No
No. 7A01 ELEVEN-B DISTRICT
SUPREME COURT OF NORTH CAROLINA
****************************************************
STATE OF NORTH CAROLINA )
)
v. ) 99 CrS 892
) 99 CrS 2445
MITCHELL DAVID HOLMES )
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DEFENDANT-APPELLANT’S BRIEF
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INDEX
table of authorities iv
Questions Presented 2
STATEMENT OF THE CASE 3
STATEMENT OF THE EVIDENCE 4
ARGUMENT 16
I. when the trial court overruled defendant’s objections and permitted SBI Agent tart to testify that michael Frazier told him that shantwan freeman told him that defendant shot creech, where both frazier and freeman were co-defendants in the matter and neither testified at defendant’s trial, it violated defendant’s constitutional rights to confront the evidence against him, to due process and to a reliable sentencing hearing and committed reversible error. 16
A. The Statement’s Admission Violated Defendant’s Confrontation Rights. 17
B. The Statement Was Not Admissible Because It Lacked “Equivalent Circumstantial Guarantees of Trustworthiness.” 18
C. Defendant was Prejudiced. 23
ii. the trial court committed reversible error when it failed to instruct the jury on two mitigating circumstances requested by defendant where the factors were supported by the evidence and at least one of the twelve jurors reasonably could have found them from the evidence presented. 25
A. The Trial Court Erroneously Failed to Submit the Non-statutory Mitigating Circumstance that “the Murder Actually Was Committed By Another Person.” 28
B. The Trial Court Erroneously Failed to Submit the Non-statutory Mitigating Circumstance that “the Initial Idea that Resulted in the Death of the Decedent was Michael Frazier’s.” 33
C. Defendant is Entitled to a New Sentencing Hearing. 37
iii. the trial court committed reversible error in denying defendant’s request that it instruct the jury that it could not find more than one aggravating circumstance based upon its consideration of the same evidence where the court submitted both the N.c. gen. stat. §15a-2000(e)(5) and (e)(11) aggravating circumstances and the evidence presented and instructions given (1) permitted the jury to find both circumstances based upon its consideration of the same evidence that hardison was robbed. 38
iv. the trial court committed constitutional error by failing to instruct the jury on the (f)(6) mitigating circumstance that the defendant’s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. 42
v. the trial court committed reversible error when it overruled defendant’s objection and allowed tom trochum, the state’s expert in firearm analysis and identification, to give medical expert opinion testimony regarding the cause of creech’s wounds. 49
vi. The trial court committed reversible constitutional error when it overruled defendant’s objection and ordered that defendant be shackled at all times while in the courtroom. 54
vii. the trial court committed reversible error when it denied defendant’s motion to dismiss the charge of first-degree murder because the short-form indictment failed to allege that he killed after premeditation and deliberation or during the commission of a felony. 60
viii. the trial court committed reversible constitutional error by instructing jurors that they were permitted to reject submitted mitigation on the basis that it had no mitigating value. 62
ix. the north carolina death penalty statute is unconstitutional and the death sentence is a cruel and unusual punishment imposed in an arbitrary and discriminatory manner. 62
Conclusion 62
certificate of filing and service 64
TABLE OF AUTHORITIES
Cases
Allgeyer v. Louisiana,
165 U.S. 578, 41 L.E. 832 (1897) 52
Apprendi v. New Jersey,
530 U.S. 466, 147 L.Ed.2d 435 (2000) 57
Bruton v. United States,
391 U.S. 123, 20 L.Ed.2d 476 (1968) 19
Bullington v. Missouri,
451 U.S. 430, 68 L.Ed.2d 270 (1981) 16
California v. Green,
399 U.S. 149, 26 L.Ed.2d 489 (1970) 21
Coffin v. United States,
156 U.S. 432, 39 L.Ed.2d 481 (1895) 53
Douglas v. Alabama,
380 U.S. 415, 13 L.Ed.2d 934 (1965) 19
Douglas v. Alabama,
380 U.S. 415, 13 L.Ed.2d 934 (1965) 17
Eaddy v. People,
115 Colo. 488, 174 P.2d 717 (1946) 53
Eddings v. Oklahoma,
455 U.S. 104, 71 L.Ed.2d 1 (1982) 25, 35
Engle v. Isaac,
456 U.S. 107, 71 L.Ed.2d 783 (1982) 58
Enmund v. Florida,
458 U.S. 782, 73 L.E.2d 1140 (1982) 51
Estelle v. Williams,
425 U.S. 501, 48 L.Ed.2d 16 (1976) 52
Gardner v. Florida,
430 U.S. 349, 51 L.Ed.2d 393 (1977) 17
Hitchcock v. Dugger,
481 U.S. 393, 95 L.E.2d 347 (1987) 35
Idaho v. Wright,
497 U.S. 805, 111 L.Ed.2d 638 (1990) 20
In re Carr
116 N.C. App. 403, 448 S.E.2d 299 (1994) 47, 50
In the Matter of Lucas
94 N.C. App. 442, 380 S.E.2d 563 (1989) 21
Jones v. United States,
526 U.S. 227, 143 L.Ed.2d 311 (1999) 57
Lee v. Illinois,
476 U.S. 530, 90 L.Ed.2d 514 (1986) 19
Lilly v. Virginia,
527 U.S. 116, 44 L.Ed.2d 117 (1999) 17
Lockett v. Ohio,
438 U.S. 586, 57 L.Ed.2d 973 (1978) 24
Martin v. Benson,
125 N.C. App. 330, 481 S.E.2d 292, rev. dismissed,
346 N.C. 179, 486 S.E2d 206 (1997) 47, 50
Penry v. Lynaugh,
492 U.S. 302, 106 L.E.2d 256 (1989) 35
Skipper v. South Carolina,
476 U.S. 1, 90 L.Ed.2d 1 (1986) 24
Sochor v. Florida,
504 U.S. 527, 119 L.Ed.2d 326 (1992) 35
State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, 122 L.Ed.2d 684 (1993) 58
State v. Baker,
338 N.C. 526, 451 S.E.2d 574 (1994) 43
State v. Benson,
323 N.C. 318, 372 S.E.2d 517 (1988) 25
State v. Benson,
323 N.C. 318, 372 S.E.2d 517 (1988) 34
State v. Bond,
345 N.C. 1, 478 S.E.2d 163 (1996), cert. denied, 138 L.Ed.2d 1022 (1997) 18
State v. Braxton,
352 N.C. 158, 531 S.E.2d 428 (2000) 57
State v. Cummings,
326 N.C. 298, 389 S.E.2d 66 (1990) 25
State v. Daughtry,
340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 133 L.Ed.2d 739 (1996) 16
State v. Davis,
77 N.C. App. 68, 334 S.E.2d 509 (1985) 49
State v. Fullwood,
323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated, 494 U.S. 1022, 108 L.Ed.2d 602 (1990) 46
State v. Gay,
334 N.C. 467, 434 S.E.2d 840 (1993) 36
State v. Golphin,
352 N.C. 364, 533 S.E.2d 168, 193 (2000), cert. denied, 149 L.E.2d 305 (2001) 57
State v. Goodman,
298 N.C. 1, 257 S.E.2d 569 (1979) 23
State v. Green,
329 N.C. 686, 406 S.E.2d 852 (1991) 59
State v. Green,
336 N.C. 142, 443 S.E.2 14, cert. denied, 513 U.S. 1046, 130 L.Ed.2d 547 (1994) 30
State v. Greene,
329 N.C. 771, 408 S.E.2d 185 (1991) 34
State v. Gregory,
78 N.C. App. 565, 338 S.E.2d 110 (1985), disc. review denied, 316 N.C. 382, 342 S.E.2d 901 (1986) 21
State v. Holman,
353 N.C. 174, 540 S.E.2d 18 (2000) 57
State v. Hunt,
305 N.C. 238, 287 S.E.2d 818 (1982) 49
State v. Irwin,
304 N.C. 93, 282 S.E.2d 439 (1981) 26
State v. Jennings,
333 N.C. 579, 430 S.E.2d 188 (1993) 36
State v. Johnson,
298 N.C. 47, 257 S.E.2d 597 (1979) 43
State v. Johnson,
298 N.C. 47, 257 S.E.2d 597 (1979) 25
State v. Jones,
336 N.C. 229, 248 443 S.E.2d 48, cert. denied, 130 L.Ed.2d 423 (1994) 25
State v. Keel,
337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, 131 L.Ed.2d 147 (1995) 59
State v. Kring,
64 Mo. 591 (1877) 52
State v. Mahaley,
332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 130 L.Ed.2d 649 (1995) 40
State v. McLaughlin,
316 N.C. 175, 340 S.E.2d 102 (1986) 19
State v. McNeil,
327 N.C. 388, 395 S.E.2d 106 (1990), cert. denied, 499 U.S. 942, 113 L.Ed.2d 459 (1991) 35
State v. Mitchell,
353 N.C. 309, 543 S.E.2d 830 (2001) 57
State v. Odom,
307 N.C. 655, 300 S.E.2d 375 (1983) 37
State v. Porth,
269 N.C. 329, 153 S.E.2d 10 (1967) 49
State v. Price,
331 N.C. 620, 418 S.E.2d 169 (1992), vacated on other grounds, 506 U.S. 1043, 122 L.Ed.2d 113 (1993) 44
State v. Quesinberry,
319 N.C. 228, 354 S.E.2d 446 (1987) 36
State v. Quick,
329 N.C. 1, 405 S.E.2d 179 (1991) 44
State v. Rich,
346 N.C. 50, 484 S.E.2d 394 (1997) 37
State v. Robinson,
339 N.C. 263, 451 S.E.2d 196 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995) 17
State v. Rose,
339 N.C. 172, 451 S.E.2dd 211 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995) 18
State v. Stager,
329 N.C. 278, 406 S.E.2d 876 (1991) 33
State v. Stokes,
308 N.C. 634, 304 S.E.2d 184 (1983) 43
State v. Stokes,
319 N.C. 1, 352 S.E.2d 653 (1987) 51
State v. Thomas,
350 N.C. 315, 514 S.E.2d 486 (1999) 52
State v. Triplett,
316 N.C. 1, 340 S.E.2d 736 (1986), cert. denied, 522 U.S. 1001, 139 L.Ed.2d 411 (1997) 18
State v. Tyler,
346 N.C. 187, 485 S.E.2d 599 (1997) 18
State v. Tyler,
346 N.C. 187, 485 S.E.2d 599, cert. denied, 139 L.Ed.2d 411 (1997) 22
State v. Waddell,
130 N.C. App. 488, 504 S.E.2d 84 (1998) 20
State v. Waddell,
130 N.C. App. 488, 504 S.E.2d 84 (1998) 20
State v. Washington,
131 N.C. App. 156, 506 S.E.2d 283 (1998) 17
State v. Williams,
18 Wash. 47, 50 P. 580 (1897) 52, 56
State v. Wilson,
322 N.C. 117, 367 S.E.2d 589 (1988) 40
State v. Zuniga,
320 N.C. 233, 357 S.E.2d 898 (1987) 47
Stringer v. Black,
503 U.S. 222, 117 L.Ed.2d 367 (1992) 24
United States v. Henderson,
472 F.2d 556 (5th Cir.), cert. denied, 411 U.S. 971, 36 L.Ed.2d 694 (1973) 53
United States v. Jones,
31 F.3d 1304 (4th Cir. 1994) 19
United States v. Reese,
92 U.S. 214, 23 L.Ed. 563 (1876) 58
United States v. Terry,
916 F.2d 157, 160-61 (4th Cir. 1990) 19
United States v. Thompson,
432 F.2d 997 (4th Cir. 1970) 53
White v. Illinois,
502 U.S. 346, 116 L.Ed2d 848 (1992) 17
Williamson v. United States.
512 U.S. 594, 129 L.Ed.2d 476 (1994) 20
Woodson v. North Carolina,
428 U.S. 280, 49 L.Ed.2d 944 (1976) 24
Statutes
N.C. Gen. Stat. §8C-1, Rule 804(b)(3) 17
N.C. Gen. Stat. § 15A-1031 (1997) 52
N.C. Gen. Stat. § 14-17 57
N.C. Gen. Stat. §14-87 38
N.C. Gen. Stat. § 15-144 57
N.C. Gen. Stat. § 15A-1443(b) (1997) 22
N.C. Gen. Stat. §15A-2000(b) 43
N.C. Gen. Stat. §15A-2000(e)(1) 37
N.C. Gen. Stat. §15A-2000(e)(3) 37
N.C. Gen. Stat. §1443(b) 57
Constitutional Provisions
N.C. Constitution Art. I, § 23 20
U.S. Const. amend. VI 17, 20
No. 7A01 ELEVEN-B DISTRICT
SUPREME COURT OF NORTH CAROLINA
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STATE OF NORTH CAROLINA )
)
v. ) From Johnston
) 99 CrS 892
MITCHELL DAVID HOLMES ) 99 CrS 2445
****************************************************
DEFENDANT-APPELLANT’S BRIEF
****************************************************
Questions Presented
I. when the trial court overruled defendant’s objections and permitted SBI Agent tart to testify that michael Frazier told him that shantwan freeman told him that defendant shot creech and both frazier and freeman were co-defendants in the matter and neither testified at defendant’s trial, did it commit reversible error and violate defendant’s constitutional rights to confront the evidence against him, to due process and to a reliable sentencing hearing?
ii. did the trial court commit plain reversible error when it failed to instruct the jury on two mitigating circumstances requested by defendant where the factors were supported by the evidence and at least one of the twelve jurors reasonably could have found them from the evidence presented?
iii. did the trial court commit reversible error in denying defendant’s request that it instruct the jury that it could not find more than one aggravating circumstance based upon its consideration of the same evidence where the court submitted both the N.c. gen. stat. §15a-2000(e)(5) and (e)(11) aggravating circumstances and the evidence presented and instructions, as given, permitted the jury to find both circumstances based upon its consideration of evidence that hardison was robbed?
iV. did the trial court commit constitutional error by failing to instruct the jury on the (f)(6) mitigating circumstance that the defendant’s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired?
v. did the trial court commit reversible error when it overruled defendant’s objection and allowed tom trochum, the state’s expert in firearm analysis and identification, to give medical expert opinion testimony regarding the cause of creech’s wounds?
vi. did The trial court commit reversible constitutional error when it overruled defendant’s objection and ordered that defendant be shackled at all times while in the courtroom?
vii. did the trial court commit reversible error when it denied defendant’s motion to dismiss the charge of first-degree murder because the short-form indictment failed to allege that he killed after premeditation and deliberation or during the commission of a felony?
viii. did the trial court commit reversible constitutional error by instructing jurors that they were permitted to reject submitted mitigation on the basis that it had no mitigating value?
ix. is the north carolina death penalty statute unconstitutional and is the death sentence a cruel and unusual punishment which is imposed in an arbitrary and discriminatory manner
Statement of the Case
A. Guilt/Innocence Phase.
This case came on to be capitally tried at the 21 August, 2000 Criminal Session of Johnston County, the Honorable Jack Thompson, judge presiding, upon indictments charging defendant with first-degree murder (99 CrS 892), attempted murder (99 CrS 2445) and robbery with a dangerous weapon (99 CrS 2446) (r pp 6-8). A jury returned verdicts finding defendant guilty of all charges (r pp 56-58) and, at a separate sentencing hearing, recommended that defendant be sentenced to death for the murder conviction (r p 88). On 8 September 2000, Judge Thompson arrested judgment on the robbery conviction (99 CrS 2446) (r p 91), sentenced defendant to death as recommended by the jury for the murder conviction (r pp 94-96), and sentenced the defendant to a consecutive term of 220 – 273 months for the attempted murder conviction (99 CrS 2445) (r pp 92-93). Judgments and Commitments were entered on 8 September 2000 (r pp 91-95). Defendant appealed to this Court.
Statement of the EVIDENCE
At approximately 10:30 p.m. on the night of January 14, 1999, Ronnie Hardison and Jerry Bland were visiting Dean Ray Creech at Creech’s mobile home off Buffalo Road in Selma, North Carolina when someone knocked on the trailer’s door. When Creech opened the door, two black males barged in, repeatedly asking “where the pot was, where the weed was.” One of the men shot Creech twice with a bolt-action, rifle-like gun, fatally wounding him, then shot Hardison, seriously injuring him, as Hardison attempted to run toward the back of the trailer. Hardison was ninety percent certain that it was the defendant, Mitchell David Holmes, whom he saw come in the trailer with the gun; however, he was not one-hundred percent sure that Mitchell was the one who did the shooting. Bland was in the bathroom when the perpetrators entered the trailer. He did not witness the shootings and was not injured. Mitchell and Shantwan Freeman were arrested and charged with murder, attempted murder and robbery with a dangerous weapon. (Vol. VI (dated 8/28/00), t pp 22-28, 35, 43, 66, 100; vol. VII (dated 8/29/00), t p 141, 155; vol. VIII (dated 8/30/00), t p 31.)
Hardison and Bland had arrived at Creech’s trailer somewhere between 8:00 and 9:30 p.m., purportedly so that Bland could shower (vol. VI (dated 8/28/00), t p 40). A short black man, who acted as if he did not want to be seen, was leaving the trailer when Hardison and Bland arrived there. This man later was identified as Michael Frazier. (Vol. VI (dated 8/28/00), t pp 23, 75). An old twelve-gauge shotgun was propped up against the wall in a corner of the kitchen and a .44 magnum pistol was on the back of the couch (vol. VI (dated 8/28/00), t pp 106-07). Later during the visit, Creech told his visitors that the shotgun would not work. Bland took the shotgun apart, determined that its firing pin was missing and put it back together (vol. VI (dated 8/28/00), t pp 30, 115). Less than an hour after he left, Frazier returned and disappeared into the bedroom with Creech (vol. VI (dated 8/28/00), t pp 81-82). When Hardison returned from the store where he had gone to purchase cigarettes Frazier was again leaving the trailer (vol. VI (dated 8/28/00), t p 43). By that time, Bland had learned that Creech had a large amount of marijuana in the trailer (vol. VI (dated 8/28/00), t p 109). Creech brought a black bag full of the marijuana from a bedroom after Frazier left. The marijuana was packaged in individual see-through bags (vol. VI (dated 8/28/00), t p 80).
Someone knocked on the door soon thereafter. Creech went outside and returned with a small, clear bag of cocaine which he shared with Hardison and Bland (vol. VI (dated 8/28/00), t pp 53-54, 78, 82). Hardison stood at the kitchen sink and snorted cocaine while Creech and Bland went to the bathroom and injected it (vol. VI (dated 8/28/00), t pp 44, 76-79). Bland soon began to feel sick to his stomach and went to use the bathroom at the back of the trailer (vol. VI (dated 8/28/00), t p 84). He was still in the bathroom when he heard screaming and gunshots (vol. VI (dated 8/28/00), t p 85). Bland hurriedly stepped over into the bathtub, lay down, pulled the shower curtain and remained there five to ten minutes listening to the trailer being ransacked (vol. VI (dated 8/28/00), t pp 88-89). When everything got quiet and Bland heard hollering for help, he came out of the bathroom and saw that Hardison and Creech had been shot. (Vol. VI (dated 8/28/00), T pp 24, 89).) Bland dialed 911; reported the shooting and attempted to perform cardiopulmonary resuscitation upon Creech (vol. VI (dated 8/28/00), t p 94). However, by the time the emergency paramedics arrived, Creech was already dead; Hardison’s bowel was protruding from his abdomen; and Bland was experiencing chest pains (vol. VI (dated 8/28/00), t p 135). Hardison and Bland were transported to medical facilities for treatment (vol. VI (dated 8/28/00), t p 136).
Creech’s wallet, containing more than twenty-five small scraps of paper with first names and phone numbers, but no money, was on the kitchen counter, along with six .44 magnum cartridges (vol. VII (dated 8/29/00), t pp 52-53, 101; vol. VIII (dated 8/30/00), t pp 61-63). A large black Nike drawstring plastic bag containing approximately 3.5 pounds of marijuana, street-valued at $800 to $1200 per pound, was on the bed under a pile of dirty clothes (vol. VII (dated 8/29/00), t pp 55-57, 97). An Omega twenty-two caliber revolver was under a single bed in a west bedroom (vol. VII (dated 8/29/00), t p 98).
Investigators took no fingerprints at Creech’s residence (vol. VII (dated 8/29/00), t p 68); checked for no footprints (vol. VII, t pp 94) and collected no clothes fibers (vol. VII (dated 8/29/00), t p 94). They did perform a gunshot residual test on Bland’s hands, but never submitted it for testing (vol. VII (dated 8/29/00), t p 130). Though Hardison claimed to have fallen on the kitchen/dining room floor when he was shot (vol. VI (dated 8/28/00), t pp 26, 50), officers found no blood on the floor in that area (vol. VII (dated 8/29/00), t p 93) and, though he also claimed to have run outside into the heavy rain after he heard the perpetrators leave the trailer, (vol. VI (dated 8/28/00), t p 49), Bland testified that Hardison did not appear to be wet when Bland saw him minutes a few minutes later (vol. VIII (dated 8/30/00), t p 113). Hardison identified Mitchell from a photographic array as the heavy-set, light-skinned black male who entered Creech’s trailer with the rifle that night, but was not certain that Mitchell was the one who did the shooting (vol. VIII (dated 8/30/00), t pp 141, 155).
Dr. Thomas Clark autopsied Creech’s body on January 15 and determined that Creech had suffered two gunshot wounds: one to the right of his chest and one to his left lower back (vol. VII (dated 8/29/00), t pp 12-13). Death was caused by the chest wound. The fatal shot likely was fired from a distance of two feet or more (vol. VII (dated 8/29/00), t pp 17-18). Testing revealed that Creech’s blood contained .07 percent alcohol (vol. VII (dated 8/29/00), t p 24). His blood was not tested for cocaine (vol. VII (dated 8/29/00), t p 26).
Officers recovered three 7.62 cartridge cases, typically used in high-powered rifles, from the trailer. One was on the floor near Creech’s head; one on the sofa (vol. VII (dated 8/29/00), t p 36) and one to the right of the sofa (vol. VII (dated 8/29/00), t p 52). All three had been fired from the same weapon (vol. VIII (dated 8/30/00), t p 93).
During the course of the investigation, officers obtained warrants authorizing them to search the property of Louella Santiago and Gonzalo Santiago. Pursuant to the warrant, officers searched an outbuilding where Gonzalo Santiago usually stayed and recovered a Marlin .22 caliber rifle. They did not believe it was the weapon fired at Creech’s trailer because it was not a high-powered gun and the cartridge casings found at the trailer would not fit it (vol. VIII (dated 8/30/00), t pp 25-26, 37).
Creech’s trailer was located on a two-acre lot just up from his parents’ home (vol. VI (dated 8/28/00), t p 165). Creech had lived in the trailer with his wife and young son before she left him because of his alcohol use, taking their young son with her. (vol. VI (dated 8/28/00), t p 179). Though Creech’s father was in Creech’s trailer several times each day, including the day on which Creech died, he had no idea his son was using or selling illegal drugs (vol. VI (dated 8/28/00), t pp 170, 183). He testified that he had not seen drugs in the trailer when he was there around 7 p.m. (vol. VI (dated 8/28/00), t p 186). Creech was adept at using firearms and his father believed he must have been shot quickly because, otherwise, he would have reached for his gun (vol. VI (dated 8/28/00), t p 188).
According to Gonzalo Santiago, he and Shantwan Freeman (hereinafter, “Shantwan”) were at the Amoco Station in Selma buying beer when they saw Michael Frazier, a short, slim, dark-skinned black male with a close haircut and a goatee, riding with Mitchell in a light-colored Nissan 240 (vol. VI (dated 8/28/00), t p 146). Frazier and Mitchell approached Santiago and Freeman and Frazier asked their assistance in taking approximately six pounds of marijuana away from a guy in Wilson Mills (vol. VI (dated 8/28/00), t pp 145-47). Santiago said “no”, but Shantwan decided to go with them (vol. VI (dated 8/28/00), t p 147). Mitchell and Frazier followed Santiago and Freeman back to Santiago’s house where Freeman got out of the car with Santiago and left with Mitchell and Frazier (vol. VI (dated 8/28/00), t p 148). One and one-half to two hours later, they returned to Santiago’s house, looking shocked (vol. VI (dated 8/28/00), t p 151). Santiago testified that Mitchell said, “I shot him” (vol. VI (dated 8/28/00), t p 152).
On 18 January 1999 Selma police officer Keith Vaughn saw Mitchell driving a 1989 Nissan 240 SX and recognized him as a murder suspect. The Nissan was registered to Mitchell’s girlfriend, Andrea Morgan, and had a license plate number KBK-1771. Officers stopped the car as it pulled into a Walmart parking lot and arrested Mitchell. During a search of the car, performed with Morgan’s consent, the police recovered a pair of Mitchell’s size forty Maurice Malone blue jeans from the car’s trunk. Testing revealed that a blood spot on the knee of the jeans contained Creech’s DNA. (Vol. VIII (dated 8/30/00), t pp 144-47, 171-74, 136.) Mitchell and Shantwan Freeman were arrested and charged with murder, attempted murder and robbery with a dangerous weapon (vol. VII (dated 8/29/00), t p 156). Michael Frazier was arrested and charged with conspiracy to commit robbery with a dangerous weapon(vol. VII (dated 8/29/00), t p 156).
B. Sentencing Proceeding
The State introduced into evidence certified copies of judgments and indictments in 91 CrS 8868 and 91 CrS 8869 showing that Mitchell previously was convicted of two counts of common law robbery (vol. X, t p 4). In addition, Creech’s father and sister testified regarding how Creech’s death had negatively affected their family (vol. X (dated 9/5/00), t pp 9-17.)
Mitchell introduced evidence that he was biracial, born to a marriage between a white German woman and a black serviceman. Mitchell’s mother was never accepted by his father’s family. As a child, Mitchell had cried when he witnessed his aunt assaulting his mother and calling her a “white bitch.” Mitchell had also seen his father, who was an alcoholic, throw the furniture out of the house and, on numerous occasions, assault his mother. Mitchell had seen his father strike his mother in the mouth and try to choke her (vol. X (dated 9/5/00), t p 60). He had seen his father point a sawed off shotgun at his mother and threaten to kill her (vol. X (dated 9/5/00), t pp 60, 63).
Mitchell’s father also beat him. Mitchell’s father had beaten him with a stick at his sister-in-law’s house (vol. X (dated 9/5/00), t p 75). On another occasion, the Department of Social Services (hereinafter, “DSS”) was called when Mitchell had to be treated at the emergency room for injuries his father inflicted on him. Mitchell told DSS personnel that he loved his father and that his father beat him three or four times a year, though never before so severely. DSS determined that Mitchell’s removal from the home was not an appropriate action and, even though their own records indicated that Mitchell’s mother had reported to them on one occasion that she had been pistol-whipped and had sought emergency assistance on many other occasions, it maintained “minimal contact” with the family for only a short period of time. DSS records did not indicate that it ever investigated the allegations of abuse and no criminal action was ever taken against Mitchell’s father. At that time, Mitchell’s mother was herself on probation. DSS records on Mitchell’s family indicated “alcohol problem”, “chronic family violence” and “severe discipline” as factors contributing to its situation. (Vol. XI (dated 9/6/00), t pp 17-24.)
When Mitchell’s younger brother was born with health problems, hospital personnel had refused to let his father return to the hospital after he initially had gone to the hospital drunk. As Mitchell’s father’s drinking problem worsened, he would not work and would not come home, even though the family was extremely poor and the family home had no running water or heat. When Mitchell’s father was so drunk he could no longer walk, Mitchell would bring him home. (Vol. X (dated 9/5/00), t pp 33-55.) In 1985 Mitchell’s mother took out a warrant and obtained a restraining order against his father after his father struck her (vol. X (dated 9/5/00), t p 1985). Though his parents were separated, Mitchell’s father kept returning to the family home and Mitchell continued to witness his father threatening his mother with the shotgun (vol. X (dated 9/5/00), t p 69-70). Mitchell’s father said he owned Mitchell’s mother and would kill her if she divorced him (vol. X (dated 9/5/00), t p 62).
Mitchell knew his father was involved with other women. Mitchell’s mother was forced to go to his father’s girlfriend’s home in order to find her husband and ask for money. Mitchell’s mother had no money for food, clothes, or medicine and his father refused to give it to her (vol. X (dated 9/5/00), t pp 64-65). Mitchell’s father came back to their house specifically to see Mitchell and his brothers twice during the fourteen years he was separated from their mother (vol. X (dated 9/5/00), t p 71). The last time he came he wrecked the car with them in it, almost killing them all, and was locked up for drunk driving (vol. X (dated 9/5/00), t p 72). Mitchell’s father gave his mother a total of one hundred and twenty dollars ($120) over a period of fourteen (14) years (vol. X (dated 9/5/00), t p 65). Still, in spite of his father’s behavior, Mitchell loved him and was upset because his mother would not take him back; he became upset whenever she said anything negative about him. Mitchell started overeating after his parents separated and his weight skyrocketed from 194 pounds to 320 pounds. He was diagnosed as obese and had heart problems. He began having migraine headaches at age twelve. He was depressed and failed fifth grade. Mitchell’s mother took him to mental health after he once jumped in front of a car. Mitchell refused to go back, insisting that nothing was wrong with him. (Vol. X (dated 9/5/00), t pp 72-75.)
In 1986 or 1987, when Mitchell was fourteen years old, Mitchell’s father moved to New York after pleading guilty to assaulting Mitchell’s mother. He did not tell his wife or children that he was leaving and left without saying goodbye. He never sent back support for his family and never came back to see them. Mitchell’s mother took her father-in-law, who was suffering from diabetes and had only one leg, into her home and cared for him as long as she was able. Mitchell often sat with his grandfather, but his mother sometimes had to carry her father-in-law with her when she went to her job at a nursing home. Mitchell’s mother continued to keep her husband’s father in her home and care for him until she herself became sick and had to have him placed in a nursing home. Having no contact with and receiving no support from her husband or his family, Mitchell’s mother voluntarily placed Mitchell and his brothers in foster care when she had to be hospitalized for eight days. Because her in-laws continued to treat her and her children as outcasts, she had no one to keep them. School personnel questioned whether she was even Mitchell’s mother. (Vol. X (dated 9/5/00), t pp 76-81.)
Mitchell was teased because he was fat and because he was bi-racial. Even his own father called him a “pussy boy.” Mitchell quit school in the tenth grade, but afterwards, earned his General Equivalency Diploma (GED). Mitchell was twenty-three years old before his mother ever saw him drunk. She had seen Mitchell smoking “woo-woos” (a marijuana and cocaine mix) and was aware that he abused drugs, but did not know that he also abused alcohol. Mitchell loved his mother and was extremely protective of her. (Vol. X (dated 9/5/00), t pp 90-111.)
Mitchell’s mother began to drink and began to be called a “working alcoholic.” She tried to burn down her husband’s girlfriend’s house. Mitchell’s older brother, Pat, was not a good influence on Mitchell. Pat became involved in crime and eventually was deported to Germany, even though he did not speak German and knew nobody there. Though Mitchell’s mother was notified that Pat had attempted to commit suicide, she could not afford to go and see him. Mitchell tried to act as a father figure to his younger brother, James. When Mitchell was working, he would give his mother half of his paycheck. Her health was deteriorating and Mitchell was constantly checking on her. Mitchell had begun to use drugs and alcohol and had suffered from those problems for four years preceding Creech’s death. (Vol. X (dated 9/5/00), t pp 82-–88.)
Mitchell’s father never returned from New York. He died on January 11, 1999, just three days before Creech was shot and killed. Mitchell had been planning to go to New York to visit his father and was extremely upset over his death. His parents had never divorced and his mother worried about how she would be able to bury his father. Mitchell was upset because he might have to be cremated. His father’s siblings eventually paid the burial expenses. (Vol. X (dated 9/5/00), t p 86-88.)
Mitchell’s paternal cousin, Kim Covington, corroborated other testimony regarding Mitchell’s father’s alcoholism, non-support and abuse, both physical and verbal, of his family. Covington testified that Mitchell was teased because he was black, but his mother and brother, Pat, were white. Fighting and drinking were a way of life for Mitchell’s paternal family and were typical at family get-togethers. At the last family get-together Covington attended, Mitchell’s paternal uncle became angry because Mitchell’s father was beating Mitchell. The uncle picked Mitchell’s father up and body-slammed him onto the concrete. After that, Covington did not see Mitchell’s father again until she saw him at his funeral. At the funeral Mitchell was upset and disappointed at how his father looked (Vol. X (dated 9/5/00), t pp 126-39.) Covington tried to encourage Mitchell when he started playing football in Goldsboro. On cross-examination, over objection, Covington admitted that Mitchell was very outspoken; that he had trouble controlling his anger when he was younger and that he had been sent to reform school. (Vol. X (dated 9/5/00), t pp 139-48.)
Mitchell’s paternal uncle, Louis Holmes, testified that he had anonymously called social services about Mitchell’s family three or four times because he was concerned that they had no food or decent clothes. Holmes had gone to the house about twice monthly and there was never any food there. Mitchell’s father had left the area to keep from paying child support. Holmes admitted that he had not been close to his brothers. (Vol. XI, t pp 11-13.) Though Mitchell’s father had been ordered to pay $175 per month for the support of Mitchell and his brothers, he never made any of the payments and was $13, 074 in the arrears when he died. (Vol. XI (dated 9/6/00), t pp 14-15.)
Morris Sanders, one of Mitchell’s friends, had known Mitchell since 1992. Mitchell would come by Sanders’ home to visit or watch Sanders’ children. Mitchell had gone to Sanders when he learned of his father’s death. Mitchell was concerned about his mother’s health and well-being. (Vol. X (dated 9/5/00), t pp 150-52.)
Mitchell’s younger brother, James, also known as “Trader”, testified that Mitchell had cried after their father died. James remembered that, after their father had carried James to his girlfriend’s house, Mitchell had gone there to fetch James and had carried James home on his back. Mitchell had bought medicine for James and encouraged him to do the right thing. James loved Mitchell and wanted him to live. Mitchell had a daughter, born after he was incarcerated. (Vol. XI (dated 9/6/00), t pp 5-8.)
State Bureau of Investigation agent Greg Tart was present when Mitchell was interviewed at the sheriff’s department on January 18, 1999, shortly after he was arrested. Mitchell voluntarily made a statement. According to Mitchell, though nobody was supposed to get hurt, his co-defendant shot both of the victims. Mitchell was sorry that Creech was killed and had encouraged his co-defendant, Shantwan Freeman, to come in and talk to the police. Shantwan had not done so. (Vol. X (dated 9/5/00), t pp 116-21.) Though neither Frazier nor Shantwan testified at Mitchell’s trial, Tart was permitted to testify on cross-examination, over defendant’s objection, that Michael Frazier said Shantwan told him Mitchell shot Creech. (Vol. X (dated 9/5/00), t pp 122-23.) On redirect, Tart testified that Frazier said he saw Shantwan come from Gonzalo’s house with a gun; that he saw the barrel of a gun down by Shantwan’s side when he got in the car at Santiago’s house. He had not seen either Mitchell nor Shantwan with a gun at Creech’s trailer (vol. X (dated 9/5/00), t pp 123-24).
John Warren, forensic psychologist, saw Mitchell on October 8, 1999 and on three subsequent occasions. Testing revealed that Mitchell’s overall intelligence quotient was in the low/average range, the twenty-third percentile. Mitchell reads and spells at the high school level, but computes math at an eighth grade level only. Mitchell’s father’s death, occurring only three days before Mr. Creech was killed, had a mixed approach/avoidance effect upon Mitchell. Mitchell loved his father, but feared him and was wary of him. His father had called him to say he was dying and asked Mitchell to come and see. He died before Mitchell could travel to see him. His father’s death brought Mitchell relief that the violence was over, but guilt that he had not gone to see him. This resulted in a great deal of emotional turmoil for Mitchell. He was overwhelmed, disoriented, slightly shocked and had a sense that things were unreal and out of balance.
Mitchell had learned as a child that one lashes out when you are angry; that a family keeps secrets and that alcohol, drug and food abuse are normal. He gained one hundred pounds in a year and, at fourteen years old, weighed three hundred pounds; he was diagnosed with massive exogenous obesity. Mitchell did not receive the emotional nurturing and guidance he needed from his parents. The abuse stunted his emotional growth so that his emotional development was that of a much younger person. His true self esteem was that of a young child; he was uncertain, insecure, unable to meet his own safety needs, and easily overwhelmed with depression. (Vol. XI (dated 9/6/00), t pp 24-58.)
Mitchell had attempted to hurt himself on numerous occasions. When Creech was killed Mitchell had ingested cocaine and alcohol. Mitchell never said he actually shot Creech. Rather, he said he was in the wrong place and that the shooting was not meant to happen. Mitchell was remorseful. (Vol. XI (dated 9/6/00), t pp 24-58.)
Mitchell did not meet the criteria for insanity and is not retarded. Mitchell suffers from chronic depression and his behaviors and functioning meet the criteria for a personality disorder. Though Mitchell’s actual performance IQ is 94, he has never worked at any one place for more than seven months. Mitchell does not appear to recognize gaps in his own adaptive functioning. (Vol. XI (dated 9/6/00), t pp 60-72.)
Argument
I. when the trial court overruled defendant’s objections and permitted SBI Agent tart to testify that michael Frazier told him that shantwan freeman told him that defendant shot creech, where both frazier and freeman were co-defendants in the matter and neither testified at defendant’s trial, it violated defendant’s constitutional rights to confront the evidence against him, to due process and to a reliable sentencing hearing and committed reversible error.
Assignment of Error No. 34, R p 105.
The trial court overruled defendant’s objections and permitted Agent Tart to testify that Frazier told him (Tart) that Freeman told him (Frazier) that Mitchell killed Ray Creech (vol. X (dated 9/5/00), t pp 122-23.). Freeman and Frazier, along with Mitchell, were charged in connection with the offenses that occurred at Creech’s trailer. Mitchell and Freeman were charged with Creech’s murder, Ronnie Hardison’s attempted murder and robbery with a dangerous weapon. Frazier was charged with conspiracy to commit robbery with a dangerous weapon (vol. VII (dated 8/29/00), t p 156). Neither Frazier, nor Freeman, testified at any phase of Mitchell’s trial. The statement alleged to have been made by Freeman was “presumptively unreliable” and was inadmissible under the Rules of Evidence and the United States and North Carolina constitutions. The admission of the statement violated Mitchell’s federal and state constitutional rights to confront the evidence against him, to due process and to a reliable sentencing hearing. The State cannot show that the error was harmless beyond a reasonable doubt. Accordingly, the Mitchell must be given a new sentencing hearing.
Formal rules of evidence do not apply to capital sentencing hearing in North Carolina. State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 133 L.Ed.2d 739 (1996). Constitutional protections available at trial, including the right to confront witnesses, do apply. Bullington v. Missouri, 451 U.S. 430, 446, 68 L.Ed.2d 270, 283 (1981); accord, State v. Robinson, 339 N.C. 263, 451 S.E.2d 196 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995) (confrontation violation error, but harmless on facts of case); see also, Gardner v. Florida, 430 U.S. 349, 51 L.Ed.2d 393 (1977) (due process violated where sentencing judge relied on undisclosed presentence reports which the defendant had no opportunity to deny or rebut).
A. The Statement’s Admission Violated Defendant’s Confrontation Rights.
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The right of confrontation guaranteed by the Sixth Amendment includes the right to cross-examine adverse witnesses. Douglas v. Alabama, 380 U.S. 415, 418, 13 L.Ed.2d 934, 937 (1965). A person is a “witness against” a criminal defendant not only when he testifies at trial, but also when statements of his that are adverse to the defendant are admitted as hearsay. State v. Washington, 131 N.C. App. 156, 160, 506 S.E.2d 283, 286 (1998), citing White v. Illinois, 502 U.S. 346, 351-52, 116 L.Ed2d 848, 856-57 (1992). It is beyond dispute that the double-hearsay statement admitted here, alleging that Mitchell killed Creech, was adverse to Mitchell.
Admission of the statement violated Mitchell’s constitutional confrontation rights because the statement was not reliable. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing before the trier of fact. Lilly v. Virginia, 527 U.S. 116, 123, 44 L.Ed.2d 117, 126 (1999). A statement generally is thought to be reliable if, at the time of its making, it be “so far contrary to the declarant's pecuniary or proprietary interest, or so far tend[ing] to subject him to civil or criminal liability … that a reasonable man in his position would not have made the statement unless he believed it to be true.” N.C. Gen. Stat. §804(b)(3). The statement Freeman allegedly made was not against his interests as it blamed Mitchell for Creech’s death. In Lilly v. Virginia, the United States Supreme Court found error where an accomplice’s statement implicating the defendant was admitted at the defendant’s trial as a “statement against interest.” Id. at 120-23, 144 L.Ed.2d at 124-25. The Court reversed, with a four justice plurality concluding that an accomplice’s confession was not against the declarant’s interests because it was largely "non-self inculpatory” as it minimized the accomplice’s own criminal responsibility and shifted blame to the defendant. The Court held that the confession was “presumptively unreliable.” Id. at 137, 144 L.Ed.2d at 135. Similarly, the statement attributed to Freeman in the instant case alleging that Mitchell killed Creech, heaped all the blame upon Mitchell and none upon Freeman himself. It is precisely the same type “non-self inculpatory” statement that the United States Supreme Court found “presumptively unreliable” in Lilly.
B. The Statement Was Not Admissible Because It Lacked “Equivalent Circumstantial Guarantees of Trustworthiness.”
Ultimately, admissibility at sentencing depends on the reliability and relevance of the proffered evidence. State v. Rose, 339 N.C. 172, 199, 451 S.E.2dd 211, 227 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995); State v. Bond, 345 N.C. 1, 31, 478 S.E.2d 163, 178 (1996), cert. denied, 138 L.Ed.2d 1022 (1997). The rules of evidence may be relied upon for guidance when determining questions of reliability and relevance. Bond, 345 N.C. at 31, 478 S.E.2d at 178. Reliance on the rules of evidence is particularly important with respect to hearsay issues, because of the close connection between the hearsay rules and confrontation clause violations. See Ohio v. Roberts, 448 U.S. at 66, 65 L.Ed.2d at 608 (reliability for confrontation purposes can be inferred where evidence falls within firmly rooted hearsay exception; otherwise, proponent must show “particularized guarantees of trustworthiness”).
In State v. Tyler, 346 N.C. 187, 195, 485 S.E.2d 599, 603 (1997), citing State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986), cert. denied, 522 U.S. 1001, 139 L.Ed.2d 411 (1997), this Court directed that one of the factors a trial court should consider in analyzing whether a hearsay statement possesses “equivalent circumstantial guarantees of trustworthiness” sufficient to justify its admissibility is the declarant's motivation to speak the truth. It has long been recognized that codefendants have little reason to be truthful about their own involvement in a crime.
In Lee v. Illinois, 476 U.S. 530, 90 L.Ed.2d 514 (1986), the United States Supreme Court said that “statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay.” Id. at 541, 90 L.Ed.2d at 526; accord, Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476 (1968) (codefendant’s confession that incriminates an accomplice so “inevitably suspect” and “devastating” that the ordinarily sound assumption that a jury will follow its instructions does not apply); see also Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934 (1965) “[A] reality of the criminal process” is that “once partners in a crime recognize that the ‘jig is up’ they tend to lose any identity of interest and immediately become antagonists.” Lee, 476 U.S. at 544-45, 90 L.Ed.2d at 528; State v. McLaughlin, 316 N.C. 175, 340 S.E.2d 102 (1986) (accomplice’s confession to police lacked “equivalent circumstantial guarantees of trustworthiness”).
Any hearsay introduced against the defendant at his sentencing hearing must be reliable. United States v. Jones, 31 F.3d 1304 (4th Cir. 1994); United States v. Terry, 916 F.2d 157, 160-61 (4th Cir. 1990). Noting that co-defendants’ statements to police are unsworn and untested by cross-examination of counsel or its equivalent, Lee rejected Illinois’ argument that the codefendant’s confession was reliable because it was a confession to police. The codefendant’s confession occurred after Lee had implicated the codefendant in the crime, creating an obvious motive for the codefendant “to distort the facts to Lee’s detriment.” Lee, 476 U.S. at 544, 90 L.Ed.2d at 528; see also, McLaughlin, 316 N.C. at 179-80, 340 S.E.2d at 105 (where accomplice’s confession to the police was not made under oath or threat of perjury and accomplice made statement to gain favor with police, confession not sufficiently trustworthy to be admissible).
Moreover, any presumption of reliability that is accorded a codefendant’s statement attaches only to those declarations which are individually self-incriminatory. Williamson v. United States. 512 U.S. 594, 599-600, 129 L.Ed.2d 476, 482-83 (1994). Lee concluded that the State of Illinois could not overcome the presumption of unreliability that attached to the codefendant’s confession. Id. In fact, the statement alleged to have come from Freeman in the present case is even less reliable than the statement at issue in Lee. Whereas the Lee codefendant’s statement was at least partially self-inculpatory, the hearsay statement at issue here, alleging that Mitchell – not Freeman -- killed Creech, in no way incriminated Freeman. Further, because it was never tested by cross-examination, it must be presumed unreliable.
Because Freeman’s alleged statement was unreliable, its admission violated Mitchell’s constitutional confrontation rights. See Lee, 476 U.S. 530, 90 L.Ed.2d 514; see also, State v. Waddell, 130 N.C. App. 488, 494, 504 S.E.2d 84, 88 (1998) (citation omitted), modified on other grounds and affirmed, 351 N.C. 413, 527 S.E.2d 644 (2000) ("[t]he Confrontation Clauses in the Sixth Amendment to the United States Constitution and Article I Section 23 of the North Carolina Constitution prohibit the State from introducing hearsay evidence in a criminal trial unless the State: 1) demonstrates the necessity for using such testimony, and 2) establishes 'the inherent trustworthiness of the original declaration'"; Idaho v. Wright, 497 U.S. 805, 813-14, 111 L.Ed.2d 638, 650-51 (1990) (erroneously admitted hearsay statements violate a defendant's right to confront witnesses, unless the State shows the necessity for using the hearsay declaration and the inherent trustworthiness of the declaration). Such an error would also violate the Confrontation Clause of the North Carolina Constitution Article I, Section 23. State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84 (1998); In the Matter of Lucas, 94 N.C. App. 442, 380 S.E.2d 563 (1989); State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985), disc. review denied, 316 N.C. 382, 342 S.E.2d 901 (1986).
Even where a non-testifying co-defendant’s confession arguably greater reliability from consistency with a defendant’s confession, the right to confront the co-defendant in court is paramount. In Lee, two defendants were tried jointly in a bench trial. Both had previously confessed to police and both of their interlocking confessions were introduced. In addressing the admissibility of the confessions, the United States Supreme Court first noted the critical importance of confrontation rights.
There are few subjects perhaps upon which this Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.
Lee, 476 U.S. at 540, 90 L.Ed.2d at 525 (quoting Pointer v. Texas, 380 U.S. 400, 405, 13 L.Ed.2d 923, 927 (1965). “[T]he mechanisms of confrontation and cross-examination advance the pursuit of truth in criminal cases.” Id. The codefendant’s confession implicating his accomplice, though interlocking with the accomplice’s confession, did not meet Confrontation Clause reliability requirements.
Cross-examination is “the greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158, 26 L.Ed.2d 489, 497 (1970). In the instant case it was impossible for Mitchell to test the truth of the improperly admitted statement through cross-examination because the person testifying at his trial and available for cross-examination (Tart) was not the person claiming to have first-hand – or even second-hand knowledge of the facts alleged in the statement. Thus, while defendant has heretofore referred to the improperly admitted statement as “hearsay”, to be more accurate, the statement is, in fact, “double-hearsay.” It plainly was evidence of a statement made by a declarant (Freeman) insulated from confrontation through two steps of hearsay, clearly offered to prove the truth of the matter asserted (that defendant killed Creech). As “double-hearsay”, the statement contained Freeman’s hearsay within hearsay and was inadmissible under any hearsay rule exception.
C. Defendant was Prejudiced.
Because Mitchell’s constitutional confrontation rights were violated by the admission of the unreliable double-hearsay statement, the State must show beyond a reasonable doubt that the error was harmless. N.C. Gen. Stat. § 15A-1443(b) (1997); State v. Tyler, 346 N.C. 187, 485 S.E.2d 599 cert. denied, 139 L.Ed.2d 411 (1997). This Court must be satisfied that the error did not even contribute to the jury’s decision to sentence Mitchell to die. Chapman v. California, 386 U.S. 18, 24, 17 L.Ed.2d 705, 710 (1967). The State will be unable to carry this burden in the instant case.
This Court has recognized that the actual perpetrator of a murder is more morally culpable than an accomplice; the evidence against an actual perpetrator is inherently more aggravated than that of an accomplice. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653. In this case the State’s evidence as to who did the actual shooting was less than strong. The State’s evidence clearly showed that defendant and Freeman were the two men who barged into Creech’s house that night, but its evidence did not clearly show that Mitchell was the one who committed the shootings. While Hardison, the only eyewitness to the crimes to testify at Mitchell’s trial, had “no doubt” at trial that Mitchell was the person who entered the trailer with the gun (vol. VI (dated 8/28/00), t pp 35, 152), he did not testify that he actually could identify the shooter. Further, the examination revealed that just one week after the shooting Hardison was not sure that Mitchell was the shooter (vol. VII (dated 8/29/00), t p 155). Specifically, the following examination occurred:
DEFENSE COUNSEL: Isn’t it true that Michael Frazier also told you in his statement that he saw Michael Frazier coming – I mean, that he saw Shantwan Freeman coming with the gun from Gonzalo’s house?
AGENT TART: Would you please repeat that?
DEFENSE COUNSEL: Isn’t it true that Frazier also told you that he saw Shantwan Freeman coming from Gonzalo’s house with the gun?
AGENT TART: (Witness reviews paperwritings.) Yes.
DEFENSE COUNSEL: And didn’t he also tell you in the same statement that the person he saw getting out of the car with the gun at Dean Ray Creech’s was Shantwan Freeman?
AGENT TART: I believe he said that he did not see either subject with the gun, but it was possible that Shantwan had the gun with him but he could not see it.
DEFENSE COUNSEL: Is it – didn’t he say in his statement that Shantwan got in the car with the gun:
AGENT TART: He said when Shantwan got into the car at Gonzalo Santiago’s house he observed the barrel of a gun down by his side.
(Vol. X (dated 9/5/00), t pp 123-34.).
The only other testimony identifying Mitchell as the shooter came from Shantwan Freeman’s long-time good friend and hang-out buddy for the past thirteen years, Gonzalo Santiago, whose testimony that Mitchell admitted shooting (vol. VI, t pp 152-53) would have been viewed with suspicion by rational jurors.
Because (1) Hardison’s at-trial identification of Mitchell as the shooter was discredited by his uncertain pre-trial identification and (2) reasonable jurors likely would have been skeptical of Santiago’s testimony that Mitchell admitted shooting Creech, realizing that Santiago likely would attempt to protect his longtime friend, Freeman, Agent Tart’s improper hearsay testimony that Mitchell killed Creech likely resolved any doubt about the identity of the actual perpetrator and tipped the scales towards the jury recommending a sentence of death for Mitchell. See State v. Goodman, 298 N.C. 1, 29, 257 S.E.2d 569, 587-88 (1979) (where there is doubt about identity of primary culprit, admission of improper aggravation likely to be prejudicial); Stringer v. Black, 503 U.S. 222, 117 L.Ed.2d 367 (1992) (admission of improper aggravating factor required reversal because factor was “a thumb on death’s side of the scale.”). Moreover, the United States Supreme Court has noted the devastating impact that a codefendant’s statement can have upon a defendant’s case. See Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476 (codefendant’s confession that incriminates an accomplice so “devastating” that jury likely will not be able to follow an instruction to disregard it).
In sum, because Mitchell’s constitutional confrontation and due process rights were violated by the improper admission of Freeman’s hearsay statement and the jury likely considered this improper statement when it sentenced Mitchell to die, Mitchell must be given a new sentencing hearing.
ii. the trial court committed reversible error when it failed to instruct the jury on two mitigating circumstances requested by defendant where the factors were supported by the evidence and at least one of the twelve jurors reasonably could have found them from the evidence presented.
Assignments of Error Nos. 36, 39; R pp 105-06.
The trial court denied defendant his constitutional right to a fair and reliable sentencing hearing under the Eighth and Fourteenth Amendments of the United States Constitution and Article I, §§ 19, 23 and 27 of the North Carolina Constitution by failing to submit two mitigating circumstances requested by Mitchell that were supported by the evidence and which a reasonable juror may have perceived to have mitigating value: (1) that the murder actually was committed by another person and (2) that the initial idea that resulted in the victim’s death was Michael Frazier’s. Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973 (1978) (defendant entitled to submit to the jury any relevant mitigating evidence which might serve as a basis for a sentence less than death); accord, Skipper v. South Carolina, 476 U.S. 1, 90 L.Ed.2d 1 (1986); see also Woodson v. North Carolina, 428 U.S. 280, 49 L.Ed.2d 944 (1976) (Eighth Amendment requires particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition of a sentence of death). Accordingly, Mitchell was prejudiced and must be resentenced.
The trial court in a capital sentencing proceeding must submit for consideration by the jury nonstatutory mitigating circumstances which the defendant requests if these circumstances are "supported by the evidence, and . . . are such that [a juror] could reasonably deem them to have mitigating value." State v. Jones, 336 N.C. 229, 248 443 S.E.2d 48, 57, cert. denied, 130 L.Ed.2d 423 (1994), quoting State v. Johnson, 298 N.C. 47, 72-74, 257 S.E.2d 597, 617 (1979). This duty is mandated not only by state law, but also by the Eighth and Fourteenth Amendments. [T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, 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. Lockett v. Ohio, 438 U.S. at 604, 57 L.Ed.2d at 990; accord, Eddings v. Oklahoma, 455 U.S. 104, 71 L.Ed.2d 1 (1982);.
Under North Carolina’s capital sentencing scheme, a trial judge is required to submit in writing to the jury and give oral instructions on any statutory or nonstatutory mitigating circumstances supported by any evidence and requested by the defendant. See e.g., State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990) (non-statutory mitigating factors must be listed individually and separately on verdict form); State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988) (trial court must submit and instruct on all requested non-statutory mitigating circumstances supported by the evidence). Where the trial court erroneously fails to submit a requested non-statutory mitigating circumstance, the state must show the error was harmless beyond a reasonable doubt. Id.
In the instant case the trial court erroneously failed to submit to the jury two nonstatutory mitigating circumstances requested by Mitchell, that (1) “the murder was actually committed by another person” and that (2) “the initial idea that resulted in the death of the decedent was Michael Frazier’s.” Both of these circumstances were supported by the evidence, and both were potentially mitigating. See State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 447 (1981) (defining a mitigating circumstance as facts which are extenuating, reduce defendant's moral culpability for the killing, or make the killing less deserving of death); accord, Skipper v. South Carolina, 476 U.S. at 4-5, 90 L.Ed.2d at 7 (mitigation is "any circumstance which might serve as a basis for a sentence less than death").
A. The Trial Court Erroneously Failed to Submit the Non-statutory Mitigating Circumstance that “the Murder Actually Was Committed By Another Person.”
After reviewing the mitigating circumstances submitted by defendant, the trial court announced during the first portion of the trial conference that:
I am not going to give the paragraph on that same page, paragraph nine, which is whether the murder was actually committed by another person, with the Defendant being convicted of both premeditated and deliberated and felony murder. So I’m not giving the paragraph on that draft, which is paragraph four, I’m not giving that.
(Vol. XI (dated 9/6/00), t p 83.)
The trial court erroneously assumed that a finding by the jury during the guilt/innocence phase of the proceeding that Mitchell killed the victim with premeditation and deliberation precluded the jury from finding during the sentencing phase that Mitchell did not personally commit the killing. The court erroneously failed to consider that, at the sentencing phase, the jury had before it additional evidence not presented during the guilt/innocence phase. Though Mitchell did not testify, the statement he gave police, alleging that Freeman was the shooter, was read into evidence by Special Agent Greg Tart. Mitchell’s statement was read into evidence as follows:
I saw Michael Frazier Thursday night at about 11:30 p.m. Michael was in a burgundy car with a white kid driving. They were blinking their lights at me, trying to get me to stop. I was driving my girlfriend’s car. I was at the corner near the D-Mart in Selma. I stopped the car as soon as I turned the corner. Mike jumped out of his vehicle and ran up to my vehicle and asked me if I had a gun. I told him no. Mike said he was going to do a lick, which meant he was going to rob somebody. He asked me for a ride, and I said, ‘Come on.’ I took him to the phone booth at T-Mart on Highway 301.
Mike couldn’t get a gun. We left the T-Mart and drove down to the Amoco station. We saw Gonzalo Santiago and Shan Freeman at the Amoco. Gonzalo was driving a black Honda Accord. Mike had some reefer with him. Mike asked Gonzalo if he wanted to make some money tonight. Gonzalo asked him how. Gonzalo told Mike he had a mac 10.
Me, Mike, Shan and Gonzalo went to Gonzalo’s mother’s house. Mike was in the car with Gonzalo. Shan was in the car with me. Mike told us where the house was. He told us that the guy had some guns. He said there was a .357 pistol on the counter top. He said there was a shotgun in the cabinet. Mike said there was some weed in a trash bag beside the sofa and some more in the cabinet beside the sofa. Mike said there would be two or three people there. Mike called the guy Deano.
Gonzalo told Mike that he wasn’t going to go, but he would let him use his gun. Gonzalo told Mike since he was letting him use the gun, that he wanted a third of the profits. Gonzalo and me went to a barn behind the house and got a gun under the mattress in the barn. The clip was in a drawer in a dresser in the barn. The gun was about three feet long and was brown. The gun had a pistol grip. Gonzalo gave the gun and the magazine to Shan. Shan put the magazine in the gun.
We then went back in my girlfriend’s car. Mike got into the front seat and Shan got into the back seat, behind Mike. We left there and started to go to the man’s trailer. On the way three, Mike gave us the rundown on the inside of the trailer. Mike gave me the directions to the trailer. When we got to the trailer, I pulled on the side of the road. I didn’t pull into the driveway.
All of us got out of the vehicle and walked up a long dirt path. Mike told us to say the name Cecil when we got to the door and the man would let us in. Me and Shan walked up on the front porch. Mike stayed on the ground beside the porch. Mike told Shan to knock on the door. Shan had the gun down beside his leg. Shan knocked on the door. The man asked, ‘Who is it?’ Shan said ‘Cecil’ twice.
The man opened the door and turned around and started walking back inside the trailer. I stepped in the door first. The man said, ‘What’s up?’ I said, ‘What’s up?’ I asked him if he had some weed. The guy had black hair. The other guy was standing in the kitchen. Shan walked in and pulled the action on the gun back and said, ‘Where’s the shit at?’ Shan pointed the gun at the blond-haired dude in the kitchen. Shan kept yelling, ‘Where is the shit?’
The black-haired dude tried to grab a pistol in a holster on the counter. I grabbed the guy as he tried to pull the gun out of the holster. I grabbed his arm and beat it up against the wall. The guy dropped the gun. I heard two shots. Shan shot the guy. The other guy started running through the kitchen. Shan then shot the guy and he fell in the kitchen. Mike then ran in the house. Mike thought one of us got shot. I picked up two shells on the floor. I kept yelling at Shan to get out of the house. Shan picked up the pistol, which was halfway out of the holster. Shan took a shotgun out of the cabinet in the kitchen. I panicked. I ran and looked at the guy in the kitchen to see if he was dead. I thought he was dead. The other guy’s eyes were open and I knew he was dead. I ran out of the front door. Mike was already gone. I ran back to my car and it was in the ditch. Mike was nowhere to be found.
Me and Shan pushed the car out of the ditch. Shan was going to run. Shan got in the car with me. We went back to Gonzalo’s house and I dropped him off. I then went home. Shan took all the guns out of the car. I don’t know if Shan got any money. I didn’t get shit. Nobody was supposed to get hurt. I’m sorry the man got killed. It won’t supposed to happen like that. Mike Frazier came to my house yesterday and told me the police had come to this house looking for him. I told him to come down here and talk to you all. I also talked to Shan yesterday. I didn’t kill anybody.
(Vol. X (dated 9/5/00), t pp 117-21.) It can not be disputed that Mitchell’s statement, admitted into evidence as Defendant’s Exhibit 9 (vol. X (dated 9/5/00), t p 122), was additional evidence that the jury was required to consider. This evidence that Freeman shot Creech supported submission of the mitigating circumstance requested by Mitchell, that “the murder was actually committed by another person”
Michael Frazier also did not testify. Again, however, Agent Tart testified that Frazier also gave the police a statement. On re-direct examination by defendant, Agent Tart relayed statements Frazier made to the police that supported an inference that Freeman shot the victims. Specifically, the following examination occurred:
DEFENSE COUNSEL: Isn’t it true that Michael Frazier also told you in his statement that he saw Michael Frazier coming – I mean, that he saw Shantwan Freeman coming with the gun from Gonzalo’s house?
AGENT TART: Would you please repeat that?
DEFENSE COUNSEL: Isn’t it true that Frazier also told you that he saw Shantwan Freeman coming from Gonzalo’s house with the gun?
AGENT TART: (Witness reviews paperwritings.) Yes.
DEFENSE COUNSEL: And didn’t he also tell you in the same statement that the person he saw getting out of the car with the gun at Dean Ray Creech’s was Shantwan Freeman?
AGENT TART: I believe he said that he did not see either subject with the gun, but it was possible that Shantwan had the gun with him but he could not see it.
DEFENSE COUNSEL: Is it – didn’t he say in his statement that Shantwan got in the car with the gun:
AGENT TART: He said when Shantwan got into the car at Gonzalo Santiago’s house he observed the barrel of a gun down by his side.
(Vol. X (dated 9/5/00), t pp 123-34.). It reasonably could be inferred from this testimony that Freeman, the only one Frazier saw with a gun, was also the shooter. Again, this was additional evidence presented during the sentencing phase of the trial – but, not during the guilt/innocence phase – that the jury was free to consider in determining whether Mitchell or Freeman shot the victim.
Further, Mitchell is not required to show here that Hardison’s identification of him as the shooter was inaccurate in order to demonstrate that he was entitled to have the mitigating circumstance that “he was not the actual shooter” submitted to the jury. Rather, Mitchell is only required to establish that:
(1) the non-statutory mitigating circumstance is one which the jury could reasonably find had mitigating value, and
(2) there is sufficient evidence of the existence of the circumstance to require it to be submitted to the jury.
State v. Green, 336 N.C. 142, 443 S.E.2 14, 37, cert. denied, 513 U.S. 1046, 130 L.Ed.2d 547 (1994) (emphasis added). Mitchell’s statement that Freeman shot Creech and Frazier’s statement that Freeman was the only one he saw with a gun were “sufficient evidence” that Mitchell was not the one who shot Creech and Hardison. The United States Supreme Court long has recognized that a defendant who does not himself inflict the fatal wounds is less culpable than the one who does. See, e.g., Enmund v. Florida, 458 U.S. 782, 73 L.E.2d 1140 (defendant must have intended to kill or that deadly force be used in order to be eligible for the death penalty).
Defendant concedes that the jury returned its verdict finding Mitchell guilty of first-degree murder under the theory of premeditation and deliberation, as well as felony-murder. The trial court noted as much when it ruled that the requested non-statutory mitigating circumstance would not be submitted to the jury (vol. XI (dated 9/6/00), t p 83). However, Mitchell contends that he, nevertheless, was entitled to the requested mitigating circumstance because additional evidence that he was not the actual killer -- not introduced during the guilt/innocence phase of his trial –was presented to the jury during the sentencing phase. This additional evidence, not previously before the jury, may have caused it to conclude that Freeman inflicted the fatal wounds and, consequently, recommend that defendant be given the more lenient sentence of life imprisonment.[1]
Because it cannot be known whether, based upon the additional evidence presented, at least one juror would have found the mitigating circumstance requested by Mitchell, that Mitchell was not the actual killer, and determined that the additional weight accorded to this circumstance caused the mitigators to outweigh the aggravators, Mitchell must be given a new sentencing hearing.
B. The Trial Court Erroneously Failed to Submit the Non-statutory Mitigating Circumstance that “the Initial Idea that Resulted in the Death of the Decedent was Michael Frazier’s.”
Though the evidence reasonably supported a finding that Michael Frazier first came up with the idea to rob Dean Creech of his marijuana and that Creech was killed during the attempted perpetration of that robbery, the trial court refused defendant’s request that it instruct the jury on the non-statutory mitigating factor, that “the initial idea that resulted in the death of the decedent was Michael Frazier’s.” After the trial court reviewed the revised list of proposed non-statutory mitigating factors submitted by Mitchell, the following discussion occurred:
PROSECUTOR: Well, could we have just a moment – for example, the State would vigorously object to – it’s number 11 on this sheet, but the proposed mitigator that “The initial idea that resulted in the death of the decedent was Michael Frazier’s.” That is very misleading. That makes it suggest as though it were Michael Frazier’s idea to murder the victim. That’s not the case at all. Indeed, there’s no evidence, I submit, other than some indirect, self-serving statements of the defendant to law enforcement and to his psychologist, that it was even Michael Frazier’s idea to commit the robbery. The only direct evidence under oath was from Santiago at the guilt/innocence phase that the Defendant came to his house.
DEFENSE COUNSEL: At sentencing, the statement came in and Mr. Lock cross-examined Agent Tart about the statement of Frazier himself. Thus, that came in. In addition, there was evidence in the trial of this case from Mr. Santiago that Frazier was doing all of the talking and that Freeman and Holmes didn’t have anything to say.
PROSECUTOR: If it’s going to be submitted, I would respectfully submit it needs to be completely re-worded, and moreover, that a peremptory instruction would be inappropriate as to number 11.
DEFENSE COUNSEL: Your Honor, we could say the initial idea for the plan that resulted in the death of the decedent was Michael Frazier’s.
PROSECUTOR: I don’t think that solves it. I mean, if you want to say it at all, I’d just simply say the robbery was initially the idea of Michael Frazier, period. You shouldn’t talk about a plan resulting in the death.
DEFENSE COUNSEL: Your Honor, we would argue that the plan did result in death and that the plan was Michael Frazier’s.
THE COURT: According to the evidence that’s been presented, I think the more appropriate working would be “the initial idea for the robbery was Michael Frazier’s.” According to the statement of the Defendant, that’s what he said, but – what’s in evidence. So I’m going to amend number 11 to read, “The initial idea for the robbery was Michael Frazier’s.”
(Vol. XI (dated 9/6/00), t pp 95-97.)
Defendant agrees that the initial idea for the robbery came from Frazier. However, because the killing occurred in the course of carrying out that same robbery originally thought of by Michael Fraizer, the statements, that (1) “the initial idea for the robbery was Michael Frazier’s” and (2) “the initial idea that resulted in the death of the decedent was Michael Frazier’s” both were correct.
The testimony of the State’s own witnesses supported the inference that “the idea that resulted in Creech’s death originated with Michael Frazier.” The State’s evidence showed that Frazier had been in Creech’s trailer several times during the hours immediately preceding the shooting, apparently to purchase marijuana; that he actually had gone with Creech into the bedroom where the marijuana was kept and, thus, had personal knowledge that Creech had a large amount of marijuana in his possession. See Hardison and Bland’s testimony identifying Frazier as the small-built man who was in Creech’s trailer several times the night Creech was killed. Frazier was leaving Creech’s trailer when Hardison and Bland arrived there; came back again while they were visiting; and came back a third time while Hardison was at the store purchasing cigarettes, each time acting like he did not want to be seen. During his second visit, Frazier had disappeared into one of the bedrooms with Creech. This was the same bedroom from which Creech later retrieved the duffel bag full of marijuana. This State’s evidence establishes that Frazier – not Mitchell – knew where Creech resided and was very much aware that Creech had a large amount of marijuana in his possession. There was absolutely no evidence that Mitchell knew either fact. Further, Santiago’s testimony that Frazier approached him and Freeman; that Frazier asked them if they wanted to help rob Creech and that Frazier did all the talking was additional evidence that it was Frazier’s idea to rob Creech. Thus, it was not, as alleged by the prosecutor, just Mitchell’s “indirect, self-serving statements ... to law enforcement and to his psychologist” that supported submission of the mitigating circumstance, that “the initial idea that resulted in the death of the decedent was Michael Frazier’s.”
Further, the mitigating circumstance, that “the initial idea for the robbery was Michael Frazier’s,” was not the same mitigating circumstance requested by Mitchell, that “the initial idea that resulted in the death of the decedent was Michael Frazier’s.” The distinction is tremendously important in the context of this case where there was such a direct correlation between the requested mitigating circumstance and the issue to be decided by the jury, i.e., whether Mitchell should be killed because Dean Creech had been killed – not because Creech had been robbed. The requested instruction directed the jury’s attention to the fact that, had Frazier not come up with the idea to rob Creech, Creech would still be alive.
This Court has recognized that distinctions among mitigating circumstances can be nuanced. In State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991), this Court found McKoy error prejudicial even though the only unfound mitigating circumstance was the residual circumstance. The jury had unanimously found the following nonstatutory mitigating circumstances:
(1) that defendant is an active and helpful church member; and
(2) that defendant is and has been a good friend to many people.
Id. at 326, 406 S.E.2d at 903. In reversing, the Stager opinion noted the existence of other evidence which jurors may have considered under the residual circumstance:
substantial evidence tended to show that the defendant worked with numerous young people and acted like a mother to children other than her own. Carol Galloway, a member of the defendant's church congregation, testified that the defendant would often babysit for her. The defendant would take the Galloway's son to McDonalds to get a Happy Meal, buy him toys and take him to the park. Gretta Burch, a student at Wake Forest University, testified that the defendant was like a "second mom." In addition, Burch testified that the defendant had written letters while she was away at school and that she could depend on defendant for advice.
Id. at 326, 406 S.E.2d at 903. This mitigation was held not subsumed by the circumstances that defendant was "an active and helpful church member" and a "good friend to many people." Id. The distinction between the mitigating circumstances requested and submitted in the instant case was at least as great as the distinctions drawn in Stager. "Each mitigating circumstance is a discrete circumstance. Each has its own meaning and effect." State v. Greene, 329 N.C. 771, 776, 408 S.E.2d 185, 187 (1991); (McKoy error prejudicial where jurors failed to find (f)(2), but unanimously found (f)(6)). Thus, it was error not to submit Mitchell's requested circumstance.
Finally, the trial court's refusal to submit the non-statutory mitigating circumstance exactly as requested by Mitchell was not harmless beyond a reasonable doubt. See State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); (applying constitutional prejudice error standard to failure to submit non-statutory mitigation). In State v. Johnson, supra, 298 N.C. 47, 257 S.E.2d 597, this Court explained the importance of delineating non-statutory mitigating circumstances for the jury's consideration.
[I]f the sentencing authority cannot be precluded from considering any relevant mitigating circumstance supported by the evidence neither should such circumstances be submitted to it in a manner which makes some seemingly less worthy of consideration than others.
Id. at 73-74, 257 S.E.2d at 616-617. The effect of the court's refusal to submit the requested mitigating circumstance in the instant case was to make Frazier’s role as the originator/instigator of that night’s events seem less important in connection to Creech’s death. If the circumstance had been explicitly submitted as requested, its submission may have been a "thumb on [life's] side of the scale." See Sochor v. Florida, 504 U.S. 527, 119 L.Ed.2d 326 (1992) (where state law requires jurors to weigh aggravation against mitigation, error which affects the balancing process requires reversal); McKoy v. North Carolina, supra, 494 U.S. 433, 108 L.Ed.2d 369 (court's instructions to a capital jury may not preclude full and free consideration of mitigation supported by the evidence).
C. Defendant is Entitled to a New Sentencing Hearing.
No showing of prejudice is required when the sentencer in a capital sentencing proceeding is precluded from considering all relevant mitigating circumstances. Penry v. Lynaugh, 492 U.S. 302, 106 L.E.2d 256 (1989); Hitchcock v. Dugger, 481 U.S. 393, 398-99, 95 L.E.2d 347 (1987); Eddings v. Oklahoma, 455 U.S. 104, 116-17, 71 L.Ed.2d 1 (1982). Thus, where a single juror's vote on a single mitigating circumstance may have been denied defendant due to the trial court's erroneous failure to submit the mitigating circumstances requested by defendant, resentencing is required. See State v. McNeil, 327 N.C. 388, 395 S.E.2d 106 (1990), cert. denied, 499 U.S. 942, 113 L.Ed.2d 459 (1991). Accordingly, because a requested relevant and factually supported mitigating circumstances was not submitted for the jury's consideration in the instant case, defendant must be resentenced.
iii. the trial court committed reversible error in denying defendant’s request that it instruct the jury that it could not find more than one aggravating circumstance based upon its consideration of the same evidence where the court submitted both the N.c. gen. stat. §15a-2000(e)(5) and (e)(11) aggravating circumstances and the evidence presented and instructions given (1) permitted the jury to find both circumstances based upon its consideration of the same evidence that hardison was robbed.
Assignment of Error No. 54, R p 108.[2]
The trial court denied defendant’s motion that the jury be instructed that it could not use the same evidence to support more than one aggravating factor. Subsequently, the court instructed jurors in a manner that permitted it to find the (e)(5) aggravating circumstance, that the murder was committed while Mitchell was engaged in the commission of a robbery with a firearm, and the (e)(11) aggravating circumstance, that the murder was part of a course of conduct which included other crimes of violence against others, based upon its consideration of the same evidence showing that Hardison, as well as Creech, was robbed (vol. XII (dated 9/7-8/00), t pp 10-12); r pp 63-65, 81-82). The court’s instruction was error that violated Mitchell’s constitutional due process rights and N.C. Gen. Stat. §15A-2000. Mitchell was prejudiced and, accordingly, must be given a new sentencing hearing.
“Where there is separate evidence to support each aggravating circumstance, it is not improper for both of the circumstances to be submitted even though the evidence supporting each may overlap.” State v. Gay, 334 N.C. 467, 434 S.E.2d 840 (1993), citing State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1993); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987). However, it is improper for the trial court to submit two aggravating circumstances supported by the same evidence, Gay, 334 N.C. 467, 434 S.E.2d 840; Quesinberry, 319 N.C. 228, 354 S.E.2d 446, and, when requested by defendant, the trial court should instruct jurors in such a way as to ensure that they will not use the same evidence to find more than one aggravating circumstance. State v. Rich, 346 N.C. 50, 64, 484 S.E.2d 394, 403 (1997).
At the conclusion of the State’s case during the penalty phase, defendant informed the court that she wanted “an instruction that the same evidence cannot be used in support of more than one aggravator” (vol. XI (dated 9/6/00), t p 99). When, in response to the court’s inquiry, defendant told the court that she had no such instruction prepared, the court replied, “[t]he law will take care of it. The instruction will stand as set forth.” Id. Subsequently, the court instructed the jury on the (e)(5) aggravating circumstance, that the murder was committed during the commission of a felony, and the (e)(11) aggravating circumstance, that the murder was part of a course of conduct which included other crimes of violence against others (vol. XII (dated 9/7-8/00), t pp 9-12; r pp 62-65). The court failed to give the requested limiting instruction.
In Rich, 346 N.C. 50, 484 S.E.2d 394, the defendant argued that the trial court erred in failing to give the limiting instruction at issue here where the two aggravating circumstances relied upon by the State were that the murder was committed by a person lawfully incarcerated, N.C. Gen. Stat. §15A-2000(e)(1), and that the defendant had been previously convicted of a felony involving the use or threat of violence, N.C. Gen. Stat. §15A-2000(e)(3). The evidence showed that the defendant previously had been convicted of shooting into an occupied vehicle and of second-degree murder. This Rich Court focused on the fact that the defendant had failed to request the limiting instruction at trial and concluded that there was no “plain error.” See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983),. The Court said, “[g]iven the fact that there was independent evidence supporting each aggravating circumstance, the fact that the aggravating circumstances were not interdependent, and the fact that defendant did not think it necessary to request a limiting instruction at sentencing, we conclude that it is unlikely any possible error affected the outcome.” Rich, 346 N.C. at 64, 484 S.E.2d at 403 (emphasis added).
Unlike Rich, defendant in the instant case actually requested that the trial court instruct the jury that it could not find more than one aggravating circumstance based upon its consideration of the same evidence. Therefore, Mitchell is only required to show that the trial court’s action constituted error. Evidence presented by the State in the instant case showed that Hardison also was robbed. Specifically, that evidence showed that, after Hardison was shot and while he was lying on the floor, either Mitchell or Freeman went through his pockets (vol. VI (dated 8/28/00), t p 29). N.C. Gen. Stat. §14-87 defines the offense of robbery with a dangerous weapon as the taking or attempted taking of personal property with the use of a weapon. The court’s failure to give the requested limiting instruction was error in the instant case because, on the evidence presented by the State, jurors could have found both (e)(5), that the murder was committed during the commission of an armed robbery, and (e)(11), that the murder was part of a course of conduct that included crimes of violence against another, based upon its consideration of the same evidence showing that Hardison was robbed.
The trial court in the instant case instructed the jury that it could find the (e)(5) circumstance if it found that
When the Defendant killed the victim the Defendant was perpetrating robbery with a firearm and that the Defendant had in his possession a firearm and took and carried away property from the person or presence of a person without his voluntary consent, by endangering or threatening his life with the use or threatened use of a firearm, the Defendant knowing that he was not entitled to take the property and intending to deprive that person of its use permanently…
(Vol. XII (dated 9/7-8/00), t pp 10-11; r pp 63-64.) Regarding the (e)(11) circumstance, the trial court charged the jury
[W]as this murder part of a course of conduct in which the Defendant engaged, and did that course of conduct include the commission by the Defendant of other crimes of violence against another person or persons? A murder is part of such a course of conduct if you find from the evidence beyond a reasonable doubt that, in addition to killing the victim, the Defendant on or about the alleged date was engaged in the course of conduct which involved the commission of another crime of violence against another person, and that this other crime was committed in the same course of conduct in which the killing of the victim was also a part.
(Vol. XII (dated 9/7-8/00), t pp 11-12; r pp 64-65.) This Court should note that, in defining the (e)(5) aggravating circumstance, the trial court did not limit the jury’s consideration to Creech’s robbery. This Court should also note that, in defining the (e)(11) circumstance, the trial court did not specify to the jury that it should limit its consideration to the assault committed against Hardison – and not the robbery. Without the requested limiting instruction, jurors were free to use the same evidence that Mitchell robbed Hardison twice, in violation of Gay. See Rich, 334 N.C. 467, 434 S.E.2d 840; Quesinberry, 319 N.C. 228, 354 S.E.2d 446. Further, because all of the evidence concerning the perpetrators’ conduct toward Hardison supported the course of conduct circumstance, in the absence of an instruction limiting the jury’s consideration, no evidence was left over to support the (e)(11) circumstance.
Because on the facts of this case, it cannot be known whether jurors considered the same evidence that Mitchell robbed Hardison to find both the (e)(5) circumstance, that the murder occurred during the commission of an armed robbery, and (e)(11), was part of a course of conduct that included violence against another, the State cannot establish that this error was harmless beyond a reasonable doubt. There simply is no way to know whether the jurors used the same evidence duplicatively. Accordingly, Mitchell is entitled to a new sentencing hearing.
iv. the trial court committed constitutional error by failing to instruct the jury on the (f)(6) mitigating circumstance that the defendant’s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.
Assignment of Error No. 37, R p 106.
Mitchell presented evidence at sentencing which supported the submission of the N.C. Gen. Stat. §15A-2000(f)(6) mitigating circumstance, that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. The trial court declined to submit this circumstance (vol. XI (dated 9/6/00), t p 83). The trial court’s failure to submit a factually supported statutory mitigating circumstance was reversible constitutional error under the Eighth and Fourteenth Amendments of the United States Constitution and Article I, §27 of the North Carolina Constitution. See e.g., State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 130 L.Ed.2d 649 (1995) (failure to submit a statutory mitigating circumstance has federal constitutional implications and requires reversal absent showing of harmlessness beyond a reasonable doubt); accord, State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988). Accordingly, Mitchell must be resentenced.
Mitchell presented compelling evidence at sentencing showing that he had suffered many deprivations throughout his childhood. Born to a marriage between a black serviceman and a white German mother, Mitchell was continually teased because he was black while his mother and older brother, Pat, were white. Mitchell’s own father referred to him as a “pussy boy.” His father’s family refused to accept Mitchell, his mother and brothers. They considered her an “outcast” and considered Mitchell and his brothers “children of an outcast.” (Vol. X (dated 9/5/00), t pp 33, 44, 133, 142.)
Mitchell’s father was an alcoholic who failed to provide for his family. As a result, Mitchell grew up in extreme poverty in a home that lacked running water or heat. There was no money for food, clothing or medicine. Mitchell’s father verbally and physically abused his family. Mitchell had repeatedly witnessed physical violence between his parents. He had seen his mother stab his father in the eye and try to choke him. Mitchell had seen his father strike his mother in the mouth and, on multiple occasions, threaten her with a sawed-off shotgun. Mitchell himself suffered physical abuse at the hands of his father, being beat with a stick so severely on one occasion that he required hospitalization. Eventually, Mitchell’s mother obtained a restraining order against his father. Mitchell’s father violated the order at will. Mitchell’s father said he owned Mitchell’s mother and would kill her if she divorced him. (Vol. X (dated 9/5/00), t pp 43, 53, 58,-64, 75, 130.); Vol. XI (dated 9/6/00), t p 21-22.)
Mitchell was depressed and upset because his mother would not take his father back. He became agitated if his mother said anything about his father and, on one such occasion, had jumped in front of a car. Mitchell started overeating. He gained more than one hundred pounds in a year’s time and was nicknamed, “Chubby.” Mitchell was diagnosed as obese and, at age twelve, had heart problems and suffered from migraine headaches. He failed the fifth grade. Mitchell’s mother took him to the mental health center where he was kept for two days. Mitchell refused to go back, insisting that nothing was wrong with him. (Vol. X (dated 9/5/00), t pp 72-74, 99.)
Mitchell’s mother worked hard to take care of her family, but lacked a support system. She was forced to “voluntarily” place Mitchell and his brothers in a foster home for eight days when she had to be hospitalized and had no one to keep them. She became a “working alcoholic.” (Vol. X (dated 9/5/00), t pp 80-82.)
In his early teen years Mitchell lost two important people in his life. His older brother, Pat, was deported back to Germany and his father moved to New York. Mitchell’s father left in order to avoid having to make court-ordered support payments to his family. He did not tell his wife or children that he was leaving or tell them goodbye. Mitchell began using drugs. Several years later, Mitchell’s father called to tell Mitchell he was dying and ask Mitchell to visit him. In spite of everything, Mitchell still loved his father and planned to do so. However, his father died before he could—on 11 January 1999. Mitchell was upset about his father’s death and upset that his father might have to be cremated because there was no money to bury him. Mitchell’s father died just three days before Creech was killed. (Vol. X (dated 9/5/00), t pp 76-78, 83, 87-88.)
Mitchell’s expert witness, Dr. John Warren, a licensed psychologist, testified that defendant did not receive the emotional nurturance and guidance he needed from his parents and that, as a result this abuse, his emotional growth was stunted. Defendant lacked self-esteem; was easily overwhelmed with depression and unable to meet his own safety needs. On numerous occasions he had attempted to hurt himself. Defendant had loved his father, but feared him and was weary of him. Defendant’s father’s death had a mixed effect upon defendant: guilt that he had not gone to see him and love for the only father he had. In addition, defendant suffered from chronic depression and poly-substance dependence – a condition much more severe than mere drug abuse. When Creech was killed, defendant was overwhelmed; disoriented; experiencing shocky feelings; and sensing that things were unreal and out of balance. He had ingested both alcohol and cocaine. While defendant’s overall intelligence quota (IQ) was in the low-average range in the twenty-third percentile and he did not meet any of the criteria for insanity, he did meet the criteria for a personality disorder. Dr. Warren testified that defendant was under the influence of a mental or emotional disturbance when Creech was killed. (Vol. XI (dated 9/6/00), t pp 24-63.)
This evidence that defendant suffered from a personality disorder brought on by emotional and physical abuse; aggravated by chronic depression and poly-substance dependence and exacerbated by the death of his father supported the submission of the (f)(6) statutory mitigating circumstance that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.. Our statute indicates that the standard for submission of statutory mitigating circumstances is very lenient. The statute states in relevant part:
In all cases in which the death penalty may be authorized, the judge shall include in his instructions to the jury that it must consider any aggravating and mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) which may be supported by the evidence, and shall furnish to the jury a written list of issues relating to such aggravating or mitigating circumstance or circumstances.
N.C. Gen. Stat. §15A-2000(b) (emphasis added). The phrase, “may be supported by the evidence: together with the fairly low burden of proof applicable to mitigating circumstances, preponderance of evidence[3], implies that where evidence is presented that is relevant to a statutory mitigating circumstance, the judge should submit the circumstance to the jury for its consideration. See e.g., State v. Baker, 338 N.C. 526, 566, 451 S.E.2d 574, 598 (1994) (any reasonable doubt regarding the submission of a statutory mitigating circumstance should be resolved in favor of the defendant).
This Court defined the (f)(6) circumstance in State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979). Johnson states:
This mitigating circumstance may exist even if a defendant has the capacity to know right from wrong, to know that the act he committed was wrong, and to know the nature and the quality of that act. It would exist even under these circumstances if the defendant’s capacity to appreciate (to fully comprehend or be fully sensible of) the criminality (wrongfulness) of his conduct was impaired (lessened or diminished), or if defendant’s capacity to follow the law and refrain from engaging in the illegal conduct was likewise impaired.
Id. at 68, 257 S.E.2d at 613. In State v. Stokes, 308 N.C. 634, 304 S.E.2d 184 (1983) this Court, following Johnson, found that evidence showing the defendant was mildly retarded and suffered from a “antisocial personality disorder” was sufficient to require the submission of the (f)(6) circumstance. Id. at 655-56, 304 S.E.2d at 197.
In State v. Price, 331 N.C. 620, 418 S.E.2d 169 (1992), vacated on other grounds, 506 U.S. 1043, 122 L.Ed.2d 113 (1993), this Court held that testimony by the defendant’s expert witness that the defendant suffered from a mental illness which impaired his ability to make judgments and have appropriate mood responses supported the submission of the (f)(6) circumstance. Id. at 632, 418 S.E.2d at 176. In State v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1991), this Court held that evidence that the defendant was in the “borderline range of intellectual functioning” and had “limited understanding of social rules and norms” justified submission of this circumstance. Quick, 329 N.C. at 34, 405 S.E.2d at 199.
Similarly in the instant case, there was expert testimony that Mitchell suffered from a mental defect, a personality disorder; that he was disoriented and under the influence of a mental or emotional disturbance. This evidence supported the submission of the (f)(6) circumstance and the trial court erred by failing to submit it for the jury’s consideration. The law is clear that “when evidence is presented in a capital case which may support a statutory mitigating circumstance, the trial court is required by the language in 15A-2000(b) to submit the circumstance to the jury for its consideration.” State v. Lloyd, 321 N.C. at 311, 364 S.E.2d at 323.
The trial court’s failure to submit the (f)(6) mitigating circumstance was not harmless error. See Mahaley, supra. (harmless error standard applies). Of the non-statutory mitigating circumstances submitted to the jury that focused on Mitchell’s overall mental condition, at least one juror found that
(5) The Defendant was very upset by his father’s death.
(6) The Defendant’s lack of coping mechanisms increased the effect of his father’s death on him.
(8) The Defendant used drugs on the day of, and during the days immediately previous to the crime.
(11) The Defendant used drugs on the day of the crime.
(19) The turmoil and impoverishment of the Defendant’s background prevented him from ever developing adequate coping skills.
(21) The turmoil and impoverishment of the Defendant’s background caused him to have feelings of low self-esteem and worthlessness.
(37) The Defendant has suffered from chronic depression since childhood.
(39) The Defendant never received adequate treatment for his mental health problems.
(R pp 83-86.)
Of the mitigating circumstances submitted to the jury that focused on Mitchell’s mental state at the time of the crime at least one juror found and gave mitigating weight to the circumstances that
(2) [t]his murder was committed while the Defendant was under the influence of mental or emotional disturbance;
(7) [t]he Defendant’s chronic depression was worse at the time of the crime due to his father’s death; and
(9) [t]he Defendant was under the influence of long standing polysubstance dependence at the time of the crime.
(R p 83.) However, no juror gave mitigating weight to the circumstance that
(10) [t]he Defendant was under the influence of a longstanding personality disorder at the time of the crime.
(R p 83.) These findings on the nonstatutory mitigating circumstances reveal that at least one juror was convinced by Dr. Warren’s testimony and was concerned about Mitchell’s mental condition.
It can not be known whether jurors believed Dr. Warren’s testimony that Mitchell was suffering from a personality disorder when Creech was killed, but nevertheless, rejected the circumstance because they did not believe it had mitigating value. This Court often has held that the submission of similar nonstatutory circumstances does not render the failure to submit statutory mitigating circumstances harmless because jurors have the discretion to reject nonstatutory mitigating circumstances on the grounds they have no mitigating value. State v. Mahaley, supra; State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated, 494 U.S. 1022, 108 L.Ed.2d 602 (1990).
This Court has no way of knowing whether the trial court’s failure to submit the (f)(6) statutory mitigating factor, which jurors would have been required to weigh in their sentencing decision if they found it to be factually supported, may have tipped the scales in favor of life at Issues Three or Four. Mahaley, 332 N.C. at 598-99, 423 S.E.2d at 67; State v. Wilson, 322 N.C. At 146, 367 S.E.2d at 606. Thus, the State cannot show harmlessness and Mitchell must be resentenced.
v. the trial court committed reversible error when it overruled defendant’s objection and allowed tom trochum, the state’s expert in firearm analysis and identification, to give medical expert opinion testimony regarding the cause of creech’s wounds.
*Assignment of Error No. 53, R p 108.[4]
Special Agent Tom Trochum, a forensic firearm and toolmark examiner with the State Bureau of Investigation, was accepted by the court as an expert in firearm analysis and identification (vol. VIII (dated 8/30/00), t pp 78, 81). Though no evidence was presented that Mr. Trochum also was qualified as a medical expert, the court overruled defendant’s objections and permitted Mr. Trochum to give medical expert opinion testimony that the particular wounds sustained by Mr. Creech could have been caused by bullets from the cartridges he examined (vol. VIII (dated 8/30/00), t p 96). Because this testimony regarding the cause of Mr. Creech’s wounds was outside Mr. Trochum’s area of expertise and no evidence was presented that Hendricks was qualified to render such expert opinion, the court’s action was error which violated North Carolina Rules of Evidence 701 and 702 and deprived Mitchell of his constitutional rights to due process and a fair trial. Mitchell was prejudiced and, accordingly, is entitled to a new trial.
A witness qualified as an expert by knowledge, skill, experience, training, or education, may testify to an opinion on a relevant issue if he has specialized knowledge that will assist the jury in understanding the evidence or determining a contested fact. N.C.G.S. 8C-1, Rule 702. However, a witness’s qualifications in one area do not give him license to opine on subjects outside his area of expertise. See, e.g., State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898 (1987) (forensic pathologist not qualified as expert on pattern a knife blade makes when it is wiped on a shirt); In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994) (clinical social worker not qualified to render opinion on mother’s mental status and ability to care for child); Martin v. Benson, 125 N.C. App. 330, 481 S.E.2d 292, rev. dismissed, 346 N.C. 179, 486 S.E2d 206 (1997) (neuropsychologist could not testify regarding whether plaintiff suffered closed head injury because such testimony reserved for those who practice medicine). The opinion testimony of a non-expert witness is limited to that based on his own perceptions. N.C.G.S. 8C-1, Rule 701
Following Mr. Trochum’s proper expert opinion testimony encompassing descriptions and comparisons of the fired cartridges he examined; their possible manufacturers, identifying marks and likelihood of being fired from the same weapon, the court overruled defendant’s objection to a question clearly meant to elicit medical expert opinion testimony from the State’s firearm analysis and identification expert. Specifically, the following examination occurred:
PROSECUTOR: Based on your training and experience, are you familiar with the type of damage that this particular type of ammunition may cause to the human body?
DEFENSE ATTORNEY: I would object to that, Your Honor.
THE COURT: Objection is overruled.
MR. TROCHUM: Yes, sir.
PROSECUTOR: I’m now going to show you what has been marked and introduced into evidence as State’s Exhibit Number 36, State’s Exhibit Number 37, State’s Exhibit Number 38, and State’s Exhibit Number 39. Will you please examine these photographs and tell me whether or not the wounds that you observe there, whether or not you can form an opinion to a reasonable scientific certainty as to whether or not the ammunition that you examined could have caused that particular damage?
DEFENSE ATTORNEY: I would object.
THE COURT: Overruled.
MR. TROCHUM: The particular cartridges have the ability, of course. In State’s Exhibit Number 36 and 38, you have what appears to be a small penetration here. Certainly that’s capable of these particular bullets. In State’s Exhibit Number 37 and 39, you have large wounds here. I would expect to see this from either a fragmenting gunshot, if they ---
DEFENSE ATTORNEY: Objection.
MR. TROCHUM: -- were caused by these particular bullets.
THE COURT: Overruled.
MR. TROCHUM: This would – they are not incapable of this type of damage. Again, these are excellent penetrators. I have seen them go completely through bodies. I’ve had them in crime scenes where they’ve been ---
DEFENSE ATTORNEY: Objection.
MR. TROCHUM: -- through a wall.
THE COURT: Well, objection sustained as to that.
(Vol. VIII (dated 8/30/00), t pp 95-97.)
Our courts have said that testimony regarding the cause of an injury is medical expert opinion testimony and includes opinions that certain injuries were produced by blunt instruments, State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967); that wounds were or were not self-inflicted, State v. Hunt, 305 N.C. 238, 287 S.E.2d 818 (1982); and that the blunt force that caused injuries could have been by boot or foot, State v. Davis, 77 N.C. App. 68, 334 S.E.2d 509 (1985). Clearly, Mr. Trochum’s testimony that the small wounds shown in State’s Exhibits 36 and 38 could have been caused by bullets from the cartridges he examined and that the large wounds shown in State’s Exhibits 37 and 38 probably were caused by fragmenting gunshots from those cartridges, i.e., what likely caused Mr. Creech’s injuries, undoubtedly constituted medical expert testimony. Under the holdings in State v. Porth, 269 N.C. 329, 153 S.E.2d 10; Zuniga, 320 N.C. 233, 357 S.E.2d 898; Carr, 116 N.C. App. 403, 448 S.E.2d 299, and Benson, 125 N.C. App. 330, 481 S.E.2d 292, his testimony was inadmissible since his qualifications in the field of firearm analysis and identification did not qualify him as a medical expert.
In Porth, 269 N.C. 329, 153 S.E.2d 10, the State introduced expert testimony that the defendant’s wife died as a result of multiple external and internal injuries produced by some blunt instrument. However, when the defendant asked the trooper who investigated the incident what he had indicated as the cause of death on his report, the trial court sustained the State’s objection and would not permit the trooper to testify that “[t]here definitely were no signs to indicate a violent death.” Our Supreme Court found no error in the trial court’s sustaining the objection, holding that
[O]nly an autopsy by a medical expert could determine the cause of death. [The trooper] testified as to bruises and contusions he observed. This did not qualify him to testify as an expert witness and tell the jury, “There definitely were no signs to indicate a violent death.” The court properly sustained the objection as the conclusion of an unqualified witness.
269 N.C. at 339, 153 S.E.2d at 18.
In Zuniga, 320 N.C. 233, 357 S.E.2d 898, this Court held that the trial court had erroneously permitted a forensic pathologist to testify that the stains on a shirt could have been made by someone wiping a blade on it because the pathologist was in no better position than the jury to determine the cause of the bloodstains.. Id. at 251, 357 S.E.2d at 910. Similarly, in In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994), the Court of Appeals held that a clinical social worker was not qualified to render opinion on a mother’s mental status and ability to care for her child because she was only qualified as an expert in clinical social work. There was no evidence that she was an expert in mental health issues. Finally, in Martin v. Benson, 125 N.C. App. 330, 481 S.E.2d 292, rev. dismissed, 346 N.C. 179, 486 S.E2d 206 (1997), the Court of Appeals held that a neuropsychologist could not testify regarding whether the plaintiff suffered closed head injury because such testimony is reserved for those who practice medicine.
Mr. Trochum was a forensic firearm and toolmark examiner who demonstrated no specialized knowledge involving the cause of particular injuries that would be of assistance to the jury. His testimony revealed no such specialized knowledge and the court did not find him to be an expert in such matters. Thus, Trochum’s testimony regarding the cause of a particular injury, a subject clearly outside his area of expertise, was strictly limited to that based upon his own perceptions. Clearly, the trial court erred when it overruled Mitchell’s objection and permitted Mr. Trochum to give expert opinion testimony on a subject clearly outside his area of expertise.
Mitchell was prejudiced by the improperly admitted testimony because it suggested that Mitchell, whom Hardison identified as the man carrying the bolt-like rifle in the trailer, fired the shots that seriously wounded Hardimont and fatally wounded Creech. Were jurors to have believed Trochum’s testimony that bullets from the cartridges he examined caused the wounds, they naturally would have concluded that Mitchell was the more culpable party and considered that when they sentenced him to die.[5] See State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987) (recognizing that the defendant who actually struck the fatal blow is more culpable than a codefendant who did not); Enmund v. Florida, 458 U.S. 782, 73 L.E.2d 1140 (1982) (defendant must have intended to kill or that deadly force be used in order to be eligible for the death penalty). . It should be noted that the State’s evidence that defendant was the actual shooter in this case was relatively weak. Just one week after the shooting, Hardison, the only eyewitness to testify at Mitchell’s trial, was not sure that Mitchell was the shooter (vol. VII (dated 8/29/00), t pp 141-155). According to the statement Frazier gave police, Freeman had the gun when Frazier, Freeman and Mitchell were leaving Santiago’s house; Freeman got into the car with the gun and Freeman possibly had the gun with him when they got out of the car at Creech’s trailer (vol. X (dated 9/5/00), t pp 123-24).
Because it can not be said with any confidence that Agent Trochum’s improper medical expert opinion testimony that bullets from the cartridges he examined caused the particular wounds shown in the State’s Exhibits did not contribute to the jury’s decision to sentence Mitchell to death, he must be given a new sentencing hearing.
vi. The trial court committed reversible constitutional error when it overruled defendant’s objection and ordered that defendant be shackled at all times while in the courtroom.
Assignment of Error No. 1, R p 100.
Based on testimony from the detention center administrator, Frank Gunter, that he had reviewed records from the Craven Correctional Center which revealed “prior disagreeable and assaultive behavior” by Mitchell, and based on Gunter’s own report regarding Mitchell’s out-of-court behavior on that particular day, the trial court overruled Mitchell’s objection and ordered that Mitchell remain shackled at all times while in the courtroom (vol. I, t pp 6-18). The court’s ruling was error which violated Mitchell’s state and federal constitutional rights to due process and a fair trial. Mitchell was prejudiced and, accordingly, is entitled to a new trial.
Wearing a device such as a shackle may make a defendant’s appearance less favorable to the jury so that his right to a fair trial may be denied. Estelle v. Williams, 425 U.S. 501, 503, 48 L.Ed.2d 16, 130-31 (1976) However, even when jurors are not aware that a defendant is wearing shackles, being forced to wear the shackles may deprive a defendant of the free and calm use of his faculties. State v. Williams, 18 Wash. 47, 49-51, 50 P. 580, 581 (1897) quoting State v. Kring, 64 Mo. 591 (1877). Depriving a defendant of the full use of his faculties violates the Fourteenth Amendment. Allgeyer v. Louisiana, 165 U.S. 578, 41 L.E. 832 (1897).
Therefore, a defendant may not normally be forced to appear in court in shackles, Estelle v. Williams, 425 U.S. at 504-05, 48 L.Ed.2d at 131, and a trial judge may order that a defendant be subjected to physical restraint in the courtroom only when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant's escape, or provide for the safety of persons. N.C. Gen. Stat. § 15A-1031 (1997); State v. Thomas, 350 N.C. 315, 330, 514 S.E.2d 486, 496 (1999).
A. The Record Does Not Establish that Use of the Restraint was Necessary.
Essential to the concept of due process is the principle that every person who stands accused of a crime is entitled to the “fundamental liberty” of a fair and impartial trial, Estelle v. Williams, 425 U.S. 501, 48 L.Ed.2d 16; the presumption of innocence is a basic component of a fair trial under our system of criminal justice. Coffin v. United States, 156 U.S. 432, 39 L.Ed.2d 481 (1895). Therefore, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man. Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946). The general rule is that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary instances. United States v. Henderson, 472 F.2d 556 (5th Cir.), cert. denied, 411 U.S. 971, 36 L.Ed.2d 694 (1973); United States v. Thompson, 432 F.2d 997 (4th Cir. 1970).
In State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976), this Court recognized that shackling a criminal defendant may interfere with the defendant’s thought processes and ease of communication with his counsel so that the circumstances warranting shackling or other restraint in the courtroom during trial must truly be extraordinary. This Court said that, in determining whether shackling is necessary, the trial court should consider:
(1) the seriousness of the charge against defendant;
(2) defendant’s temperament and character;
(3) defendant’s age and physical attributes;
(4) defendant’s past record;
(5) any past escapes, attempted escapes or evidence of a plan to escape;
(6) threats to harm others or cause a disturbance;
(7) self-destructive tendencies;
(8) the risk of mob violence or of attempted revenge by others;
(9) the possibility of rescue by other offenders still at large;
(10) the size and mood of the audience;
(11) the nature and physical security of the courtroom and
(12) the adequacy and availability of alternative remedies.
Id. at 368, 226 S.E.2d at 367-68. The Tolley Court refused to find that the trial court abused its discretion in ordering the defendant shackled during his trial where (1) the defendant had attempted to escape during a preliminary hearing one month before trial; (2) the sheriff had recommended the restraints as a security measure; (3) and defense counsel did not object to the court’s action; or otherwise seek to challenge the court’s action or reasons for it. Id. at 370-71, 226 S.E.2d at 369-70.
Similarly, in Thomas, 350 N.C. 315, 514 S.E.2d 486, this Court found no abuse of discretion on the part of the trial court in ordering the defendant to remain shackled during his trial where the evidence in that case showed that on the day the case was called for trial the defendant (1) had warned all parties that he would be violent and tip over a table; (2) had refused to come to the courtroom when the case was called for trial; (3) had to be physically brought into the courtroom by five bailiffs even after being shackled; (4) had still managed to cause a disturbance that brought the proceedings to a halt; and (5) had threatened his attorneys and a bailiff with physical injury. While the evidence presented in Tolley and Thomas supported conclusions that the defendants in those cases would disrupt their trial proceedings (through violence, attempted escape, or otherwise), unless physically restrained, making shackling necessary, no such showing was made regarding Mitchell in the instant case.
In the first instance, the record does not indicate that the trial court even considered the factors the Tolley Court said properly should be considered by the trial court in determining whether shackling is required. Completely absent from the record is any indication of the size and mood of the audience (factor 10); that there was a risk of mob violence or attempted revenge by others if defendant was not shackled (factor 8); that defendant would be rescued by his codefendants if not shackled (factor 9) or that defendant previously had attempted to, planned to or successfully escaped from custody ( factor 5). In fact, the record shows that the only evidence the court considered when it determined that Mitchell would be shackled was the testimony of the detention center administrator, Mr. Gunter.
Some of Mr. Gunter’s testimony concerned behavior that occurred more than a year prior to the start of the trial proceedings. (vol. I (dated 8/21/00), t pp 612). Other portions of his testimony related to Mitchell’s behavior on that particular day (vol. I (dated 8/21/00), t pp 12-14). However, no evidence was presented that at the time of his trial Mitchell was a threat to the court, the court’s decorum or the public. In fact, because whether Mitchell was a threat necessarily depended so heavily upon the security measures being undertaken in the courtroom and the trial court failed to consider factor number (11), the nature and physical security of the courtroom, any such finding that Mitchell was a threat necessarily would not have been supported by the record. Because the record did not support an inference that Mitchell was a danger to the safety or decorum of the court or that he represented a flight risk, Gunter’s personal belief that Mitchell “was dangerous” was an insufficient basis for ordering him shackled. The trial court’s order authorizing such action was error. State v. Thomas, 350 N.C. 315, 514 S.E.2d 486, makes clear that a much stronger showing of necessity is required and, had the trial court in the instant case considered the factors it was required by Thomas to consider, it would have had to determine that shackling Mitchell was unnecessary.
While broad discretion to order a defendant shackled is vested in the trial court, that discretion is not unlimited and must be exercised meaningfully. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353. Here, the trial court found
“as a fact that since the Defendant’s incarceration both in the custody at safekeeping in the Department of Corrections and while in the Johnston County detention facility that the Defendant has participated in a number of disciplinary problems, including assaultive behavior, failure to follow rules, and other matters as testified to by Mr. Gunter. In order to avoid a possible problem of similar conduct in the courtroom, I am going to initially order that the Defendant is to remain shackled by the legs, which are not visible to the public or to the jurors who happen to be in the courtroom, and that that not be exposed by any manner to the jury or prospective jurors.” Vol. I (dated 8/21/01), t p 18.)
Being forced to wear a shackle during his trial likely adversely affected Mitchell’s mental and emotional state and lessened his ability to understand his legal proceedings, communicate with his counsel and assist in his own defense. See Riggins v. Nevada, 504 U.S. 127, 118 L.Ed.2d 479, quoting State v. Williams, 18 Wash. 47, 49-51, 50 P. 580, 581 (1897) (The condition of being shackled or bound may deprive a defendant of the free and calm use of all his faculties. Such shackling violated defendant’s due process right to a fundamentally fair trial if it substantially diminished his mental faculties).
Compelling the defendant to stand trial while shackled is inherently prejudicial in that it so infringes upon the presumption of innocence and interferes with a fair and just decision on the question of guilt or innocence. State v. Tolley, 290 N.C. at 366, 226 S.E.2d at 367. As in Riggins,
Efforts to prove or disprove actual prejudice from the record … would be futile, and guesses whether the outcome of the trial might have been different if [defendant’s] [objection] [to being shackled] had been granted would be purely speculative. [This Court should] reject the [State’s] suggestions that [defendant] should be required to demonstrate how the trial would have proceeded differently if he had not been [shackled]. Like the consequences of compelling a defendant to wear prison clothing, or of binding and gagging an accused during trial, the precise consequences of forcing [defendant to wear shackles] cannot be shown from a trial transcript.”
Riggins, 127 U.S. at 137-38, 118 L.Ed.2d at 491.
Because of the inherent prejudice engendered by the use of shackles, the rule is that the burden of showing necessity for such measures rests upon the State. Id. The State will be unable to prove that the court’s error in ordering Mitchell shackled in the instant case was harmless beyond a reasonable doubt. See N.C. Gen. Stat. §15A-1443(b). Accordingly, Mitchell is entitled to a new trial.
vii. the trial court committed reversible error when it denied defendant’s motion to dismiss the charge of first-degree murder because the short-form indictment failed to allege that he killed after premeditation and deliberation or during the commission of a felony.
Assignments of Error Nos. 2, 20; R pp 100, 103.
Mitchell was convicted of first-degree murder (r p 56) even though the short-form indictment returned against him charged only that he “unlawfully, willfully and feloniously did of malice aforethought kill and murder” in violation of N.C. Gen. Stat. § 14-17 (r p 6). Because the short-form indictment failed to allege that the killing was committed during the commission of a felony or with premeditation and deliberation, it was sufficient to charge defendant with second-degree murder only.
Defendant acknowledges that this Court repeatedly has held that the short form indictment complies with the requirements of N.C. Gen. Stat. §15-144 and, thus, is sufficient to charge first-degree murder, see State v. Mitchell, 353 N.C. 309, 543 S.E.2d 830 (2001); State v. Holman, 353 N.C. 174, 179, 540 S.E.2d 18 (2000); State v. Golphin, 352 N.C. 364, 395, 533 S.E.2d 168, 193 (2000), cert. denied, 149 L.E.2d 305 (2001); that it is sufficient to indict on any theory of murder, State v. Braxton, 352 N.C. 158, 174-75, 531 S.E.2d 428, 437-38 (2000), and does not violate equal protection. Holman, 353 N.C. at 180, 540 S.E.2d at 23.
However, defendant contends that use of the short-form indictment to charge first-degree murder directly contravenes two recent opinions issued by the United States Supreme Court, Apprendi v. New Jersey, 530 U.S. 466, 527, 147 L.Ed.2d 435, 477 (2000); and Jones v. United States, 526 U.S. 227, 143 L.Ed.2d 311 (1999), which stand for the proposition that an “indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.” United States v. Reese, 92 U.S. 214, 232-33, 23 L.Ed. 563 (1876). Trial and conviction upon the invalid indictment violated Mitchell’s rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, §§19 and 23 of the North Carolina Constitution.
Because Mitchell was prejudiced, the conviction of first-degree murder must be reversed.
additional issues
The following arguments concern issues which do not necessitate extensive briefing. The issues are raised here with the request that the Court grant relief on them and, if this Court declines to do so, to preserve the issues in the event of later review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).
viii. the trial court committed reversible constitutional error by instructing jurors that they were permitted to reject submitted mitigation on the basis that it had no mitigating value.
Assignment of Error No. 47, R p. 108.
The trial court committed reversible constitutional error under the Eighth and Fourteenth Amendments by instructing the jury that jurors could reject proffered non-statutory mitigating circumstances on the grounds that the circumstances had no mitigating value. Defendant recognizes that this Court previously has rejected this claim. See State v Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, 122 L.Ed.2d 684 (1993).
ix. the north carolina death penalty statute is unconstitutional and the death sentence is a cruel and unusual punishment imposed in an arbitrary and discriminatory manner.
Assignment of Error No. 49, 51-52; R p. 108.
Defendant contends that the death penalty is inherently cruel and unusual and that the North Carolina death penalty statute, N.C. Gen. Stat. §15A-2000 is vague and overbroad. The statute is applied arbitrarily and pursuant to a pattern of discrimination on the basis of the race and sex of defendants and victims and on the basis of defendant’s poverty. The defendant concedes that this issue has been decided against him. State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, 131 L.Ed.2d 147 (1995); State v. Green 329 N.C. 686, 406 S.E.2d 852 (1991).
Conclusion
For the reason argued in Issue VII, defendant respectfully contends his first-degree murder conviction must be vacated.
For the reasons argued in Issues V and VI, defendant respectfully contends he is entitled to a new trial.
For the reasons argued in Issues I, II, II, IV, VIII and IX, defendant respectfully contends he is entitled to a new sentencing proceeding.
Respectfully submitted this the 1st_ day of October , 2001.
Electronic Submission
Charlesena Elliott Walker
Assistant Appellate Defender
Staples Hughes
Appellate Defender
Office of the Appellate Defender
123 West Main Street, Suite 600
Durham, North Carolina 27701
(919) 560-3334
ATTORNEYS FOR DEFENDANT
certificate of filing and service
I hereby certify that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26 by electronic means with the Clerk of the Supreme Court of North Carolina.
I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon Teresa H. Pell, Special Deputy Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, by first-class mail, postage prepaid.
This the 1st _ day of _ October _, 2001.
Electronic Submission
Charlesena Elliott Walker
Assistant Appellate Defender
-----------------------
[1] Defendant’s statement does not call the verdict of guilty of premeditated and deliberate murder into doubt. See State v. Barnes, 345 N.C. 184, 481 L.E.2d 44 (1997)
[2] Defendant has filed, contemporaneously with the filing of this Brief, a Motion to Amend the Record, seeking the Court’s permission to add this assignment of error to the record.
[3] See e.g., State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, sentence vacated, 488 U.S. 807, 102 L.Ed.2d 18 (1988) (defendant has burden of proving existence of mitigating circumstances by a preponderance of the evidence).
[4] Defendant has filed, contemporaneously with the filing of this brief, a motion to amend defendant-appellant’s record on appeal by adding this additional assignment of error.
[5] Defendant recognizes that, because he was convicted under the theory of felony murder as well as premeditation and deliberation, he can not argue that the improper admission of this testimony prejudiced him in the guilt phase of the proceedings since his guilt of felony murder was not dependent on his actually having fired the rifle.
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