 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Golphin8/25/2000
rting them." Moseley, 338 N.C. at 54, 449 S.E.2d at 444. The same evidence cannot be used to support submission of more than one aggravating circumstance. See Hutchins, 303 N.C. at 354, 279 S.E.2d at 808.
In Hutchins, this Court addressed the submission of both the (e)(4) and (e)(8) aggravating circumstances:
Of the two aggravating circumstances challenged by defendant here as purportedly being based upon the same evidence, one of the aggravating circumstances looks to the underlying factual basis of defendant's crime, the other to defendant's subjective motivation for his act. The aggravating circumstance that the murder was committed against an officer engaged in the performance of his lawful duties involved the consideration of the factual circumstances of defendant's crime. The aggravating circumstance that the murder was for the purpose of avoiding or preventing a lawful arrest forced the jury to weigh in the balance defendant's motivation in pursuing his course of conduct. There was no error in submitting both of these aggravating circumstances to the jury. Id. at 355, 279 S.E.2d at 809.
As in Hutchins, in the instant case, the trial court submitted both the (e)(4) and (e)(8) aggravating circumstances to the jury. The (e)(4) aggravating circumstance required the jury to determine the subjective motivation for the murders. There is evidence that defendants were motivated by the desire to avoid arrest for stealing Rogers' vehicle. In support of the (e)(8) aggravating circumstance, the jury must consider the factual circumstances of the crime. There was evidence Trooper Lowry was performing an official duty when he stopped Kevin on I-95 for not wearing a seat belt and then learned of defendants' theft. There is also evidence that Deputy Hathcock was performing an official duty when he arrived on the scene to provide assistance to a fellow officer. Therefore, although the same underlying sequence of events was the subject of the (e)(4) and (e)(8) aggravating circumstances, the two circumstances were directed at distinct aspects of the crimes charged. The trial court did not err by submitting both the (e)(4) and (e)(8) aggravating circumstances. These assignments of error are overruled.
By assignments of error, Kevin and Tilmon contend the trial court erred by submitting the (e)(5) aggravating circumstance, that the capital felony was committed while defendant was engaged in or in flight after committing a robbery, and the (e)(11) aggravating circumstance, that the murder committed was part of a course of conduct involving other violent crimes, without instructing the jury not to consider the same evidence for each. We disagree.
It is axiomatic that a sentencing jury may not consider the same evidence in support of more than one aggravating circumstance. See Hutchins, 303 N.C. at 354, 279 S.E.2d at 808. In the instant case, both defendants concede there was sufficient evidence to provide adequate and separate bases for the two statutory aggravating circumstances in that both an armed robbery and a double murder took place. However, both argue that there was a likelihood that without a proper instruction, the jury might have utilized the same evidence in support of more than one aggravating circumstance. Neither defendant objected to the submission of the (e)(5) and (e)(11) circumstances on this basis, nor did they request a limiting instruction to that effect. Therefore, our review is limited to a search for plain error, "which requires defendant to show that the error was so fundamental that another result would probably have obtained absent the error." Rouse, 339 N.C. at 99, 451 S.E.2d at 565. After a careful review of the record, we agree with defenda
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.
|
|