{ "id": 2555881, "name": "STATE OF NORTH CAROLINA v. GARY DEAN GREENE", "name_abbreviation": "State v. Greene", "decision_date": "1991-09-05", "docket_number": "No. 456A87", "first_page": "771", "last_page": "779", "citations": [ { "type": "official", "cite": "329 N.C. 771" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "opinion_index": -1, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "1 ALR3d 1461", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "396 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "defendant's girlfriend, pregnant with his child, broke off relationship; defendant abused controlled substances and murdered bystander during armed robbery" } ], "opinion_index": 0 }, { "cite": "327 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2494725 ], "year": 1990, "pin_cites": [ { "parenthetical": "defendant's girlfriend, pregnant with his child, broke off relationship; defendant abused controlled substances and murdered bystander during armed robbery" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0439-01" ] }, { "cite": "112 L. Ed. 2d 782", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "395 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "defendant, fearing he was being watched by someone, murdered acquaintance" } ], "opinion_index": 0 }, { "cite": "327 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495160 ], "year": 1990, "pin_cites": [ { "parenthetical": "defendant, fearing he was being watched by someone, murdered acquaintance" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0319-01" ] }, { "cite": "402 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540902 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0532-01" ] }, { "cite": "111 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "defendant, believing his wife unfaithful and planning divorce, murdered mother-in-law and child" } ], "opinion_index": 0 }, { "cite": "325 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487626 ], "year": 1989, "pin_cites": [ { "parenthetical": "defendant, believing his wife unfaithful and planning divorce, murdered mother-in-law and child" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0001-01" ] }, { "cite": "108 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "373 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564753 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0371-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "cite": "404 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "329 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553201 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0233-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "parenthetical": "evidence of alcohol use relevant only to impaired capacity, not mental or emotional disturbance, circumstance" }, { "page": "447" }, { "page": "447-48" } ], "opinion_index": 0 }, { "cite": "394 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497152 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0031-01" ] }, { "cite": "486 U.S. 367", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217594 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/us/486/0367-01" ] }, { "cite": "438 U.S. 586", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769215 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/438/0586-01" ] }, { "cite": "108 L. Ed. 2d 603", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] }, { "cite": "376 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "Greene I" } ], "opinion_index": 0 }, { "cite": "324 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485742 ], "year": 1989, "pin_cites": [ { "parenthetical": "Greene I" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0001-01" ] }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "weight": 3, "pin_cites": [ { "parenthetical": "evidence of alcohol use relevant only to impaired capacity, not mental or emotional disturbance, circumstance" }, { "page": "105" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] } ], "analysis": { "cardinality": 689, "char_count": 15883, "ocr_confidence": 0.756, "pagerank": { "raw": 1.218849745129712e-07, "percentile": 0.597711295137284 }, "sha256": "e2a34b9e4b22b7f237ba104ef7166a4b08942ce0256fa99f4da9f3f7fee39dd0", "simhash": "1:ca0fd4761adf00c7", "word_count": 2441 }, "last_updated": "2023-07-14T19:30:52.475304+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GARY DEAN GREENE" ], "opinions": [ { "text": "EXUM, Chief Justice.\nDefendant was convicted of the first-degree murder of his father and sentenced to death. On appeal this Court found no error in either the guilt determination proceeding or the capital sentencing proceeding. State v. Greene, 324 N.C. 1, 376 S.E.2d 430 (1989) (Greene I). Subsequently, the Supreme Court of the United States granted defendant\u2019s petition for writ of certiorari, vacated our judgment, and remanded the case to us for further consideration in light of McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990). Greene v. North Carolina, 494 U.S. \u2014, 108 L. Ed. 2d 603 (1990).\nAfter denying defendant\u2019s motion to remand the case to superior court for the imposition of a sentence of life imprisonment, we heard the case on supplemental briefs ordered by the Court and directed to the questions whether there was McKoy error in defendant\u2019s sentencing proceeding and, if so, whether the error was harmless. After considering the supplemental briefs and further argument, we conclude defendant\u2019s sentencing proceeding was marred by reversible McKoy error. We therefore vacate the death sentence and remand for a new capital sentencing proceeding.\nOur opinion in Greene I summarizes the evidence. We will not repeat it here except as necessary for an understanding of the McKoy issues.\nIn McKoy the United States Supreme Court held unconstitutional under the Eighth and Fourteenth Amendments of the federal Constitution jury instructions in capital sentencing proceedings which require juries to be unanimous in the finding of mitigating circumstances. Reasoning from its decisions in Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978), and Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384 (1988), the McKoy Court concluded that each individual juror should be permitted to take into account in the final sentence determination any circumstance that juror determines to exist which is supported by evidence and which could reasonably mitigate the capital crime.\nHere the State concedes, and we agree, that defendant\u2019s jury was erroneously instructed contrary to the dictates of McKoy. The only issue meriting discussion is whether the McKoy error is harmless. Because the error is of constitutional dimension, the State bears the burden of demonstrating that it was harmless beyond a reasonable doubt. State v. McKoy, 327 N.C. 31, 394 S.E.2d 426 (1990); N.C.G.S. \u00a7 15A-1443(b) (1988).\nThe jury answered the mitigating circumstances submitted as follows:\n1. Was this murder committed while the defendant was under the influence of a mental or emotional disturbance?\nNO \u2014Not unanimous.\n2. Was the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law impaired?\nNO \u2014The jury was unanimous \u2014 His capacity was not impaired.\n3. Did the defendant\u2019s intelligence quotient (I.Q.) of 81, place him in the lowest ten percent of the population?\nYES \u2014 Unanimous.\n4. Was the defendant a model prisoner in the Caldwell County jail while awaiting trial?\nYES \u2014 Unanimous.\n5. Was the defendant a person of good behavior except for when he was drinking alcohol?\nYES \u2014 Unanimous.\n6. Did the defendant have a good relationship with the deceased prior to May 1, 1986?\nNO \u2014Not unanimous.\n7. Is there any other circumstance or circumstances arising from the evidence which you the jury deem to have mitigating value?\nYES \u2014 Unanimous.\nIt is apparent from these answers that one or more jurors would have concluded that mitigating circumstances one and six existed and would have weighed these circumstances in making the ultimate sentencing decision had not the erroneous unanimity instruction precluded the juror, or jurors, from doing so. We conclude, for the reasons given below, that the McKoy error as to circumstance one was not harmless and that, because of it, defendant must be given a new capital sentencing hearing. We need not further consider the error as it relates to mitigating circumstance six.\nThe State first contends the error was harmless as to circumstance one, the mental or emotional disturbance circumstance, because of the insubstantiality of the evidence supporting it. The State argues this circumstance is supported only by evidence of defendant\u2019s alcohol use, which may be properly considered only in support of circumstances two and five. See State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981) (evidence of alcohol use relevant only to impaired capacity, not mental or emotional disturbance, circumstance).\nWe think there was substantial evidence, in addition to defendant\u2019s alcohol use, to support the statutory mental or emotional disturbance mitigating circumstance. The prosecution offered evidence that this murder was motivated by defendant\u2019s anger toward his father grounded in defendant\u2019s fear that his father would disinherit him. The State offered evidence of the victim\u2019s statements disparaging defendant to show that there was ill will between defendant and his father and that his father did, indeed, intend to disinherit defendant \u201cif he didn\u2019t straighten up.\u201d Defendant\u2019s evidence at the sentencing proceeding was that he suffered from organic brain damage which resulted in his having poor judgment and a lack of impulse control. Dr. Harold Haas, a psychologist, who after examining and testing defendant diagnosed his brain damage, testified that this dysfunction \u201crendered [defendant] an individual who has relative little foresight . . . and on impulse he does whatever his emotions kind of command at the time. . . . He gets carried away by his emotions . . . .\u201d Dr. Haas testified that \u201conce [defendant] is aroused, he acts quickly to do something whether that was wise or unwise. He might be carried away by his feelings.\u201d According to Dr. Haas, defendant\u2019s condition would be exacerbated by alcohol consumption. There was evidence that defendant had been drinking beer on the day his father was murdered. Dr. Haas testified if defendant were \u201caroused, say with anger or provoked with frustration, and got into an argument, ... he might very well lose control and do something violent that could be quite disturbing.\u201d\nNext, the State argues the McKoy error as to the mental or emotional disturbance mitigating circumstance was harmless because the jury considered the same evidence supporting this circumstance under mitigating circumstance two, the impaired capacity circumstance, which the jury unanimously rejected.\nThat the same evidence supporting the mental or emotional disturbance circumstance was considered by the jury on the rejected impaired capacity circumstance does not render the McKoy error on the former circumstance harmless. Each mitigating circumstance is a discrete circumstance. Each has its own meaning and effect. It would not be inconsistent for one or more jurors, considering the same evidence in support of both circumstances, to find that defendant was mentally or emotionally disturbed but that his capacity to appreciate his conduct\u2019s criminality or to conform his conduct to law was not impaired.\nThat the jury considered evidence of defendant\u2019s alcohol use on nonstatutory mitigating circumstance five, which it unanimously found favorably to defendant, does not make the McKoy error on the mental and emotional disturbance mitigating circumstance harmless. The reasons are, first, defendant\u2019s alcohol use, as we have shown, was only part of the evidence offered in support of this circumstance and, second, this circumstance, being listed in the capital sentencing statute, has been deemed by the legislature to have mitigating value.\nWe find State v. Fullwood, 329 N.C. 233, 404 S.E.2d 842 (1991), controlling on the harmlessness issue. There, although the jury found seven of ten mitigating circumstances favorably to defend\u00e1nt, including the mental or emotional disturbance circumstance, because of a lack of unanimity it failed to find the impaired capacity mitigating circumstance. We concluded that the McKoy error with regard to this unfound circumstance was not harmless, saying:\nThe circumstance in question is a statutory mitigating circumstance, N.C.G.S. \u00a7 15A-2000(f)(6), and therefore, presumed to have mitigating value if found. E.g., State v. Wilson, 322 N.C. 117, 144, 367 S.E.2d 589, 605 (1988). The legislature thought this circumstance was significant enough to be listed specifically and, therefore, to be considered and weighed individually, despite the fact that the evidence supporting it might also support other submitted mitigating circumstances. Therefore, we decline to adopt the argument that evidence which supported this statutory mitigating circumstance was \u201csubsumed\u201d in the jury\u2019s consideration of the mitigating circumstances found and as a result, that the failure to consider this statutory mitigating circumstance was harmless. To adopt such reasoning would circumvent the clear mandate of the legislature that this mitigating circumstance be given some weight, if found to exist. N.C.G.S. \u00a7 15A-2000(f)(6). Accordingly, we cannot say that the McKoy error in the present case was harmless beyond a reasonable doubt.\nId. at 238, 404 S.E.2d at 845.\nFinally, the State argues that the mental or emotional disturbance mitigator should only be considered where there is evidence of some provocation of the defendant which is sufficient to bring on the disturbance. It relies on the following language from State v. Irwin:\nThe North Carolina death penalty statute is substantially similar to the American Law Institute Model Penal Code. We find the Code\u2019s commentary as to the pertinent mitigating factors helpful. According to the commentary, the provisions for mental or emotional disturbance deals [sic] with imperfect provocation; that situation where such disturbance is not subject to reasonable explanation as would reduce a first-degree murder charge to second-degree murder or manslaughter, but may be weighed against imposition of the death penalty.\n304 N.C. at 105, 282 S.E.2d at 447.\nEven if Irwin requires some sort of provocation of defendant as a prerequisite to submission of the mental dr emotional mitigating circumstance, there is, as we have shown, evidence of it here. The provocation contemplated in Irwin is not that ordinarily thought of as sufficient to reduce the homicide to a lesser degree, such as from first- to second-degree murder or from second-degree murder to manslaughter. It is merely that factor or factors which helped motivate an abnormally susceptible defendant to commit murder, but which a person of normal mental and emotional stability would likely have resolved without such disastrous results. Here it was defendant\u2019s anger brought on by his father\u2019s indications that defendant might be disinherited. In State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), death sentence vacated, 494 U.S. \u2014, 108 L. Ed. 2d 602 (1990), it was a \u201clove-affair angle.\u201d Other emotional disturbance cases provide similar examples. See, e.g., State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989) (defendant, believing his wife unfaithful and planning divorce, murdered mother-in-law and child), death sentence vacated, \u2014 U.S. \u2014, 111 L. Ed. 2d 777 (1990), on remand, 328 N.C. 532, 402 S.E.2d 577 (1991); State v. Sanders, 327 N.C. 319, 395 S.E.2d 412 (1990) (defendant, fearing he was being watched by someone, murdered acquaintance), cert. denied, 498 U.S. ---, 112 L. Ed. 2d 782 (1991); State v. Jones, 327 N.C. 439, 396 S.E.2d 309 (1990) (defendant\u2019s girlfriend, pregnant with his child, broke off relationship; defendant abused controlled substances and murdered bystander during armed robbery).\nAlthough some provocation of the sort described will almost always be present where defendant suffers from a mental or emotional disturbance contemplated by N.C.G.S. \u00a7 15A-2000(f)(2) (1981), we do not read Irwin to hold that it is a prerequisite to submission of this mitigating circumstance.\nThe question in Irwin to which the language relied on by the State was addressed was not whether the mental or emotional disturbance circumstance should have been submitted. The question was whether the trial judge erred in failing to review the evidence of defendant\u2019s intoxication from alcohol and Tuinol, a central nervous system depressant, when he instructed on the circumstance. Both the impaired capacity and the mental or emotional disturbance mitigating circumstances were submitted to the jury. As summarized in the opinion, the principal evidence of both was apparently defendant\u2019s voluntary intoxication; and defendant\u2019s experts related this evidence to the impaired capacity mitigating circumstance. The trial court reviewed this evidence in instructing on the impaired capacity, but not the mental or emotional disturbance, circumstance. The Court said that voluntary intoxication, by alcohol or drugs, \u201cis not within the meaning of a mental or emotional disturbance . . . [and insofar as] it affects defendant\u2019s ability to understand and to control his actions ... is properly considered under the provision for impaired capacity . . . .\u201d Irwin, 304 N.C. at 106, 282 S.E.2d at 447-48.\nOn this reasoning, the Court held the failure of the trial court to relate the evidence of defendant\u2019s intoxication to the mental or emotional disturbance circumstance was not error. The language in Irwin concerning provocation, being unnecessary to that holding, was dictum.\nFor the reasons given, we vacate the sentence of death and remand to Superior Court, Caldwell County, for a new capital sentencing proceeding.\nDeath sentence vacated; remanded for new capital sentencing proceeding.", "type": "majority", "author": "EXUM, Chief Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, for the State.", "Malcolm R. Hunter, Jr., Appellate Defender, by Marshall Dayan, Assistant Appellate Defender, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY DEAN GREENE\nNo. 456A87\n(Filed 5 September 1991)\n1. Criminal Law \u00a7 1352 (NCI4th)\u2014 murder \u2014sentencing\u2014McKoy error \u2014 prejudicial\nRequiring unanimity in finding the mitigating circumstance of mental or emotional disturbance when sentencing defendant for murder was prejudicial error because there was substantial evidence to support that circumstance in addition to defendant\u2019s alcohol use, which is relevant only to impaired capacity. The jury\u2019s rejection of the impaired capacity circumstance after considering the same evidence did not render the McKoy error on the mental or emotional disturbance circumstance harmless because each mitigating circumstance is discrete, with its own meaning and effect. Furthermore, the jury\u2019s consideration of defendant\u2019s alcohol use on a nonstatutory mitigating circumstance which it unanimously found did not make the McKoy error on the mental and emotional disturbance mitigating circumstance harmless because defendant\u2019s alcohol use was only part of the evidence offered in support of this circumstance and this circumstance is listed in the capital sentencing statute and has therefore been deemed by the legislature to have mitigating value.\nAm Jur 2d, Homicide \u00a7\u00a7 548, 553, 555.\nUnanimity as to punishment in criminal case where jury can recommend lesser penalty. 1 ALR3d 1461.\n2. Criminal Law \u00a7 1357 (NCI4th) \u2014 murder \u2014sentencing\u2014mental or emotional disturbance \u2014provocation\nThere was evidence in a capital sentencing proceeding of the mitigating circumstance of mental or emotional disturbance, even if State v. Irwin, 304 N.C. 93, required some sort of provocation as a prerequisite to submission of that circumstance. Although some provocation will almost always be present when defendant suffers from a mental or emotional circumstance contemplated by N.C.G.S. \u00a7 15A-2000(f)(2), the language in Irwin concerning provocation was dictum.\nAm Jur 2d, Homicide \u00a7\u00a7 554, 555.\nOn remand from the Supreme Court of the United States. Heard in the Supreme Court 14 February 1991.\nLacy H. Thornburg, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, for the State.\nMalcolm R. Hunter, Jr., Appellate Defender, by Marshall Dayan, Assistant Appellate Defender, for the defendant-appellant." }, "file_name": "0771-01", "first_page_order": 809, "last_page_order": 817 }