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BUCK JUNIOR GOODMAN" ], "opinions": [ { "text": "BRITT, Justice.\nPursuant to G.S. 15A-2000 et seq., this case was tried in two phases: (1) to determine the guilt or innocence of defendant and (2) to determine his sentence for first-degree murder following his conviction of that charge. We will discuss the errors assigned under each phase.\nPhase I - Guilt Determination\nBy his first assignment of error defendant contends that, in connection with the charge of first-degree murder, the court erred in failing to instruct the jury concerning the effect of voluntary intoxication upon the elements of intent, premeditation and deliberation. We find no merit in this assignment.\n\u201cIt is well settled that voluntary drunkenness is not a legal excuse for crime; but where a specific intent, or premeditation and deliberation, is essential to constitute a crime or a degree of a crime, the fact of intoxication may negative its existence. Thus, while voluntary drunkenness is not, per se, an excuse for a criminal act, it may be sufficient in degree to prevent and, therefore, disprove the existence of a specific intent, such as the intent to kill.\u201d 4 Strong\u2019s N.C. Index 3d, Criminal Law \u00a7 6, p. 43, and cases cited therein. To reduce first-degree murder to second-degree murder the defendant\u2019s intoxication must be so great that he is \u201cutterly unable\u201d to form a deliberate and premeditated purpose to kill. State v. Propst, 274 N.C. 62, 72, 161 S.E. 2d 560, 567 (1968); see also, State v. McLaughlin, 286 N.C. 597, 213 S.E. 2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3206, 49 L.Ed. 2d 1208 (1976); State v. Bunn, 283 N.C. 444, 196 S.E. 2d 777 (1973); State v. Wilson, 280 N.C. 674, 187 S.E. 2d 22 (1972).\nWhether intoxication and premeditation can coexist depends upon the degree of inebriety and its effect upon the mind and passions; no inference of the absence of deliberation and premeditation arises as a matter of law from intoxication. State v. Hamby, 276 N.C. 674, 174 S.E. 2d 385 (1970), vacated on other grounds, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed. 2d 754 (1972). Ordinarily, then, the degree of intoxication and its effect upon the elements of premeditation and deliberation is an issue for the jury unless the evidence is insufficient to warrant submission of the issue to them. Id. the evidence offered at the first phase of the trial in this case was, however, insufficient to raise the issue of intoxication to a degree precluding premeditation and deliberation, and the trial court did not err in refusing to charge thereon. State v. McLaughlin, supra-, State v. Fowler, 285 N.C. 90, 203 S.E. 2d 803 (1974), vacated on other grounds, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed. 2d 1212 (1976); State v. Cureton, 218 N.C. 491, 11 S.E. 2d 469 (1940).\nIn McLaughlin there was ample evidence that the defendant had been drinking, but four witnesses who testified that defendant had been drinking prior to and at the time of the incident in question also testified that defendant was not drunk. In upholding the trial court\u2019s refusal to instruct on intoxication as a defense, the court said that there was no \u201cevidence that defendant\u2019s mind was so intoxicated and his reason so overthrown that defendant could not form a specific intent to kill.\u201d 286 N.C. 597 at 609.\nIn Fowler the court again upheld the trial court\u2019s refusal to instruct on the defense of intoxication, noting that there was evidence of defendant\u2019s drinking but that the only evidence of drunkenness was his own exculpatory statement.\nIn Cureton there was evidence that defendant was drinking at the time of the incident, but the record was \u201cdevoid of any suggestion that defendant\u2019s mental processes were deranged.\u201d 218 N.C. 491 at 496. Holding that absent such testimony there was no duty to instruct on the defense of intoxication, the court said, \u201cthere must be some evidence tending to show that the defendant\u2019s mental processes were so overcome by the excessive use of liquor or other intoxicants that he had temporarily, at least, lost the capacity to think and plan.\u201d Id. at 495.\nWe believe that the decision on this point in this case is controlled by the cases which we have cited and discussed. Admittedly, there is evidence in this record which tends to establish that defendant had been drinking. Lois testified that defendant had been drinking when he came home from work, but that she did not know how much, that he shared a six-pack of beer with two other men on the afternoon of the murder, and that he had \u201csome beer\u201d at a bar at which they stopped for less than thirty minutes before decedent got into the car with them. She also testified that there was beer in the car when she, her brother, defendant and the victim were riding together, but that she did \u201cnot remember if Buck [defendant] was drinking while he was driving.\u201d Her testimony fails to show that defendant\u2019s mental capacities were affected in any way by the beer which he consumed. To the contrary, her testimony shows that defendant was capable of driving, gave her directions when she drove, led the group on a search through a neighborhood looking for a CB and scanner stolen from his car, and participated in planning a scheme for disposing of the victim\u2019s body. Her testimony tends to show that defendant, despite the fact that he had been drinking, was capable of premeditation and deliberation and could form the specific intent to kill which is an essential element of first-degree murder.\nThe other state\u2019s witness who made reference to defendant\u2019s drinking clearly stated .that defendant was \u201cnot in a drunken condition.\u201d Defendant himself presented no evidence at the first phase of the trial which tended to show that he was intoxicated. The only witness presented in his behalf testified that he did not see defendant on the day which the murder occurred. On this evidence we hold that the court was not required to charge the jury upon the defense of intoxication. There was no evidence which showed that defendant\u2019s capacity to think and plan was affected by drunkenness.\nBy his second assignment of error defendant contends the court improperly required the jury to specify in its verdict the legal theory upon which they found defendant guilty of first-degree murder. He argues that the trial judge, by the manner in which he explained this procedure to the jury, inadvertently expressed an opinion as to defendant\u2019s guilt. Further, he argues that instructing on both the theory of premeditation and deliberation and the theory of felony-murder was confusing to the jury.\nBefore examining the specific charge given the jury, we think it appropriate to restate two principles which clarify the rationale underlying the trial court\u2019s decision to require that the jury specify in its verdict the theory upon which they found defendant guilty of first-degree murder. (1) Where the conviction of a defendant for first-degree murder is based upon the felony-murder rule and there is no proof of malice, premeditation and deliberation, proof that the murder was committed in the perpetration of the felony is an \u201cessential and indispensable element in the state\u2019s proof,\u201d and a verdict of guilty on the underlying felony cannot provide a basis for additional punishment. State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972). (2) Where the conviction of a defendant for first-degree murder is based upon proof of malice, premeditation and deliberation, proof of an underlying felony \u2014 although that felony be part of the same continuous transaction \u2014 is not an essential element of the state\u2019s homicide case, and the defendant may therefore be sentenced upon both the murder conviction and the felony conviction. State v. Tatum, 291 N.C. 73, 229 S.E. 2d 562 (1976).\nIn the case at hand defendant was indicted for murder, armed robbery, and kidnapping. The murder indictment was drawn in the manner prescribed by G.S. 15-144 and would support a guilty verdict based upon the theory of premeditation and deliberation or upon the application of the felony-murder rule. State v. Bush, 289 N.C. 159, 221 S.E. 2d 333, death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed. 2d 69 (1976); State v. Moore, 284 N.C. 485, 202 S.E. 2d 169 (1974); State v. Thompson, supra. The evidence at trial was sufficient to justify submission of the charge of first-degree murder under either theory. There was also sufficient evidence to submit to the jury the issue of defendant\u2019s guilt or innocence of the armed robbery and kidnapping charges. If defendant were found guilty of first-degree murder solely by virtue of the felony-murder rule, the court would be precluded from imposing upon him additional punishment for the underlying felony; if defendant were found guilty of first-degree murder pursuant to premeditation and deliberation, and if the jury also found him guilty on one or more other felony charges, the court would not be so precluded. Thus, it was appropriate that the court determine the basis of the jury\u2019s verdict so that defendant might be properly sentenced.\nIn addition, G.S. 15A-1237 authorizes the use of a written verdict. The jury\u2019s verdict \u201cmust be in writing, signed by the foreman, and made a part of the record of the case.\u201d \"G.S. 15A-1237(a). This section is intended to aid the trial court in avoiding the taking of verdicts which are flawed by the inadvertent omission of some essential element of the verdict itself. \u201cIt is contemplated that the jury will be given a verdict form setting out the permissible verdicts recited by the judge in his instructions.\u201d Official Commentary, G.S. 15A-1237. As the court in this case explained to the jury, there were two permissible guilty verdicts to the charge of first-degree murder, guilty by reason of the felony-murder rule or guilty by reason of premeditation and deliberation. If the jury\u2019s verdict were general, not specifying the theory upon which guilt was found, the court would have no way of knowing what theory the jury used and would not have proper basis for passing judgment. If, as the court required in this case, the jury\u2019s verdict specified the theory, the court could sentence appropriately. We believe the required use of a specific written verdict in this case is consistent with the intent of G.S. 15A-1237 and that it enabled the trial court to avoid the difficulty which that provision seeks to alleviate.\nHaving decided that the procedure used by the trial court was appropriate and that there was good reason for its use, the remaining question is whether the court, in using this procedure, confused the jury or inadvertently expressed an opinion as to defendant\u2019s guilt. We have carefully scrutinized this aspect of the court\u2019s instructions to the jury, and we perceive no prejudicial error.\nDefendant has assigned error to the following excerpt from the charge:\nMembers of the jury, I instruct you that if you should find the defendant guilty of murder in the first degree, we also require you in this case, because there are two theories and two applications of the law, to write down that of which you have found the defendant guilty. If it should be that you have found him guilty beyond a reasonable doubt of both murder in the first degree by premeditation and deliberation and guilty of murder in the first degree by the felony murder rule, we would request that you so write in both of those as your verdict. Remembering all of the while there can only be one charge and one ultimate conviction, if any, of murder in the first degree. There are not two separate verdicts of murder in the first degree, but your return of a verdict in this elaborated form, if he be guilty at all, would then as a matter of law let all know your particulars of your specific verdict. By having so instructed you, I do not mean to infer in any manner, whatsoever, what your verdict should be to this charge or to any of the other charges in the case. Below the space for your verdict is a space for the date and a line for the foreman of the jury to sign. Since the first of July of this year, it is the requirement of our law that jury verdicts shall be in writing and shall be signed by the foreman of the jury. The other members of the jury are not required to sign.\nApparently, his argument is that by linking the two theories with the word \u201cand\u201d rather than \u201cor,\u201d the court implied that defendant was guilty of first-degree murder. This argument finds no support when this portion of the charge is examined in context with the remainder.\nWhen the judge began his instruction on the murder charge, he said:\nUnder the law and the evidence in this case on this charge, it is your duty to return one of the following three verdicts: that is to say, guilty of murder in the first degree or guilty of murder in the second degree or not guilty. Now, as you come to consider whether or not he is guilty or not guilty of murder in the first degree, there are two separate theories upon which the State has proceeded and under which evidence has been offered; and those theories are whether or not the defendant be guilty of murder in the first degree by premeditation and deliberation or whether or not he be guilty of murder in the first degree by the felony murder rule or any lesser included offense or not guilty. I will discuss this aspect of it with you further as I come at the close of the trial to discuss with you your actual return of a written verdict and the form which will be handed to you.\nThe judge then charged on each of the two theories, making it clear that, \u201c[i]n the alternative,\u201d the jury might find defendant guilty upon either of them alone or both of them together. We do not believe this instruction confused the jury, nor do we find any expression of opinion by the court in the charge. Twice during this portion of the instructions the judge told the jury that they were not to infer from the instruction, \u201cin any manner, whatsoever,\u201d what their verdict should be. This assignment of error is overruled.\nBy his third assignment of error defendant contends the court improperly accepted an incomplete jury verdict at the conclusion of the first phase of the trial. He argues that the trial court asked questions of the jury which suggested a desired verdict to them. His contention is that the court should have reinstructed the jury upon the issues submitted to them and required them to return to the jury room for further deliberations. We do not agree.\nWhen the jury concluded its deliberations and reconvened in open court to render the verdict, the following exchange occurred:\nCLERK: Members of the jury, look upon the defendant. You say Buck Junior Goodman is guilty of murder in the first degree by premeditation and deliberation, or guilty of murder in the first degree by the felony murder rule. Is that your verdict?\nFOREMAN: Yes.\nCLERK: So say you all?\nThe jury answers affirmative.\nCOURT: For clarity, members of the jury, are you saying that you are returning as your verdict that he is guilty of murder by both of those propositions of law?\nFOREMAN: Murder in the first degree.\nCOURT: By premeditation and deliberation, and guilty of murder in the first degree by the felony murder rule under both principles of law? Is that the verdict of the jury?\nFOREMAN: It was murder in the first degree by premeditation, and it was our understanding that you also wanted us to put that other in there also.\nCOURT: If that was what you found beyond a reasonable doubt.\nFOREMAN: If we reached premeditation, which we did.\nCOURT: For clarity, am I to understand that the verdict of the jury in this charge is that the defendant is guilty of murder in the first degree by premeditation and deliberation?\nFOREMAN: Yes sir.\nCOURT: For clarity, am I to understand that the verdict of the jury is guilty of murder in the first degree by the felony murder rule in addition to your finding of guilty of murder in the first degree by premeditation and deliberation?\nFOREMAN: Yes.\nCOURT: Is that the verdict of the jury on this charge so say you all?\nJURY: Yes.\nThe record also discloses the following:\nThe clerk polls the jury if the verdict of guilty of MURDER IN THE FIRST DEGREE BY PREMEDITATION AND DELIBERATION AND GUILTY OF MURDER IN THE FIRST DEGREE BY THE FELONY MURDER RULE IS THEIR OWN INDIVIDUAL VERDICT AND IF EACH JUROR STILL ASSENTS THERETO. ALL JURORS ANSWER IN THE AFFIRMATIVE.\nWe hold that this exchange was not improper and that the court was not required to return the jury to the jury room for additional deliberation. The court may make inquiry of the jury to ascertain the meaning of its verdict, thereby eliminating any ambiguity or uncertainty. Davis v. State, 273 N.C. 533, 160 S.E. 2d 697 (1968). In doing so the judge must not suggest to the jury what he believes to be the proper verdict. State v. Godwin, 260 N.C. 580, 133 S.E. 2d 166 (1963); State v. Gatlin, 241 N.C. 175, 84 S.E. 2d 880 (1954).\nIn this case the court was attempting to dispel the ambiguity which was created by the jury foreman\u2019s response to the clerk\u2019s first question. The judge made certain that the jury understood that his questions were asked \u201cfor clarity\u201d and that they were not to respond affirmatively to any question he asked unless the issue about which he questioned them was one which they had themselves already resolved beyond a reasonable doubt. There was no need to return them to the jury room for further deliberation as they had already indicated that they found defendant guilty of first-degree murder. The thrust of the court\u2019s questions was directed at determining the basis for the verdict, a necessary determination upon which we have already commented. This assignment of error is overruled.\nBy his ninth assignment of error defendant contends that he was improperly sentenced for the offenses of kidnapping and armed robbery as those offenses merged with the murder conviction. As we have already said, no merger of the felony occurs when the homicide conviction is based upon the theory of premeditation and deliberation. State v. Thompson, supra. Defendant was found guilty by virtue of premeditation and deliberation as well as by application of the felony-murder rule. Thus, the court could disregard the felony-murder basis of the homicide verdict and impose additional punishment upon defendant for the crimes of armed robbery and kidnapping. State v. Tatum, supra. This assignment of error is overruled.\nFor the reasons stated, we find no error in the guilt determination phase of defendant\u2019s trial and the judgments entered on the kidnapping and armed robbery charges.\nPhase II \u2014 Sentence Determination\nBy his fourth assignment of error defendant contends that Article 100 of G.S. Chapter 15A (G.S. 15A-2000 et seq.) is unconstitutional. In accord with a well-established precept of appellate review, this court refrains from deciding constitutional questions when there is an alternative basis upon which a case may properly be decided. State v. Jones, 296 N.C. 495, 251 S.E. 2d 425 (1979); State v. Crabtree, 286 N.C. 541, 212 S.E. 2d 103 (1975); State v. Jones, 242 N.C. 563, 89 S.E. 2d 129 (1955). Because of our decision in the sentence determination phase of this case, it is not necessary that we rule upon the constitutionality of G.S. 15A-2000 et seq. at this time. We conclude that there was error in the instructions given to the jury at the sentencing phase of the trial.\nThe general scheme of our death penalty statute enacted by the 1977 General Assembly is: Upon conviction or adjudication of guilt of a defendant of a capital felony, the court conducts a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. G.S. 15A-2000(a)(l). Instructions determined by the trial judge to be warranted by the evidence are given in his charge to the jury prior to its deliberation in determining the sentence. The judge should instruct that the jury must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances enumerated in G.S. 15A-2000(e) and (f) which are supported by the evidence, and he should furnish to the jury a written list of issues relating to such aggravating or mitigating circumstance or circumstances. After hearing the evidence, arguments of counsel and instructions of the court, the jury must deliberate and render a sentence recommendation based upon (1) whether any sufficient aggravating circumstance or circumstances as enumerated in the statute exist, (2) whether any sufficient mitigating circumstance or circumstances as enumerated in the statute which outweigh the aggravating circumstance or circumstances found, exist, and (3) based on these considerations, whether the defendant should be sentenced to death or to life imprisonment. G.S. 15A-2000(b).\nG.S. 15A-2000(d) provides:\n(d) Review of Judgment and Sentence.\u2014\n(1) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of North Carolina pursuant to procedures established by the Rules of Appellate Procedure. In its review, the Supreme Court shall consider the punishment imposed as well as any errors assigned on appeal.\n(2) The sentence of death shall be overturned and a sentence of life imprisonment imposed in lieu thereof by the Supreme Court upon a finding that the record does not support the jury\u2019s findings of any aggravating circumstance or circumstances upon which the sentencing court based its sentence of death, or upon a finding that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, or upon a finding that the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The Supreme Court may suspend consideration of death penalty cases until such time as the court determines it is prepared to make the comparisons required under the provisions of this section.\n(3) If the sentence of death and the judgment of the trial court are reversed on appeal for error in the post-verdict sentencing proceeding, the Supreme Court shall order that a new sentencing hearing be conducted in conformity with the procedures of this Article.\nRead together, G.S. 15A-2000(d)(l) and (d)(3) empower this court to review errors assigned in the trial and sentencing phases. When prejudicial error is found, the court must order a new sentencing hearing.\nIn the case at hand, after evidence and arguments were presented at the sentencing phase, the court submitted issues upon the aggravating circumstances enumerated in G.S. 15A-2000 (e)(3), (e)(4), (e)(5), (e)(7), and (e)(9). We think the court erred in submitting issues under both subsections (e)(4) and (e)(7) and that because thereof defendant should receive a new sentencing hearing. We will examine the various provisions on which issues of aggravating circumstances were submitted.\n1.\nG.S. 15A-2000(e)(3) states that one of the aggravating factors which may justify the imposition of the death penalty is the fact that the \u201cdefendant had been previously convicted of a felony involving the use or threat of violence to the person.\u201d This section requires that there be evidence that (1) defendant had been convicted of a felony, that (2) the felony for which he was convicted involved the \u201cuse or threat of violence to the person,\u201d and that (3) the conduct upon which this conviction was based was conduct which occurred prior to the events out of which the capital felony charge arose. If there is no such evidence, it would be improper for the court to instruct the jury on this subsection.\nIn State v. Rust, 197 Neb. 528, 250 N.W. 2d 867, cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed. 2d 198 (1977), defendant contended that the sentencing authority\u2019s finding that he had previously been convicted of a felony \u201cinvolving the use or threat of violence to the person\u201d was inconsistent with a finding that this factor was not present in the case of State v. Ell, 196 Neb. 800, 246 N.W. 2d 594 (1976). In Rust the state offered as evidence a record of defendant\u2019s 1969 felony conviction for assault with intent to do great bodily harm; in Ell the state\u2019s evidence showed only that defendant had been charged with a similar offense. Overruling Rust\u2019s contention, the Nebraska court held that the state must present \u201cproof of actual guilt\u201d to sustain a finding that this aggravating circumstance was present. When the state\u2019s evidence showed only that a defendant had been charged with a felony as opposed to a conviction for that crime, it was not inconsistent to find that the aggravating factor set out in this provision had not been shown to exist. \u201cClearly the language of that subsection excludes the possibility of considering mere arrests or accusations as factors in aggravation.\u201d Provence v. State, 337 So. 2d 783 (Fla. 1976) cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed. 2d 1065 (1977). It is improper to instruct the jury upon the factor enumerated in subsection (e)(3) when there is no evidence which tends to show a felony conviction. Also, the felony for which the defendant has been convicted must be one involving threat or use of violence to the person. It cannot, under this provision, be a crime against property.\nFinally, we believe that the \u201cpreviously convicted\u201d language used by the legislature in subsection (e)(3) refers to \u201ccriminal activity conducted prior to the events out of which the charge of murder arose.\u201d State v. Stewart, 197 Neb. 497, 250 N.W. 2d 849 (1977); see also, State v. Rust, supra; State v. Holtan, 197 Neb. 544, 250 N.W. 2d 876, cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed. 2d 198 (1977). To decide otherwise would lead to unnecessary duplication within the statute, for G.S. 15A-2000(e)(5) enumerates those felonies which occur simultaneously with the capital felony which the legislature deems worthy of consideration by the jury. It would be improper, therefore, to instruct the jury that this subsection encompassed conduct which occurred contemporaneously with or after the capital felony with which the defendant is charged.\nIn the case sub judice defendant stipulated at the sentencing phase that he had been convicted on 31 January 1967 of three counts of armed robbery arising from a single incident which occurred on 4 January 1966. Armed robbery, by definition, involves the use or threat of violence to the person of the victim. Defendant was convicted of this crime, and the conduct upon which his conviction was based did not arise out of the incident upon which the capital felony was charged. The trial court properly refrained from instructing the jury that they might consider under this enumeration the convictions of defendant for armed robbery and kidnapping, which convictions were based upon the same events culminating in the murder of Lester Collins. The evidence in this case was clearly sufficient to justify instruction upon this subsection, and the court properly instructed the jury thereon.\n2.\nG.S. 15A-2000(e)(5) states that the jury may consider as an aggravating circumstance justifying the death penalty the fact that the capital felony \u201cwas committed while the defendant was engaged ... in the commission of . . . any robbery . . . [or] kidnapping . . .\u201d (emphasis added) or other enumerated felony. In State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), we have limited the application of this subsection in felony murder cases. This section needs only brief additional comment, for it is otherwise reasonably free from ambiguity. This subsection differs from (e)(3), which we previously discussed, in that it guides the jury\u2019s deliberation upon criminal conduct of the defendant which takes place \u201cwhile\u201d or during the same transaction as the one in which the capital felony occurs. The previous section, as we have already said, deals with prior conduct. Under the rule set forth in Cherry, instruction on this provision is appropriate only when the defendant is convicted for first-degree murder upon the theory of premeditation and deliberation.\nIn instant case, defendant was found guilty upon the theory of premeditation and deliberation as well as by virtue of the felony murder rule. There was ample evidence that Lester Collins was murdered during the course of a kidnapping and armed robbery, and the court was therefore correct in submitting to the jury the aggravating circumstance defined in subsection (e)(5).\n3.\nG.S. 15A-2000(e)(9) states that the jury may consider as an aggravating circumstance justifying the imposition of the death penalty the fact that the \u201ccapital felony was especially heinous, atrocious, or cruel.\u201d While we recognize that every murder is, at least arguably, heinous, atrocious, and cruel, we do not believe that this subsection is intended to apply to every homicide. By using the word \u201cespecially\u201d the legislature indicated that there must be evidence that the brutality involved in the murder in question must exceed that normally present in any killing before the jury would be instructed upon this subsection. State v. Stewart, supra; State v. Rust, supra; State v. Simants, 197 Neb. 549, 250 N.W. 2d 881, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed. 2d 158 (1977).\nThe Florida provision concerning this aggravating factor is identical to ours. Florida\u2019s Supreme Court has said that this provision is directed at \u201cthe conscienceless or pitiless crime which is unnecessarily torturous to the victim.\u201d State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed. 2d 295 (1974); see also, State v. Alford, 307 So. 2d 433 (Fla. 1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed. 2d 1221 (1976). Nebraska has also adopted the Florida construction of this subsection. Both Florida and Nebraska have limited the application of this subsection to acts done to the victim during the commission of the capital felony itself. State v. Rust, supra; Riley v. State, 366 So. 2d 19 (Fla.. 1979). We too believe that this is an appropriate construction of the language of this provision. Under this construction, subsection (e)(9) will not become a \u201ccatch all\u201d provision which can always be employed in cases where there is no evidence of other aggravating circumstances. Harris v. State, 237 Ga. 718, 230 S.E. 2d 1 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed. 2d 251 (1977).\nIn the case before us the court instructed as follows in his discussion of G.S. 15A-2000(e)(9):\nYou are instructed that the words \u201cespecially heinous, atrocious or cruel\u201d means extremely or especially or particularly heinous or atrocious or cruel. You\u2019re instructed that \u201cheinous\u201d means extremely wicked or shockingly evil. Atrocious means marked by or given to extreme wickedness, brutality or cruelty, marked by extreme violence or savagely fierce. It means outrageously wicked and vile. \u201cCruel\u201d means designed to inflict a high degree of pain, utterly indifferent to or enjoyment of the suffering of others.\nWe hold that this instruction is in accord with the construction of this subsection which we have adopted and that its submission to the jury was proper in light of the evidence in this case. The evidence reveals that decedent was shot several times and then cut repeatedly with a knife. Still living, he was placed in the trunk of a car where he remained for several hours. His struggle to escape from the trunk could be heard. Decedent, still in the trunk, was then driven into another county where he was taken from the car. He was placed upon the ground with his head resting upon a rock and then shot twice through the head. This murder is marked by extremely vicious brutality.\n4.\nG.S. 15A-2000(e)(4) states that the jury may consider as an aggravating circumstance justifying the imposition of the death penalty the fact that \u201cthe capital felony was committed for the purpose of avoiding or preventing a lawful arrest. . . .\u201d This provision, on its face, is unambiguo\u00fas, but it must also be construed properly so that instructions on this aggravating circumstance will only be given the jury in appropriate cases. In a broad sense every murder silences the victim, thus having the effect of aiding the criminal in the avoidance or prevention of his arrest. It is not accurate to say, however, that in every case this \u201cpurpose\u201d motivates the killing.\nThis provision in the Florida statute, which is identical to North Carolina\u2019s statute in this respect, was examined in Riley v. State, stcpra, a case in which the defendant in the course of an armed robbery at his place of employment shot a witness to the crime who was not a police officer. The Florida court gave this analysis of the provision:\nAppellant urges us to limit this factor to cases where a police officer or other apprehending official is killed. He suggests that unless we do so, every murder could be characterized as an attempt to eliminate a witness, causing another automatic cumulation of factors. The state argues more narrowly, from the evidence in this case, that the only possible motive for the killing was to eliminate an identification witness.\nThe record supports the state\u2019s view, as the facts admit of only one interpretation. The victim, who well knew and could identify appellant, was immobilized and rendered helpless. He was then executed after one of the perpetrators expressed a concern for subsequent identification. Plainly appellant killed to avoid identification and arrest. Appellant concedes this view of the evidence in his brief.\nSince the facts show this to be an execution-type killing to avoid lawful arrest, we necessarily reach the broader issue of whether the language of the applicable provision encompasses the murder of a witness to a crime as well as law enforcement personnel. We hold that it does. We caution, however, that the mere fact of a death is not enough to invoke this factor when the victim is not a law enforcement official. Proof of the requisite intent to avoid arrest and detection must be very strong in these cases. Here, of course, it was. 366 So. 2d 19 at 22. (Notes and citations omitted, emphasis added.)\nWe believe that the construction given this subsection by the Florida court is substantially correct. We add, by way of caution, that even the killing of a police officer or other law enforcement official will not automatically trigger this provision. If, for example, a deranged person began randomly firing a weapon into a crowd of people and fortuitously killed a law officer, it would not necessarily be true that this factor was present. Absent the existence of other evidence supporting instruction thereon, it would be improper to instruct the jury that they might find that one of the purposes for which the officer was killed under these circumstances was to avoid or prevent the defendant\u2019s arrest. Before the trial court can instruct the jury on this aggravating circumstance there must be evidence from which the jury can infer that at least one of the purposes motivating the killing was defendant\u2019s desire to avoid subsequent detection and apprehension for his crime. We repeat that \u201cthe mere fact of a death is not enough to invoke this factor.\u201d Id.\nIn this case there was evidence from which the jury could infer that defendant killed Lester Collins to avoid or prevent his arrest. There was testimony that after Collins was shot and cut, but before he was killed, defendant stated that he \u201cwas afraid if the police found Lester that he would tell what had been done to him. . . Defendant and Charles Goins then planned to bury Collins. At some later point they decided to shoot him and place him on a railroad track where his body would be mangled by a passing train. On this factual basis the court was correct in instructing the jury upon subsection (e)(4).\n5.\nFinally, we direct our attention to G.S. 15A-2000(e)(7). This subsection provides that the jury may consider as an aggravating circumstance the fact that the \u201ccapital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.\u201d This subsection, like subsection (e)(4), might be broadly construed so that its application would be proper in any homicide found to have been committed against a public official, for the purpose of avoiding or preventing a lawful arrest, or for the purpose of escaping from custody. See State v. Rust, supra at p. 875.\nWe can envision the difficulty this court is going to encounter in construing and applying subsections (e)(4) and (e)(7). We can also envision the difficulty the trial courts are having and will have in deciding which of the subsections would be applicable to the evidence in a particular case. Suffice it to say for the purposes of the case at hand, the trial court erred in submitting issues of aggravating circumstances pursuant to both subsections.\nIn submitting the issue under (e)(4), the court reviewed the evidence tending to show that on the night in question while defendant, Lois, Charles and Collins were on Rural Paved Road 2007 in Cumberland County, that Collins was shot and received some cuts to his body; that defendant and Charles then made statements to the effect that they did not want to be arrested for anything; and that they therefore proposed to take Collins to Robeson County so that he could not tell on them. The court then instructed the jury that if they found those to be the facts beyond a reasonable doubt, and believed that to be an aggravating circumstance, then they should answer the issue \u201cyes\u201d.\nIn submitting the issue under (e)(7), the trial court reviewed substantially the same evidence. The court then instructed the jury that if they found those to be the facts beyond a reasonable doubt and believed that to be an aggravating circumstance, then they should answer the issue \u201cyes\u201d.\nWe think the submission of the two issues on the same evidence was improper. This amounted to an unnecessary duplication of the circumstances enumerated in the statute, resulting in an automatic cumulation of aggravating circumstances against the defendant. We now address the question whether the error was prejudicial.\nDue to the brief time the statute in question has been in effect, we have no precedent of this court to guide us in answering the question. However, on the question of admitting incompetent evidence, we have held that the test of harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. State v. Thacker, 291 N.C. 447, 189 S.E. 2d 145 (1972); State v. Fletcher, 279 N.C. 85, 181 S.E. 2d 405 (1971).\nWe believe a similar test should be applied when one of the aggravating circumstances listed in G.S. 15A-2000(e) is erroneously submitted by the court and answered by the jury against the defendant. It follows that in cases coming before us presenting this question we must answer the question based on the evidence in the particular case.\nOf course, we have no way of knowing if submission of the erroneous issue in the case at hand tipped the scales in favor of the jury finding that the aggravating circumstances were \u201csufficiently substantial\u201d to justify imposition of the death penalty. We note that the jury answered the issues submitted on five aggravating circumstances against defendant and only one issue on mitigating circumstances in his favor. Ordinarily, this might cause us to conclude that erroneous submission of one of the issues on aggravating circumstances could not have influenced the jury\u2019s ultimate decision that defendant should receive the death penalty.\nHowever, due to the highly questionable quality and credibility of the state\u2019s primary evidence, we think there is a reasonable possibility that submission of the erroneous issue may have made the difference in the jury\u2019s decision. Obviously, the terrible crimes in question were committed by defendant, Charles Goins or Lois Goins or a combination of two or all of them. Through plea bargaining Lois became the key witness for the state and gave testimony damaging to defendant and favorable to her brother Charles. Her character was impeached and Charles\u2019 record was shown to be no better than defendant\u2019s. Having already received his six-year sentence for participation in the crimes, Charles testified for defendant and stated that he was the chief culprit. Certainly there was more reason for Charles to kill Collins: there was animosity by the Goins family against Collins because of his alleged mistreatment of his wife who was also Charles\u2019 sister.\nConsidering all of the evidence in the case, and in particular the low quality and credibility of Lois\u2019 testimony, we hold that submission of the erroneous issue was prejudicial. Therefore, defendant should have a new trial on the sentencing phase.\nBefore leaving this assignment of error we think that one additional comment needs to be made. We do not intend to imply that the aggravating circumstances enumerated in G.S. 15A-2000 (e) can never overlap or that more than one of them can never arise from a single incident. We realize that in some cases the same evidence will support inferences from which the jury might find that more than one of the enumerated aggravating circumstances is present. This duality will normally occur where the defendant\u2019s motive is being examined rather than where the state relies upon a specific factual element of aggravation. In such cases it will be difficult for the trial court to decide which factors should be presented to the jury for their consideration. We believe that error in cases in which a person\u2019s life is at stake, if there be any, should be made in the defendant\u2019s favor, and that the jury should not be instructed upon one of the statutory circumstances in a doubtful case.\n* * *\nIn view of the fact that, for the reason aforestated, there must be a retrial of the sentencing phase of this case, we will comment but briefly on defendant\u2019s remaining assignments of error.\nBy his fifth assignment defendant contends the court erred in allowing the state to introduce illegally seized .380 caliber bullets at the sentencing hearing for the purpose of impeaching him. Defendant acknowledges that the rules set forth in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971), and Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), permit the admission of illegally seized evidence for impeachment purposes. He contends that the evidence admitted in this case did not impeach his testimony and was therefore improperly admitted.\nIt is clear from the record that defendant responded to a question from the prosecutor on cross-examination that he \u201cnever had any bullets for a .38.\u201d It is not clear that the .380 Winchester-Western ammunition subsequently introduced by the state is ammunition which can be used in a .38 pistol. Absent such foundation for the introduction of this testimony, this evidence does not impeach defendant\u2019s response to the prior question. The state argues that defendant not only denied having .38 bullets, but that he also denied having any bullets whatsoever. Under the state\u2019s argument proof that defendant had any type of ammunition would impeach this broad denial. The state\u2019s interpretation of defendant\u2019s testimony finds only slight support in the record and is in direct conflict with defendant\u2019s statement that he \u201cdid not say that [he] never had any bullets for any type of weapon.\u201d\nOn the record before us we do not believe there was adequate foundation to support the introduction of the .380 caliber bullets into evidence to impeach defendant\u2019s testimony. Because we have already determined, for other reasons, that there must be a retrial of the sentencing phase, it is not necessary that we decide whether this error alone would be so prejudicial as to require a new hearing.\nBy his sixth assignment of error defendant contends that the court erred in two respects in instructing the jury upon intoxication as a mitigating factor. Defendant\u2019s first argument is that the court limited a finding of mitigation under G.S. 15A-200Q(f)(6) by requiring the jury to find that defendant was drunk before finding this circumstance present. Defendant\u2019s second argument hereunder is that the court failed to instruct the jury that any intoxication, however slight, might be considered as a mitigating circumstance under G.S. 15A-2000(f)(9). We shall address these arguments separately.\nG.S. 15A-2000(f)(6) provides that the jury may consider as a mitigating factor the fact that the \u201ccapacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.\u201d With reference to this provision the court instructed the jury as follows:\n. . . [Y]ou shall take up 2.b. which reads: \u201cThe capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.\u201d I instruct you that the defendant has offered evidence which tends to show that he drank approximately eight or more beers from the time he got home from work on that Saturday, July 2, 1977, until approximately 3 a.m. on the Sunday morning of July 3, when he was out on the road by the railroad tracks in Robeson County. The defendant contends that from his drinking beer, he became drunk or intoxicated and that this condition impaired him from having the mental or physical capacity to appreciate the criminality of his conduct or to conform to the requirements of the law.\nThe State contends that the defendant knew what he was doing and that his capacity was not impaired.\nGenerally, voluntary intoxication is not a legal excuse for crime. However, if you believe that he had been drinking and was drunk or intoxicated and that this impaired his mental and physical capacity to appreciate the criminality of his conduct, or to conform his conduct to the requirements of the law, then you should answer this question 2.b. \u201cyes\u201d. On the other hand if you do not so find it would be your duty to answer 2.b. \u201cno\u201d.\nWe think the instruction adequately explains subsection (f)(6) in context with the evidence in this case.\nBecause there are a great many factors which might impair the defendant\u2019s capacity to appreciate the criminality of his conduct or to conform it to the requirements of law, the language of this subsection is necessarily broad. Adequate instruction under this provision must be linked to the impairing factor or factors raised by the evidence. In instant case the only such factor was defendant\u2019s consumption of alcohol. We do not think that the legislature intended, under this subsection, that the jury might find intoxication, however slight, to be a mitigating circumstance. If this were true, every murderer, conceivably, would consume strong drink before taking his victim\u2019s life. Nor is the degree of intoxication so great that it precludes the defendant from being found guilty of crime. When the defendant contends that his faculties were impaired by intoxication, such intoxication must be to a degree that it affects defendant\u2019s ability to understand and control his actions before subsection (f)(6) is applicable. We think the instruction now under consideration makes it clear that this state of intoxication is required.\nG.S. 15A-2000(f)(9) provides that the jury may consider as a mitigating factor \u201c[a]ny other circumstance arising from the evidence which the jury deems to have mitigating value.\u201d We are mindful that a death penalty statute may not restrict the jury\u2019s consideration of any factor relevant to the circumstances of the crime or the character of the defendant. Lockett v. Ohio, \u2014 U.S. \u2014, 98 S.Ct. 2954, 57 L.Ed. 2d 973 (1978). Even so, we do not believe the court is required to point to every factor arising from the evidence which might conceivably be considered by the jury under this provision. In the instant case the court instructed as follows:\nAgain, regardless of how you shall find as to 2.b., you would go and take up 2.c. which reads: \u201cDo you find any other circumstance arising from the evidence which the jury deems to have mitigating value?\u201d The defendant contends that at least you should find the following circumstances to have mitigating value.\nFirst, he contends that the evidence that Charles Goins received a sentence of six years for the offense of accessory after the fact of murder in the first degree is a mitigating circumstance. On the other hand, the State contends that the evidence shows that Charles Goins pled guilty to the offense of accessory after the fact of murder in the first degree by Buck Junior Goodman, and that this was the offense charged against Charles Goins in the bill of information which was the charging instrument against Charles Goins and upon which he entered his plea of guilty.\nSecond, the defendant contends that he has a limited education and experience and that he stopped school in the 6th grade without completing the same.\nThird, he contends that he was attempting to protect the girl he loved, to wit: Annie Lois Goins, who was the mother of one of his children; and\nFourth, he contends that any other circumstance which you, the jury, find from the evidence is a mitigating value and circumstance ought to be considered by you.\nIf you simply believe that there are other mitigating circumstances in this case which have mitigating value, then you would answer 2.c. \u201cyes\u201d. On the other hand, if you are not so satisfied, it would be your duty to answer 2.c. \u201cno\u201d.\nThis instruction highlights some elements of the evidence which might not have been clearly brought to the attention of the jury. Although the court did not refer to defendant\u2019s intoxication, the instruction in no way prevents the jury from considering that circumstance. For this reason we believe the charge is adequate. The court is not required to sift through the evidence and search out every possible circumstance which the jury might find to have mitigating value.\nBy his seventh assignment of error defendant contends the trial court erred in failing to instruct the jury that they might recommend a sentence of life imprisonment even though they found the aggravating circumstances outweighed those in mitigation. His argument is that without such instruction the jury will mathematically balance the two types of factors against each other and will impose the death penalty whenever aggravating circumstances outnumber mitigating ones. We do not agree that this is the manner in which a jury will reach its decision on this important question or that the instruction for which defendant contends is required by our statute.\nIt must be emphasized that the deliberative process of the jury envisioned by G.S. 15A-2000 is not a mere counting process. State v. Dixon, supra; State v. Stewart, supra. The jury is charged with the heavy responsibility of subjectively, within the parameters set out by the statute, assessing the appropriateness of imposing the death penalty upon a particular defendant for a particular crime. Nuances o\u00ed character and circumstance cannot be weighed in a precise mathematical formula.\nAt the same time, we believe that it would be improper to instruct the jury that they may, as defendant suggests, disregard the procedure outlined by the legislature and impose the sanction of death at their own whim. To do so would be to revert to a system pervaded by arbitrariness and caprice. The exercise of such unbridled discretion by the jury under the court\u2019s instruction would be contrary to the rules of Furman and the cases which have followed it. For these reasons defendant\u2019s seventh assignment of error is overruled.\nBy his final assignment of error defendant contends that this court should review the sentence in this case to determine if it is disproportionate to the sentences imposed in similar cases. We recognize that this authority is given to us by G.S. 15A-2000 (d)(2). However, we believe that this review function should be employed only in cases where both phases of the trial of a defendant have been found to be without error. Only then can we have before us the true decision of the jury to which we feel great deference should be accorded. For this reason we express no opinion upon the propriety of any sentence in this case.\nIn connection with one of his assignments of error, defendant criticizes the wording of the third issue, namely: Do you find beyond a reasonable doubt that the mitigating circumstances are insufficient to outweigh the aggravating circumstances? Since a new trial on the sentencing phase is being awarded on other grounds, we do not pass upon the validity of defendant\u2019s criticism. Suffice it to say, the able trial judge followed the statute in forming this issue.\nNevertheless, at the retrial, we believe the following wording would be more appropriate: Do you find beyond a reasonable doubt that the aggravating circumstances found by you outweigh the mitigating circumstances found by you?\nFor the reasons stated, the verdict rendered at the sentencing phase of defendant\u2019s trial, and the judgment of death predicated thereon, are vacated, and this cause is remanded to the superior court for a new trial on the sentencing phase.\nNew trial on sentencing phase.\nJustice BROCK did not participate in the consideration or decision of this case.", "type": "majority", "author": "BRITT, Justice." }, { "text": "Justice HUSKINS concurring.\nI support the majority opinion in Goodman, Cherry and Johnson. At the same time, I join in the concurring opinion of Justice Carlton which correctly, I think, analyzes the results reached in these three cases.", "type": "concurrence", "author": "Justice HUSKINS concurring." }, { "text": "Justice CARLTON concurring.\nThe Court today hands down three decisions involving the interpretation of our death penalty statutes, this case, State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979) and State v. Johnson, 298 N.C. 47, 257 S.E. 2d 597 (1979). In light of my late participation in the consideration of these cases \u2014 a participation requested by the other members of the Court \u2014 , the gravity of the issues addressed, and my concern lest these decisions be interpreted too broadly, I think it worthwhile to add this concurrence.\nAfter carefully reading the records and briefs submitted by counsel, and listening to the oral arguments on tape, I conclude once again that in the world of criminal justice, there is no more delicate nor difficult issue than that of capital punishment. Sincere and intelligent people disagree strongly on the question of the death penalty. All three branches of both state and federal government have struggled with it for centuries. The United States Supreme Court has at times equivocated about the issue, creating uncertainty and confusion in the lower courts. Our legislature, in response to its constituency and numerous court decisions, has amended our capital punishment law on several occasions. Prosecutors, defense attorneys, and trial judges wrestle daily with the resulting uncertainty each revision brings. It is unfortunate, albeit inevitable, that the course charted by legislative and judicial action is an uncertain one on an issue which touches the deepest human emotions. The beneficial result of this uncertainty, however, is that in deciding whether the State shall take a human life, we proceed with the greatest possible care.\nOf this we can be certain: North Carolina law presently provides for the death penalty in certain aggravated cases of first degree murder. The United States Supreme Court has ruled that capital punishment statutes similar to ours pass constitutional muster. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed. 2d 913 (1976). The three decisions filed today are our first interpretations of the most recently enacted capital punishment statutes in North Carolina. G.S. 15A-2000, et seq. My concern is that the collective result of these decisions may be seen as a step by this Court to indirectly abolish capital punishment in North Carolina. I do not consider that to be our purpose. We should not. attempt to usurp the legislative process. I write this footnote to the excellent opinions of the majority primarily to highlight the narrow results reached by the three opinions filed today. Also, I think an overview of the three opinions will provide a helpful guide to the lower courts.\nI. State v. Goodman\nA.\nIn Goodman, defendant was found guilty of first degree murder by premeditation and deliberation and by the felony-murder rule. He was also found guilty of armed robbery and kidnapping. At the sentencing stage, the jury found beyond a reasonable doubt these statutory aggravating circumstances:\n(1) Defendant had been previously convicted of a felony involving the use or threat of violence to the person. G.S. 15A-2000(e)(3).\n(2) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest. G.S. 15A-2000(e)(4).\n(3) The capital felony was committed while the defendant was engaged in the commission of or attempt to commit a robbery or kidnapping. G.S. 15A-2000(e)(5).\n(4) The capital felony was committed to disrupt or hinder the lawful exercise of the enforcement of laws (arrest of defendant for the robbery or kidnapping offenses). G.S. 15A-2000(e)(7).\n(5) The capital felony was especially heinous, atrocious, or cruel. G.S. 15A-2000(e)(9).\nWith respect to mitigating factors, the jury did not find:\n(1) The defendant was an accomplice in or accessory to the capital felony committed by another person and his participation was relatively minor. G.S. 15A-2000(f)(4).\n(2) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was impaired. G.S. 15A-2000(f)(6).\nThe jury did deem:\n(3) Other circumstances arising from the evidence had mitigating value. G.S. 15A-2000(f)(9).\nThe jury then found beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the latter were sufficiently substantial to call for the imposition of the death penalty.\nB.\nAs I read it, the majority opinion in Goodman presents one narrow holding: A new sentencing hearing must be granted when the trial court improperly submits an aggravating circumstance to the jury in a sentencing hearing conducted pursuant to G.S. 15A-2000, and the jury finds that circumstance present to the prejudice of the defendant.\nSpecifically, the majority holds that, under the facts of this case, the aggravating circumstances contemplated by G.S. 15A-2000(e)(7) and (e)(4) should not both be submitted to the jury. I would simply add that I can think of few situations in which the jury would not find, pursuant to G.S. 15A-2000(e)(7), that the \u201ccapital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of law\u201d if that circumstance were submitted to them. In order to prevent an automatic accumulation of aggravating circumstances, which our legislature obviously did not intend, I should think that trial judges would rarely submit this circumstance to the jury.\nAs I understand it, the majority today also attempts to establish the following guidelines:\n(1) Based on the facts of the particular case, prejudicial error in submitting an aggravating circumstance to the jury occurs when (a) the submission is erroneous, (b) the jury finds that circumstance to exist, and (c) there is a reasonable possibility the erroneously submitted circumstance might have contributed to the decision.\n(2) The aggravating circumstance provided by G.S. 15A-2000(e)(3), which provides for aggravation where \u201cdefendant had been previously convicted of a felony involving . . . violence to the person\u201d contemplates that (a) defendant shall have been convicted, not merely charged or indicted, of a felony as a result of conduct occurring prior to the events out of which the capital felony charge arose and (b) the felony for which defendant was convicted involved the \u201cuse or threat of violence to the person,\u201d i.e., conviction for a crime against property may not be submitted under this subsection.\n(3) The aggravating circumstance contemplated by G.S. 15A-2000(e)(5), which provides that \u201cthe capital felony was committed ... in the commission of, or an attempt to commit, . . . any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing ... of a destructive device or bomb,\u201d may be appropriately submitted to the jury only when the defendant is convicted of first degree murder upon the theory of premeditation and deliberation. Put another way, if the defendant is convicted only on the basis of the felony-murder rule, this circumstance may not be submitted to the jury as an aggravating circumstance.\n(4) In order to avoid the aggravating circumstance contemplated by G.S. 15A-2000(e)(9), which provides for a crime \u201cespecially heinous, atrocious, or cruel,\u201d from becoming a \u201ccatchall\u201d division which could always be employed in cases where there is no evidence of other aggravating circumstances, the trial judge must explain that the expression \u201cheinous, atrocious, or cruel\u201d anticipates an especially brutal murder where the brutality exceeds that normally present in any killing. Such brutality shall be limited to acts done to the victim during the commission of the capital felony itself. Here, the majority expressly approved the instructions of the trial judge with respect to this aggravating circumstance and quoted the Florida court\u2019s definition as the \u201cconscienceless or pitiless crime which is unnecessarily torturous to the victim.\u201d State v. Dixon, 283 So. 2d 1, 9 (Fla., 1973). See also Proffitt v. Florida, supra at 255-56.\n(5) The aggravating circumstance provided by G.S. 15A-2000 (e)(4), a capital felony committed to avoid a lawful arrest, contemplates more than merely killing the victim. Before this aggravating circumstance may be submitted to the jury, the evidence must establish that at least one of the motivating factors leading to the killing was defendant\u2019s desire to avoid apprehension for his crime. Put another way, the mere fact of the victim\u2019s death will not alone invoke this factor. There must be some evidence of a manifest intent to avoid arrest and detection.\n(6) The legislature did not intend, in providing the mitigating circumstance contemplated by G.S. 15A-2000(f)(6), where defendant\u2019s capacity \u201cto appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired,\u201d that intoxication, however slight, should be a mitigating circumstance. When the defendant contends that his faculties are impaired by intoxication, the intoxication must be to such a degree that it affects defendant\u2019s ability to understand and control his actions.\n(7) Under G.S. 15A-2000(f)(9), which provides for \u201c[a]ny other circumstance arising from the evidence which the jury deems to have mitigating value,\u201d there can be no restriction on the jury\u2019s consideration of any factor relevant to the circumstances of the crime or the character of the defendant. However, in instructing the jury, the trial judge \u201cis not required to sift through the evidence and search out every possible circumstance which the jury might find to have mitigating value.\u201d State v. Goodman, supra at 34, 257 S.E. 2d 569, 590 (1979).\n(8) The trial court should not instruct the jury that the jury might recommend a sentence of life imprisonment even though it finds aggravating circumstances to outweigh those in mitigation. To allow such discretion would be a return to the unfettered days prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972).\n(9) The review function given to this Court by G.S. 15A-2000 (d)(2) is to be employed only in those cases where both phases of the trial of a defendant have been found to be without error.\nWhile the majority has addressed the guidelines enumerated above, we are remanding for a new sentencing hearing here because of one error by the trial judge with respect to the submission of one of the aggravating circumstances found present by the jury. The Court found that error was not harmless. With this portion of the Court\u2019s holding, I do not fully agree. Practically, I consider the error a harmless one. The jury found four other aggravating circumstances present including a finding that this capital felony was especially heinous, atrocious, or cruel. It found only one mitigating circumstance. I would ordinarily in a situation like this probably find that the assigned error was harmless beyond a reasonable doubt. However, in these first cases interpreting our death statutes and in more than an abundance of caution, I join the majority on the basis of the facts presented by this case.\nII. State v. Cherry\nA.\nIn Cherry, defendant was found guilty of first degree murder under the felony-murder rule. The evidence established that he was in the process of robbing a store when the murder was committed. At the sentencing stage, the jury found these statutory aggravating circumstances:\n(1) Defendant had been previously convicted of a felony involving the use or threat of violence to the person. G.S. 15A-2000(e)(3).\n(2) The capital felony was committed while the defendant was engaged in the commission of robbery. G.S. 15A-2000 (e)(5).\n(3) The murder was committed for pecuniary gain. G.S. 15A-2000(e)(6).\nThe jury answered negatively the following questions posed with respect to aggravating circumstances:\n(1) Was the murder especially heinous, atrocious, or cruel? G.S. 15A-2000(e)(9).\n(2) Did the defendant knowingly create a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person? G.S. 15A-2000(e)(10).\nThe jury found none of the four submitted mitigating circumstances:\n(1) The capital felony was committed while the defendant was under the influence of mental or emotional disturbance. G.S. 15A-2000(f)(2).\n(2) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. G.S. 15A-2000(f)(6).\n(3) The age of the defendant at the time of the crime. G.S. 15A-2000(f)(7).\n(4) Any other circumstance arising from the evidence which the jury deems to have mitigating value. G.S. 15A-2000(f)(9).\nAgain, the holding in Cherry is narrow. Specifically, the majority holds that a new sentencing hearing is necessary when the trial court erroneously submits to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony pursuant to G.S. 15A-2000(e)(5), when that underlying felony has already been used to establish the offense as a capital felony at the guilt phase of trial. The rule would not apply, of course, as in Goodman, when the defendant is convicted of first degree murder as a result of premeditation and deliberation as well as the felony-murder rule. This formalizes the guideline presented in Goodman discussed supra.\nWith respect to whether the assigned error was harmless, I join the majority for the limited reasons stated in the discussion of Goodman, supra. However, and also for the same reasons stated in Goodman, I am unwilling to say that such error will always constitute prejudicial error. Here, the jury found two other aggravating circumstances and no mitigating circumstances.\nI join with the majority in finding that the underlying felony should not be considered as an aggravating circumstance at the sentencing stage for the felony murder. However, I am concerned that this holding might be construed too broadly. We are not holding that the jury is to ignore the crime for which the defendant was convicted. Obviously, the underlying felony may be, and should be, considered by the jury in the sentencing phase. G.S. 15A-2000(a)(3) provides in part that it is unnecessary to resubmit evidence at the sentencing stage which was presented during the guilt determination phase unless a new jury is impaneled, \u201cbut all such evidence is competent for the jury\u2019s consideration in passing on punishment.\" (Emphasis added.) It is clear, therefore, that the jury may consider the underlying robbery or other felony in the sentencing phase. What our holding here prohibits is simply that the underlying felony cannot be submitted to the jury as an aggravating circumstance. This is so for the reasons clearly explained in the majority opinion: It would be patently unfair for a defendant convicted of first degree murder by virtue of the felony-murder rule to start with one aggravating circumstance against him while a defendant convicted on the basis of premeditation and deliberation would start with no aggravating circumstances against him. Again, however, we ought to note that the legislature has attached special significance to murder committed in the course of commission of robbery and other felonies and the jury is surely allowed to consider that fact in making their sentencing recommendation.\nIII. State v. Johnson\nA.\nIn Johnson, defendant pleaded guilty to murder in the first degree which was committed in the course of a rape. The majority opinion notes that there was ample evidence of premeditation and deliberation. The jury found, beyond a reasonable doubt, the following aggravating circumstances:\n(1) The capital felony was committed while the defendant was engaged in the commission of, or attempt to commit, rape. G.S. 15A-2000(e)(5).\n(2) The capital felony was especially heinous, atrocious, or cruel. G.S. 15A-2000(e)(9).\nThe jury then found that the following mitigating circumstances existed:\n(1) The defendant had no significant history of prior criminal activity. G.S. 15A-2000(f)(l).\n(2) The capital felony was committed while the defendant was under the influence of mental or emotional disturbance. G.S. 15A-2000(f)(2).\nThe jury did not find the following mitigating circumstances which were submitted to it:\n(1) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. G.S. 15A-2000(f)(6).\n(2) Any other circumstances arising from the evidence which the jury deems to have mitigating value. G.S. 15A-2000(f) (9).\nThe jury then found that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and, beyond a reasonable doubt, that the aggravating circumstances were sufficiently substantial to call for imposition of the death penalty.\nB.\nThe majority opinion establishes the following:\n(1) In some cases in which the defendant relies on the mitigating circumstance contemplated by G.S. 15A-2000(f)(6), the trial judge must include in his instructions to the jury on this statute the following:\na. An explanation of the difference between defendant\u2019s capacity to know right from wrong and the impairment of his capacity to appreciate the criminality of his conduct. That is, while defendant might have known that his conduct was wrong, he might not have been able to appreciate, i.e., to fully comprehend, or be fully sensible of its wrongfulness. Moreover, while his capacity to so appreciate the wrongfulness of his conduct might not have been totally obliterated, it might have been impaired, i.e., lessened or diminished.\nb. An explanation that the jury should find this mitigating factor if it believed that defendant\u2019s capacity to conform his conduct to the law, i.e., his capacity to refrain from illegal conduct, was impaired. This does not mean that defendant must wholly lack all capacity to conform. It means only that such capacity as he might otherwise have had in the absence of his mental defect is lessened or diminished because of the defect.\nI do not believe that these instructions are required in those instances in which the defendant attempts to invoke the mitigating circumstance provided by G.S. 15A-2000(f)(6) on the basis of defendant\u2019s intoxication. As I understand it, this holding is applicable only to mental impairments and diseases such as schizophrenia, conditions not readily understood by the average layman.\n(2) If a defendant makes a timely request for a listing in writing of any mitigating circumstances pursuant to G.S. 15A-2000(f)(9) which are supported by the evidence and if these circumstances are such that the jury could reasonably deem them to have mitigating value, the trial judge must put such circumstances on the written list submitted to the jury. It will not be prejudicial error for the judge to fail to do so, however, if the defendant fails to request the judge to submit them.\n(3) The burden of persuading the jury on the issue of the existence of any mitigating circumstance is upon the defendant and the standard of proof shall be by a preponderance of the evidence. Where, however, all of the evidence in the case, if believed, tends to show that a particular mitigating circumstance does exist, the defendant is entitled to a peremptory instruction on that circumstance. In order to be entitled to such an instruction, however, defendant must timely request it.\n(4) The State and the defendant may not enter into a plea bargain whereby the defendant may plead guilty to first degree murder in return for a life sentence and thus avoid a potential death sentence imposed by a jury convened under G.S. 15A-2000.\n(5) If the defendant requests it, the trial court, in addition to other approved instructions with respect to the aggravating circumstance contemplated by G.S. 15A-2000(f)(9), should instruct the jury that not every murder is necessarily \u201cespecially heinous, atrocious, or cruel\u201d in the sense these words are used in the statute.\nIn summary, the majority opinion remands for a new sentencing hearing because of the trial court\u2019s failure to fully explain one of the mitigating circumstances enumerated in G.S. 15A-2000(f). I can think of no more difficult instruction required of a trial judge than explaining a statute dealing with the human mind. In the absence of any guidance, perhaps this able trial judge felt more confident to rely on the legislative language. I can appreciate the problem with which he was confronted. However, it is abundantly clear that our legislature has mandated that the state of the mind of the defendant shall be given serious consideration by the jury in determining whether the death penalty should be imposed. It therefore becomes incumbent upon this Court to devise for the trial judges\u2019 guidance an understandable explanation for jurors of the legislative intent. Justice Exum has presented an excellent analysis of this subsection in the majority opinion and it should be a workable guide for our trial courts in the future.\nSome may justifiably consider impaired capacity to be the most important subsection in our death penalty statutes. I frankly doubt that our society could uphold the concept of capital punishment without it. While North Carolina chooses not to consider mere mental impairment with respect to determining a defendant\u2019s guilt, in a punishment so final, we must ensure that the jury give proper consideration to defendant\u2019s mental condition as presented by the evidence. The Court\u2019s holding today in Johnson goes a long way toward guaranteeing that consideration.\nConclusion\nEach decision handed down today is, as has been repeatedly stated, based on its own particular facts. One decision is based on erroneous trial court instructions with respect to a mitigating circumstance which was properly submitted and two are based on the improper submission of an aggravating circumstance. These are narrow holdings. However, when viewed collectively, as I have attempted to do here, we find numerous guidelines, particularly in Goodman, which range far beyond the narrow results reached. While I formally concur with the narrow holding in Goodman and generally support the further enumerated guidelines, I must caution that I believe some of the latter are not necessary to the decision in this case. I therefore view today\u2019s interpretations of G.S. 15A-2000 which go beyond the narrow holdings required as tentative formats only, subject to closer investigation in the appropriate factual circumstance.", "type": "concurrence", "author": "Justice CARLTON concurring." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.", "Harold D. Downing for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BUCK JUNIOR GOODMAN\nNo. 46\n(Filed 4 September 1979)\n1. Homicide \u00a7 28.6\u2014 defense of intoxication \u2014 instruction not required\nThe trial court in a first degree murder case was not required to charge the jury upon the defense of intoxication, though there was evidence that defendant had been drinking prior to commission of the crime, since there was no evidence which showed that defendant\u2019s capacity to think and plan was affected by drunkenness.\n2. Homicide \u00a7\u00a7 25, 31\u2014 first degree murder \u2014 issues of premeditation and deliberation and felony-murder \u2014 requiring jury to specify basis of verdict \u2014 use of written verdict proper\nWhere an indictment for murder and the evidence at trial would support a guilty verdict upon the theory of premeditation and deliberation or upon the application of the felony-murder rule, it was appropriate for the trial court to require the jury to specify in its verdict the theory upon which they found defendant guilty of first degree murder so that defendant could be properly sentenced; moreover, G.S. 15A-1237 authorizes the use of a written verdict setting out the permissible verdicts recited by the judge in his instructions, in this case, guilty by reason of the felony-murder rule or guilty by reason of premeditation and deliberation, and by using this procedure the trial court did not confuse the jury or inadvertently express an opinion as to defendant\u2019s guilt.\n3. Criminal Law \u00a7 126.2\u2014 inquiry to clarify jury\u2019s verdict \u2014 no coercion of verdict\nThe trial court in a first degree murder case did not err in questioning the jury about their verdict for purposes of clarity rather than sending them back for further deliberations, and the court\u2019s questions to the jury did not suggest a desired verdict where the clerk asked the jury whether defendant was guilty of first degree murder by premeditation and deliberation or guilty of first degree murder by the felony-murder rule; the jury foreman answered yes; and the court\u2019s questions were asked simply to resolve that ambiguity and to determine the basis for the verdict.\n4. Criminal Law \u00a7 138.4; Homicide \u00a7 31.1\u2014 first degree murder \u2014 premeditation and deliberation and felony-murder rule as basis \u2014separate punishment for underlying felonies proper\nWhere defendant was found guilty of first degree murder based upon premeditation and deliberation and the felony-murder rule, the trial court could disregard the felony-murder basis of the homicide verdict and impose additional punishment upon defendant for the underlying crimes of armed robbery and kidnapping.\n5. Criminal Law \u00a7 135.4\u2014 first degree murder \u2014 sentencing hearing \u2014 aggravating circumstance of prior felony conviction\nIn order for the trial court to instruct the jury during the sentencing phase of trial on the aggravating circumstance of G.S. 15A-2000(e)(3),there must be evidence that defendant had been convicted of a felony, the felony for which he was convicted involved the \u201cuse or threat of violence to the person,\u201d and the conduct upon which this conviction was based was conduct which occurred prior to the events out of which the capital felony charge arose.\n6. Criminal Law \u00a7 135.4\u2014 first degree murder \u2014 sentencing hearing \u2014 aggravating circumstance of robbery or kidnapping\nInstruction during the sentencing phase of trial on the aggravating circumstance of G.S. 15A-2000(e)(5), that the capital felony \u201cwas committed while the defendant was engaged ... in the commission of . . . any robbery . . . [or] kidnapping\u201d or other enumerated felony, is appropriate only when defendant is convicted of first degree murder upon the theory of premeditation and deliberation.\n7. Criminal Law \u00a7 135.4\u2014 first degree murder \u2014sentencing hearing \u2014 aggravating circumstance of especially heinous, atrocious or cruel crime\nIn order for the trial court to instruct the jury during the sentencing phase of trial on the aggravating circumstance of G.S. 15A-2000(e)(9), that the \u201ccapital felony was especially heinous, atrocious, or cruel,\u201d there must be evidence that the brutality involved in the murder in question exceeded that normally present in any killing. The trial court properly instructed on this circumstance where the evidence revealed that decedent was shot several times and then cut repeatedly with a knife; still living, he was placed in the trunk of a car where he remained for several hours; his struggle to escape from the trunk could be heard; decedent, still in the trunk, was then driven into another county where he was taken from the car; and he was placed upon the ground with his head resting upon a rock and then shot twice through the head.\n8. Criminal Law \u00a7 135.4\u2014 first degree murder \u2014sentencing hearing \u2014 aggravating circumstance of eliminating witness\nIn order for the trial court to instruct the jury during the sentencing phase of trial on the aggravating circumstance of G.S. 15A-2000(e)(4), there must be evidence from which the jury can infer that at least one of the purposes motivating the killing was defendant\u2019s desire to avoid subsequent detection and apprehension for his crime, and the mere fact of death is not enough to invoke this factor. Evidence in this case was sufficient for the jury to infer that defendant killed his victim to avoid or prevent his arrest where there was testimony that after the victim was shot and cut, but before he was killed, defendant stated that he \u201cwas afraid if the police found Lester that he would tell what had been done to him . . defendant and his companion in crime then planned to bury the victim; and at some later point they decided to shoot him and place him on a railroad track where his body would be mangled by a passing train.\n9.Criminal Law \u00a7 135.4\u2014 first degree murder \u2014sentencing hearing \u2014 two aggravating circumstances submitted on same evidence \u2014error\nThe trial court in a first degree murder prosecution erred in instructing the jury during the sentencing phase on aggravating circumstances pursuant to G.S. 15A-2000(e)(4) \u2014 that the felony was committed for the purpose of avoiding or preventing a lawful arrest \u2014 and pursuant to G.S. 15A-2000(e)(7) \u2014 that the felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws, since the court submitted the two issues on the same evidence; and such error was prejudicial to defendant in light of the highly questionable quality and credibility of the State's primary evidence.\n10. Criminal Law \u00a7\u00a7 86.1, 135.4\u2014 illegally seized bullets \u2014 admissibility for impeachment purposes\nThe trial court erred in allowing the State to introduce illegally seized .380 caliber bullets at the sentencing hearing for the purpose of impeaching defendant since there was no proper foundation laid for introduction of the evidence.\n11. Criminal Law \u00a7 135.4\u2014 first degree murder \u2014sentencing hearing \u2014 intoxication as mitigating factor\nWhen a criminal defendant contends that his faculties were impaired by intoxication, such intoxication must be to a degree that it affects defendant\u2019s ability to understand and control his actions before the court is required to instruct on such intoxication as a mitigating factor pursuant to G.S. 15A-2000(f)(6).\n12. Criminal Law \u00a7 135.4\u2014 first degree murder\u2014 sentencing hearing \u2014 mitigating factors \u2014 duty of court to point out\nG.S. 15A-2000(f)(9) providing that the jury may consider as a mitigating factor \u201cany other circumstance arising from the evidence which the jury deems to have mitigating value\u201d does not require the court to point to every factor arising from the evidence which might conceivably be considered by the jury under that provision.\n13. Criminal Law \u00a7 135\u2014 death sentence \u2014 discretion of jury\nThere was no merit to defendant\u2019s contention that the trial court erred in failing to instruct the jury that they might recommend a sentence of life im-\u2019 prisonment even though they found the aggravating circumstances outweighed those in mitigation, since such an instruction would permit the jury to disregard the procedure outlined by the legislature and impose the sanction of death at their own whim.\n14. Criminal Law \u00a7 138\u2014 severity of sentence \u2014 consideration on appeal\nThough G.S. 15A-2000(d)(2) gives the Supreme Court the authority to review a sentence to determine if it is disproportionate to the sentences imposed in similar cases, such review function should be employed only in cases where both phases of the trial of a defendant have been found to be without error.\nJustice Brock did not participate in the consideration or decision of this case.\nJustice Huskins concurring and joins in the concurring opinion of Justice Carlton.\nJustice Carlton concurring.\nAPPEAL by defendant from Braswell, J., 9 October 1978 Regular Criminal Session, CUMBERLAND Superior Court.\nUpon pleas of not guilty defendant was tried on bills of indictment charging him with (1) murder, (2) armed robbery and (3) kidnapping. The alleged victim of all three offenses was Lester Collins.\nPrincipal evidence against defendant was provided by Annie Lois Goins Shamback (Lois) who testified under a grant of immunity pursuant to G.S. 15A-1052. In return for her \u201ctruthful testimony\u201d against Charles D. Goins and defendant, the state agreed to dismiss charges against her relating to the murder, robbery and kidnapping of Lester Collins. (Charles D. Goins was tried prior to the date of defendant\u2019s trial.) Her testimony is summarized in pertinent part as follows:\nAt the time of defendant\u2019s trial (October 1978) she was 23 years of age and had been married approximately six months. She had two children that were born prior to her marriage. Charles Goins (Charles) was her brother and Collins was married to her sister. On 2 July 1977 her sister was a patient at Dorothea Dix Hospital.\nOn 2 July 1977 she and her young son lived with defendant at Lumberton, N.C. She and defendant were not married to each other but had lived together for approximately 18 months prior to said date. Charles had been staying with them for about a week, his home being near Fayetteville.\nLate in the afternoon of said date she, defendant and Charles went to Fayetteville in her white 1968 Ford Fairlane. Their destination was Charles\u2019 home but they stopped at a bar in East Fayetteville, went in, and defendant and Charles \u201chad a few beers\u201d. When they returned to the car they discovered that a C.B. and scanner belonging to defendant had been taken from the car while they were in the bar. Defendant had reason to believe that Magaline Tyler\u2019s brother was one of the persons who stole the C.B. and scanner and insisted on going to her house which was not far from the bar.\nWhen defendant, Lois and Charles left the bar, defendant was driving. After driving a short distance in the neighborhood, defendant and Charles got out of the car and told Lois to circle the area while they looked for the person or persons who stole the equipment from the car. After circling for some 30 minutes, Lois drove the car to Magaline Tyler\u2019s home. Defendant came out of the house and Collins was following him, asking defendant to take him home. At first, defendant refused, but Collins kept on asking and eventually defendant said he would take him home. Collins had been drinking.\nDefendant got under the wheel, Collins got in the backseat and Lois and Charles rode on the front seat. Defendant was quite angry about his C.B. and scanner being stolen and was also angry with Lois for circling so long.\nDefendant then drove the car down Cedar Creek Road east of Fayetteville to Lois\u2019 mother\u2019s home which was also Charles\u2019 home. When they arrived there, Charles went into the house to get some clothes. Collins remained in the backseat of the car and wanted defendant to carry him back to Fayetteville.\nThe four of them left the Goins home and were situated in the car in the same positions as when they arrived there. They proceeded to drive down Cedar Creek Road and while riding Charles leaned over and whispered something to defendant. Defendant then turned the automobile down a dirt road, went to the end of it and turned around in the direction of Cedar Creek Road. It was then \u201cway after dark\u201d.\nDefendant stopped the car on the dirt road and got out. He told Collins to get out. Defendant had a gun and as Collins got out of the car, defendant hit Collins on the side of his head with the gun. Collins told defendant he hadn\u2019t done anything, but defendant hit him again with the gun, bringing blood from Collins\u2019 face. Charles and Lois remained in the car while defendant and Collins went behind the car.\nWhen the two men reached the rear of the car, Lois saw Collins advancing on defendant and then heard three shots fired. Before the shots were fired, Lois could not see what Collins was doing to defendant, \u201cjust his body going toward\u201d defendant.\nAfter the shots were fired, Charles got out of the car and went to the back of it. Lois could hear \u201cmoaning\u201d and saw that Collins was on the ground. She got out of the car and saw Charles and defendant standing beside Collins who was on the ground a short distance from the trunk of the car. She could tell that Collins\u2019 clothing was wet. Defendant and Charles then took Collins and put him in the trunk of the car. They then discussed what to do with Collins.\nDefendant said that he knew a place where they could bury Collins and it would take a long time for the police to find him. Collins was alive at that time. Defendant then told Lois to drive the car because he was cut on his left side.\nAt defendant\u2019s instruction, Lois drove the car to Lumberton to defendant\u2019s home. Collins was still in the trunk and was \u201cbegging for his life\u201d. All of the occupants of the car except Collins got out and went into defendant\u2019s home. There was a pool of blood on the driver\u2019s side of the car. Lois got a washrag and washed the blood off the car. While she was doing that, defendant was looking for a shovel with which to carry out defendant\u2019s and Charles\u2019 plan to bury Collins.\nWhen Collins begged defendant to let him out of the trunk, defendant and Charles both told him that he might as well shut up because he was going to die anyway. At defendant\u2019s request Lois cleaned up his wound and placed a bandage on it. His shirt had blood on it and he took it off after which Lois washed blood off the back of his pants.\nWhile at defendant\u2019s home Charles wiped blood off of a knife that he had. After staying at the home for about thirty minutes, they all left with Lois driving and Collins remaining in the trunk. After Lois drove some distance into Robeson County, defendant decided that he would drive. He stated that he had changed his mind about burying Collins and knew where he wanted to carry him.\nWith defendant driving they proceeded to the village of Buie in Robeson County. At that point defendant drove on to a service road adjacent to the Seaboard Coastline Railroad and proceeded north. After travelling on that road for a reasonable distance, defendant turned the car around and stopped. Defendant got out and opened the trunk of the car after which Charles and Lois got out. Defendant cursed Collins and told him to get out. Defendant and Charles then took Collins out of the trunk and laid him on some rocks. Defendant had a gun which he then pointed down at Collins\u2019 head and fired two shots. Lois had reentered the car at the time the shots were fired but immediately got out and Charles had the gun at that time. Charles also had Collins\u2019 billfold.\nDefendant and Charles then took Collins by his arms and dragged him onto the railroad track. Defendant stated that a train would come along and \u201cdo away with him where the police would have a hard time recognizing who he was\u201d.\nThereafter, defendant, Lois and Charles got back into the car with defendant driving. Charles had the gun and said that \u201cit was a good shooting little gun\u201d. Defendant stated that he shot Collins between his eyes and that Charles shot him in the back of his head.\nDefendant, Lois and Charles then proceeded to ride around in Robeson County, and as soon as it was light they went to the home of some of defendant\u2019s relatives where they cleaned blood from the trunk of the car. Thereafter they went to bed at a relative\u2019s home and later in the day returned to Fayetteville.\nOn cross-examination Lois testified that defendant worked until noon on 2 July 1977. When he came home after work she noticed that he had been drinking. Defendant and another man brought a six-pack of beer to the home. Defendant, Charles, and the other man drank the beer. Defendant drank more beer at the bar in East Fayetteville and consumed some more a little later.\nOther evidence presented by the state tended to show:\nOn 2 July 1977 Collins lived and worked on the farm of Henry Clark approximately 1.5 miles from Fayetteville on Cedar Creek Road. At around 1:00 p.m. on that day, Mr. Clark paid Collins $95 or $97 for work which he had done.\nAt around 11:30 that night two women saw a pool of blood on a dirt road some 300 feet from Cedar Creek Road. The next morning police were notified about the blood. Upon arrival at the scene, in addition to the blood, they found three spent casings, two spent bullets, a knife and a box of matches in or near the blood. The knife was identified as one belonging to, or similar to one belonging to, Collins. The home of Leon Goins, father of Lois and Charles, was located in the general area where the blood was found.\nAt around 3:00 a.m. on 3 July 1977 Miller Maynor was driving his car on the service road adjacent to the railroad north of Buie. He passed a light colored economy car occupied by three persons and shortly thereafter he observed a human body on the railroad track. Knowing that an Amtrak train was due to pass at about that hour, he went to the body. Upon determining that the person was dead, he dragged the body off the track. He then went to the police station in Pembroke, reported what he had found and then returned to the scene where he was met by Deputy Sheriff Garth Locklear.\nA rescue unit removed the body to Southeastern General Hospital in Lumberton where Dr. Bob Andrews, a pathologist, performed an autopsy later that morning. Dr. Andrews discovered extensive cuts to Collins\u2019 forehead, face, neck, back, chest, thigh, arms and hands. He also found gunshot wounds in Collins\u2019 neck, groin, leg and thigh. He removed a bullet from the victim\u2019s neck and another one from his brain. In Dr. Andrews\u2019 opinion, death was caused by the shot to the victim\u2019s head but either shot could have caused death. It was his further opinion that if the victim had not been shot, he could have died from the cuts. A test of the victim\u2019s blood revealed 140 milligrams of alcohol per hundred milliliters of blood, the equivalent of .14 on a breathalyzer machine.\nDefendant\u2019s evidence consisted of the testimony of Charles Goins. Charles\u2019 testimony is substantially consistent with the version of events testified to by Lois with one major exception. He stated that he was the person who shot and cut Collins; that he did so because Collins mistreated his sister; and that defendant had nothing to do with the murder, \u201cwasn\u2019t with\u201d him and Lois when the killing occurred and \u201chadn\u2019t done nothing\u201d.\nOn cross-examination Charles testified that he had been convicted for breaking and entering, larceny, assault with a deadly weapon, driving under the influence, escaping from prison, driving while license permanently revoked and assault inflicting serious injury. He further testified that \u201cI carry a knife and keep it pretty sharp. If somebody messes with me, I will cut them. It don\u2019t take much for me to cut somebody.\u201d\nThe jury returned a verdict finding defendant guilty of first-degree murder by premeditation and deliberation and by the felony murder rule. They also found him guilty of armed robbery and kidnapping.\nThe court then recessed the trial until the following Monday when proceedings were resumed before the same jury pursuant to G.S. 15A-2000 et seq. to determine if defendant\u2019s sentence on the murder conviction would be death or life imprisonment. The state presented evidence summarized as follows;\nGertrude Tyler testified that she was at the Tyler home on the evening of 2 July 1977; that while there she saw Collins, Charles, Lois and defendant; that Collins had been drinking wine and he asked defendant to \u201crun him home\u201d; that defendant appeared not to hear Collins and later he asked him again; that defendant then told Collins \u201cYeah, I\u2019ll run you home. I\u2019ll run you to hell, too, while I\u2019m at it\u201d; and that Collins then got into the car with defendant and they rode away. Counsel for defendant stipulated that on 31 January 1967 defendant was convicted in the Superior Court for Robeson County of three counts of armed robbery resulting from a single occurrence on 4 January 1966.\nDefendant testified as a witness for himself at the sentencing phase of the trial. His version of the events occurring on 2 July 1977 combines elements of the testimony of Lois and Charles. The gist of defendant\u2019s testimony is that he was in the car with them when the shooting and cutting of Collins took place, but that he did not participate in the killing and attempted unsuccessfully to prevent Charles from hurting Collins.\nDefendant also introduced into evidence a court docket showing that prior to defendant\u2019s trial Charles Goins was allowed to plead guilty, and did plead guilty, to the offense of accessory after the fact of murder \u201cin these cases\u201d and received a prison sentence of six years.\nBy way of rebuttal, the state presented a police officer who testified that on 5 July 1977 he searched the automobile in question and in the glove compartment found a box of Remington-Peters .380 ammunition \u2014 29 unfired bullets.\nIssues as to punishment were submitted to and answered by the jury as follows:\n1. Do you find beyond a reasonable doubt the presence of one or more of the following aggravated circumstances?\na. The defendant had been previously convicted of a felony involving the use or threat of violence to the person, to-wit: three counts of the felony of armed robbery in Robeson County Superior Court on January 31, 1967, for offenses committed on January 4, 1966.\nAnswer: Yes\nb. The capital felony of murder in the first degree was committed for the purpose of avoiding or preventing a lawful arrest.\nAnswer: Yes\nc. The capital felony was committed while the Defendant was engaged in the commission of or attempt to commit a robbery or kidnapping, either or both.\nAnswer: Yes\nd. The capital felony was committed to disrupt or hinder the lawful exercise of the enforcement of the criminal law, to-wit: the arrest of the Defendant for the offense of robbery or kidnapping, either or both.\nAnswer: Yes\ne. The capital felony was especially heinous, atrocious, or cruel.\nAnswer: Yes\n2. Do you find that one or more of the following mitigating circumstances existed at the time the murder was committed?\na. The defendant was an accomplice in or accessory to the capital felony committed by another person and his participation was relatively minor.\nAnswer: No\nb. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.\nAnswer: No\nc. Do you find any other circumstance arising from the evidence which the jury deems to have mitigating value.\nAnswer: Yes\n3. Do you find beyond a reasonable doubt that the mitigating circumstances are insufficient to outweigh the aggravating circumstance?\nAnswer: Yes\n4. Do you find beyond a reasonable doubt that the aggravating circumstance is sufficiently substantial to call for the imposition of the death penalty?\nAnswer: Yes\nThe jury recommended that a sentence of death be imposed on the defendant. Pursuant thereto the court imposed the death sentence.\nAs to the armed robbery and kidnapping charges, the court imposed a life sentence in each case, the sentence in the kidnapping case to begin at expiration of sentence in the armed robbery case.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.\nHarold D. Downing for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 25, "last_page_order": 70 }