FirstDegree Murder Indictment

1
First-Degree Murder Indictment

• Short-form indictment is constitutional
• State v. Wallace, 351 N.C. 481 (2000)
• See also Hartman v. Lee, 283 F.3d 190 (4th Cir.
  2002) (federal habeas standard of review)
• Indictment need not allege aggravating
  circumstances
• State v. Golphin, 352 N.C. 364 (2000)
• Same state court ruling likely after Ring v.
  Arizona, 122 S.Ct. 2428 (2002) (jury must find
  aggravating circumstance necessary to impose
  death sentence)

2
First-Degree Murder Indictment

• When state proceeds under felony murder rule, it
  is not required to separately indict for
  underlying felony or felonies
• State v. Carey, 288 N.C. 254, 274 (1975) State
  v. Williams, 305 N.C. 656, 660 (1982) State v.
  Scott, 150 N.C. App. 442 (2002)
• Attempted first-degree murder is lesser-included
  offense, but not felonious assaults
• State v. Collins, 334 N.C. 54 (1993) State v.
  Gibson, 333 N.C. 29 (1992)

3
Prosecutors Decision to Seek Death Penalty for
First-Degree Murder

• G.S. 15A-2004 enacted in 2001
• Effective July 1, 2001, and applies to pending
  and future cases
• But provision on states notice of intent to seek
  death penalty inapplicable to defendants indicted
  before July 1, 2001
• State may elect to try 1st degree murder
  noncapitally even if aggravating circumstance
  exists
• State may also agree to life sentence at any
  stage of prosecution and after resentencing
  ordered
• State must give notice of intent to seek death
  penalty on or before
• Rule 24 conference or arraignment, whichever is
  later

4
No Death Penalty for Mentally Retarded Defendant

• G.S. 15A-2005, enacted in 2001
• On defendants motion, supported by affidavits,
  judge may order pretrial hearing on issue
• If state consents to hearing, judge must order
  hearing
• Defendant has burden of proof by clear and
  convincing evidence
• If judge finds for defendant, case is noncapital
• If judge finds against defendant, jury to
  determine issue
• Special issue determined before consideration of
  aggravating and mitigating circumstances
• Defendant has burden of proof before jury by
  preponderance of evidence
• G.S. 15A-2006 (postconviction determination if
  already sentenced to death)

5
Two Juries Not Authorized for First-Degree
Capital Murder Trial/Sentencing

• Trial judge has no authority to order
• Non-death-qualified jury for guilt-innocence
  phase, and then order death-qualified jury for
  capital sentencing hearing
• State v. Berry, ___ N.C. ___ (12/20/03) State
  v. Bondurant, 309 N.C. 674 (1983)

6
Selected Pretrial Issues

• Appointment of counsel for indigent defendant
• Appointment of experts for indigent defendant and
  non-indigent defendant
• Defendants motion for expert assistance
• Rule 24 conference
• Pretrial Watson hearing to determine sufficiency
  of evidence of aggravating circumstances
• Motions for change of venue and special venire
• Joinder and severance
• Discovery in camera examination of evidence

7
Jury Selection Issues

• Number of peremptory challenges 14 for each
  defendant and state allowed 14 for each defendant
• Judge has no authority to increase number with
  limited exception under GS 15A-1214(i)
• Minimum of two alternate jurors must be selected
• Keep them for capital sentencing hearing
• Individual voir dire is discretionary
• Use of jury questionnaire

8
Prospective Jurors Views of Death Penalty

• States challenge for cause under Wainwright v.
  Witt
• Defendants opportunity to rehabilitate
  prospective jurors
• Defendants challenge for cause under Morgan v.
  Illinois
• Staking out jurors and hypothetical questions

9
Selected Trial Issues

• Jurisdiction of state to try defendant for crime
  committed in North Carolina
• Defendants unwaivable right to be present at all
  stages of capital trial
• When right may or may not apply
• Beginning of trial
• Private communications with prospective jurors
• Rule 24 conference
• Bench conference
• In-chambers conference
• Reconstruction of record

10
Jury Instructions

• When to instruct on lesser-included offenses
• Premeditation and deliberation theory
• Felony murder theory
• State v. Millsaps, ___ N.C. ___ (20 December
  2002)
• Voluntary intoxication and diminished capacity

11
First-Degree Murder Conviction and Punishment for
Other Felony Conviction(s)

• First-degree murder conviction based only on
  felony murder theory
• Must arrest judgment on underlying felony
  conviction supporting felony murder theory
• If two or more felonies submitted to jury, must
  arrest judgment for only one of the felony
  convictions
• Judgment is not arrested for conviction(s) of
  other felony or felonies not submitted to jury
  under felony murder theory

12
First-Degree Murder Conviction Based on PD and
Felony Murder

• Sentencing allowed for felony conviction(s) that
  supported felony murder theory

13
First-Degree Murder Conviction When Jury Fails to
Indicate Theories

• Case is treated as though jury relied on felony
  murder theory
• Of course, judge should instruct jury to specify
  theory or theories in their verdict

14
Plea of Guilty/No Contest to First-Degree Murder

• Defendant is convicted of all theories on which
  there is supporting evidence
• May state plea bargain with defendant to limit
  theories?
• State v. Green, 336 N.C. 142 (1994) State v.
  Howell, 335 N.C. 457 (1994)

15
Capital Sentencing Hearing

• Rules of evidence do not apply
• But states evidence may not violate defendants
  confrontation rights under federal and state
  constitutions
• Victim impact evidence is admissible even though
  not strictly relevant to aggravating
  circumstances
• States offer of evidence of defendants bad
  character
• May be offered only in rebuttal to defendants
  evidence of good character
• Defendant has not right of allocution before jury
• Jury argument on parole eligibility not permitted

16
Aggravating Circumstance (e)(3) (Prior Violent
Felony Conviction)

• Timing of prior violent felony conviction under
  aggravating circumstance (e)(3)
• Commission of violent felony must occur before
  commission of first-degree murder
• But conviction of violent felony may occur after
  commission of first-degree murder
• State v. Lyons, 343 N.C. 1 (1996)
• Each prior violent felony conviction is a
  separate aggravating circumstance
• Juvenile adjudication of violent Class A through
  E felony counts as prior violent felony conviction

17
Aggravating Circumstance (e)(5)

• Aggravating circumstance (e)(5) murder committed
  during specified felony or felonies
• Each felony is separate aggravating circumstance
• Timing of felony
• Felony may be committed after murder if felony
  occurs during continuous series of events
  surrounding murder

18
Effect of First-Degree Murder Verdict on
Submitting Aggravating Circumstance (e)(5)

• If first-degree murder verdict is based on both
  PD and felony murder theory
• (e)(5) may be submitted based on felony or
  felonies submitted to support felony murder
  theory
• (e)(5) may be submitted based on felony or
  felonies not submitted to support felony murder
  theory

19
Effect of First-Degree Murder Verdict on
Submitting Aggravating Circumstance (e)(5)

• If first-degree murder verdict is based on felony
  murder theory only
• (e)(5) may not be submitted based on felony
  supporting felony murder theory
• (e)(5) may be submitted for felony that judge did
  not submit to jury to support felony murder
  theory
• State v. Richardson, 342 N.C. 772 (1996) only
  rape was submitted as felony for felony murder
  proper to submit armed robbery as (e)(5)

20
Multiple Aggravating Circumstances

• Generally, same evidence may not be used to
  support multiple aggravating circumstances
• No bar if overlapping evidence supports multiple
  aggravating circumstances
• No bar if aggravating circumstances are directed
  at different aspects of defendants character or
  murder
• Judge should instruct jury about not using same
  evidence to find more than one aggravating
  circumstance
• State v. Gay, 334 N.C. 467 (1993)
• N.C.P.ICrim. 150.10 located after instruction
  on (e)(11)

21
Submission of Aggravating Circumstances (e)(5)
and (e)(6)

• (e)(6) murder committed for pecuniary gain
• If first-degree murder conviction is based on
  felony murder theory only
• And felony was robbery, for example
• Judge may not submit (e)(5)
• Judge may submit (e)(6)
• State v. Quesinberry, 319 N.C. 228 (1987)

22
Submission of Aggravating Circumstances (e)(5)
and (e)(6)

• If first-degree murder conviction based on PD
  and felony murder
• And felony was robbery or burglary, for example
• Judge may submit either (e)(5) or (e)(6)
• But not both if motive for (e)(5) was pecuniary
  gain
• State v. Quesinberry, 319 N.C. 228 (1987)
  (robbery) State v. Howell, 335 N.C. 457 (1994)
  (burglary)

23
Submission of Both Aggravating Circumstances
(e)(5) and (e)(6)

• When both (e)(5) and (e)(6) may be submitted
• Jury instruction should make clear what evidence
  is admissible for each aggravating circumstance
• Defendant took victims money and car keys to
  drive car away
• (e)(5) robbery of car keys and car
• (e)(6) pecuniary gain in taking money
• State v. East, 345 N.C. 535 (1997)
• State v. Davis, 353 N.C. 1 (2000)
• State v. White, 355 N.C. 696 (2002)

24
Submission of Aggravating Circumstances (e)(4)
and (e)(8) Involving Law Enforcement Officer

• (e)(4) (murder committed to avoid or prevent
  lawful arrest or to effect escape from custody)
• (e)(8) (murder committed against officer while
  engaged in performing official duty)
• General rule same evidence cannot support
  multiple aggravating circumstances
• But not when circumstances are directed at
• Different aspects of defendants character or
  murder for which defendant is to be punished

25
Submission of Aggravating Circumstances (e)(4)
and (e)(8) Involving Law Enforcement Officer

• Both may be submitted because
• (e)(4) addresses defendants motive for murder
• (e)(8) addresses factual basis of murder
• Cases involving officers
• State v. Nicholson, 355 N.C. 1 (2002)
• State v. Golphin, 352 N.C. 364 (2000)
• State v. Hutchins, 303 N.C. 321 (1981)

26
Submission of Aggravating Circumstances (e)(7)
and (e)(8) Not Involving Officer

• (e)(7) murder committed to disrupt or hinder
  lawful exercise of government function or
  enforcement of laws
• (e)(8) murder of witness against defendant while
  witness engaged in performing official duty or
  because of exercise of official duty

27
State v. Anthony, 354 N.C. 372 (2001)

• DVPO issued for wife against defendant-husband
• Wife scheduled to return to court, but is
  murdered by defendant before court date
• Rulings
• Sufficient evidence for both (e)(7) and (e)(8)
• But error to submit both because they were based
  on same evidence
• Court distinguished State v. Gray, 347 N.C. 143
  (1997)

28
State v. Gray, 347 N.C. 143 (1997)

• (e)(7) show cause order for contempt involving
  accounting of marital monies in divorce action
  returnable a few days after murder
• (e)(8) wife was to be witness in four criminal
  warrants against defendant
• Ruling not error to submit both (e)(7) and
  (e)(8) because evidence was not identical to
  prove both

29
Two prongs of (e)(8)State v. Long, 354 N.C. 534
(2001)

• Victim killed five days before defendants trial
  for assault against her
• Two prongs of (e)(8)
• 1. Murdered while engaged in performance of
  official duties
• 2. Murdered because of exercise of official duty

30
Two prongs of (e)(8)State v. Long, 354 N.C. 534
(2001)

• Fact that witness was waiting to testify may be
  considered under both prongs
• Because prong
• State must show defendants motivation to murder
  victim was because she was a witness
• May be submitted although victim had not yet
  testified
• Engaged in prong
• State must show victim was actively engaged at
  time of murder with performing duty of witness
• Swearing out warrant
• Discussing case with prosecutor
• Going to court to testify
• Actively testifying

31
Two prongs of (e)(8)State v. Long, 354 N.C. 534
(2001)

• Witness is not always engaged in official
  duties during entire time period when witness
  swears out warrant until completion of testimony
• Court disavowed language in State v. Gray that
  implied otherwise

32
Aggravating Circumstance (e)(11) (Murder Part of
Violent Course of Conduct)

• Temporal proximity of crimes to one another
• Recurrent modus operandi
• Similar motivation
• Common scheme

33
Mitigating Circumstances

• Judge should resolve in defendants favor any
  reasonable doubt whether or not to submit
  mitigating circumstance
• Judges duty to submit statutory mitigating
  circumstances regardless of views of prosecutor
  or defense counsel
• Duty exists even if defense counsel opposes
  submission
• Peremptory jury instruction on statutory and
  nonstatutory mitigating circumstances must be
  requested by defendant
• Wording of peremptory instruction is different
  for statutory and nonstatutory
• N.C.P.I.Crim. 150.11 (Statutory)
• Page 207, NC Capital Case Law Handbook
  (Nonstatutory)

34
Mitigating circumstance (f)(1) (no significant
prior criminal history)

• Consider only criminal acts committed before
  murder for which defendant is being sentenced
• State v. Coffey, 336 N.C. 412 (1994) State v.
  Gell, 351 N.C. 192 (2000)
• If evidence is sufficient, must be submitted even
  if defendant does not request submission or
  objects to its submission
• State v. Quick, 337 N.C. 359 (1994)

35
Mitigating circumstance (f)(1) (no significant
prior criminal history)

• If judge submits circumstance over defendants
  objection
• Judge should instruct jury that
• defendant did not request submission, and
• submission is required as matter of law because
  of evidence in case
• Prosecutor may not argue that defendant has
  requested submission or sought to have jury find
  it
• Absent extraordinary facts, erroneous submission
  of mitigating circumstance is harmless
• State v. Walker, 343 N.C. 216 (1996) State v.
  Smith, 347 N.C. 453 (1998) State v. Bone, 354
  N.C. 1 (2001)

36
Mitigating circumstance (f)(1) (no significant
prior criminal history)

• Factors in deciding sufficiency of evidence to
  submit circumstance
• Were criminal acts recent or not recent?
• Were criminal acts violent or non-violent?

37
Mitigating Circumstances (f)(2) and (f)(6)

• (f)(2) Defendant under influence of mental or
  emotional disturbance
• Generally does not include voluntary intoxication
  by alcohol or drugs unless intoxication
  exacerbated mental or emotional disturbance
• But may fit under (f)(6)
• Disturbance must relate to time of murder
• (f)(6) Defendants impaired capacity
• Two prongs
• If evidence supports both prongs, make sure jury
  instruction includes both prongs
• Usually requires expert testimony
• Impaired capacity must relate to time of murder

38
Resentencing Issues

• State is not bound by its stipulation at prior
  hearing that aggravating circumstance did not
  exist or that mitigating circumstance did exist
• State v. Adams, 347 N.C. 48 (1997) State v.
  Flippen, 349 N.C. 264 (1998)
• Aggravating circumstance may be submitted even if
  not submitted or found at prior hearing
• State v. Sanderson, 346 N.C. 669 (1997)
• No collateral estoppel to require finding of
  mitigating circumstance at new hearing that had
  been found at prior hearing
• State v. Adams, 347 N.C. 48 (1997)

39
Miscellaneous Issues

• Accomplices sentence is not mitigating
  circumstance
• State v. Jaynes, 353 N.C. 534 (2001) State v.
  Meyer, 353 N.C. 92 (2000)
• Directed verdict is not appropriate for statutory
  mitigating circumstance
• Use peremptory instruction when uncontradicted
  evidence exists
• State v. Holden, 346 N.C. 404 (1997)
• Mandatory peremptory instruction is required when
  state stipulates to existence of statutory
  mitigating circumstance
• State v. Flippen, 344 N.C. 689 (1996)