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State v. Golphin8/25/2000
5 (1995). Other varying circumstances and conditions must also be considered. See State v. Gregory, 340 N.C. 365, 422, 459 S.E.2d 638, 671 (1995), cert. denied, 517 U.S. 1108, 134 L. Ed. 2d 478 (1996).
In the instant case, Kevin clearly requested a peremptory instruction on the (f)(7) mitigating circumstance. The State did not object to Kevin's request. The trial court then decided to give a partial peremptory instruction that all the evidence showed that Kevin was seventeen years old at the time of the crimes. Kevin did not object. Thereafter, the trial court instructed the jury on the (f)(7) circumstance, stating:
The evidence tends to show that the defendant Kevin Golphin was seventeen years of age at the time of each of these murders. The mitigating effect of the age of the defendant is for you to determine from all the facts and circumstances which you find from the evidence. "Age" is a flexible and relative concept. The chronological age of the defendant is not always the determinative factor.
Following the court's instructions, Kevin did not object to the instruction, nor did Kevin request any clarification for the jury. Therefore, Kevin waived appellate review of this assignment of error. See N.C. R. App. P. 10(b)(2); see also State v. Gregory, 348 N.C. 203, 211-12, 499 S.E.2d 753, 759 (holding the defendant waived appellate review where he requested a peremptory instruction, the trial court gave the peremptory instruction, and the defendant did not object to the instruction or request clarification), cert. denied, 525 U.S. 952, 142 L. Ed. 2d 315 (1998). Moreover, Kevin cannot show prejudice because one or more jurors found the (f)(7) circumstance. While Kevin assigns plain error as an alternative, he does not specifically and distinctly argue plain error. See N.C. R. App. P. 10(c)(4). This assignment of error is overruled.
By assignment of error, Tilmon contends the trial court erred by refusing to give a peremptory instruction on several mitigating circumstances which he contends are supported by uncontroverted, credible evidence. Specifically, Tilmon contends his request for peremptory instructions on the mitigating circumstances regarding his age, N.C.G.S. § 15A-2000(f)(7), and inability to appreciate the criminality of his actions, N.C.G.S. § 15A-2000(f)(6), and non-statutory mitigating circumstances regarding Tilmon's being forced to lie about parental abuse, being subjected to parental neglect, and his not receiving necessary counseling were improperly denied. We disagree.
As we previously stated, the trial court should give a peremptory instruction for mitigating circumstances when the evidence is uncontroverted. See Wallace, 351 N.C. at 525-26, 528 S.E.2d at 354. However, peremptory instructions are not required when the evidence supporting a mitigating circumstance is controverted. See Womble, 343 N.C. at 683, 473 S.E.2d at 300.
We first address the failure of the trial court to give a peremptory instruction for the statutory mitigating circumstance of Tilmon's age at the time of the crimes. See N.C.G.S. § 15A-2000(f)(7).
Our review of the transcript reveals that Tilmon did not request a peremptory instruction on the (f)(7) statutory mitigating circumstance. In addition, following the trial court's instructions, when the parties were given an opportunity to request corrections and clarifications, Tilmon did not object to the trial court's failure to give any peremptory instruction on Tilmon's age at the time of the crime. Therefore, pursuant to N.C. R. App. P. 10(b)(2), Tilmon cannot now assign as error this alleged omission from the instruction. Accordingly, this argument is without merit.
Tilm
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