State v. McKoy, 585A85

• Decision Date: 26 July 1990
• Docket Number: No. 585A85,585A85
• Citation: 394 S.E.2d 426,327 N.C. 31
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dock McKOY, Jr., a/k/a Dock McCoy, a/k/a Dock McKay, a/k/a Paul McCoy.

Page 426

394 S.E.2d 426

327 N.C. 31

STATE of North Carolina v. Dock McKOY, Jr., a/k/a Dock McCoy, a/k/a Dock McKay, a/k/a Paul McCoy.

No. 585A85.

Supreme Court of North Carolina.

July 26, 1990.

Lacy H. Thornburg, Atty. Gen. by Joan H. Byers, William N. Farrell, Jr., Steven F. Bryant, Sp. Deputy Attys. Gen., and Barry S. McNeill, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, Gordon Widenhouse, Asst. Appellate Defender, Raleigh, and Louis D. Bilionis, Chapel Hill, for defendant-appellant.

EXUM, Chief Justice.

In McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (hereinafter "McKoy"), the United States Supreme Court declared unconstitutional under the eighth and fourteenth amendments of the federal Constitution North Carolina jury instructions directing that, in making the final determination of whether death or life imprisonment is imposed, no juror may consider any circumstance in mitigation of the offense unless the jury unanimously concludes that the circumstance has been proved. Reversing this Court's 5-2 decision to the contrary in State v. McKoy, 323 N.C. 1, 372 S.E.2d 12 (1988) (Exum, C.J., and Frye, J., dissenting), the United States Supreme Court remanded this case to us "for further proceedings not inconsistent" with its opinion. Id. 494 U.S. at ----, 110 S.Ct. at 1234, 108 L.Ed.2d at 381.

On remand defendant contends that as a result of McKoy, our capital sentencing statute, N.C.G.S. § 15A-2000, is no longer enforceable, and that neither he nor anyone else can be sentenced to death under it. He argues that this case and all others which have been tried under this statute must be remanded to our trial courts for the imposition of life imprisonment. Defendant says no one in North Carolina can be sentenced to death unless and until the legislature enacts a new capital sentencing statute which does not violate the principles of McKoy.

The State contends that McKoy does not invalidate our capital sentencing statute. The State says it merely declares unconstitutional a particular jury instruction devised by our trial judges and approved by this Court in State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), overruled in part on other grounds, State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988). The State argues the case is one only of trial error, entitling defendant, at most, to a new sentencing hearing.

We agree with the State's position that the erroneous instructions were trial error. We conclude that defendant is not entitled to be resentenced to life imprisonment as a matter of law, that the McKoy error is not harmless and that defendant is entitled to a new sentencing hearing at which the question of his punishment will be determined anew in a manner not inconsistent with this opinion or McKoy.

I.

Defendant was convicted of first degree murder at the 29 July 1985 Criminal Session of Superior Court, Stanly County. The jury recommended a sentence of death and the trial court entered judgment accordingly. Because State v. McKoy, 323 N.C. 1, 372 S.E.2d 12 (1988) (hereinafter "McKoy I "), adequately summarizes the evidence, we limit our discussion here to the basic facts and to evidence material to resentencing issues.

The State's evidence tends to show that on 22 December 1984, Lieutenant Robert Usery and Deputy Kress Horne of the Anson County Sheriff's Department had been dispatched to defendant's home because neighbors had complained about defendant's firing a gun. While defendant was in the house, the officers called to him to come out. Defendant refused and threatened to kill them. After other law enforcement officers arrived, defendant continued to speak to Deputy Horne from inside. Deputy Horne was standing behind the patrol car with his pistol drawn. Defendant fired a single shot, killing Deputy Horne.

Defendant's evidence tended to show that he was mentally and emotionally impaired and to support a defense of legal insanity. Defendant, who was wounded in the affray, was treated by a physician who testified at trial that defendant was intoxicated and had a blood alcohol content equivalent to .26 on the breathalyzer scale. Expert psychiatric testimony tended to show that defendant suffered from several mental disorders. Some were related to alcohol abuse and others to his borderline intellectual functioning. Defendant's IQ was 74. Dr. Robert Rollins, Clinical Director of the State's forensic psychiatry unit, testified that defendant had a personality disorder "characterized by denial, paranoid thinking, concrete thinking, impaired abstract thinking, impaired judgment, impaired insight, impaired perception, overreacting to things, poor interpersonal skills, defensiveness, ineffectiveness in functioning and antisocial behavior." Dr. Rollins gave his opinion that, "as a result of mental disorder McKoy was neither able to appreciate the quality of his actions or to distinguish between right and wrong" at the time of the offense. The sixty-five-year-old defendant's own testimony included a rambling and bizarre account of the occurrences on the day of the killing.

At the conclusion of the guilt phase, the jury convicted defendant of first degree murder.

During the penalty phase, the State presented evidence that defendant had pled guilty to second degree murder in 1952. Defendant subsequently recalled Dr. Rollins, who testified that defendant was under the influence of a mental or emotional disturbance at the time he shot Deputy Horne. Defendant also called a psychiatrist, Dr. Patricio Lara of Dorothea Dix Hospital. Dr. Lara diagnosed defendant as having an adjustment disorder, mixed disturbances of emotions and conduct, and as suffering from paranoid and narcissistic features. Dr. Lara was satisfied that defendant was suffering from significant psychological disorders which had existed for a number of years and were exacerbated when defendant was impaired by alcohol.

Following the penalty phase evidence, the trial court instructed the jury regarding its sentencing function. The verdict sheet contained a listing of the aggravating and mitigating circumstances submitted to the jury. This sheet and the trial judge's instructions required the jury to find each mitigating circumstance unanimously before it could consider that circumstance favorably to defendant. Both the instructions and the verdict sheet required the jury, after it had made its findings as to aggravating and mitigating circumstances, to then determine whether the mitigating circumstance(s) were insufficient to outweigh the aggravating circumstance(s), and, if so, whether the aggravating circumstance(s) were sufficiently substantial to justify the death penalty when considered with the mitigating circumstance(s). In making these final determinations, both the instructions and the verdict sheet advised the jury that it could consider only those aggravating and mitigating circumstance(s) which it unanimously found to exist. Both the instructions and the verdict sheet thus precluded any juror from considering any mitigating circumstance favorably to defendant in the final balancing processes unless all jurors had agreed that the circumstance existed. Thus, the instructions and the verdict sheet, in effect, also precluded any juror from considering any evidence tending to support a given mitigating circumstance in the final balancing processes unless all jurors agreed that the circumstance existed.

The jury found two aggravating circumstances unanimously and beyond a reasonable doubt: (1) Dock McKoy had been previously convicted of a felony involving violence to the person; and (2) the murder was committed against a deputy sheriff while engaged in the performance of his official duties.

The jury found unanimously and answered "yes" to the following mitigating circumstances:

* The capacity of Dock McCoy to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.

* That Dock McCoy has borderline intellectual functioning with a I.Q. test score of 74.

The jury failed to find unanimously and answered "no" to the following mitigating circumstances submitted to it:

* This murder was committed while Dock McCoy was under the influence of mental or emotional disturbance.

* The age of Dock McCoy at the time of this murder is a mitigating circumstance.

* That for several decades Dock McCoy has exhibited signs of mental or emotional disturbance or defect that went untreated.

* That Dock McCoy's mental or emotional disturbance is aggravated by his poor physical health.

* Dock McCoy's ability to remember the events of December the 22nd, 1984, is actually impaired.

* Any other circumstance or circumstances arising from the evidence which you the jury deem to have mitigating value.

The jury then found beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances, that the aggravating circumstances were sufficiently substantial to call for imposition of the death penalty when considered with the mitigating circumstances that it found and that defendant should suffer the death penalty rather than life imprisonment.

The trial court entered judgment accordingly.

The following procedures then occurred: Defendant appealed to this Court, which heard oral arguments on 14 March 1988. On 6 June 1988, the United States Supreme Court decided Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Mills held that in capital cases unanimity instructions on mitigating circumstances, under a Maryland capital sentencing procedure similar but not identical to ours, were unconstitutional under the eighth and fourteenth amendments. We ordered further briefing and arguments in this case to address whether Mills made unconstitutional the trial court's instructions to the jury on mitigating circumstances. After reargument on 22 August 1988 this Court...