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State v. Davis12/21/2000
or pecuniary gain, you do not have to find that the primary motive of the defendant was financial gain. If you find, from the evidence beyond a reasonable doubt, that when the defendant killed the victim, that the defendant took personal property or other items belonging to Joyce Miller and that he intended or expected to obtain money or property or any other thing that can be valued in money, you would find this aggravating circumstance and would so indicate by having your foreperson write "yes" in the space . . . .
The jury subsequently found the (e)(6) circumstance to exist.
We conclude that the trial court properly instructed the jury that it must find that defendant murdered for the purpose of pecuniary gain in order to find the (e)(6) aggravating circumstance. Notably, the trial court began its instructions by setting out the issue for the jury: "Was this murder committed for pecuniary gain?" The trial court subsequently instructed the jury to find this circumstance if it found that, when defendant committed the murder, he had obtained or intended or expected to obtain money. More specifically, the trial court charged the jury that it must determine whether, "when defendant took the personal property belonging to Joyce Miller, he intended or expected to obtain money or property or any other thing . . . valued in money." On the recommendation form, the issue was stated, "Was this murder committed for pecuniary gain?"
We note that the instruction given by the trial court was remarkably similar to the pattern instruction. See N.C.P.I.--Crim. 150.10(6). While defendant argues that the trial court erred in charging the jury that " n order to find that this murder was committed for pecuniary gain, you do not have to find that the primary motive of the defendant was financial gain," we conclude that the instruction was correct as a matter of law. See Moore, 335 N.C. at 610, 440 S.E.2d at 822. Furthermore, by instructing the jury that it need not find that defendant's "primary motive" was financial gain, the trial court implicitly communicated that financial gain must have been a motive. This case is distinguishable from State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997), in which the challenged instruction contained no language concerning the intent or motive of the defendant.
Having determined that the trial court's pecuniary gain instruction was not erroneous, we need not address defendant's argument that the instruction was unconstitutional.
In his seventeenth argument, defendant contends that the trial court erred in instructing the jury on the mitigating circumstance found in N.C.G.S. § 15A-2000(f)(1). Defendant argues that the trial court's instruction violated his constitutional rights by peremptorily charging the jury that defendant had a history of prior criminal activity.
N.C.G.S. § 15A-2000(f)(1) provides that a mitigating circumstance in capital sentencing may be that " he defendant has no significant history of prior criminal activity."
In the present case, the State introduced contested evidence of defendant's alleged prior criminal activity. The trial court instructed the jury regarding the (f)(1) mitigating circumstance as follows:
First, consider whether the "defendant has no significant history of prior criminal activity" prior to the date of the murder. . . . You would find this mitigating circumstance if you find that the assault, drug offenses, use of illegal drugs and gambling or any other acts were not a significant history of prior criminal activity. . . . If none of you find this circumstance to exist, you would so indicate by having
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