State v. Price

• Decision Date: 06 October 1994
• Docket Number: No. 585A87,585A87
• Citation: 337 N.C. 756,448 S.E.2d 827
• Parties: STATE of North Carolina v. Ricky Lee PRICE.
• Court: North Carolina Supreme Court

Page 827

448 S.E.2d 827

337 N.C. 756

STATE of North Carolina v. Ricky Lee PRICE.

No. 585A87.

Supreme Court of North Carolina.

Oct. 6, 1994.

Michael F. Easley, Atty. Gen. by Barry S. McNeill, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm R. Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Durham, for defendant-appellant.

EXUM, Chief Justice.

Defendant was convicted of first-degree murder of Brenda Smith and sentenced to death at the 8 September 1987 Criminal Session of Superior Court, Person County. This Court concluded defendant's conviction of first-degree murder and his sentence of death were without error and held the sentence of death not to be disproportionate. State v. Price, 326 N.C. 56, 388 S.E.2d 84 (1990) (Price I ). Thereafter the United States Supreme Court vacated the judgment and remanded the case to us for further proceedings in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Price v. North Carolina, 498 U.S. 802, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990). This Court reaffirmed the conviction and judgment in State v. Price, 331 N.C 620, 418 S.E.2d 169 (1992) (Price II ). The United States Supreme Court again vacated judgment and remanded the case to this Court for further proceedings in light of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). On remand this Court affirmed the conviction and sentence of death. State v. Price, 334 N.C. 615, 433 S.E.2d 746 (1993) (Price III ).

This case is now before us again by order of the United States Supreme Court, which vacated our most recent judgment and remanded this case to us for further proceedings in light of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Price v. North Carolina, --- U.S. ----, 114 S.Ct. 2777, 129 L.Ed.2d 888, (1994).

The facts are summarized in Price I and will not be restated here except as necessary for proper treatment of the issue to be addressed.

In Simmons, the United States Supreme Court held that in a capital sentencing proceeding in which the prosecution relies on defendant's future dangerousness as a reason to impose the death sentence, it is violative of due process to deny defendant's request for a jury instruction that under state law defendant if sentenced to life imprisonment would not be eligible for parole. 512 U.S. at ----, 114 S.Ct. at 2197-98, 129 L.Ed.2d at 147.

The question before us is whether defendant should be given a new sentencing hearing in light of the United States Supreme Court's Simmons decision. After thoroughly reviewing again the record, briefs and transcript insofar as they pertain to this question, we conclude defendant's conviction and sentence of death should be affirmed.

I.

At defendant's sentencing proceeding two aggravating circumstances were submitted: Defendant had been convicted of a prior felony involving the use of violence to the person. N.C.G.S. § 15A-2000(e)(3) (1988). The murder of Brenda Smith was part of a course of conduct that included the commission of other crimes of violence. N.C.G.S. § 15A-2000(e)(11) (1988). To support the prior violent felony aggravating circumstance, the State offered in evidence a Virginia judgment showing defendant had been previously convicted in Virginia of the murder of Joan Brady, for which he received a life sentence.

During the sentencing proceeding the trial court made several rulings which bear on the issue before us. It ruled defense counsel could not argue "anything concerning the possibility of parole, the possibility of executive clemency, the possibility of any other governmental agency taking steps in connection with the sentencing proceeding." The State requested defense counsel not be permitted to argue that defendant "will or may spend the rest of his life in prison providing necessary prevention." Defense counsel inquired whether he could make reference to defendant's Virginia sentence of life imprisonment. The trial court ruled defense counsel could "not mislead the jury as to the effect of a life sentence" but could "argue to the jury that the defendant has received a life sentence in Virginia." Defense counsel then tendered his argument "that the Court has it within its power and discretion to impose a life sentence which would run at the end of the life sentence which the defendant is serving in the State of Virginia." The trial court ruled counsel "may not argue that to the jury." Defense counsel also requested the trial court to submit the following as a non-statutory mitigating circumstance: "The fact that defendant has received a life sentence and the fact that this judge may impose [an] additional life sentence to commence at the expiration of the previous life sentence provides additional protection to society." Upon objection by the State, this request was denied; and requested circumstance was not submitted.

During the sentencing proceeding's closing arguments, the State argued to the jury that defendant was dangerous, saying, among other things, "both Doctor Centor and Doctor Rose agree that the defendant is dangerous and is dangerous to others"; defendant "is a dangerous man"; "[t]he defendant is dangerous." ¹ Both the State and defendant noted in their jury arguments that defendant had received a life sentence in Virginia for the murder of Joan Brady. Defendant's counsel argued, "I'm not asking you to forgive him. I'm not asking that for a minute. He's already serving a life sentence."

In Price I, one of defendant's assignments of error was the trial court's prohibiting his counsel from arguing "anything concerning the possibility of parole." He also contended that the trial court erred in disallowing his proffered argument that the trial court could require a life sentence imposed in the present case to commence at the end of the life sentence defendant was presently serving in Virginia. This Court rejected defendant's contention on appeal that these jury arguments should have been permitted. We said:

While it is generally true that counsel's argument should not be impaired without good reason, Watson v. White, 309 N.C. 498, 507, 308 S.E.2d 268, 274 (1983), one "good reason" to limit argument is its irrelevance. "[C]ounsel [may not] argue principles of law not relevant to the case." State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975). This Court has noted many times that a criminal defendant's status under the parole laws is irrelevant to a determination of his sentence and that it cannot be considered by the jury during sentencing. E.g., State v. Robbins, 319 N.C. at 518, 356 S.E.2d at 310. That this holding passes muster under the United States Constitution is implicit in the United States Supreme Court's recognition that "[m]any state courts have held it improper for the jury to consider or to be informed--through argument or instruction--of the possibility of commutation, pardon or parole." California v. Ramos, 463 U.S. 992, 1013 n. 30, 103 S.Ct. 3446, 3459-60 n. 30, 77 L.Ed.2d 1171, 1188 n. 30 (1983) (quoted in Robbins, 319 N.C. at 520, 356 S.E.2d at 311). In other words, the Constitution permits such argument or instruction, but it is not constitutionally required. Robbins, 319 N.C. at 519, 356 S.E.2d at 311.

Argument concerning the effect of consecutive life sentences upon the period of a defendant's incarceration is, in another guise, argument about the legal effect of parole upon defendant's sentence. It is equally irrelevant to a determination of his sentence. The trial court acted correctly in disallowing both arguments.

326 N.C. at 83-84, 388 S.E.2d at 99-100.

In Price III, this Court found no error in the trial court's refusal to submit to the jury defendant's Virginia life sentence as a non-statutory mitigating circumstance. We rejected defendant's argument that this life sentence could have served as a basis for a sentence less than death in the North Carolina case. We noted defendant's reliance on Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We recognized these cases require as a matter of federal constitutional law that a capital sentencing jury be permitted to consider as a mitigating circumstance " ' "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." ' " Skipper, 476 U.S. at 4, 106 S.Ct. at 1671, 90 L.Ed.2d at 6 (quoting Eddings, 455 U.S. at 110, 102 S.Ct. at 874, 71 L.Ed.2d at 8 (quoting Lockett, 438 U.S. at 604, 98 S.Ct. at 2964, 57 L.Ed.2d at 990 (plurality opinion of Burger, C.J.))).

We concluded, however, as follows:

That defendant is currently serving a life sentence for another unrelated crime is not a circumstance which tends to justify a sentence less than death for the capital crime for which defendant is being sentenced. Although the sentence comprises part of his formal criminal record and was offered against defendant by the State in the sentencing hearing, "the additional protection to society" possibly achieved by his incarceration under that sentence is not an aspect of defendant's record. Because this evidence was irrelevant, we uphold the trial court's refusal to submit it as a mitigating circumstance. See Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. at 2964-65 n. 12, 57 L.Ed.2d at 990 n. 12 ("Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense."); see also State v. Robbins, 319 N.C. 465, 519-23, 356 S.E.2d 279, 311-13 (1987) (evidence about possibility of parole is irrelevant to sentencing and the federal Constitution does not require consideration of such evidence).

331 N.C. at 634-35, 418...