State v. McNeil

• Decision Date: 29 August 1990
• Docket Number: No. 37A87,37A87
• Citation: 327 N.C. 388,395 S.E.2d 106
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Leroy McNEIL.

Page 106

395 S.E.2d 106

327 N.C. 388

STATE of North Carolina v. Leroy McNEIL.

No. 37A87.

Supreme Court of North Carolina.

Aug. 29, 1990.

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

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

At the 30 April 1984 Criminal Session of Superior Court, Wake County, the defendant was convicted of two counts of first-degree murder for the murders of Deborah Jean Fore and Elizabeth Faye Stallings. The jury found the defendant guilty of each first-degree murder, both upon the theory of premeditation and deliberation and under the felony murder rule. Upon the jury's recommendations after a separate capital sentencing proceeding, the trial court sentenced the defendant to death for each murder. On the defendant's direct appeal, this Court--in an opinion written by Justice Whichard, with Chief Justice Exum concurring in a separate opinion and Justice Frye dissenting as to sentence--found no error and upheld the convictions and death sentences. State v. McNeil, 324 N.C. 33, 375 S.E.2d 909 (1989). Thereafter, the Supreme Court of the United States granted the defendant's petition for a writ of certiorari and remanded the case for our further consideration in light of that Court's recent decision in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). McNeil v. North Carolina, 494 U.S. 1050, 110 S.Ct. 1516, 108 L.Ed.2d 756 (1990).

The evidence supporting the defendant's convictions and death sentences is summarized in this Court's prior opinion, State v. McNeil, 324 N.C. 33, 375 S.E.2d 909, and we will not repeat it here except as necessary to discuss the questions put before us on remand by the Supreme Court of the United States. On remand, we are required to answer three questions. First, did the jury instructions given at the defendant's sentencing proceeding create an unacceptable risk that individual jurors were prevented from considering mitigating evidence in making their sentencing decision, thereby violating the Eighth Amendment as construed by the Supreme Court of the United States in McKoy? We are required to answer this question affirmatively. Second, may harmless error analysis be used in reviewing any such constitutional error in this case? We answer this question affirmatively. Third, was the error in this case harmless? In light of the recent decision by the Supreme Court of the United States in McKoy, we are required to answer this question negatively. Accordingly, we must now vacate the death sentences previously upheld by this Court on the direct appeal of this case. We must also remand the case to the Superior Court, Wake County, for a new capital sentencing proceeding.

I.

We first consider whether the jury instructions given at the defendant's sentencing proceeding violated the Eighth Amendment, as recently construed by the Supreme Court of the United States in McKoy, by creating an unacceptable risk that individual jurors were prevented from "consider[ing] and giv[ing] effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death...." McKoy v. North Carolina, 494 U.S. 433, ----, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369, 381 (1990); see Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). For the reasons explained below, we conclude that the same type of error discovered and announced by the Supreme Court of the United States in McKoy was present here.

A.

During the capital sentencing proceeding conducted after the defendant McNeil's trial, the trial court gave the jury printed forms the jury was to use in recording and returning its recommendations as to punishment. As the defendant had been convicted of two first-degree murders, the jury was given two such forms; each was entitled "Issues and Recommendation as to Punishment." Each form contained four sections, labeled "Issue One" through "Issue Four."

Issue One on each form was: "Do you unanimously find from the evidence, beyond a reasonable doubt, the existence of one or more of the following aggravating circumstances?" (Emphasis added.) For the murder of Deborah Jean Fore, the trial court submitted two aggravating circumstances, both of which the jury found to exist: (1) that the defendant had "been previously convicted of a felony involving the use of violence to the person," and (2) that the murder was committed while the defendant "was engaged in the commission of a robbery with a firearm." For the murder of Elizabeth Faye Stallings, the trial court submitted the same two aggravating circumstances submitted for the Fore murder, plus a third, that the Stallings murder was "especially heinous, atrocious or cruel." The jury found all three of those aggravating circumstances to exist.

Issue Two was: "Do you find from the evidence the existence of one or more of the following mitigating circumstances?" For both the Fore and the Stallings murders, the trial court submitted six possible mitigating circumstances, each of which is discussed in detail at a later point in this opinion. Unlike Issue One which required the jury to give a specific answer as to each aggravating circumstance, the jury was not required under Issue Two to specify whether it found each individual mitigating circumstance to exist. As a result, for each murder the jury only answered "yes," it had found "one or more" mitigating circumstances.

Issue Three was: "Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found by you is, or are, insufficient to outweigh the aggravating circumstance or circumstances found by you?" (Emphasis added.) The jury answered Issue Three "yes" for both the Fore and Stallings murders.

Issue Four was: "Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances found by you is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by you?" (Emphasis added.) For each murder, the jury answered this issue "yes," and thereafter recommended that the defendant be sentenced to death for each murder.

B.

In McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), the Supreme Court of the United States held unconstitutional North Carolina's trial procedure in capital cases of requiring that jurors unanimously agree upon the existence of a mitigating circumstance before any juror could consider that circumstance during sentencing deliberations. The trial of this case in 1984, however, was held before our trial courts began to uniformly instruct juries as to that trial practice, and the jury instructions regarding mitigating circumstances here differed from those found unconstitutional in McKoy.

Issue Two on the forms used in McKoy was: "Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?" McKoy, 494 U.S. at ----, 110 S.Ct. at 1230, 108 L.Ed.2d at 376 (emphasis added). That general question was followed by a list of possible mitigating circumstances. Id. Alongside each possible mitigating circumstance, a space was provided for the jury to answer whether it had unanimously found that particular circumstance to exist. Id. Therefore, the jury instructions in McKoy differed from the jury instructions now before us in two respects: (1) Issue Two on the jury forms used in this case contained no express requirement that the jury be unanimous before finding the existence of a mitigating circumstance; and (2) the jury in this case was not required to state whether it found each individually listed possible mitigating circumstance to exist.

The State contends that since Issue Two on the forms used in this case did not contain an express unanimity requirement, the jury must have understood that it was not required to be unanimous as to the existence of mitigating circumstances; thus, McKoy error was not present in the sentencing proceeding in this case. We disagree.

To determine whether the jury instructions in this case violated the Eighth Amendment as construed by the Supreme Court of the United States in McKoy, we must decide whether there is a "reasonable likelihood" that the jury here believed it was required to apply "the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, ----, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329, reh'g denied, 495 U.S. 924, 110 S.Ct. 1961, 109 L.Ed.2d 322 (1990). Issue Two on the forms given the jury in this case did not expressly contain a unanimity requirement regarding mitigating circumstances. However, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368, 373 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857, 859 (1926)), quoted in Boyde v. California, 494 U.S. at ----, 110 S.Ct. at 1196-97, 108 L.Ed.2d at 327; see also, e.g., Murrow v. Daniels, 321 N.C. 494, 497, 364 S.E.2d 392, 395 (1988) (citing Gregory v. Lynch, 271 N.C. 198, 203, 155 S.E.2d 488, 492 (1967) (citing cases)). We can only conclude that when viewed in the context of the overall charge, there is a reasonable likelihood that the jury interpreted the instructions here to require unanimity as to mitigating circumstances.

In its charge to the jury at the conclusion of the sentencing proceeding, the trial court used the word "unanimous" no less than thirteen times while instructing the jury concerning the two "Issues and Recommendation as to Punishment"...