State v. Bacon
| Citation | 446 S.E.2d 542,337 N.C. 66 |
| Decision Date | 29 July 1994 |
| Docket Number | No. 209A91,209A91 |
| Parties | STATE of North Carolina v. Robert BACON, Jr. |
| Court | North Carolina Supreme Court |
Michael F. Easley, Atty. Gen. by David Roy Blackwell, Sp. Deputy Atty. Gen., for State.
Sam J. Ervin, IV, Morganton, for defendant-appellant.
Defendant was convicted of common law conspiracy to commit murder and first-degree murder at the 18 May 1987 Criminal Session of Superior Court, Onslow County. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death. The trial court sentenced accordingly, and further, imposed a sentence of three years for the conspiracy. Defendant appealed to this Court.
On defendant's direct appeal, this Court concluded that as to the guilt phase defendant received a fair trial free of prejudicial error; however, as to the sentencing proceeding, the trial court's failure to submit a statutory mitigating circumstance constituted prejudicial error. The Court thus remanded Following the new sentencing proceeding, the jury again recommended that defendant be sentenced to death, and the trial court sentenced accordingly. For the reasons discussed herein, we conclude that defendant received a fair sentencing proceeding, free of prejudicial error, and that the sentence of death is not disproportionate.
for a new capital sentencing proceeding. State v. Bacon, 326 N.C. 404, 390 S.E.2d 327 (1990) (hereinafter Bacon I ).
Except where necessary to develop and determine the issues arising from defendant's resentencing, we will not repeat the evidence supporting defendant's convictions, as that evidence is adequately summarized in Bacon I. 1
Defendant presented further testimony at the resentencing proceeding from numerous friends and family members that he was an affable, pleasant person; a good student who never gave any trouble; giving and a leader; always there to help; not one to hurt anybody; popular in school and involved in sports-related activities; a clean-cut kid and a fine young man; a very trustworthy young man who had the ability to excel in anything that he wanted to start as far as life at school or business; and an upright citizen with unquestionable character.
Dr. Billy Royal, a psychiatrist, described defendant as "pleasant," of "average intelligence," and relatively unemotional, with "a very limited view of himself and not a very good self image in terms of being very successful in life." Dr. Royal opined that the murder resulted from the meshing of the psychological needs of defendant and co-conspirator Bonnie Sue Clark. Defendant "had a history ... of becoming involved [with] people that were in need of assistance" and tried "to help rescue Ms. Clark from her reported abuse by her husband." It was the racial slurs, however, directed at defendant by Sergeant Clark in the car that "resulted in his [losing] control." The murder was thus an "impulsive act," and even though defendant stabbed Sergeant Clark some sixteen times, defendant was "a very angry frustrated person at the time." Dr. Royal concluded that defendant's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law" at the time of the killing was impaired and the murder was committed while defendant was "under the influence of [a] mental or emotional disturbance."
The jury found the one aggravating circumstance submitted--that the murder was committed for pecuniary gain. It found nine mitigating circumstances--that defendant had no significant history of prior criminal activity; acted under the domination of another person; had no history of violent behavior; had character, habits, mentality, propensities and activities indicating that he was unlikely to commit another violent crime; had committed the murder as the result of circumstances unlikely to recur; had established that his co-defendant, Bonnie Sue Clark, had received a life sentence; had shown remorse since his arrest; and had a family who loved him, continued to visit him while he has been incarcerated, and would continue to do so if he were sentenced to life in prison. It refused to find that the murder was committed while defendant was under the influence of a mental or emotional disturbance; that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired; that his age had mitigating value; that he admitted his involvement at an early stage in the proceedings and/or cooperated with law enforcement officers; that he was gainfully employed and worked regularly at the time of the crime; that he was known as a kind, friendly, and compassionate person who developed strong attachments and friends in the community in which he grew up; that his educational background, homelife, and sobriety had mitigating value; that he was known as a good student, a leader and organizer of recreational activities, and had graduated from high school; that his friends and family could not believe it when Upon finding that the mitigating circumstances were insufficient to outweigh the aggravating circumstance, and that the aggravating circumstance was sufficiently substantial to call for the death penalty, the jury recommended a sentence of death.
they heard he had been involved in a first-degree murder; that they felt that life imprisonment was the appropriate punishment; and that there were other circumstances deemed to have mitigating value.
Defendant first contends that the trial court improperly required Dr. Billy Royal, a psychiatrist employed to assist in the preparation and presentation of defendant's defense, to compile a written report of his evaluation and submit it to the district attorney. Defendant contends that the trial court's action violated his right to be free from compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution.
Defendant concedes that there is no evidence in the record that the district attorney made explicit use of any report compiled by Dr. Royal during the prosecution's cross-examination of him. Defendant further concedes that preparation of a report was not forced upon defendant and that his counsel voluntarily turned over the report. In discussing the issue of the report at the pretrial hearing, defense counsel stated:
We won't determine until we have the examination done whether we'll use that testimony. At the point in which we'll decide to use the testimony, we'll ask our expert to prepare a report[,] then we'll furnish it to the District Attorney. We don't want to be in a position of having him examined and not consider that as favorable evidence.
Judge George M. Fountain, who presided over the pretrial hearing on defendant's request for funds to employ the expert, responded: "If you're not going to use it--you don't need a report if you're not going to use it." Counsel replied: "To the extent, Your Honor, we intend to use evidence and the report, at that point we would make a decision to use the evidence and then we would have a report made[;] we would certainly furnish that to [the district attorney]." The trial court then entered a written order finding "that the State [is] entitled to a copy of the results of any mental examination of the defendant if the defendant intends to call the psychiatrist or psychologist as a witness in this case." The record reflects that on the first day of the evidentiary portion of the resentencing proceeding, defendant's counsel submitted the report to the prosecution upon determination that they were going to use Dr. Royal as a witness.
Judge Fountain noted at the pretrial hearing that prior to the original trial, the defense filed a motion for discovery of reports of examinations and tests under N.C.G.S. § 15A-903(e) (1988), with a continuing obligation upon the State to respond. Therefore, because the court had previously granted relief sought by defendant under N.C.G.S. § 15A-903(e),
the court must, upon motion of the State, order the defendant to permit the State to inspect and copy or photograph results or reports of physical or mental examinations ... within the possession and control of the defendant which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial, when the results or reports relate to his testimony.
Here, the trial court's order provided no more than the reciprocal discovery requirements under N.C.G.S. § 15A-905(b). The trial court merely addressed the district attorney's concern that the expert would examine the defendant and never prepare a written report, thus hindering the State's ability to cross-examine the expert. By stating in its order that defense counsel must prepare a report if the expert's examination was to be used at trial, the trial court was ensuring fairness to both sides in the preparation of their case. This assignment of error is overruled.
Defendant next alleges that the trial court committed prejudicial error by conducting proceedings out of defendant's presence, in violation of Article I, Section 23 of the North Carolina Constitution as well as the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.
Defense counsel filed a pre-trial motion for complete recordation of all proceedings. They amended the motion so as to assume the burden of telling the court when they wanted particular conferences or communications recorded. In speaking to the motion for recordation, they said: "I think you can maybe put the burden on us to do that and we will remember to ask the court to reconsider that motion each time we believe it's necessary." Subsequently, the trial court held that:
The Court grants the motion...
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