 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Golphin8/25/2000
rror by giving disjunctive instructions on the statutory aggravating circumstance of murder committed in the course of a felony. See N.C.G.S. § 15A-2000(e)(5). Kevin argues the instruction given by the trial court allowed the jury to find the (e)(5) aggravating circumstance to exist if the jury found him guilty of either armed robbery of Ava Rogers' car in South Carolina, or guilty of robbery of Trooper Lowry's weapon. Kevin contends this violated the jury unanimity requirement. We disagree.
In State v. DeCastro, 342 N.C. 667, 467 S.E.2d 653, this Court approved the use of a disjunctive instruction on the (e)(3) aggravating circumstance -- that defendant had been previously convicted of a crime involving the use or threat of violence to another person. Id. at 696, 467 S.E.2d at 668-69. We noted that the defendant's reliance on cases requiring a unanimous verdict to convict a defendant of a charged offense was misplaced. Id. We then stated, "So long as the crimes for which defendant had been previously convicted were felonies and involved the use or threatened use of violence against another person, the specific crime which supports this aggravating circumstance is immaterial." Id. at 696-97, 467 S.E.2d at 669.
In the instant case, the State requested two (e)(5) aggravating circumstances, one for each felony, to insure unanimity. Kevin objected to using two (e)(5) circumstances, and requested one (e)(5) circumstance based on one felony because the jury may perceive the number of aggravating circumstances as significant, and the legislature did not intend subdivision of the eleven aggravating circumstances. The trial court recognized Kevin's concerns and refused to allow the separate (e)(5) circumstances to be submitted based on each felony. Instead, the trial court submitted two theories of (e)(5) to the jury as subissues of one (e)(5) aggravating circumstance. On this issue, it instructed as follows:
As to the defendant Kevin Golphin as to the case in which the victim is Lloyd Lowry, the potential aggravating circumstance is stated as follows: "Was the capital felony committed by the defendant while the defendant was engaged in a flight after committing armed robbery or while in the commission of an armed robbery?"
As to the defendant Kevin Golphin in the case in which Lloyd Lowry is the victim, if you find from the evidence beyond a reasonable doubt that when Kevin Golphin killed Lloyd Lowry, the defendant was engaged in a flight after taking and carrying away a motor vehicle from the person and presence of Ava Rogers without her voluntary consent by endangering or threatening her life with a firearm, the defendant Kevin Golphin knowing that he was not entitled to take the property and intending at that time to deprive Ava Rogers of its use permanently or if you find from the evidence beyond a reasonable doubt that when Kevin Golphin killed Lloyd Lowry, the defendant was in the commission of taking and carrying away a pistol from the person and presence of Lloyd Lowry, without his voluntary consent by endangering or threatening his life with a firearm, the defendant Kevin Golphin knowing he was not entitled to take the pistol and intending at that time to deprive him of its use permanently, then you would find this aggravating circumstance and would so indicate by having your foreperson write, "Yes," in the space provided.
The instant case is analogous to DeCastro. There was evidence to support both theories of the (e)(5) circumstance, and both of the theories involved felonies. Therefore, both theories satisfy the requirements of the (e)(5) circumstance. See id. at 696, 467 S.E.2d at 668-69. As such, it is immaterial which crime the jurors use to support
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|