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State v. Golphin8/25/2000
on also contends he should have received a peremptory instruction stating that the evidence tended to show " he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired." N.C.G.S. § 15A-2000(f)(6).
While there was evidence which supported Tilmon's contention that he could not "appreciate the criminality of his conduct," there was also evidence that Tilmon attempted to eliminate Waters as a witness and that he initially denied shooting Trooper Lowry or Deputy Hathcock. In addition, there was evidence from family members that Tilmon cared for his grandmother. See State v. Lynch, 340 N.C. 435, 477, 459 S.E.2d 679, 701 (1995) (holding evidence by friends and family that a defendant volunteered to help and took care of others could conflict with evidence that a defendant's capacity to appreciate the criminality of his conduct was impaired), cert. denied, 517 U.S. 1143, 134 L. Ed. 2d 558 (1996). Therefore, as there was contradictory evidence, the trial court did not err in refusing to give a peremptory instruction on the (f)(6) statutory mitigating circumstance.
Tilmon further contends the trial court should have given peremptory instructions which he requested for several non-statutory mitigating circumstances: (1) he was subjected to parental neglect, (2) his mother forced him to lie about being abused, (3) he did not receive appropriate counseling, and (4) he was abandoned by his father. Our review of the transcript reveals Tilmon was given a peremptory instruction on the non-statutory mitigating circumstance that he was abandoned by his father. Therefore, we address only Tilmon's argument as to the other three circumstances.
Tilmon's claim that he was subjected to parental neglect was supported by evidence at trial. However, the State presented contradictory evidence. Neighbors of the Golphin family testified they never witnessed neglect by Tilmon's parents. In addition, there was evidence Tilmon lived in two nice neighborhoods while growing up. Therefore, as there was contradictory evidence, the trial court did not err in refusing to give a peremptory instruction on the non-statutory mitigator that Tilmon was neglected by his parents.
Tilmon also argues the trial court should have granted his request for a peremptory instruction about his mother previously forcing him to lie about parental abuse to protective services. The trial court originally indicated it would peremptorily instruct the jury with regard to this circumstance, but then decided the word "forced" in the circumstance was "sufficiently subjective" and not appropriate for a peremptory instruction. While there may have been evidence that Tilmon lied to protective services about abuse, it is not clear from the evidence that he was "forced" to lie. Therefore, the trial court properly refused to give a peremptory instruction for this non-statutory mitigating circumstance.
Finally, Tilmon argues the trial court should have given a peremptory instruction on the non-statutory mitigating circumstance that he did not receive any counseling for his problems. Again, the trial court initially agreed to give the instruction, but then decided it was "just too universal to be subject to a peremptory instruction." While Dr. Johnson testified there was "nothing in the record that says Tilmon got any counseling," this is not definitive evidence that he did not have any counseling. Therefore, the trial court did not err in refusing to give the peremptory instruction. Accordingly, this assignment of error is overruled.
In another assignment of error, Kevin contends the trial court committed reversible constitutional e
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