State v. Golphin8/25/2000
nts' concessions that there exists more than sufficient evidence to provide independent bases for the two aggravating circumstances. Because such a quantum of evidence exists, defendants cannot show that a different result was probable had a limiting instruction been given. See Kandies, 342 N.C. at 452, 467 S.E.2d at 85. Accordingly, we decline to find plain error, and these assignments of error are overruled.
By several assignments of error, Kevin and Tilmon contend the trial court's instructions involving the jury's consideration of mitigating circumstances were erroneous. Specifically, they argue the instruction that allows the jury to reject a mitigating circumstance if it finds the circumstance to be without mitigating value is unconstitutional. We disagree.
Kevin and Tilmon both concede that this Court has previously upheld the instructions they challenge and ruled contrary to their positions on this issue in State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, 507 U.S. 924, 122 L. Ed. 2d 684 (1993). However, Tilmon makes an additional argument, without reference to any prior holding of this Court, relating to the jury's rejection of several non-statutory mitigating circumstances. Tilmon claims that uncontroverted evidence supported, inter alia, the following non-statutory mitigating circumstances: that he had an unstable home environment, that he was physically abused as a child, that he was reared by an abusive father, that he was remorseful, that he cared for his ailing grandmother, that he loved his grandparents, and that he suffered from parental neglect and low intellectual functioning. Tilmon claims that because these circumstances possess inherent mitigating value, the jury was not free to reject them and was required to give them mitigating value pursuant to Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1 (1982).
Although Tilmon attempts to frame this argument anew, citing "inherent mitigating content," we have previously rejected these claims. See Hill, 331 N.C. at 418, 417 S.E.2d at 780; State v. Huff, 325 N.C. 1, 58-61, 381 S.E.2d 635, 668-70 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990); State v. Fullwood, 323 N.C. 371, 395-97, 373 S.E.2d 518, 533-34 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990). Defendant has not cited, nor do we perceive, any reason to revisit our prior decisions. These assignments of error are overruled.
By another assignment of error, Kevin contends his sentences of death were imposed in an arbitrary and capricious manner because no juror found that the (f)(2) mitigating circumstance existed even though a peremptory instruction was given and substantial and uncontradicted evidence was presented in support of it. Kevin argues the jury was required to find that the (f)(2) circumstance existed because at least one juror found the existence of the non-statutory mitigating circumstance that "Kevin Golphin lacked parental involvement or support in treatment for psychological problems." He contends the same evidence was sufficient to support the (f)(2) statutory mitigating circumstance that "the capital felony was committed while the defendant was under the influence of mental or emotional disturbance." N.C.G.S. § 15A-2000(f)(2). We disagree.
Although a peremptory instruction for a mitigating circumstance may be given because the evidence in support of it is uncontroverted, a jury remains free to reject the circumstance in the event it does not find the evidence in support of the circumstance credible or convincing. See, e.g., Rouse, 339 N.C. at 107, 451 S.E.2d at 571; Gay, 334
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