State v. Golphin8/25/2000
the commission of a felony in the course of which a murder is committed by others, when the defendant does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. Enmund, 458 U.S. at 801, 73 L. Ed. 2d at 1154. In a later case, however, the Court further construed its holding in Enmund and held that major participation in the felony committed, combined with reckless indifference to human life, is sufficient grounds for the imposition of the death penalty. Tison v. Arizona, 481 U.S. 137, 158, 95 L. Ed. 2d 127, 145 (1987). McCollum, 334 N.C. at 223, 433 S.E.2d at 151-52.
Pursuant to our pattern jury instructions, if there is evidence which suggests that a defendant was not personally involved in the killing, then an instruction must be given which requires the jury to first determine the defendant's culpability before considering the death penalty. See N.C.P.I.--Crim. 150.10 (1998); Lemons, 348 N.C. at 364-65, 501 S.E.2d at 327.
This issue, however, "only arises when the State proceeds on a felony murder theory." State v. Robinson, 342 N.C. 74, 87, 463 S.E.2d 218, 226 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793 (1996). In State v. Gaines, this Court held:
The Enmund rule does not apply to a defendant who has been found guilty of first-degree murder based on premeditation and deliberation. Because defendant was convicted of first-degree murder based on premeditation and deliberation, and not based on the felony-murder rule, Issue One-A [of the pattern jury instructions] is inapplicable. 345 N.C. at 682, 483 S.E.2d at 417 (where the jury found the defendant guilty of premeditated and deliberate murder either under the theory of acting in concert or by aiding and abetting); see also Lemons, 348 N.C. at 365, 501 S.E.2d at 327.
In the instant case, the jury found Kevin guilty of first-degree murder on the basis of premeditation and deliberation under the theory that Kevin committed all the elements or that he acted in concert with Tilmon. As we stated in Gaines, the Enmund/Tison instruction is not required in such a case. Gaines, 345 N.C. at 682, 483 S.E.2d at 417. Therefore, the trial court did not err by failing to give the requested instruction, and Kevin has failed to establish the existence of error for the purpose of plain error review. Moreover, even if the Enmund/Tison instruction did apply to premeditated and deliberate murder, there was more than sufficient evidence that Kevin's actions alone possessed the requisite intent to overcome the need for the Enmund/Tison instruction. Accordingly, this assignment of error is overruled.
By assignment of error, Kevin contends the trial court committed constitutional error by failing to give a peremptory instruction for the (f)(7) mitigating circumstance, which relates to " he age of the defendant at the time of the crime." N.C.G.S. § 15A-2000(f)(7) (1999). We disagree.
"Upon request, a trial court should give a peremptory instruction for any mitigating circumstance, whether statutory or non-statutory, if it is supported by uncontroverted evidence." Wallace, 351 N.C. at 525-26, 528 S.E.2d at 354; see also White, 349 N.C. at 568, 508 S.E.2d at 274. Conversely, the trial court is not required to give a peremptory instruction when the evidence supporting a mitigating circumstance is controverted. See State v. Womble, 343 N.C. 667, 683, 473 S.E.2d 291, 300 (1996), cert. denied, 519 U.S. 1095, 136 L. Ed. 2d 719 (1997). The existence of the (f)(7) mitigating circumstance is not wholly determined by the defendant's chronological age. See State v. Skipper, 337 N.C. 1, 47, 446 S.E.2d 252, 277 (1994), cert. denied, 513 U.S. 1134, 130 L. Ed. 2d 89
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