Capital Case Law Issues

1
Capital Case Law Issues

• Challenges to first-degree murder indictment
• First-degree murder conviction and punishment for
  other felonies
• First-degree murder conviction and whether
  aggravating circumstance (e)(5) (commission of
  felony during murder) may be submitted
• Whether both aggravating circumstances (e)(5) and
  (e)(6) (pecuniary gain) may be submitted
• Propriety of submitting other aggravating
  circumstances
• Submission of (f)(1) mitigating circumstance
• Resentencing issues

2
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)

3
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, ___ N.C. App. ___ (4 June 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)

4
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

5
First-Degree Murder Conviction Based on PD and
Felony Murder

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

6
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

7
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)

8
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

9
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

10
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)

11
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)

12
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)

13
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)

14
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)

15
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

16
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)

17
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

18
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)

19
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

20
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

21
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

22
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

23
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)

24
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)

25
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?

26
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)

27
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)

28
Miscellaneous Issues

• 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)