the evidence beyond a reasonable doubt that when the defendant killed the victim the defendant was . . . (set out the findings necessary for the felony . . .) you would find this aggravating circumstance[.] N.C.P.I.--Crim. 150.10(5A) (1997) (emphasis added).
The pattern jury instruction includes a timing element in that it requires the jury to "find from the evidence beyond a reasonable doubt that when the defendant killed the victim (the elements necessary to commit the felony)" were fulfilled. Id. In the instant case, the trial court's charge to the jury lacked the requisite timing element.
We conclude that the trial court failed to charge the jury with sufficient clarity that the State had the burden to show that the criminal conduct took place while or during the same transaction as the murder. Thus, the trial court erred in giving the instruction to the jury. We next address whether this error warrants a new capital sentencing proceeding.
A review of the record discloses that defendant indicated to the investigating officer that he killed Miller around 7:00 p.m. Defendant also indicated that he placed the stolen materials, including the VCR, into the Bravada truck and drove to the mall at approximately 7:15 p.m. For
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