State v. Boyd, 177A83

• Decision Date: 28 August 1984
• Docket Number: No. 177A83,177A83
• Citation: 311 N.C. 408,319 S.E.2d 189
• Parties: STATE of North Carolina v. Arthur Martin BOYD, Jr.
• Court: North Carolina Supreme Court

Page 189

319 S.E.2d 189

311 N.C. 408

STATE of North Carolina v. Arthur Martin BOYD, Jr.

No. 177A83.

Supreme Court of North Carolina.

Aug. 28, 1984.

Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

Ann B. Petersen, Raleigh, and James R. Glover, Chapel Hill, Asst. Appellate Defenders, and Michael F. Royster, Pilot Mountain, for the defendant-appellant.

COPELAND, Justice.

GUILT PHASE

I.

Defendant first contends that he was denied a fair trial as a result of the prosecutor's remarks during closing argument at the guilt phase of the trial. He points specifically to the following statements:

... the reality of this case hit me.

We are talking about real people. By your verdict in this matter you are going to be saying to these real people what you think of what you have heard here this week. Your decision is going to tell those people what you think of what you heard here.

There are several people you will be answering to. What will you say to the people in this Country about what you have heard? What will you say about all those citizens out there in Surry County about what you have heard here this week? Will you say, "Okay, if it happened down there at Mayberry Mall on a Saturday"? Will you say "Okay"?

The prosecutor then went on to ask how the jury would respond to the witnesses, the paramedics, the victim, her parents, and her daughter if its verdict was for less than first degree murder.

As we most recently stated in State v. Maynard, 311 N.C. 1, 316 S.E.2d 197 (1984), a prosecuting attorney may argue vigorously all facts in evidence, the law raised by the issues, and any inferences arising therefrom. However, the prosecutor "may not place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs, and personal opinions not supported by the evidence." Id. at ---, 316 S.E.2d at 205. From this it follows that the jury's decision must be based solely on the evidence presented at trial and the law with respect thereto, and not upon the jury's perceived accountability to the witnesses, to the victim, to the community, or to society in general.

The defendant, however, failed to voice any objection at trial to the prosecutor's closing remarks. Therefore, this Court must determine whether the remarks amounted to such gross impropriety as to require the trial judge to act ex mero motu. See State v. Maynard, 311 N.C. 1, 316 S.E.2d 197. Following a thorough review of the contested argument, we find that while we do not approve of the prosecutor's remarks, they do not rise to the level of such gross impropriety as to have required ex mero motu action by the trial judge. Furthermore, the record provides ample support for the defendant's first degree murder conviction despite the improper remarks. Therefore, any impropriety in the remarks was not prejudicial. In the absence of a showing of prejudice, prosecutorial misconduct in the form of improper jury argument does not require reversal. See United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (lower court erred in reversing conviction apparently on the basis that it had the supervisory power to discipline prosecutors for continuing violations of rule banning comment on accused's failure to testify, regardless of whether prosecutor's arguments constituted harmless error). See also State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971).

PENALTY PHASE

II.

Defendant contends that the trial court's exclusion of Dr. Humphrey's testimony concerning stressful life events and criminal homicide constituted prejudicial error. Defendant argues, inter alia that "[t]he purpose of Doctor Humphrey's testimony was to link together all of the defendant's mitigating evidence into a unified whole which explained the apparent contradiction of killing the person the defendant loved the most." The defendant intended to show, through Dr. Humphrey's testimony, that the killing was "primarily a depression caused self-destructive act, closely related to the impulse that leads to suicide, resulting from a life history of an inordinate number of losses beginning with the abandonment by the defendant's father and the death of his grandfather and culminating with the threatened loss of Wanda Hartman." Defendant concludes that:

Without the glue, the entire structure of the defendant's theory of mitigation was shattered into little pieces. Presented only as broken bits, there was virtually no hope that the defendant could convince the sentencing jury that his was a case arising out of the "frailties of human kind" which called for compassion and mitigation of the ultimate penalty of death.

The State argues that evidence of stress, as defined by an accumulation of "losses," most of which are merely manifestations of anti-social behavior, while perhaps resulting in crimes of violence, is of no mitigating value.

In its brief, the State comments that:

The most Dr. Humphrey's study showed was that stress often times produces violent behavior in susceptible individuals and that persons incarcerated in the North Carolina Prison System for violent crimes have histories of more stress than those incarcerated for non-violent crimes.... It is common knowledge that millions of individuals have been subjected to some or all of the stresses inflicted upon defendant without becoming murderers. Many people lose their fathers and grandfathers at an early age and later in life experience marital problems or are rejected by a spouse or other loved one without becoming murderers. The stresses to which defendant was subjected were no more or less than those inflicted upon the population in general by life; the fact that he was weak and succumbed to these stresses hardly reduces his moral culpability or demonstrates that he is a less worthy candidate for capital punishment than another. Rather clearly the evidence shows a weak individual; the product of an alcoholic father who deserted his family and a less than stable mother; who had gone to prison by the time he was seventeen years of age; who, in the ensuing twenty years, never kept a job for a year while being convicted of twelve crimes; who was taken to church regularly as a child but when not in prison, was high most of the time on drugs and alcohol and who spent all of his time in a pool hall as a hustler and crappie.

In determining whether Dr. Humphrey's testimony was erroneously excluded at the sentencing phase of defendant's trial as bearing on factors in mitigation, our inquiry is two fold: (1) whether the tendered evidence was relevant, and (2) whether defendant has demonstrated the existence of "patent, prejudicial error" by its exclusion. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203 (1982). In this regard, we stated in Pinch that:

Defendant's contentions must be examined against the backdrop of our capital punishment statute which provides, in conformity with the constitutional mandates of the Eighth and Fourteenth Amendments, that any evidence may be presented at the separate sentencing hearing which the court deems "relevant to sentence" or "to have probative value," including matters related to aggravating or mitigating circumstances. G.S. 15A-2000(a)(3); see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The circumstances of the offense and the defendant's age, character, education, environment, habits, mentality, propensities and criminal record are generally relevant to mitigation; however, the ultimate issue concerning the admissibility of such evidence must still be decided by the presiding trial judge, and his decision is guided by the usual rules which exclude repetitive or unreliable evidence or that lacking an adequate foundation. See State v. Johnson, 298 N.C. 355, 367, 259 S.E.2d 752, 760 (1979); State v. Cherry, 298 N.C. 86, 98-99, 257 S.E.2d 551, 559 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). See also State v. Goodman, 298 N.C. 1, 30-31, 257 S.E.2d 569, 588 (1979). Consequently, we believe that a new sentencing hearing should not be ordered by this Court for the trial judge's exclusion of evidence at the penalty phase unless the defendant demonstrates the existence of patent, prejudicial error.

Id. at 19, 292 S.E.2d at 219.

A mitigating circumstance has been defined as:

"a fact or group of facts which do not constitute any justification or excuse for killing or reduce it to a lesser degree of the crime of first-degree murder, which may be considered as extenuating, or reducing the moral culpability of killing or making it less deserving of the extreme punishment than other first-degree murders."

State v. Brown, 306 N.C. 151, 178, 293 S.E.2d 569, 586 (1982).

We note first that Dr. Humphrey's report consists of only nine pages of narrative, three statistical charts, and three pages of references. The report, in the final paragraph of the summary, states:

Support and qualification has been found for the link between stressful life events and criminal homicide. The findings also show that the type of stress typically experienced by the offender tends to influence his choice of victim.

In short, the report lacks comprehensiveness and is characterized by general conclusions of questionable scientific import or value in mitigation. In fact, the pertinent information we have concerning the details of the scientific and statistical methods which Dr. Humphrey and his co-author employed were gleaned from a thorough cross-examination of the witness during voir dire. Furthermore, the "stressful events" described by the witness as pertaining to the defendant--his loss of freedom due to incarceration, his inability to hold a job, and his problem maintaining friendships--offer little as factors which would extenuate or reduce the moral culpability of the killing. Nevertheless, each of these stressful events was presented to...