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Stacey A. Tyler - No

VIEWS: 49 PAGES: 71

									No. 11A96                                                    SIX-B DISTRICT

                     SUPREME COURT OF NORTH CAROLINA

              ****************************************************

STATE OF NORTH CAROLINA              )
                                     )
             v.                      )     From Hertford
                                     )
STACEY ANTHONY TYLER                 )

              ****************************************************

                       DEFENDANT-APPELLANT’S BRIEF

              ****************************************************
                           QUESTIONS PRESENTED

      I.     WHETHER THE TRIAL COURT VIOLATED DEFENDANT'S RIGHTS
             UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AND
             FOURTEENTH AMENDMENTS AND UNDER NORTH CAROLINA LAW
             BY ADMITTING, UNDER THE RESIDUAL EXCEPTION TO THE
             HEARSAY    RULE,   EVIDENCE   ABOUT    THE   DECEDENT'S
             INCRIMINATING RESPONSES TO QUESTIONS ASKED BY A NURSE,
             WHERE THE TRIAL COURT RELIED ON EVIDENCE CORROBORATING
             THE RESPONSES IN FINDING CIRCUMSTANTIAL GUARANTEES OF
             TRUSTWORTHINESS, AND WHERE THE DECEDENT'S MENTAL
             CONDITION MADE HER RESPONSES UNRELIABLE?

      II.    WHETHER THE TRIAL COURT ERRED BY PERMITTING AN
             UNQUALIFIED WITNESS TO GIVE AN OPINION ABOUT THE CAUSE OF
             THE DECEDENT'S DEATH, WHERE THE WITNESS ADMITTED THAT
             SHE WAS NOT QUALIFIED TO DIAGNOSE THE ALLEGED CAUSE OF
             DEATH AND WHERE SHE RELIED ON THE HEARSAY OPINIONS OF
             OTHER MEDICAL PERSONNEL?

      III.   WHETHER THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S
             OBJECTIONS TO A WITNESS' UNQUALIFIED OPINION TESTIMONY
             ABOUT THE PERIOD DURING WHICH THE SEDATIVE VERSED
             AFFECTED THE DECEDENT'S MENTAL CONDITION?

      IV.    WHETHER THE TRIAL COURT ERRED BY PERMITTING A
             PROSECUTOR TO MAKE GROSSLY IMPROPER STATEMENTS DURING
             CLOSING ARGUMENT?
                              2

V.      WHETHER THE TRIAL COURT ERRED BY CONDUCTING
        UNRECORDED BENCH CONFERENCES WITH THE ATTORNEYS,
        OUTSIDE THE PRESENCE OF DEFENDANT?

VI.     WHETHER THE TRIAL COURT ERRED BY FAILING TO INTERVENE EX
        MERO MOTU TO STOP A PROSECUTOR FROM CLAIMING DURING A
        PENALTY PHASE CLOSING ARGUMENT THAT DEFENDANT HAD LIED
        IN HIS TESTIMONY?

VII.    WHETHER THE TRIAL COURT ERRED BY GRANTING THE STATE'S
        MOTION TO PROHIBIT DEFENSE COUNSEL FROM DISCUSSING
        PAROLE ELIGIBILITY FOR A LIFE SENTENCE DURING PENALTY
        PHASE CLOSING ARGUMENTS?

VIII.   WHETHER DEFENDANT'S JURY DETERMINED THE MURDER WAS
        "ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL" BASED UPON
        UNCONSTITUTIONALLY VAGUE INSTRUCTIONS WHICH FAILED TO
        DISTINGUISH DEATH-ELIGIBLE MURDERS FROM MURDERS WHICH
        ARE NOT DEATH-ELIGIBLE?

IX.     WHETHER THE TRIAL COURT'S CAPITAL SENTENCING JURY
        INSTRUCTIONS, WHICH DEFINED DEFENDANT'S BURDEN OF
        PERSUASION TO PROVE MITIGATING CIRCUMSTANCES AS EVIDENCE
        THAT "SATISFIES" EACH JUROR, WERE PLAIN ERROR THAT
        VIOLATED DUE PROCESS AND THE EIGHTH AND FOURTEENTH
        AMENDMENTS BECAUSE THAT DEFINITION DID NOT ADEQUATELY
        GUIDE THE JURY'S DISCRETION ABOUT THE REQUISITE DEGREE OF
        PROOF?

X.      WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR THAT
        VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS BY
        ALLOWING THE JURY TO REFUSE TO GIVE EFFECT TO MITIGATING
        EVIDENCE IF THE JURY DEEMED THE EVIDENCE NOT TO HAVE
        MITIGATING VALUE?

XI.     WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR BY
        ALLOWING JURORS NOT TO GIVE EFFECT TO MITIGATING
        CIRCUMSTANCES FOUND BY THE JURORS?

XII.    WHETHER THE TRIAL COURT ERRED BY SENTENCING DEFENDANT
        TO DEATH BECAUSE THE DEATH PENALTY IS INHERENTLY CRUEL
        AND UNUSUAL; THE NORTH CAROLINA CAPITAL SENTENCING
        SCHEME IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD; AND
        THE DEATH SENTENCE IN THIS CASE WAS NOT SUPPORTED BY THE
        EVIDENCE, WAS DISPROPORTIONATE, AND WAS IMPOSED UNDER
        THE ARBITRARY INFLUENCE OF PASSION, PREJUDICE, AND OTHER
        ARBITRARY FACTORS?
                                                3

                                STATEMENT OF THE CASE

       This case came on for trial at the October 16, 1995 Special Criminal Session of the

Superior Court of Hertford County, the Honorable Cy A. Grant, presiding, upon a bill of

indictment charging defendant with one count of murder. (Rp. 1)


       On November 2, 1995, following jury selection and the presentation of evidence, the jury

returned a verdict finding defendant guilty of first-degree murder. (Rp. 1)


       Following the presentation of further evidence related to the sentence to be imposed, the

trial court submitted one aggravating circumstance and 25 mitigating circumstances to the jurors.

The jury found the aggravating factor, that the murder was especially heinous, atrocious, or

cruel. (Rp. 127) One or more jurors found seven mitigating factors: (1) the defendant had no

significant history of criminal activity; (2) the defendant was the product of a family where both

parents were alcoholics; (3) the defendant was exposed to domestic violence between his father

and his mother; (4) the defendant was the object of verbal abuse by his mother; (5) the

defendant's father died when he was 10 years old leaving him without a father during his

formative years; (6) the defendant observed his mother's body immediately after she had been

fatally injured as the result of being struck by a car, which event produced tremendous feelings

of depression in the defendant, and contributed to his dropping out of school; and (7) the

defendant was neglected as a child because of his mother's drinking. (Rpp. 128-31)


       On November 9, 1995, after the jurors made these findings, the jury returned a binding

sentencing recommendation that defendant be executed. On November 9, 1995, Judge Grant

sentenced defendant to death. (Rp. 1)
                                                4

       From a judgment imposed on November 9, 1995 by Judge Grant , defendant entered

notice of appeal. By order dated January 9, 1996, this Court stayed execution of defendant's

death sentence pending appeal. (Rp. 1)


                               STATEMENT OF THE FACTS

GUILT-INNOCENCE PHASE

               A.     The State's Evidence

       Ernest Beale, Jr. is defendant's cousin. He also is a relative of the victim, Mary ("Evon")

Jennings Fleetwood. On November 5, 1993, at about 1 p.m., Mr. Beale was with a friend named

James Shearn, defendant, and Ms. Fleetwood in a trailer defendant shared with Ms. Fleetwood in

Wise Trailer Park in Murfreesboro. It was a chilly day. Mr. Beale had never been in that trailer

before. The trailer had about a seven-foot ceiling. It had a carpet. It had two kerosene heaters, a

round one near the sofa and a square one near a wall. The heat was not on when Mr. Beale

arrived at the trailer. Defendant had two 40-ounce bottles of malt liquor; he drank from one of

them. Defendant and Mr. Shearn played a baseball Nintendo game. Ms. Fleetwood was lying on

a sofa, facing to the inside of the sofa, away from the men. She wore a cream-colored sweater

with a green stripe, and blue jeans. During the game, defendant asked Ms. Fleetwood whether

she loved him. She did not reply. He soon asked her again, and again she did not reply. After

the game, defendant asked Ms. Fleetwood again, and she did not reply. Then defendant jumped

on Ms. Fleetwood three times. The third time, she hit him with her knees as he came down.

Then defendant took her off the couch, grabbed her hair, punched her twice in the face, said "I'll

kill you bitch," and asked her whether she loved him. Ms. Fleetwood was crying; she said yes.

She told him to stop. Defendant hit her a third time. Mr. Beale and Mr. Shearn told defendant to

calm down. Mr. Beale and Mr. Shearn considered leaving the trailer. Ms. Fleetwood said that if

they leave, the situation would become worse. Mr. Beale left and Mr. Shearn stayed. Mr. Beale

did not think defendant was impaired by alcohol at that time. (Tpp. 603-17, 625, 645-65)
                                               5

       Mr. Beale later returned to Ms. Fleetwood's trailer. Defendant was outside. Defendant

told Mr. Beale that he had "just finished kicking his girfriend's ass." Mr. Beale asked him why,

and defendant said that she was angry with him about another woman. Later that day, after 5

p.m., Mr. Beale passed by Ms. Fleetwood's trailer and heard defendant say, "Do you hear me,

Evon?" (Tpp. 621-25)


       James Thomas Shearn lived in Murfreesboro on November 5, 1993. It was a chilly day.

He had known defendant since 1984. Mr. Shearn has a prior conviction for common law

robbery. At one o'clock that afternoon, he and James Beale were in the trailer that defendant and

Ms. Fleetwood shared. Defendant had a 40-ounce container of beer. Defendant and Mr. Beale

drank beer. Mr. Shearn and defendant played Nintendo baseball. Ms. Fleetwood was lying on

the sofa. Ms. Fleetwood said that she did not want to light a kerosene heater that was in the

trailer because she was by herself. Defendant asked Ms. Fleetwood whether she loved him. She

either did not reply or gave an inaudible reply. Then defendant jumped on her. She told him to

stop acting stupid. He continued to jump on her and he punched her hard in the face. Mr.

Shearn told defendant to calm down. Defendant uttered profanities against Ms. Fleetwood. Ms.

Fleetwood cried. Then defendant and Mr. Shearn resumed their game. Twice again, defendant

jumped on Ms. Fleetwood, punched her, and asked her whether she loved him. Mr. Shearn

stepped between them to intervene on these occasions. These incidents occurred during a 20-

minute period. (Tpp. 667-81, 688-701)


       After the third incident, Mr. Beale and Mr. Shearn said they would leave. Ms. Fleetwood

asked them not to leave and said that the situation would just become worse. She was crying.

Mr. Beale left, but Mr. Shearn stayed to try to calm the situation. Ms. Fleetwood cleaned up that

spilled when a table had fallen over during the incidents. She was crying. Mr. Shearn left the

trailer at 3:20 p.m. (Tpp. 681-88, 701-02)
                                                6

       On November 5, 1993, Angela Eley lived in Wise Trailer Park. The temperature was

cool that day. She is a relative of defendant and has known him for over ten years. That day,

while she and her daughter walked passed Ms. Fleetwood's trailer on her way to her mother's

trailer, she heard a commotion inside the trailer and saw a trailer window break. She heard

defendant use profanities inside the trailer. That evening, Ms. Eley and her sister went to Ms.

Fleetwood's trailer. An ambulance was there. Ms. Fleetwood's face was burned, her flesh was

pink, and she had no hair on her head. She was not recognizable. Ms. Eley entered the trailer.

The living room was a mess. Water was on the floor and smut was in the bathtub. There was no

shower curtain. In the bedroom, the mattress was hanging off the bed, clothes were hanging out

of the closet, and the closet door was on the bed. (Tp. 704-30, 733)


       Ms. Eley testified about three prior incidents she observed concerning defendant and Ms.

Fleetwood. One to one and one-half years before November 5, 1993, Ms. Fleetwood, Ms. Eley,

and Ms. Eley's two children were in Ms. Fleetwood's trailer, eating sandwiches. Defendant

entered and asked Ms. Fleetwood where his food was. She did not answer. He asked again. She

told him to leave her alone. He then asked her where his motherf___ing food was. She did not

answer. He then pushed her plate of food into her face. Ms. Eley asked whether Ms. Fleetwood

wanted her to call the police; Ms. Fleetwood said no, that she could handle it. Six months before

November 5, 1993, Ms. Eley, Ms. Fleetwood, and defendant were in Ms. Fleetwood's trailer.

Ms. Fleetwood asked defendant to leave the trailer. He refused to leave. Ms. Fleetwood said

that she would call the police if he did not leave. Defendant said that she should take her

children and clothes when she left for work the next morning because he was going to burn down

the trailer and he would burn their motherf---ing a---s up in the trailer, too. He stayed, and Ms.

Fleetwood did not call the police. On October 30, 1993, Ms. Fleetwood babysat for Ms. Eley's

children in Ms. Fleetwood's trailer. When Ms. Eley came to pick them up, Ms. Eley's daughter

ran to her and said that if Ms. Eley had not returned, defendant said he was going to burn up the
                                                7

house with Ms. Fleetwood and the two children. Ms. Fleetwood said not to worry about

defendant. The parties stipulated that Ms. Eley's daughter would say the same thing about that

incident if she were to testify. (Tpp. 1119-35, 1143-44)


       Patrice Monique Jennings is Ms. Fleetwood's daughter. She was fourteen years old at the

time of the trial. On Friday, November 5, 1993, Patrice and her brother, Jermaine, went to the

trailer of their grandfather, Roscoe Faison, after arriving home from school. They often stayed

with their grandfather at night. After 45 minutes, they went to their own trailer. She noticed that

a window had broken; neighborhood boys had broken windows in the trailer before. She heard

the voices of defendant and her mother. A coat covered the window of the trailer door. She tried

to open the door, but it would not open. She knocked and defendant answered. Patrice asked

where her mother was and defendant said she was sleeping; Patrice testified that she knew that

defendant was lying because she had heard voices inside the trailer. (Tp. 741-65, 847, 850)


       Patrice walked inside. Her mother was on the sofa, with blankets over her. Patrice called

to her mother three times before she answered. It was very hot inside the trailer. A square

kerosene heater was on. Patrice told her mother to show her face to Patrice because Patrice

thought that Ms. Fleetwood and defendant had been fighting. Ms. Fleetwood said she would not

show Patrice her face, that she was cold. Ms. Fleetwood told Patrice to go to her grandfather's

trailer, that she would see Patrice on Sunday (two days later). Patrice and Jermaine soon left the

trailer. (Tpp. 741-76)


       Patrice and Jermaine went to the broken window and she heard defendant ask Ms.

Fleetwood in a laughing tone why she did not show Patrice her face. Defendant then said that

Patrice and Jermaine had not left; he opened the door and said they were right outside.

Defendant was wearing a hooded sweater or sweatshirt with yellow, green, and black stripes and

dark jeans. Patrice and Jermaine then left and went to their grandfather's trailer. She asked her
                                                8

grandfather, Mr. Faison, to check on her mother because she thought something was wrong with

her mother: it was very hot in the trailer, a window was broken, and her mother would not show

her face to Patrice. Mr. Faison said he did not have time then, that he had to go somewhere else

first and that he would go to Ms. Fleetwood's trailer when he returned. Patrice called her aunt

Lucy, who advised her to call the police if she thought something was wrong with her mother.

(Tpp. 776-86)


       Later that evening, defendant came to Mr. Faison's trailer. He asked Patrice and Jermaine

whether they had seen Ms. Fleetwood. They said they thought she was at home with defendant.

He said that she went to the home of a Ms. Manning and get a soda and that she had not returned.

He did not mention that Ms. Fleetwood had been burned. (Tpp. 786-87)


       When Mr. Faison returned, Patrice, Jermaine, Mr. Faison, and a friend named Henry

Vaughan went to Ms. Fleetwood's trailer. When they entered, they saw defendant walking in the

hallway from the bedroom. Mr. Faison asked where Ms. Fleetwood was, and defendant said that

she was in the bedroom, with no clothes on. Defendant went into the bedroom; there was no

light on in the bedroom. Mr. Faison called Ms. Fleetwood's name and asked what the problem

was. Then he went into the bedroom and tried to turn on the light, but the light did not go on.

Defendant said that Ms. Fleetwood did not have any clothes on. Ms. Fleetwood then said that

she did not have any clothes on. Mr. Faison said he would go home to get a light bulb. At that

moment, a man named Chester Robinson said that Ms. Fleetwood had been burned, that she had

to go to the hospital, but that she did not want to go. Defendant agreed with Mr. Robinson. Mr.

Faison said he would get a light bulb and call an ambulance. Patrice and Jermaine returned to

Mr. Faison's trailer. Mr. Faison got a light bulb and returned to Ms. Fleetwood's trailer without

them. Later, when Mr. Faison returned home, he told them that Ms. Fleetwood had been burned

and that she went to the hospital. (Tpp. 810-20, 841)
                                                 9

       At some point before November 5, 1993, Patrice saw Ms. Fleetwood put some old

clothes in two plastic bags and then put the bags outside, to the left of the trailer steps. Ms.

Fleetwood normally used the square kerosene heater in the living room and the round kerosene

heater in the hallway or bedroom. She never used both heaters at the same time in the living

room. Patrice never saw her mother have any problem operating the kerosene heaters, and she

never saw her mother or defendant use gloves to operate the heaters. (Tpp. 820-35)


       Patrice testified about an incident that occurred one and one-half to two years before

November 5, 1993. Ms. Fleetwood and Defendant were arguing. Ms. Fleetwood and Patrice

went in to a bedroom and closed the door. Defendant opened the door and said not to close it

again. Ms. Fleetwood closed the door. Defendant kicked the door open. Patrice told her mother

that they should leave to call the police (there was not telephone in the trailer). As they walked

to a friend's house, defendant followed. He did not assault her. He said she could call the police

and see what he would do to her; he said he would burn down the trailer. She called the police

from a friend's trailer. Police officers came; they left without making an arrest. (Tpp. 1189-98)


       Jermaine Jennings, Ms. Fleetwood's son, was thirteen years old at the time of the trial.

On November 5, 1993, he and his sister went to their grandfather's trailer after school. An hour

later, at 4:30 p.m., he and his sister Patrice went to their mother's trailer. He noticed that one of

the windows was broken. He heard the voices of defendant and Ms. Fleetwood inside the trailer.

Defendant's jacket covered the window in the door. Something blocked the door, so Patrice

knocked on the door. Defendant came to the door. Patrice asked where Ms. Fleetwood was.

Defendant said she was asleep. Jermaine and Patrice entered the house and saw their mother

lying on the sofa. Patrice called Ms. Fleetwood. Defendant said she was asleep and not to wake

her up. Jermaine asked how the window had broken, and defendant said that Eric Beale had

thrown a rock through it. Jermaine noticed blisters on defendant's right arm and he asked how it
                                                10

had become blistered. Defendant said he had been cooking and grease popped on his arm.

Jermaine noticed that a desk was broken and he asked defendant how it had broken. Defendant

said that he had tripped over it as he walked down the hall. Patrice told Ms. Fleetwood that she

had to tell her something and that she would tell her if Ms. Fleetwood let Patrice see her face.

Ms. Fleetwood said that Patrice could see her on Sunday (two days later). Patrice said that she

was going to pull the cover off Ms. Fleetwood's head; Ms. Fleetwood said she would beat Patrice

if Patrice did so. Jermaine and Patrice looked around the trailer and noticed clothes on the floor.

They told Ms. Fleetwood that they were leaving, and she said she would see them on Sunday.

They left the trailer. (Tpp. 854-64, 889)


       Jermaine and Patrice looked into the trailer through a window because they thought

defendant and Ms. Fleetwood were arguing. Jermaine heard defendant ask Ms. Fleetwood in a

laughing tone why she did not show her face to Jermaine and Patrice. Defendant then opened the

trailer door and told Ms. Fleetwood that Jermaine and Patrice had not yet left. Then they left and

went to their grandfather's trailer. (Tpp. 864-66)


       They told Mr. Faison that they thought something was wrong with Ms. Fleetwood and

they asked him to go to her trailer. He said that he had to go somewhere else, but that he would

return. Patrice called their Aunt Lucy and said, crying, that she thought defendant had beat Ms.

Fleetwood. Their aunt told Patrice to call the police if she thought something was wrong. At

5:15 p.m., defendant entered Mr. Faison's trailer and asked if they had seen Ms. Fleetwood.

Patrice said she thought Ms. Fleetwood was with him. Jermaine smelled beer on his clothes.

Defendant left. (Tpp. 866-73)


       When Mr. Faison returned, he went with Jermaine, Patrice, and Henry Vaughan to Ms.

Fleetwood's trailer. Defendant was there. Mr. Faison asked where Ms. Fleetwood was, and he

said she was in the bedroom. Mr. Faison asked whether anything was wrong with her; defendant
                                               11

said he did not know. Mr. Faison headed toward the bedroom, but defendant said that Ms.

Fleetwood did not have any clothes on. Defendant and Mr. Faison asked Ms. Fleetwood whether

she had any clothes on; she said no. Mr. Faison went into the bedroom and tried to turn on the

light, but there was no bulb. Mr. Faison said he would go home and get one. Chester Robinson

was also in the trailer; he said that Ms. Fleetwood's face was badly burned and that she had to go

to the hospital. Mr. Robinson said that defendant wanted to take Ms. Fleetwood to the hospital,

but that she did not want to go until Sunday. Jermaine and Patrice went with Mr. Faison to get a

light bulb. They stayed in Mr. Faison's trailer when he went back to Ms. Fleetwood's trailer with

the bulb. Mr. Faison returned home later and told Jermaine and Patrice that Ms. Fleetwood was

badly burned and had to go to the hospital. (Tpp. 873-78)


       Jermaine testified that there were two heaters in Ms. Fleetwood's trailer. The newer,

square one was used most. The round one was kept in the bathroom. It was very hot inside the

trailer when Jermaine and Patrice went there on November 5, 1993. Defendant was wearing

black jeans; a black shirt; and a garment with a black, striped hood. (Tpp. 886-88)


       Jermaine testified that two gasoline containers were stored under Ms. Fleetwood's trailer,

next to a lawn mower. Jermaine knew that defendant is right-handed. (Tpp. 901-04)


       About a year before November 5, 1993, Jermaine saw heard defendant say to Ms.

Fleetwood, "I'll kill you bitch." Jermaine then saw defendant sitting on Ms. Fleetwood's neck in

the living room. She cried and told defendant to stop and get off of her. About a year before

November 5, 1993, Jermaine awoke and heard defendant yelling and using profanity. Ms.

Fleetwood said to stop. Defendant said she was not going to rip his motherf---ing shirt as she

had done before. Jermaine went to the living room and saw defendant grab Ms. Fleetwood's

arms and push her out of the door. Jermaine told his brother, who pushed defendant off of Ms.

Fleetwood. Defendant was saying "I'll kill you bitch." The police were called. Two years
                                               12

before November 5, 1993, Jermaine was in the trailer with Ms. Fleetwood, defendant, and

defendant's brother Laverne. Ms. Fleetwood told Laverne that defendant had hit her and she told

defendant to get his belongings and leave. Defendant said he was not leaving. She asked

Laverne to open the car trunk. Defendant said that if he did, defendant would burn the motherf--

-ing house down to the ground. Laverne said he would not get involved in their argument.

About six months before November 5, 1993, defendant threw a television set at the trailer after

an argument about watching television. That day, Ms. Fleetwood asked defendant to leave; he

said that he would burn up the trailer and that Ms. Fleetwood and Jermaine would burn, too, if

they were there. She said that she would put him in jail if he burned the trailer. In August or

September 1993, defendant moved away, possibly to Connecticut or Philadelphia, for a month.

(Tpp. 1144-75)


       Chester Robinson lives in Wise Trailer Park.        He knew both defendant and Ms.

Fleetwood. On November 5, 1993, in the evening, defendant came to Mr. Robinson's trailer and

said that Ms. Fleetwood had been burned on the arm. Defendant was wearing a dark sweatshirt,

black pants, black sneakers, and a baseball hat. Mr. Robinson, his wife, and defendant went to

Ms. Fleetwood's trailer. Defendant asked Mr. Robinson to take her to the hospital. Defendant

entered Ms. Fleetwood's trailer and then came back out.        He told Mr. Robinson that Ms.

Fleetwood might have left to get a soda from Mamie Boone's house. They drove to Roscoe

Faison's house to see if Ms. Fleetwood was there. Defendant entered and then came back out,

saying that she was not there. They drove around the trailer park looking for her. Then they

returned to Ms. Fleetwood's trailer. Defendant entered and then came back out, saying that she

was there. (Tpp. 905-17, 944, 957-58)


       Mr. and Mrs. Robinson entered the trailer. They noticed a broken window. Defendant

said that Ms. Fleetwood had been burned while she lit a kerosene heater. He said that the hose to
                                                13

the heater caught fire and she was slinging it around. Mr. Robinson looked at the two heaters; he

did not see anything wrong with either one, though he did not try to light them. He did not see

smoke or stains. The fuel lid of one of the heaters was off. While walking in the hallway to the

bedroom, Mr. Robinson accidentally knocked over a table. In the bedroom, defendant turned on

the light and Mr. Robinson saw Ms. Fleetwood lying on the bed. Defendant lifted up her left

arm. Rolls of pink skin hung from her arm, from the elbow to the hand. Her hair was burned.

Mr. Robinson said that she was badly burned and needed medical care immediately. Defendant

asked Ms. Fleetwood whether she was ready to go to the hospital. She said she wanted to lie

there a few minutes. A few minutes later defendant asked her a few times whether she loved

him. She did not answer his question; she said she just wanted to lie there and wait until the next

day to go to the hospital. She said she did not really feel that burned. Defendant asked her more

than once, "Didn't you light the heater?" She did not answer. Defendant turned off the light.

Defendant asked Mr. Robinson to look at his arm; it was swollen and blistered, with flesh

hanging down by his elbow. Defendant said that he had tried to put out the fire on Ms.

Fleetwood and that his arm caught fire, too. Mr. Robinson said that he would call for help.

(Tpp. 917-27, 933-36, 950-53, 956)


       Mr. Robinson told Mr. Faison that someone had been seriously hurt. Mr. Faison went to

the bedroom, asked where the light bulb was, said he was leaving to get a bulb, and then left.

When Mr. Faison returned, he asked defendant what had happened. Defendant said that a

kerosene heater had blown up and had set Ms. Fleetwood on fire. Mr. Faison rubbed the carpet

around the square heater. An ambulance and officers from the Sheriff's Department arrived.

Emergency medical technicians took Ms. Fleetwood away by ambulance. Mr. Robinson saw her

face as she was put in the ambulance. It was charcoal dark. (Tpp. 927-38)
                                              14

       Defendant told Mr. Robinson that he had been cooking in the kitchen when the heater

exploded. He saw that Ms. Fleetwood was on fire and her ran to put out the fire. He said he put

Ms. Fleetwood in the bathtub. (Tpp. 938-41)


       Roscoe Faison, Ms. Fleetwood's ex-father-in-law, lives in Woodridge Trailer Park. On

November 5, 1993, his grandchildren, Patrice and Jermaine Jennings, went to his house when

they returned home from school. At some point they went to their mother's trailer. They came

back to Mr. Faison's trailer, saying that something was wrong with their mother and that

defendant might have been fighting with her. Mr. Faison said he had to go somewhere else first,

and that he would see Ms. Fleetwood later. (Tpp. 959-62)


       That evening, Mr. Faison went to Ms. Fleetwood's trailer with his grandchildren and a

friend named Henry Vaughan at about 6:00 or 6:30. Mr. Faison entered Ms. Fleetwood's trailer.

He saw defendant and asked what was wrong. Defendant said that Ms. Fleetwood was in bed.

Mr. Faison said he wanted to see what was wrong. Defendant said that Mr. Faison could no go

into the bedroom because she did not have any clothes on. It was dark in the bedroom. Mr.

Faison went home to get a light bulb. He saw Chester Robinson in the trailer; Mr. Robinson said

that Ms. Fleetwood had been burned. Mr. Faison left to get a bulb and returned. Defendant put

the bulb in and turned on the light. Mr. Faison saw Ms. Fleetwood in bed with a cover over her.

He asked her what was wrong. She said she was all right. Mr. Faison asked defendant what had

happened. Defendant said that the round heater had blown up. Mr. Faison checked to see

whether there was any oil or smut on the floor; he did not detect any. He told defendant that it

did not look like the heater had blown up, that defendant he was lying. Defendant said that Ms.

Fleetwood was filling up the heater, she was swung the pump around her head, it caught fire, and

the heater blew up. He said that he jumped on her and tried to put out the fire with water. Mr.

Faison said that could not have happened because there was no oil or sign of a fire or water on
                                                15

the floor. Defendant said "Lord have mercy, I know I'm going to get some time now." The cap

on top of the round heater was off, dangling by the chain. Defendant went to the bedroom and

asked Ms. Fleetwood three times whether she was burned from filling up the heater. She did not

answer. Mr. Faison went to a nearby police station to summon the rescue squad. Mr. Faison

returned to the trailer with a Murfreesboro police officer and showed him the area around the

heater. Defendant went to the bedroom and continued to ask Ms. Fleetwood whether she knew

she caught fire from lighting the heater. The rescue squad arrived and took her to the hospital.

(Tpp. 962-89, 992, 998)


       Mr. Faison acknowledged that he had once had an accident in which a kerosene heater

erupted with a big flame for more than five or ten minutes. That flare-up produced soot and

smoke around the heater; the heater did not work after that. (Tpp. 1000-02)


       Sherri Smith Eubanks is a registered nurse at Roanoke-Chowan Hospital in Ahoskie. She

was on duty in the emergency room when Ms. Fleetwood was brought in on November 5, 1993.

Ms. Eubanks asked someone whether Ms. Fleetwood was alert and oriented. Ms. Fleetwood told

Ms. Eubanks that she was awake. Ms. Fleetwood was a dark-skinned person, but most of the

skin on her face was white. She had only a small amount of hair. Ms. Eubanks asked Ms.

Fleetwood whether she was in pain. Ms. Fleetwood answered that she was no in any great

amount of pain; she said that she did not hurt in her chest or face. (Tpp. 1050-80)


       A man -- evidently defendant -- was in the next room; he had come with Ms. Fleetwood.

He asked whether he could be with Ms. Fleetwood. Ms. Eubanks said no. She asked him about

his burns, and he showed her his burned arm. (Tpp. 1083-84)


       Ms. Eubanks cut off Ms. Fleetwood's clothes because skin came off as she moved Ms.

Fleetwood's arms. Ms. Fleetwood saw that her left torso and left arm were badly burned. She
                                              16

said that she had no pain except in the left hand. That hand was badly burned. Her back and

legs were also severely burned. Ms. Eubanks put sterile sheets over her and poured saline

solution on it to keep her skin cool. Ms. Fleetwood said that she was cold and scared. Ms.

Fleetwood was awake, alert, and anxious. (Tpp. 1084-1103)


       Ms. Eubanks asked Ms. Fleetwood what had happened. Ms. Fleetwood did not answer,

but an emergency medical technician said that he had heard at the trailer that a kerosene heater

had exploded as she tried to light it. Ms. Eubanks asked Ms. Fleetwood asked Ms. Fleetwood

whether that was what happened. Ms. Fleetwood did not answer. Ms. Eubanks asked again and,

after hesitating, Ms. Fleetwood said yes. (Tpp. 1103-06)


       Ms. Eubanks gave Ms. Fleetwood 5 milligrams of morphine to ease her anxiety and to

help her with the discomfort from the medical procedures. She was still alert, so Ms. Eubanks

gave her another 5 milligrams of morphine. Ms. Fleetwood was taken to Norfolk Sentara

Hospital. Just before she left, a doctor asked her whether someone had purposefully burned her.

She did not answer. He asked a second time, and she shook her head to signal no. (Tpp. 1006-

16)


       Ivy Faison is the son of Roscoe Faison. He is the father of Monique and Jermaine

Jennings. In 1991 or 1992, five or six years after Mr. Faison and Ms. Fleetwood had broken up,

he was walking with defendant in the trailer park. They saw Ms. Fleetwood. Defendant walked

ahead to her. He kicked her twice in the thigh and called her profane names. She did not say

anything. Mr. Faison caught up, told him to stop, and asked why he was doing that. Defendant

said "The bitch ain't no good," and "You just don't know." He said it was none of Mr. Faison's

business. Mr. Faison told Ms. Fleetwood to go home; she did so. Mr. Faison has four prior

convictions for driving while impaired. (Tpp. 1182-88)
                                               17

       Deputy Sheriff Keith Williams of the Hertford County Sheriff's Department responded to

Ms. Fleetwood's trailer on November 5, 1993, at 7:50 p.m. The rescue squad was already there.

Defendant, Ms. Fleetwood's sister Lucy Woodley, and Roscoe Faison were there. Defendant

explained what had happened: he said that he had been cooking in the kitchen while Ms.

Fleetwood was filling the heater with kerosene. She called his name and he looked up and saw

that she was on fire. He jumped on her and put out the fire. He said he pushed her down the hall

and out the back door to where a puddle of water usually stood. Deputy Williams saw that the

cap to the heater's fuel tank was off, but the heater appeared to be in good condition. Nothing in

the room was burned. Defendant showed him the puddle of water behind the trailer. There were

two bags near the back steps; one was open and contained clothes. Defendant said that he also

took Ms. Fleetwood to the bathroom to cool her off in the bathtub. Deputy Williams saw a lot of

black smudge in the bathtub. (Tpp. 1197-1208)


       Deputy Williams saw Ms. Fleetwood. Her heard was black and her hair was singed. The

emergency medical technicians asked her whether she could walk to the stretcher. She stood up

and walked. Skin hung from her arm. (Tpp. 1208-17)


       Deputy Sheriff Ernest Sharpe of the Hertford County Sheriff's Department arrived at Ms.

Fleetwood's trailer at 10:45 p.m. on November 5, 1993. He did not enter then. Deputy Sharpe

knows that defendant's right arm and hand were burned and blistered; he was not burned

anywhere else. He returned on Sunday, November 7, 1993, with Special Agent Keith Parrish of

the State Bureau of Investigation ("SBI"). At one point, when they entered the trailer through the

back door, they smelled a strong odor of gasoline, but not an odor of kerosene. He saw a five-

gallon plastic bucket in the kitchen that had not been burned, a plastic refueling pump (which

was not damaged), and a white plastic bag in a trash can that contained some burn debris, a

cigarette package, and beer bottle, a four- to nine-square-inch piece of burned skin, and burned
                                                18

fabric. He found a sweatshirt in a laundry basket; the sweatshirt and the basket were partially

burned. He saw skin in the bathtub. He saw a piece of burned fabric in a bedroom. Deputy

Sharpe saw two plastic jugs under the trailer. One of the jugs contained gasoline; its lid rested

on top of the jug, without being screwed down. The gasoline reached a level that was one to one

and one-half inches below a stain marking the high level of the gasoline. Blue jeans and another

item of clothing taken found in the trailer smelled of gasoline, not kerosene. A white plastic bag

outside the trailer, containing clothing, had been singed. The plastic shower curtain in the

bathroom was partially burned. Deputy Sharpe did not see any burned areas of the den or

kitchen. On November 10, 1993, Deputy Sharpe and Special Agent Parrish looked behind the

trailer. They saw an area of leaves on the ground that were discolored; an area of burned grass

lay beneath the leaves. Charred fabric was in the area, too. They saw a partially used book of

matches; the match book cover was identical to the cover of a matchbook found in the trailer.

The leaves were not submitted for laboratory testing. There was trash on the bottom pan of the

round kerosene heater; the trash had not been burned. (Tpp. 1218-65, 1298-1386)


       Dr. Karla Fisher and assistant professor of psychology and law at Duke University,

testified as an expert in the field of battered women. She explained the three typical features of

battering relationships: abuse (physical and/or emotional), a pattern of control by the abuser, and

the coping mechanisms women use to deal with the abuser's abuse and control (including

minimizing the abuse because of shame, hiding the abuse, and denying the abuse). (Tpp. 1281-

98)


       SBI Special Agent Charles F. McClelland, Jr., testified as an expert in forensic chemistry.

He specializes in analysis of arson debris for accelerants. He tested two jugs of suspected

gasoline taken from under the trailer. He found that they both contained gasoline. He tested the

liquid from the round heater and found that it was kerosene. He tested a piece of material found
                                               19

in the trash bag in the trailer, the blue jeans, and the piece of cloth from the bedroom and found

that they all contained gasoline and no kerosene. He tested the blue sweatshirt and found that it

contained gasoline and kerosene. He tested the five-gallon container found in the trailer and

found that it contained only kerosene. Both kerosene heaters worked fine. The round heater

showed no signs of an explosion. Gasoline and kerosene have different flash points -- the

temperature at which heating a liquid produces enough vapor to ignite in the presence of a flame

or spark. However, Special Agent McClelland did not perform a flash point test on these items.

(Tpp. 1437-64)


       Donna Rosenfeld, a registered nurse in the Emergency Department at Sentara Norfolk

General Hospital in Virginia, worked in the burn-trauma unit of the hospital in November 1993.

She works only with one patient at a time in the unit. Ms. Fleetwood was admitted to Sentara

Norfolk on November 6, 1993. Ms. Rosenfeld testified that until November 15, 1993, Ms.

Fleetwood had been medicated with the painkiller morphine and the sedative versed.            On

November 15, she was taken off of those medications and was switched to the painkiller

fentanyl. She had been unresponsive under morphine and versed, and the doctors thought that

she might become more responsive under fentanyl. Fentanyl is 1,000 times more powerful than

morphine. Ms. Rosenfeld testified that another nurse's notes in the hospital records for Ms.

Fleetwood show that on November 18, 1993, at 4:30 a.m., Ms. Fleetwood was alert, that she was

able to follow commands and wiggle her heard and toes, and that she was oriented to time and

space. Dr. Requena's notes at that time state that Ms. Fleetwood's neurological condition had

improved dramatically that morning: Ms. Fleetwood was awake, following commands, and

answering questions with head movements (she could not speak because she had a tube in her

throat). Ms. Fleetwood denied any pain or discomfort. (Tpp. 1685-1708, 1772, 1781) On

November 19, 1993, Dr. Hensien noted that Ms. Fleetwood's neurological condition had

continued to improve and that Ms. Fleetwood could mouth words and communicate keywords.
                                               20

That day, Ms. Fleetwood could move her arms and legs, follow commands, and communicate

with head gestures. (Tpp. 1708-27) Dr. Bono did not think that Ms. Fleetwood had ever

personally given consent to the surgical procedures performed on her, though Dr. Bono thought

that she was capable of giving consent on November 6. (Tpp. 1786-87, 1806-07).


       From November 13, when Ms. Rosenfeld first saw Ms. Fleetwood, to November 19, Ms.

Fleetwood's neurological status improved dramatically. At first, Ms. Fleetwood would respond

only to deep pain. By November 19, she was much more awake and alert, she could move all

four extremities, and she would respond to comments by Ms. Rosenfeld by mouthing words

back. On November 19, Deputy Sharpe and Special Agent Parrish were called to the hospital.

Ms. Rosenfeld had been told that she should notify the SBI if Ms. Fleetwood were to become

sufficiently awake to answer questions. (Tpp. 1727-29)


       When the officers arrived, Ms. Fleetwood communicated by nodding that she was willing

to talk to them. The officers let Ms. Rosenfeld ask the questions for them because of the rapport

she had established with Ms. Fleetwood and because a report of abuse she had heard from

another nurse led her to believe that Ms. Fleetwood might be afraid of the voice of unknown men

and of defendant. Ms. Rosenfeld asked Ms. Fleetwood whether defendant had done this to her.

Ms. Fleetwood shook her head, no. Ms. Rosenfeld told her that defendant was in jail and could

not hurt her anymore. She asked Ms. Fleetwood whether she and defendant had been fighting on

November 5.     Ms. Fleetwood nodded her head, yes.        She asked Ms. Fleetwood whether

defendant had thrown gasoline on her. Ms. Fleetwood did not answer. Ms. Rosenfeld said that

the officers had the clothes that she and defendant had worn on November 5. She then asked Ms.

Fleetwood again whether defendant had thrown gasoline on her.           She nodded, yes.     Ms.

Rosenfeld asked her whether defendant had thrown a match on her after pouring the gasoline on

her. She nodded her head, yes. That was the last question. Ms. Rosenfeld and the officers left
                                               21

the room. That was the only time that Ms. Fleetwood talked to any officers or to Ms. Rosenfeld

about how she had been burned. (Tpp. 1729-42, 1790-92, 1799)


       On November 19, at 8:40 a.m., Ms. Fleetwood was on a continuous drip of the painkiller

fentanyl. In addition, she received a dose of the sedative versed because she was agitated and

was breathing too fast. She had more does at 10:25 a.m. and 11:45 a.m. to prepare her for

painful burn care: scrubbing the burned areas and changing the dressings. The versed doses

seemed to last in Ms. Fleetwood for about 30 minutes. She also received additional doses of the

painkiller fentanyl at those times. Each person has a different experience of pain from a wound,

and each person has a different response to versed; a person's response to versed an be different

each time the person receives the medication. (Tpp. 1742-61, 1774-81)


       Ms. Fleetwood's condition began to deteriorate quickly that afternoon, after the interview

with the officers. Her blood pressure dropped. By 8:00 p.m. she was not responsive. She died

on November 20. The cause of death was sepsis (infection) resulting from the burns. Confusion

and disorientation are associated with sepsis. (Tpp. 1742-51, 1793)


       Lucy Woodley is Ms. Fleetwood's sister.        She lives in Pendleton, six miles from

Murfreesboro. On the evening of November 5, 1993, Patrice Jennings called her to say that

something was wrong with Ms. Fleetwood because she was wrapped up in a blanket on the sofa,

saying she was cold, and yet lying near a broken window. Ms. Woodley said she would try to

come over. Patrice called back again. This time Ms. Woodley told her to call the police. Ms.

Woodley found a ride to Ms. Fleetwood's trailer. Roscoe Faison and Chester Robinson were

there. Although Mr. Robinson said that the heater had blown up, Ms. Woodley did not see any

signs that it had done so. Ms. Woodley saw Ms. Fleetwood in the bedroom. Her face was black,

like charcoal. Ms. Woodley ran out of the trailer, saw Henry Vaughan, and arranged with Mr.

Vaughan and Mr. Faison to go to the police station in Murfreesboro. Police officers called the
                                                22

Sheriff's Department. Ms. Woodley returned to the trailer and went inside. Defendant was there.

She asked him why he had not called for help for Ms. Fleetwood. He said that she would not let

him. He said that he had been cooking in the kitchen when the heater exploded in the living

room. He said he got some water, poured it on her, and put out the fire by sitting on top of her --

burning his arm. (Tpp. 1807-21)


               B.     Defendant's Evidence

       Defendant did not present any evidence in the guilt-innocence phase.


PENALTY PHASE EVIDENCE

               A.     The State's Evidence

       Nurse Sherri Smith Eubanks testified that when Ms. Fleetwood was first brought to the

hospital on November 5, 1993, Ms. Fleetwood was afraid and anxious. She was afraid of

needles, including the needles necessary for intravenous fluids. Skin came off her body as Ms.

Eubanks tried to remove Ms. Fleetwood's clothes. Skin came off when Ms. Eubanks tried to take

her blood pressure. Her public area had melted, and it was hard to insert a drainage tube into her

bladder. Intubation of a respiratory tube was uncomfortable. Her denial of pain in certain areas

led Ms. Eubanks to believe that some of her nerve endings had been burned. However, Ms.

Fleetwood should have been able to smell the odor of her burned skin. She shivered because she

did not have enough skin tissue to maintain her body heat. Ms. Fleetwood received medications

for pain and anxiety. (Tpp. 2019-39)


       Dr. Marcella F. Fierro is the Chief Medical Examiner of Virginia. She testified as an

expert in forensic pathology. She performed the autopsy on November 22, 1993. She described

the extent and depth of Ms. Fleetwood's burns. Her lungs were damaged by the fire. The fire

also damaged her body's system for regulating fluids and her kidneys. It put stress on her heart.

A fungal infection killed her, despite receiving antibiotics, because she lacked enough skin to
                                               23

serve as a barrier to infection. If Ms. Fleetwood were in shock and if she were receiving versed

and fentanyl, she would still feel pain, but the medication would take the edge off the pain.

(Tpp. 2040-78)


       Dr. Raquel Cruz Bono is a trauma surgeon at Sentana Norfolk General Hospital. She saw

Ms. Fleetwood on the morning of November 6, 1993, after Ms. Fleetwood was admitted to that

hospital. She had second- and third-degree burns over 90% of her body. Ms. Fleetwood was

placed in a tub for debriding the wounds -- to clean away dead, burned skin and expose viable,

underlying tissue. That can be a very painful procedure. Sometimes the skin must be scrubbed

off. She had at least four skin graft operations and she had debriding procedures requiring the

cutting away of dead skin. She received general anesthesia for some of those procedures. She

had dressings on 90% of her body, and changing dressings two or three times a day can be very

painful.   Ms. Fleetwood received medication for the pain from her burns and operations.

However, pain medication sometimes does not eliminate the discomfort of burn victims.

According to Dr. Bono, an unconscious person can still feel pain; she believes that such

experience of pain occurred with Ms. Fleetwood. (Tpp. 2078-2114)


               B.     Defendant's Evidence

       Percy Bunch has a produce business. Defendant worked for him for two years as a

forklift driver. He was a good and trustworthy employee. (Tpp. 2131-33)


       Jean Stacy is a nurse at Ahoskie Family Physicians and an emergency medical technician

("EMT") with the Murfreesboro Rescue Squad. She was one of the EMTs who took Ms.

Fleetwood to the hospital on November 5, 1993. Ms. Fleetwood did not want to go to the

hospital and did not say that she was in pain. She had third-degree burns, with her skin and skin

color burned away, except for parts of her right arm, right side, and right leg and the bottoms of

her feet. Not feeling pain can be a sign of a third-degree burn. 95% of her hair had been singed
                                              24

off. Ms. Stacy had not seen anyone like that in nine and one-half years with the rescue squad.

She saw that defendant had been burned on one or both arms. (Tpp. 2133-39, 2156-59)


       Sergeant Bryant Cooke of the Murfreesboro Police Department testified that he used

defendant as an informant in narcotics investigations twice in April 1993. Defendant gave him

reliable information that led to four arrests and four convictions. Defendant was trustworthy in

his work with Sgt. Cooke. Defendant had been arrested for driving while impaired and he

wanted to serve as an informant to try to get the state to help him in his own case. (Tpp. 2139-

56)


       Defendant Stacey Anthony Tyler testified on his own behalf. He was 26 years old at the

time of trial. He has two prior convictions for driving while impaired. He has eleven siblings.

His father died due to alcoholism when Mr. Tyler was ten years old. His mother died when Mr.

Tyler was sixteen years old. She was hit and dragged by a car in the Wise Trailer Park, only 30

feet from Ms. Fleetwood's trailer. Mr. Tyler saw her body in the street, with brain matter

scattered in the street. He had been very close to his mother, and her death caused Mr. Tyler to

suffer from depression. When she died, he felt that he had lost everything. He failed the ninth

and tenth grades and was put in special education classes. Mr. Tyler has had a stuttering

problem his whole life. As a child, he was teased about his stuttering and about his family's

poverty. He has never used any drugs. After dropping out of high school Mr. Tyler worked as a

laborer and then as a construction worker operating heavy equipment. He also worked for Mr.

Bunch's produce business. In August 1993 defendant went to Philadelphia; he returned on

October 30, 1993. He worked in Philadelphia at temporary jobs, at a car wash, and helping his

brother do repairs on apartments his brother owned. He served as an informant for the police to

try to get more lenient treatment for his charges of driving while impaired. He has a clean
                                                25

disciplinary record in jail awaiting trial. He helps new inmates. Mr. Tyler has become a

Christian and has put his faith to work to change his life in jail. (2159-72, 2207-11)


       Mr. Tyler denied that he had thrown gasoline on Ms. Fleetwood. He denied that he

jumped on, pulled the hair of, or punched Ms. Fleetwood on the afternoon of November 5, 1993,

or that he threatened to kill her. He said that he and Ms. Fleetwood did not have any problems

on November 5, 1993 before she was burned. He denied Jermaine Jennings' allegation that he

had choked her by sitting on her seven or eight months before November 5, 1993. He denied

Patrice Jennings' accusation that he had kicked in the bedroom door. He denied the accusation

that he once had thrown her out of the house and was choking her outside.                He denied

accusations that he had threatened to burn down the trailer on previous occasions. He denied the

accusations about pushing food into Ms. Fleetwood's face and kicking her in the road. He agreed

that Ms. Fleetwood had told her to leave the trailer on several occasions, and that he told her that

he would return the next day. (Tpp. 2172-87, 2218-19)


       Mr. Tyler said that after Ms. Fleetwood was burned on November 5, he did ask her why

she did not show her face to her children, but he did not ask her laughingly. He asked her

because he thought they would call the rescue squad if they saw her face. He wanted to go to

call the rescue squad (the trailer did not have a telephone), but she did not want him to leave the

trailer. He did not tell them that Ms. Fleetwood had been burned because she did not want him

to tell them. He did not ask Ms. Fleetwood whether she loved him when Mr. Robinson was

there, or when Mr. Shearn or Mr. Beale were there. He did not ask Ms. Fleetwood, while Mr.

Robinson was in the trailer, whether she was burned as she tried to light the heater. He did not

tell the children when he went to find Ms. Fleetwood at Mr. Faison's house that Ms. Fleetwood

must be outside getting a soda. He denied that he told Mr. Faison, Mr. Robinson, or Deputy
                                                 26

Williams that the heater had exploded as she was refueling it or that she had been slinging the

pump hose around. He did not break the window in the trailer. (Tpp. 2187-99)


       Lieutenant Joseph Gaskins of the Hertford County Sheriff's Department is Assistant

Chief Jailer. He testified that Mr. Tyler had a clean disciplinary record in the jail since his arrest

on November 10, 1993. Mr. Tyler had a good attitude in jail. In Lt. Gaskins' opinion, Mr. Tyler

is a good inmate compared to other inmates. He has told two other inmates that he wished they

could follow the jail rules as Mr. Tyler did. (Tpp. 2253-60)


       Mary Tyler Hinton is a sister of Mr. Tyler. She lives in Murfreesboro. She has eleven

siblings. The youngest two children went to live with their grandparents; Mr. Tyler was the

youngest of the remaining ten children. Mr. Tyler was never a bad child. The family was very

poor when they were children. The house was a shack: it had no bathroom, the windows were

broken out, the porch fell in. They wore second-hand clothes, they lacked food, and they never

had medical care. Her parents were loving, but they were alcoholics, and their alcoholism led

them to be abusive sometimes. On those occasions, Ms. Hinton and one of her brothers had to

act as parents. Mr. Tyler and their mother were very close, and he suffered from depression and

began to drink after her death. Mr. Tyler has always stuttered, and other children teased him

about his problem. Mr. Tyler was placed in a special education class because of his problems at

school after his mother's death. When he dropped out of high school, he worked very hard in

jobs. Even before his arrest, Mr. Tyler had begun to study the Bible; since his arrest, Mr. Tyler

has become a Christian. He could contribute to society within the prison system if he had a life

sentence; for example, another inmate told Ms. Hinton how much Mr. Tyler had helped the

inmate with the inmate's problems. (Tpp. 2260-83)


       Dr. Glenn Julince Rohrer has a doctorate in counseling and is an associate professor of

social work and criminal justice at East Carolina University. Dr. Rohrer testified as an expert in
                                               27

social work, family systems theory, and substance abuse. He conducted a social history of Mr.

Tyler, including of his substance abuse problem. Mr. Tyler has always had a stuttering problem.

Mr. Tyler's alcohol abuse began after his mother died; it stunted his emotional maturation, and at

the time of trial Mr. Tyler had only the maturity of a fifteen- or sixteen-year-old. Mr. Tyler had

high "street level" sense: he could avoid being manipulated, robbed, beaten up. Mr. Tyler told

Dr. Rohrer that Mr. Tyler was rowdy and spoiled as a child. Dr. Rohrer testified that alcoholics,

like Mr. Tyler, can lie about not having consumed alcohol on a particular occasion or about the

amount of alcohol they had had; Dr. Rohrer acknowledged that Mr. Tyler's testimony about the

amount of alcohol he had consumed on November 5, 1993 might not be truthful. Dr. Rohrer

learned about the problems of poverty and the alcoholism of Mr. Tyler's parents. His life

severely deteriorated after his mother's death. Mr. Tyler was a good worker after he dropped out

of high school. Mr. Tyler's record in jail indicates that he will be a cooperative inmate. (Tpp.

2284-2330)


               C.     The State's Rebuttal Evidence

       Alfred W. Harris is a retired assistant principal of Murfreesboro (now Hertford County)

High School. He testified that Mr. Tyler was "rather cunning" in his school behavior, that he

would always figure out a way to get out of classroom infractions. (Tpp. 2330-34)


       Thelma Eley is Angela Eley's sister. She had three classes in tenth grade with Mr. Tyler.

She said that Mr. Tyler had been mean and disruptive in class and that he used profane language

to teachers when they assigned work to students. (Tpp. 2335-40)


       Vernell Edwards worked with Mr. Tyler at a paving company. He once asked Mr. Tyler

whether he was selling drugs, and defendant said yes. He told defendant that he was wrong to do

so, and defendant said he had to survive somehow. Mr. Edwards saw defendant with Ms.

Fleetwood or her children only very seldom. He sometimes saw him be nasty to them. Mr.
                                                28

Tyler once said that he did not believe in God, that God would not have taken his mother and

father away. Mr. Edwards saw defendant drink beer occasionally, but never hard liquor. Mr.

Tyler is quick-tempered. (Tpp. 2340-53)


       Jason Stuart Bryant is a paramedic who helped take Ms. Fleetwood to the hospital on

November 5, 1993. He saw the second- and first-degree burns on Mr. Tyler's right arm. There

was no problem with Mr. Tyler's left arm or with the inside of Mr. Tyler's right palm. (Tpp.

2354-60)


       Bob Hill is a volunteer supervisor for the maintenance of the property of the

Murfreesboro Historical Association. He supervised Mr. Tyler when Mr. Tyler did community

service work as part of his sentences for driving while impaired.          Mr. Tyler was not a

cooperative worker; he did not perform work in the way instructed, he left the work site without

permission, and he discouraged other workers from working. However, someone other than Mr.

Hill made a written evaluation that Mr. Tyler was an average worker. (Tpp. 2360-67)


       Dr. Robert Brown, a doctor in the Roanoke-Chowan Hospital emergency room, treated

the burns on Mr. Tyler's right hand and right arm on November 5, 1993. The records indicate

that there were no burns on his right palm or fingers, that the burns to his right hand were on the

back of his hand, and that there were no burns on his left hand or arm. Mr. Tyler told him that a

kerosene heater had exploded. (Tpp. 2373-76)
                                                29

                                         ARGUMENT

GUILT-INNOCENCE PHASE

       I.      THE TRIAL COURT VIOLATED DEFENDANT'S RIGHTS
               UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AND
               FOURTEENTH    AMENDMENTS     AND   UNDER    NORTH
               CAROLINA LAW BY ADMITTING, UNDER THE RESIDUAL
               EXCEPTION TO THE HEARSAY RULE, EVIDENCE ABOUT
               THE DECEDENT'S INCRIMINATING RESPONSES TO
               QUESTIONS ASKED BY A NURSE, WHERE THE TRIAL COURT
               RELIED ON EVIDENCE CORROBORATING THE RESPONSES
               IN   FINDING  CIRCUMSTANTIAL     GUARANTEES    OF
               TRUSTWORTHINESS, AND WHERE THE DECEDENT'S
               MENTAL CONDITION MADE HER RESPONSES UNRELIABLE.

               Assignment of Error No. 113 (Rpp. 162-63)
               Assignment of Error No. 117 (Rp. 163)
               Assignment of Error No. 118 (Rp. 163)
               Assignment of Error No. 119 (Rp. 163)
               Assignment of Error No. 120 (Rp. 164)
               Assignment of Error No. 121 (Rp. 164)

       Nurse Donna Rosenfeld's hearsay testimony about Ms. Fleetwood's incriminating

responses to nurse Donna Rosenfeld's questions in the presence of law enforcement officers,

admitted under the residual hearsay exception of N.C. § 8C-1, Rule 804(b)(5), was crucial

evidence for the state. In that testimony, Ms. Rosenfeld stated that when she first asked during

that interview whether defendant had burned her, Ms. Fleetwood signaled no, that he had not

done so, but that Ms. Fleetwood then signaled yes, that defendant threw gasoline on her and then

threw a match on her. (Tpp. 1737-42) As the trial court stated about this testimony, "It probably

very well may be the most probative piece of evidence that the state offers and that is the victim,

herself, identified the person who allegedly committed these acts against her." (Tp. 1671)

However, in ruling that this testimony was admissible, the trial court relied on testimony by other

witnesses about events leading up to the burning and about previous alleged wrongdoing by

defendant in order to find circumstantial guarantees of trustworthiness, rather than on the

inherent trustworthiness of Ms. Fleetwood's responses.            The trial court's reliance on
                                               30

corroborating evidence that was external to the circumstances of the responses violated the Sixth

and Fourteenth Amendments to the United States Constitution under Idaho v. Wright, 497 U.S.

805, 111 L.Ed.2d 638 (1990). In addition, the trial court erred under the Sixth and Fourteenth

Amendments and under North Carolina law by finding that Ms. Fleetwood was competent to

make these statements and by not taking into account the fact that these statements were

inconsistent with other statements by Ms. Fleetwood and by not taking into account the leading

nature of Ms. Rosenfeld's questions.


               A.     The Trial Court's Unconstitutional               Reliance    on
                      Corroborating Evidence.

        The state proffered Ms. Rosenfeld's testimony about Ms. Fleetwood's responses under the

residual exception to the hearsay rule, Rule 804(b)(5). The trial court conducted a voir dire

hearing before ruling on the admissibility of Ms. Rosenfeld's hearsay testimony about Ms.

Fleetwood's responses. During that hearing, both parties presented evidence about the key issue

concerning the admissibility of Ms. Rosenfeld's hearsay testimony: whether it possessed

circumstantial guarantees of trustworthiness and, specifically, whether Ms. Fleetwood was

competent to give trustworthy responses to Ms. Rosenfeld's questions. (Tpp. 1481-1663). Then

the trial court entered findings of fact and conclusions of law on the record. (Tpp. 1671-82).

The trial court subsequently announced amended conclusions of law. (Tp. 1825) A copy of the

initial findings and conclusions and of the amended conclusions is included in the Appendix to

this brief.


        The residual exception to the hearsay rule is not a firmly rooted exception to the hearsay

rule. It cannot be firmly rooted because such hearsay, by definition, does not fall within a

category of enumerated hearsay exceptions and, therefore, each instance of residual hearsay must

be individually evaluated for indicia of reliability under the Confrontation Clause. Idaho v.

Wright, supra; see also Ohio v. Roberts, 448 U.S. 56, 66, 65 L.Ed.2d 597, 608 (1980). In Idaho
                                                 31

v. Wright, supra, the Supreme Court held that in assessing whether residual hearsay possess

sufficient indicia of reliability, a trial court must base its assessment entirely on the

circumstances of the hearsay statement itself, on whether the hearsay statement is inherently

trustworthy. The trial court may not base its assessment in whole or in part on evidence outside

of the circumstances of the statement that corroborates the truth of the statement. See State v.

Swindler, 339 N.C. 469, 450 S.E.2d 910 (1994). The trial court violated defendant's rights under

the Confrontation Clause of the Sixth and Fourteenth Amendment to the United States

Constitution by relying significantly on evidence outside the circumstances of Ms. Fleetwood's

responses in deciding that the responses had sufficient indicia of reliability.


       In its initial findings of fact and conclusions of law on the admissibility of this evidence,

the trial court engaged in the analysis required by this Court in State v. Nichols, 321 N.C. 616,

624, 365 S.E.2d 561, 566 (1988). That analysis included, as required, an evaluation of whether

the hearsay possessed circumstantial guarantees of trustworthiness -- the state law equivalent to

indicia of reliability under Wright and Roberts. The first nine of the sixteen factors the trial court

mentioned in its findings of fact pertained to evidence external to the circumstances of the

responses, evidence that corroborated the truth of the responses: (1) testimony by James Shearn

and Ernest Beale, Jr. that defendant beat Ms. Fleetwood about one hour before she was burned;

(2) testimony by Mr. Shearn and Mr. Beale that defendant said "I'll kill you bitch" during that

assault; (3) testimony by Patrice Jennings, Jermaine Jennings, and Monica Eley that defendant

threatened to burn Ms. Fleetwood, her children, and her home at least twice before November 5,

1993; (4) testimony by Roscoe Faison, Chester Robinson, and Deputy Keith Williams that

defendant said the victim was burned when a kerosene heater exploded while she was refueling

it; (5) testimony by Mr. Faison, Mr. Robinson, and Deputy Williams that they found no evidence

of an explosion or fire on or near the heater; (6) testimony by Mr. Faison, Mr. Robinson, and

Deputy Williams that defendant said he had jumped on Ms. Fleetwood to put out the flames, but
                                                32

that he had only minimal burns to the back of his right arms and hand and no burns on his palms;

(7) testimony by a forensic chemist from the SBI that a sweater and blue jeans worn by the

victim had gasoline on them; (8) testimony that a jug of gasoline with the cap unscrewed was

found behind the trailer and that a book of matches was found a few feet from the trailer; and (9)

that a few feet from the book of matches, Deputy Ernest Sharpe found an area of discolored

leaves and a spot of burned grass under the leaves. (Tpp. 1674-76) The other seven factors

pertained to circumstances of the responses. (Tpp. 1676-80) In its initial conclusions of law, the

trial court stated that "the hearsay statements of the victim, Mary Jennings Fleetwood, [possess]

circumstantial guarantees of trustworthiness." (Tp. 1681)


       Subsequently, the trial court announced amended conclusions of law on this testimony in

which the court expanded on the conclusions concerning circumstantial guarantees of

trustworthiness by specifying five factors that the court regarded as showing such guarantees.

The first two of those pertain to the circumstances of the statement: Ms. Fleetwood's first-hand

knowledge of the circumstances of the burning and her motivation to tell the truth. (Tp. 1826).

However, three of the five factors pertain to corroborating evidence that was external to the

circumstances of the hearsay statements: Mr. Beale's and Mr. Shearn's testimony corroborating

her hearsay statement that she and defendant fought on November 5, 1993; the testimony by Mr.

Faison, Mr. Robinson, Deputy Williams, Deputy Sharpe, SBI Special Agent Parrish, SBI chemist

McClelland about physical evidence that was consistent with Ms. Fleetwood's hearsay responses;

and "the totality of the circumstances," which evidently include this external corroborating

evidence as well as internal indicia of reliability. (Tpp. 1826-27)The record speaks for itself: in

evaluating the hearsay evidence form indicia of reliability as required by Wright, Roberts, and

Swindler, the trial court expressly and substantially relied on evidence outside of the

circumstances of the hearsay statements, evidence that the trial court regarded as corroborating

the hearsay statements. However, the Supreme Court and this Court squarely ruled in Wright
                                                33

and Swindler that such reliance violates the Confrontation Clause of the Sixth and Fourteenth

Amendments. Moreover, the Supreme Court and this Court have held that a trial court violates

the Confrontation Clause even if it relies only in part on such external, corroborating evidence.

Idaho v. Wright, supra; State v. Swindler, supra.


       Defendant anticipates that the state might argue that this evidence could have been

admitted under the dying declaration exception to the hearsay rule, N.C. Gen. Stat. 8C-1, Rule

804(b)(2). However, the record precludes any such argument. First, the trial court expressly

ruled that Ms. Fleetwood's hearsay statements were not admissible under the dying declaration

exception or under any other enumerated exception. (Tp. 1681, lines 6-8; Tp. 1684, lines 16-23;

Tp. 1825, lines 22-24) Second, Rule 804(b)(2) explicitly requires that a declarant believe that

death is imminent when the declarant makes the dying declaration. The record contains no

evidence that Ms. Fleetwood believed her death was imminent when she made the statement.

Indeed, Ms. Rosenfeld testified that she refused the request of Deputy Sharpe and Special Agent

Parrish to tell Ms. Fleetwood that she was in imminent danger of dying. (Tpp. 1511-12) Thus,

the trial court correctly found that Ms. Fleetwood's hearsay statements did not fall within the

dying declaration exception or under any other enumerated hearsay exception.


       Since the introduction of Ms. Fleetwood's statements violates the Confrontation Clause,

the state has the burden of proving that the violation was harmless beyond a reasonable doubt.

The state cannot do so. As noted above, the trial court declared that this evidence "probably very

well may be the most probative piece of evidence that the state offers and that is the victim,

herself, identified the person who allegedly committed these acts against her." (Tp. 1671) In its

conclusions of law, the trial court stated that this evidence was more probative on the issues of

identity, malice, premeditation, deliberation, and lack of accident than any other evidence the

state can reasonably produce. (Tpp. 1681, 1827). Finally, one of the prosecutors emphasized the
                                                34

importance of this evidence by concluding her guilt-innocence phase closing argument with a

poignant reference to this evidence.        (Tpp. 1883-84)       Although the state introduced

circumstantial evidence of identity, malice, premeditation, deliberation, and lack of accident,

both the state and the trial court appreciated the singular importance of this hearsay evidence.

Accordingly, the state cannot now prove that the trial court's erroneous introduction of the

evidence was harmless beyond a reasonable doubt. The trial court's error requires reversal of

defendant's conviction.


               B.     The Trial Court's Erroneous Determination                     of
                      Circumstantial Guarantees of Trustworthiness

       As noted above, North Carolina law requires that a trial court made findings of fact and

conclusions of law determining, inter alia, that proferred residual hearsay evidence possess

circumstantial guarantees of trustworthiness. N.C. Gen. Stat. § 8C-1, Rule 804(b)(5); State v.

Nichols, supra. In this case, a crucial facet of that analysis is whether Ms. Fleetwood's mental

functioning was sufficiently sound for her to make reliable responses to Ms. Rosenfeld's

questions.


       The evidence on this question was in conflict. Ms. Rosenfeld testified that on November

19, 1993, through the time of the interview, Ms. Fleetwood was sufficiently awake, alert, and

oriented to respond to the questions Ms. Rosenfeld asked at the request of the Deputy Sharpe and

Special Agent Parrish. Ms. Rosenfeld testified that the hospital records include a doctor's note

that on the morning of November 18, 1993 (the day before the interview), Ms. Fleetwood's

neurological examination had improved dramatically and that Ms. Fleetwood had awakened and

was following commands and answering questions with head movements.                Ms. Rosenfeld

testified that in her opinion, the medications that had been given to Ms. Fleetwood that day -- the

powerful painkiller fentanyl and the sedative versed -- did not have any effect on Ms.

Fleetwood's mental functioning at the time of the interview at 2:00 p.m. (Tpp. 1483-1532) Dr.
                                                 35

Bono testified that orientation and competence are not equivalent (Tp. 1629), but that in her

opinion, Ms. Fleetwood was in a position to answer questions appropriately at the time of the

interview.     (Tpp. 1636-41)    She testified that burn patients can develop a tolerance for

medications and that Ms. Fleetwood could have been competent even under fentanyl. (Tpp.

1625, 1653).


       In contrast, Dr. Peterson (director of the Jaycees Burn Center at the University of North

Carolina at Chapel Hill) testified that the versed and fentanyl together could well have caused

Ms. Fleetwood to be confused at the time of the interview, that Ms. Rosenfeld's understanding of

the duration of the effects of these medications was incorrect, that orientation is not equivalent to

competency, that the hospital chart did not provide enough information to determine whether

Ms. Fleetwood was competent at the time of the interview, that a psychiatrist should have been

summoned to assess her mental capability, and that the fact that the hospital relied on relatives of

Ms. Fleetwood, rather than Ms. Fleetwood, to consent to surgical operations throughout her stay

in the hospital indicated that the medical personnel did not believe she could adequately

communicate and understand her condition. Dr. Peterson acknowledged that it is possible that

Ms. Fleetwood could have been competent between 1:30 and 2:15 p.m., but that the evidence

was not sufficient for Ms. Rosenfeld to make that determination. (Tpp. 1558-70) Dr. Blackburn,

a psychiatrist, agreed with Dr. Peterson that the information on the chart was not sufficient to

make a competency assessment, that competency is not equivalent to orientation, that the

hospital staff showed its own view of Ms. Fleetwood's lack of competency by relying only on

relatives to consent to surgical procedures, and that Ms. Rosenfeld undermined the reliability of

the interview by asking leading questions. (Tpp. 1593-1614)


       The trial court stated that it found Dr. Peterson to be very convincing and Dr. Blackburn a

little less so. The trial court noted that Dr. Peterson said that it is possible that Ms. Fleetwood
                                                36

was competent during a brief window of time at the time of the interview. The trial court also

noted that Dr. Bono said Ms. Fleetwood could have given consent to the surgical procedures

even though the hospital relied on relatives to consent, instead. (Tpp. 1671-72) In its findings of

fact, the trial court noted circumstantial factors relevant to trustworthiness (in addition to the

external factors discussed in subsection A, above): Ms. Fleetwood's prior statements that

defendant did not burn her -- including during the November 19 interview, Ms. Fleetwood's

improvement on November 18, and Ms. Fleetwood's responses that defendant did burn her and

that they had been fighting after Ms. Rosenfeld told her that defendant was in jail and could no

longer threaten her. (Tpp. 1676-80).


       Defendant contends that the trial court erred in finding that Ms. Fleetwood's hearsay

statements possessed circumstantial guarantees of trustworthiness. The court found that Dr.

Peterson was very convincing, but Dr. Peterson did not say that Ms. Fleetwood was competent --

only that she might have been competent, that Ms. Rosenfeld did not have adequate information

to make that assessment, that a psychiatrist should have made that assessment, and that it is

impossible to determine from the hospital records whether Ms. Fleetwood was competent then.

Dr. Peterson testified that both versed and fentanyl, which cause confusion, could still have

affected Ms. Fleetwood at the time of the interview. Also, even though the trial court and the

state contended that Ms. Fleetwood was motivated to tell the truth when she was told that

defendant was in jail, it is nevertheless important in assessing her competency to consider that

she had previously said that defendant had not burned her, including during this interview.

Finally, it is important to realize that Ms. Fleetwood's condition took a marked downturn just

after the November 19 interview, that by the evening of November 19 she was no longer

responsive, and that she died the next day. If, as the hospital records indicate and the Ms.

Rosenfeld testified, Ms. Fleetwood died of sepsis, then it is possible that the effects of sepsis,

including confusion, had already begun to set in at the time of the interview. Such prior
                                               37

inconsistent statements undermine credibility in the same way that a recantation does. See

generally State v. Nichols, supra (whether declarant ever recanted hearsay statement is relevant

to circumstantial evidence of trustworthiness). Moreover, as Dr. Blackburn said, Ms. Fleetwood

incriminated defendant only in response to leading questions asked by Ms. Rosenfeld. Ms.

Rosenfeld made it quite clear to Ms. Fleetwood that she had given the "wrong" answer in

denying that defendant had burned her. It is certainly possible that Ms. Fleetwood, who fully

and desperately relied on the help of Ms. Rosenfeld at all times, understandably accommodated

Ms. Rosenfeld by giving the answers that Ms. Rosenfeld wanted her to give.


       For these reasons, the trial court erred in determining under Rule 804(b)(5) that Ms.

Fleetwood's mental condition was sufficiently competent to make her incriminating statement

trustworthy


       With respect to prejudice, the analysis in subsection A, above, of the importance of Ms.

Fleetwood's hearsay statements to the state's case shows that the evidence was prejudicial.


               C.      Conclusion

       For the reasons stated above in subsection A, the trial court's introduction of Ms.

Fleetwood's hearsay statements violated the Confrontation Clause of the Sixth and Fourteenth

Amendments. For the reasons stated above insubsection B, the trial court's introduction of those

statements violated Rule 804(b)(5).      These violations, either separately or in combination,

require reversal of defendant's conviction.
                                                38

       II.     THE TRIAL COURT ERRED BY PERMITTING AN
               UNQUALIFIED WITNESS TO GIVE AN OPINION ABOUT THE
               CAUSE OF THE DECEDENT'S DEATH, WHERE THE WITNESS
               ADMITTED THAT SHE WAS NOT QUALIFIED TO DIAGNOSE
               THE ALLEGED CAUSE OF DEATH AND WHERE SHE RELIED
               ON THE HEARSAY OPINIONS OF OTHER MEDICAL
               PERSONNEL.

               Assignment of Error No. 122 (Rp. 164)
               Assignment of Error No. 131 (Rp. 166)

       Nurse Donna Rosenfeld gave extensive testimony about Ms. Fleetwood's condition and

treatment during Ms. Fleetwood's two weeks in Sentara Norfolk Hospital. Generally speaking, it

is appropriate for a nurse who is experienced in the nursing care of burn patients to testify about

the treatment of a burn patient and about her observations and the recorded observations of other

medical personnel concerning the patient's condition.. However, the trial court also permitted

Ms. Rosenfeld to go beyond such appropriate testimony, permitting her to give her opinion (over

defendant's timely objections) about the cause of Ms. Fleetwood's death. The trial court's rulings

on this issue were prejudicial errors, entitling defendant to a new trial. In addition, since her

unqualified testimony was the only testimony presented during the guilt-innocence phase about

the cause of death, the trial court erred by denying defendant's motions to dismiss.


       Testimony about the cause of death is, of course, essential to the state's proof in a

homicide case. Ordinarily, the state presents such testimony through a physician who serves as a

medical examiner and who either conducted or witnessed the autopsy of the decedent. In cases

in which the cause of death is obvious and a nonexpert the witness is qualified by experience and

observation to give an opinion, lay testimony about the cause of death is admissible. State v.

Howard, 274 N.C. 186, 162 S.E.2d 495 (1968); State v. Minton, 234 N.C. 716, 68 S.E.2d 844

(1952); State v. Trueblood, 39 N.C. App. 459, 250 S.E.2d 666 (1979). Even in such cases, this

Court has repeatedly advised prosecutors to present expert medical testimony about the cause of

death if such testimony is available. State v. Howard, supra; State v. Minton, supra. However,
                                                39

expert testimony about the cause of death is necessary when the cause of death is obscure and

when the average layperson could not have a well-grounded opinion about the cause. State v.

Minton, supra. When expert testimony is necessary, the state's reliance on nonexpert testimony

does not constitute sufficient proof of proximate causation. Id. For example, in State v. Porth,

269 N.C. 329, 153 S.E.2d 10 (1967), this Court held that the trial court had properly excluded the

proffered testimony of a state trooper that there were no signs indicating a violent cause of death.

As this Court explained, the trooper could testify about his observations of the condition of the

victim's body, but only an autopsy by a medical expert could determine the cause of death in the

circumstances of that case.


       In this case, Ms. Rosenfeld testified on direct examination, in the presence of the jury and

over defendant's repeated objections, that in her opinion, the cause of Ms. Fleetwood's death was

sepsis -- the body's response to a massive infection that can occur when burns cause the loss of

healthy skin that shields the body from infection. (Tpp. 1749-51) She testified that she based

her opinion on her observations of Ms. Fleetwood and the notes made by other medical

personnel in the hospital records about Ms. Fleetwood's death. (Tpp. 1748-49) However, during

her prior voir dire, in answer to the prosecutor's questions on voir dire direct examination, Ms.

Rosenfeld insisted that she was not qualified to diagnose sepsis:


               Q:   LET ME ASK YOU THIS. ARE YOU CAPABLE OF
               DIAGNOSING SEPSIS YOURSELF?

               A:   NO, SIR, I'M NOT. I'M NOT A PHYSICIAN AND
               THAT IS A PHYSICIAN DIAGNOSIS, NOT A NURSING
               DIAGNOSIS.

       (Tp. 1544, lines 10-13)


       Ms. Rosenfeld's express denial of her capacity to draw on her own training, experience,

and observations to diagnose sepsis establishes two points. First, whatever the cause of death
                                                40

was in this case, the cause was not so obvious that a layperson -- even a trained and experienced

layperson such as Ms. Rosenfeld -- could determine it without the assistance of expert testimony.

Accordingly, the trial court erred by permitting Ms. Rosenfeld to give her avowedly nonexpert

opinion.


       Second, since Ms. Rosenfeld admitted that she was not capable of diagnosing sepsis and

since she was not present when Ms. Fleetwood died, it is clear that her opinion that sepsis was

the cause of death relied entirely on the hearsay opinion of one or more other medical personnel.

In Donovant v. Hudspeth, 318 N.C. 1, 26, S.E.2d (1986), this Court explained that "one

physician may not base his opinion solely on the statement of opinion of another physician. . . ."

(emphasis in original)    Although Donovant was a pre-Rules case, nothing in the Rules of

Evidence would change this principle set forth in Donovant. Rule 703 permits an expert to base

an opinion on facts or data that are not admissible if such facts or data are "of a type reasonably

relied upon by experts in the field in forming opinions or inferences upon the subject. . . ." In

this case, the state did not present any evidence to show that nurses rely on opinions of other

medical personnel in hospital records to form opinions about the cause of a patient's death. In

addition, the opinions of others do not constitute "facts or data" under Rule 703. Also, under

Donovant, it would not be reasonable for a medical professional to base an opinion solely on the

opinion of another medical professional. The trial court's errors violated defendant's rights under

the Eighth Amendment and under the Due Process Clause of the Fourteenth Amendment.


       Defendant anticipates that the state might argue that Ms. Rosenfeld was a medical expert

with respect to the treatment of burns and that even though the trial court did not explicitly

qualify her as an expert, the trial court did so implicitly. Defendant understands that in some

cases, a trial court implicitly qualifies a witness as an expert by receiving the witness' opinion

testimony if the in fact is qualified by training and/or experience to give an expert opinion. See
                                                  41

generally Kenneth S. Broun, NORTH CAROLINA EVIDENCE § 185, p. 646 (4th ed. 1993).

Indeed, that principle might well be applied to some aspects of Ms. Rosenfeld's testimony, such

as her testimony about the treatment of burn patients.          However, the principle of implied

qualification cannot apply to Ms. Rosenfeld's opinion testimony about sepsis as the cause of

death because Ms. Rosenfeld herself stated unequivocally that she was not qualified to diagnose

sepsis. A trial court cannot implicitly find that a witness is an expert on a particular subject if the

witness herself insists that she is not an expert on that very subject.           Also, even if Ms.

Rosenfeld's training and experience made her an expert on the treatment of burn patients, that

expertise did not encompass expertise on the cause of death.


       Defendant observes that State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1990), cert.

denied, 126 L.E.2d 602 (199_____) is distinguishable. In Jennings, the defendant claimed that

she called paramedics as soon as she found her husband (the decedent) on the floor. The state

introduced testimony of a paramedic that the decedent had been in cardiac for more than fifteen

minutes when the paramedic arrived. This Court held that even if the paramedic was not

qualified to give that opinion, the defendant in that case was not prejudiced because two

pathologists testified that the decedent had been dead for several hours when the defendant called

for help. In contrast, during the guilt-innocence phase of this case, the state did not present any

other testimony about the cause of Ms. Fleetwood's death. During the penalty phase, the state

did present the expert testimony of a medical examiner, Dr. Marcella F. Fierro, which included

Dr. Fierro's opinion that sepsis was the cause of death. (Tp. 2071) The state did not explain why

it did not present Dr. Fierro's testimony to prove cause of death during the guilt-innocence phase.


       The trial court's error in permitting Ms. Rosenfeld to testify about the cause of death was

prejudicial because her testimony was the only guilt-innocence phase testimony about the cause

of death. Without her testimony, the lay jurors could only have speculated about the cause of
                                               42

death and about the essential element of proximate causation -- speculation for which Ms.

Rosenfeld admitted during her voir dire testimony that she herself was not qualified. Moreover,

under Minton, her unqualified testimony did not give the jury a reasonable basis for finding that

defendant's actions were the proximate cause of Ms. Fleetwood's death; consequently, the trial

court should have granted defendant's motions to dismiss.


       Defendant respectfully submits that the trial court committed reversible error by

overruling defendant's objections to this opinion testimony, by denying defendant's motion to

strike this testimony, and by denying defendant's motions to dismiss.


       III.    THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S
               OBJECTIONS TO A WITNESS' UNQUALIFIED OPINION
               TESTIMONY ABOUT THE PERIOD DURING WHICH THE
               SEDATIVE VERSED AFFECTED THE DECEDENT'S MENTAL
               CONDITION.

               Assignment of Error No. 123 (Rp. 164)

       Section II, above, discusses the trial court's error in permitting nurse Donna Rosenfeld to

give an unqualified opinion about the cause of Ms. Fleetwood's death. This section discusses a

similar error: permitting Ms. Rosenfeld to give an unqualified opinion about the period during

which the sedative versed would affect Ms. Fleetwood's mental condition. This error was

prejudicial because it permitted Ms. Rosenfeld to testify that Ms. Fleetwood was competent

when she made her incriminating responses to the questions asked by Ms. Rosenfeld in the

presence of law enforcement officers on November 19, 1993.


       During her voir dire testimony, Ms. Rosenfeld testified that medical personnel gave Ms.

Fleetwood doses of the sedative called versed three times on the morning of November 19, 1993:

at 8:40, 10:25, and 11:45. Ms. Fleetwood's interview with law enforcement officers occurred at

about 2:00 p.m. that day. Clearly, an important issue in the voir dire testimony preceding Ms.

Rosenfeld's testimony in front of the jury was whether the doses of versed could have so affected
                                                 43

Ms. Fleetwood's mental functioning at 2:00 p.m. that the sedative made her incriminating

responses unreliable.


       Over defendant's objections, Ms. Rosenfeld then testified in the presence of the jury that

in her opinion, the doses of versed given to Ms. Fleetwood on the morning of November 19

would have lasted only 20 to 30 minutes. (Tpp. 1755-56, 1759) This opinion supported

supported her further opinion that Ms. Fleetwood was competent to understand the questions and

her answers about how she caught fire on November 5.


       The trial court erred by overruling defendant's objections to her testimony in front of the

jury about the duration of the effects of versed. The voir dire testimony of Ms. Rosenfeld and a

of physician who testified as a defense expert during voir dire shows that Ms. Rosenfeld was not

qualified to give an opinion on the duration of the effects of versed.


       During her voir dire testimony, Ms. Rosenfeld testified as follows about the duration of

the effects of versed:


               THE COURT: EXCUSE ME. DO YOU THINK SHE WAS -- AT
               2:00 SHE WAS STILL UNDER THE INFLUENCE OF THE
               VERSED?

               A.        NO, I DO NOT.

               THE COURT: DO YOU THINK THAT -- YOU GAVE THE
               LAST ONE TO HER AT 11:25, LESS THAN THREE HOURS
               BEFORE?

               A.   YES, SIR. THE HALF-LIFE OR THE -- HOW LONG
               VERSED STAYS IN YOUR SYSTEM WHEN IT IS A SINGLE
               DOSE LIKE THAT IS GENERALLY 20 TO 30 MINUTES.

(Tp. 1518)


       However, defense voir dire expert Dr. H.D. Peterson, Director of the North Carolina

Jaycees Burn Center and Professor of Surgery at the University of North Carolina at Chapel Hill,
                                                  44

established that Ms. Rosenfeld did not understand the duration of the effects of versed. Dr.

Peterson explained that the half-life of a medication is not the full period of its effects, but rather

is the time during which half of the medication is physically passed out of the kidneys. This is a

metabolic half-life, so it does not represent either the full duration of the physical presence of the

medication in the body or the full duration of the effect of the medication on a patient's mental

condition. Dr. Peterson also testified that even the metabolic half-life of versed is 30 to 45

minutes -- longer than the estimate given by Ms. Rosenfeld. (Tpp. 1564-65) Most importantly,

Dr. Peterson testified that versed would affect a patient's mental functioning for considerably

longer than it is present in the body in significant amounts. He testified that the does of versed

given to Ms. Fleetwood (2.5 milligrams) would put someone to sleep for a short time "and then

confuses them for sometime after that. That is why when you have out-patient surgery, you are

told not to, you know, sign any documents or make any decisions for twenty-four hours until it is

really all flushed out." (Tp. 1567)


       Subsequently, in front of the jury, Ms. Rosenfeld testified that based on her training and

experience, it was her opinion that "the dose of versed was lasting Mary about 30 minutes." (Tp.

1756; see also Tp. 1759). Defendant objected to her testimony about her opinion. (Tpp. 1756,

1759). The trial court overruled defendant's objections. (Tpp. 1756, 1759) The trial court's

rulings were erroneous.


       Defendant notes first that the trial court did not declare Ms. Rosenfeld to be an expert on

the effects of sedatives and painkilling medication on patients' mental functioning.             Even

assuming that the trial court implicitly found Ms. Rosenfeld to be an expert on that subject (see

generally Kenneth S. Broun, NORTH CAROLINA EVIDENCE § 185, p. 646 (4th ed. 1993)),

any such finding would be erroneous in this case. Although Ms. Rosenfeld demonstrated

admirable expertise in the nursing care of burn patients, a comparison of her voir dire testimony
                                                45

with the voir dire testimony of Dr. Peterson shows that she is not an expert on the duration of the

effects of sedatives and painkillers on patients. See, e.g., Ellis v. Rouse, 86 N.C. App. 367, 357

S.E.2d 699 (1987); Allen v. Hinson, 12 N.C. App. 515, 183 S.E.2d 852 (1971), cert. denied, 279

N.C. 726, ___ S.E.2d ___ (197____) (limits on scope of expertise of chiropractors). Ms.

Rosenfeld did not understand the concept of a half-life and she wrongly equated metabolic half-

life of a sedative with the duration of a sedative's effects on a patient's mental functioning. In

light of her inadequate understanding of the duration of versed's effects on mental functioning,

the trial court should not have permitted her to testify, in front of the jury, about her opinion on

how long the doses of versed would "last" Ms. Fleetwood. The trial court's error is a violation of

state law and of the Eighth Amendment and the Due Process Clause of the Fourteenth

Amendment.


       This testimony was prejudicial. On the morning of November 19, three doses of versed

were given to Ms. Fleetwood before the 2:00 p.m. interview with law enforcement officers.

They were given at 8:40, 10:25, and 11:45 a.m. If each does "lasted" Ms. Fleetwood only 30

minutes, then the jury would conclude that she was no longer under the sedating, confusing

effects of versed when she was interviewed for the officers at 2:00 p.m. However, if, as Dr.

Peterson testified, 30 minutes represents only the minimum metabolic half-life of versed, and if

the effects of versed on mental functioning can continue for up to 24 hours after it is

administered to a patient, then it would be reasonable to conclude that Ms. Fleetwood was still

sedated and confused when she gave her incriminating responses during the interview at 2:00

p.m.


       IV.     THE TRIAL COURT ERRED BY PERMITTING A PROSECUTOR
               TO MAKE GROSSLY IMPROPER STATEMENTS DURING
               CLOSING ARGUMENT.

               Assignment of Error No. 134 (Rp. 166)
               Assignment of Error No. 137 (Rp. 166)
                                                46

       The trial court erred by permitting one of the prosecutors to make two grossly improper

statements during closing argument in the guilt-innocence phase. First, the prosecutor, Ms.

Cherry, stated, "And I submit to you that if that child had seen her mother's face and start going

off in there, who knows what would have happened to them. That's what the evidence shows."

(Tp. 1868) This argument is entirely speculative, with no basis in the record. There is no

evidence to support an inference that Ms. Fleetwood concealed her face from her children to

prevent a scene in which defendant might assault her children. Indeed, the evidence shows that

Ms. Fleetwood hid her face from adults (Mr. Faison, Mr. Robinson, and Ms. Woodley) and that

she said that she did not want to go to the hospital. The evidence is that she told her children to

leave and that she would see them two days later. The prosecutor's argument was so speculative

and, therefore, grossly improper, that the even though defense counsel did not object, the trial

court should have intervened ex mero motu to stop that line of argument. See generally State v.

Williams, 317 N.C. 474, 346 S.E.2d 405 (1986) (trial court has duty to intervene ex mero motu

to stop grossly improper closing argument by state).


       Second, the prosecutor said,


               Ladies and gentlemen of the jury, the defendant may come to you
               and argue this is a murder trial, that we put on evidence of
               domestic abuse, but this isn't a domestic abuse trial. Well, I would
               submit to you, ladies and gentlemen of the jury, that it is always
               going to be about domestic abuse until they kill them.

               Mr. Leahy:     Objection.

               The Court:     Overruled.

               Ms. Cherry: Until they kill them. And that's what he's done.
               He's killed her.

(Tpp. 1881-82)
                                                 47

         The court erred by overruling this objection. The prosecutor's argument plainly sought to

use a verdict in this case to enlist the jurors' help in a general effort to deter abusive spouses and

boyfriends from escalating the level of abuse to murder. Such an argument about general

deterrence is improper in the guilt-innocence phase of a capital case. State v. Payne, 328 N.C.

377, 408 S.E.2d 582 (1991).


         The trial court's errors concerning these statements violated defendant's rights under

North Carolina law and under the Eighth Amendment and the due process clause of the

Fourteenth Amendment to the United States Constitution. These errors require reversal of

defendant's conviction.


         V.     THE TRIAL COURT ERRED BY CONDUCTING UNRECORDED
                BENCH CONFERENCES WITH THE ATTORNEYS, OUTSIDE
                THE PRESENCE OF DEFENDANT.

                Assignment of Error No. 8 (Rpp. 145-46)

         On two occasions during the guilt-innocence phase, during jury selection, the trial court

conducted unrecorded bench conferences with the attorneys outside the presence of defendant.

The first time, the trial court summoned the attorneys to the bench after one of the prosecutors

challenged a prospective juror for cause. See Tp. 447, lines 13-17:


                MR. BEARD: WE RENEW OUR CHALLENGE FOR CAUSE,
                YOUR HONOR.

                THE COURT: COUNSEL  APPROACH    THE  BENCH.
                (COUNSEL APPROACHED THE BENCH AND CONFERRED
                WITH THE COURT.)

         The second time, the trial court summoned the attorneys after one of the defense

attorneys objected to a question the prosecutor had asked a prospective juror. See Tp. 457, lines

21-25:


                MR. LEAHY: OBJECTION
                                                48

               THE COURT: APPROACH THE BENCH.     (COUNSEL
               APPROACHED THE BENCH AND CONFERRED WITH THE
               COURT.)

               THE COURT: SUSTAINED

       Defendant submits that the trial court violated defendant's right under Article I, _23 of the

North Carolina Constitution and the Confrontation Clause of the Sixth Amendment to the United

States Constitution to presence at every stage of his capital trial. Defendant knows that this

Court has previously ruled against defendant's position in State v. Buchanan, 330 N.C. 202, 410

S.E.2d 832 (1991). However, defendant respectfully asks the Court to reconsider its holding on

this issue in Buchanan in light of its subsequent holding in State v. Exum, 343 N.C. 291, 470

S.E.2d 333 (1996), in which the Court ruled that a trial court violates a capital defendant's right

to presence by holding an unrecorded in-chambers conference with the attorneys outside the

presence of the jury. Defendant contends that these Buchanan and Exum cannot meaningfully

distinguished and, therefore, that the trial court violated defendant's right to presence by holding

the unrecorded bench conferences outside defendant's presence.


PENALTY PHASE

       VI.     THE TRIAL COURT ERRED BY FAILING TO INTERVENE EX
               MERO MOTU TO STOP A PROSECUTOR FROM CLAIMING
               DURING A PENALTY PHASE CLOSING ARGUMENT THAT
               DEFENDANT HAD LIED IN HIS TESTIMONY.

               Assignment of Error No. 161 (Rp. 170)

       This Court has held that a prosecutor may not contend during closing argument that a

witness lied. State v. Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978); State v. Miller, 271 N.C.

646, 659, 157 S.E.2d 335, 345 (1967). See also Rule 7.6(C)(4) of the North Carolina Rules of

Professional Conduct. While an attorney may present reasons for jurors not to believe a witness'

testimony, an attorney may not present his personal; opinion that a witness lied.
                                                  49

       One of the prosecutors argued during a penalty phase closing argument that defendant

had lied in his penalty phase testimony: "Well, putting the hand on the Bible and told about

35,000 whoppers and then he walked on it and did it. And the rest of you all better do the same

thing. That's a positive contribution he's going to spread? Ladies and gentlemen of the jury,

what is his positive contribution[?]" (Tp. 2443)


       Although defense counsel did not object, the trial court should have intervened ex mero

motu to prevent the prosecutor from making this grossly improper argument. See generally State

v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986). The trial court's error in failing to intervene

violated defendant's rights under state law and under the Eighth Amendment and the due process

clause of the Fourteenth Amendment to the United States Constitution. The trial court's error

requires reversal of defendant's death sentence and a new capital sentencing hearing.


       VII.    THE TRIAL COURT ERRED BY GRANTING THE STATE'S
               MOTION TO PROHIBIT DEFENSE COUNSEL FROM
               DISCUSSING PAROLE ELIGIBILITY FOR A LIFE SENTENCE
               DURING PENALTY PHASE CLOSING ARGUMENTS.

               Assignment of Error No. 3 (Rp. 147)

       The trial court denied defendant's motion for permission to discuss parole eligibility for a

life sentence during penalty phase closing arguments. (Tp. 114) Defendant acknowledges that

this Court has held that counsel may not discuss this issue during closing arguments. State v.

Price, 326 N.C. 56, 388 S.E.2d 84, sentence vacated, 498 U.S. 802, 112 L.Ed.2d 7 (1990).

However, defendant respectfully submits that the Court's previous holdings on this issue are

incorrect, that the Court should reconsider this issue, and that the trial court's error in prohibiting

such questions requires a new trial and a new sentencing hearing.


       In reviewing this issue, defendant urges the Court to consider an important point: the

prospective jurors in this 1995 trial might well have heard that the General Assembly abolished
                                                 50

parole eligibility for a sentence of life imprisonment for first-degree murder. N.C. Gen. Stat. §

14-17. In the initial period of the new sentencing law, the danger of confusion about the old law

is particularly great. Prospective jurors who heard that the new law was a reform of the former

law might mistakenly believe that the period of imprisonment required before a defendant

becomes eligible for parole under the former law is shorter than the actual period of 20 years.

That is, jurors might wrongly believe that the new law reformed a "revolving door" parole policy

that allegedly released first-degree murderers after only a few years imprisonment. The trial

court's ruling erroneously prevented defense counsel from preventing any such confusion.


       VIII. DEFENDANT'S JURY DETERMINED THE MURDER WAS
             "ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL" BASED
             UPON UNCONSTITUTIONALLY VAGUE INSTRUCTIONS
             WHICH FAILED TO DISTINGUISH DEATH-ELIGIBLE
             MURDERS FROM MURDERS WHICH ARE NOT DEATH-
             ELIGIBLE.

              Assignment of Error No. 164 (Rp. 171)

       Defendant was sentenced to die based on a jury finding of the sole aggravating

circumstance that the murder was "especially heinous, atrocious, or cruel." The trial court's

instruction on this aggravating circumstance did not adequately guide the jury in distinguishing

death-eligible from non-death-eligible murders, as is required under this Court's decisions. This

Court should reverse defendant's death sentence in light of Godfrey v. Georgia, 446 U.S. 420, 64

L.Ed.2d 398 (1980), Maynard v. Cartwright, 486 U.S. 356, 100 L.Ed.2d 372 (1988), and Shell v.

Mississippi, 498 U.S. 1, 112 L.Ed.2d 1 (1990).


       It is well-settled that "the channeling and limiting of the sentencer's discretion in

imposing the death penalty is a fundamental constitutional requirement for sufficiently

minimizing the risk of wholly arbitrary and capricious action." Maynard v. Cartwright, supra,

486 U.S. at 362, 100 L.Ed.2d at 380. Stated more concretely, the Eighth Amendment; mandates

that "[a] capital sentencing scheme must . . . provide a 'meaningful basis for distinguishing the
                                                 51

few cases in which [the penalty] is imposed from the many cases in which it is not.'" Godfrey,

446 U.S. at 428 (quoting Furman v. Georgia, 408 U.S. 238, 313, 33 L.Ed.2d 346 (1972) (White,

J., concurring)); accord Lewis v. Jeffers, 497 U.S. 764, 775, 111 L.Ed.2d 606 (1990).


       A state may rely on the presence of certain aggravating circumstances to accomplish this

"constitutionally necessary narrowing function." Pulley v. Harris, 465 U.S. 37, 50, 79 L.Ed.2d

29 (1984). To achieve this purpose, however, such circumstances must "genuinely narrow the

class of persons eligible for the death penalty and . . . reasonably justify the imposition of a more

severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens,

462 U.S. 862, 877, 77 L.Ed.2d 235 (1983). Given the constitutionally required narrowing

function of aggravating circumstances, and in order to ensure that they in fact minimize the risk

of arbitrary and capricious imposition of capital punishment, an aggravating circumstance must

furnish the sentencer with "clear and objective standards" that provide "specific and detailed

guidance." Jeffers, 497 U.S. at 774, 111 L.Ed.2d at 618-19; see Gregg v. Georgia, 428 U.S. 153,

198, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 253, 49 L.Ed.2d 913 (1976). This

requirement must be particularly carefully honored when a jury is the sentencer.


       When a jury is the final sentencer, it is essential that the jurors be properly instructed

regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare

terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the

import of our holdings in Maynard and Godfrey.


       Walton v. Arizona, 497 U.S. 639, 653, 111 L.Ed.2d 511 (1990).


       North Carolina's "especially heinous, atrocious, or cruel" aggravating circumstance fails

to provide such guidance to the sentencing jury.         The statutory provision for aggravating

circumstance in this case simply states as follows: "The capital felony was especially heinous,
                                                 52

atrocious, or cruel." N.C. Gen. Stat. § 15A-2000(e)(9);. "[T]here is no serious argument that ...

[these words are] not facially vague." Walton, 497 U.S. at 654, 111 L.Ed.2d at 529.


       The trial court, adhering to North Carolina practice, instructed on the "especially heinous,

atrocious or cruel" aggravating circumstance using the Pattern Jury Instruction uniformly used in

capital sentencing hearings in North Carolina, N.C.P-- Crim. 150.10;, as follows:


       In this context heinous means extremely wicked or shockingly evil; atrocious means

outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with

utter indifference to, or even enjoyment of, the suffering of others.


       However, it is not enough that the murder be heinous, atrocious or cruel as those terms

have just been defined. This murder must have been especially heinous, atrocious or cruel, and

not every murder is especially so.


       For this murder to have been especially heinous, atrocious, or cruel, any brutality which

was involved in it must have exceeded that which is normally present in any killing, or this

murder must have been a conscienceless or pitiless crime which was unnecessarily tortuous to

the victim.


       (Tp. 2563; Rp. 94)


       This Court has upheld this instruction as constitutional. State v. Fullwood, 323 N.C. 371,

373 S.E.2d 518 (1988), sentence vacated, 494 U.S. 1022 (1990); State v. Syriani, 333 N.C. 350,

428 S.E.2d 118, cert. denied, ___ U.S. ___, 126 L.Ed.2d 341 (1993). In State v. Lee, 335 N.C.

244, 439 S.E.2d 547, cert. denied, ___ U.S. ___, 130 L.Ed.2d 162 (1994), the court held that the

instruction is not invalid under this Court's decision in Shell v. Mississippi, supra (limiting

instruction on "especially heinous, atrocious or cruel" circumstance held constitutionally infirm).
                                                 53

        Defendant respectfully submits that this court's prior decisions are incorrect. Clearly

"heinous, atrocious, or cruel" is unconstitutionally vague, Walton v. Arizona, supra.          The

Supreme Court of the United States has previously held that the addition of the word "especially"

is insufficient:


        The State's contention that the addition of the word "especially" somehow guides the

jury's discretion, even if the term "heinous" does not, is untenable. To say that something is

"especially heinous" merely suggests that the individual jurors should determine that the murder

is more than just "heinous," whatever that means, and an ordinary person could honestly believe

that every unjustified, intentional taking of human life is "especially heinous."


        Maynard v. Cartwright, supra, 486 U.S. at 364, 100 L.Ed.2d 372.


        The question becomes, therefore, whether the trial court's instruction gives

constitutionally sufficient definition and clarity to the phrase "especially heinous, atrocious or

cruel." If not, defendant's death sentence is unconstitutional.


        The initial portion of the instruction is infirm under Shell v. Mississippi, where the

Supreme Court of the United States found unconstitutional a similar attempt to give meaning to

"especially heinous, atrocious, or cruel." The instruction in Shell read, in pertinent part:


        Heinous means extremely wicked or shockingly evil; atrocious means outrageously

wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or

even enjoyment of the suffering of others.


        Shell, 498 U.S. at 2, 112 L.Ed.2d 1.


        There are only two differences between the instruction given at defendant's sentencing

hearing and the one invalidated by the Supreme Court in Shell. First, the trial court here
                                               54

instructed the jury that, in order to be especially heinous, atrocious, or cruel, the "brutality"

involved must have exceeded that which is normally involved in a killing. Second, the trial court

instructed that the murder must have been "conscienceless or pitiless." These additions are not

sufficient to narrow the circumstances under which a jury could find this aggravating

circumstance to exist.


       There are several problems with instructing the jury that an especially heinous, atrocious,

or cruel murder is one that involves more brutality than that normally involved in any killing.

First, the instruction does not define the term "brutality." The term "brutality," standing alone,

does nothing to guide the jury's sentencing discretion.      On the contrary, it is often used

interchangeably with terms such as "atrocious" or "cruel." See Webster's New International

Dictionary (Second Edition) (defining "atrocious" as "[s]avagely brutal; outrageously cruel or

wicked"); American Heritage Dictionary (Second College Edition) (defining "brutal" as

"characteristic of a brute; cruel; harsh; crude"); Roget's Thesaurus (1991 Edition) (using

"inhuman" as the lead synonym for "brutal"). The jury in this case doubtless viewed "brutal" as

yet another broadly pejorative term, such as "heinous", which this Court has found to be

constitutionally inadequate.


       Only one other state court has considered whether the term "brutality" sufficiently guides

a sentencer's discretion. In State v. Wood, 648 P.2d 71, 85 (Utah 1982), the sentencing judge

found as an aggravating circumstance the "ruthlessness and brutality of the murder. . . ." The

court held the circumstance invalid under Godfrey, "since it describes all murders and therefore

fails to provide any guideline for channeling discretion." Wood, 648 P.2d at 86.


       Nor does use of the clause "exceeded that which is normally present in any killing" to

modify "brutality" provide adequate limitation.      Jurors are provided no uniform frame of

reference to compare this with other murders, no way to know what level of brutality is
                                                 55

"normally present" in first degree murders. Cf., Arave v. Creech, supra (sentencing judge, unlike

jury, presumed to know and apply any existing narrowing construction). "A person of ordinary

sensibility could fairly characterize almost every murder as" brutal. Godfrey v. Georgia, supra,

446 U.S. at 429, 64 L.Ed.2d 398. "Excessive" brutality is no more valid as a limiting instruction

than is "especially" heinous.


         Moreover, the instruction on its face does not limit the comparison to other murders, but

to other "killing[s]", which could be understood by lay jurors to encompass even unintentional

homicides, thus absurdly broadening the scope of qualifying "brutality."               The Eighth

Amendment requires an aggravating circumstance to "genuinely narrow the class of persons

eligible for the death penalty." Zant v. Stephens, supra, 462 U.S. 862, 877, 77 L.Ed.2d 235. If a

limiting instruction on heinous, atrocious, and cruel permits a jury to compare acts in different

cases, it must, at a minimum, allow this assessment to include only first degree murders and not

all killings. Otherwise, the aggravating circumstance fails in its constitutional narrowing role.


         The second distinction between the instruction given here and the one invalidated in Shell

is the addition of the language that "the murder must have been a conscienceless or pitiless crime

which was unnecessarily tortuous to the victim." This language, however, is such that, in the

words of Godfrey, it could be seen by a "person of ordinary sensibility (to) fairly characterize

almost every murder." Therefore, it does not sufficiently guide the jury, and is unconstitutionally

vague.


         In State v. Lee, supra, this Court relied in part on Proffitt v. Florida, 428 U.S. 242, 49

L.Ed.2d 913 (1976) as support for the instruction given in this case. There, the Supreme Court

held that the phrase "conscienceless or pitiless" was sufficient to describe a death-eligible

murder. However, as in Arave v. Creech and Walton v. Arizona, the sentencer in Proffitt was a

judge, not a jury. Judges, unlike jurors, are aware of limiting constructions given otherwise
                                                 56

unconstitutionally vague terms.      More importantly, "a trial judge is more experienced in

sentencing than a jury, and therefore is better able to impose sentence similar to those imposed in

analogous cases. Proffitt, 428 U.S. at 252, 49 L.Ed.2d at 923; accord, Arave v. Creech; Walton

v. Arizona.


       Just as a juror may believe that any first degree murder is "heinous," he or she may well

believe that anyone capable of first degree murderer is without conscience or pity. Accordingly,

this phrase does nothing to limit the "especially heinous, atrocious or cruel" aggravating

circumstance.


       Finally, the instruction used in defendant's sentencing hearing contains several

disjunctives. That is, the jury was to consider whether the killing was heinous, atrocious or

cruel; whether it was wicked or shockingly evil; whether it showed indifference to or enjoyment

of suffering;    whether it was conscienceless or pitiless.           If any of these terms are

unconstitutionally vague, the aggravating circumstance itself does not pass constitutional muster.

The constitutionally adequate definition of one term does not save the aggravating circumstance

as a whole. See Griffin v. United States, 502 U.S. 46, 116 L.Ed.2d 371 (1991) (general verdict

may not be sustained where jury given option of relying upon a legally inadequate theory); see

also, Shell v. Mississippi, supra ("It has long been settled that when a case is submitted to the

jury on alternative theories the unconstitutionality of any of the theories requires that the

conviction [or verdict] be set aside."). Accord, Leary v. United States, 395 U.S. 6, 23 L.Ed.2d 57

(1969). See also, Boyde v. California, 494 U.S. 370, 108 L.Ed.2d 316 (1990) (acknowledging

application of this principle in context of capital sentencing by a jury).


       In sum, the instructions given defendant's jury failed to limit the unconstitutionally vague

aggravating circumstance in violation of the Eighth Amendment;. The instructions purporting to

explain this circumstance were constitutionally deficient under Godfrey, Cartwright, and Shell.
                                                 57

This unconstitutional interpretation is extremely significant to the validity of North Carolina's

capital punishment jurisprudence, as was the similar misinterpretation in Mississippi, which was

corrected by Shell. The instructions challenged here are the standard pattern instructions used in

North Carolina capital trials. In light of this error, the Court should reverse defendant's death

sentence and order a new sentencing hearing.


       IX.     THE TRIAL COURT'S CAPITAL SENTENCING JURY
               INSTRUCTIONS, WHICH DEFINED DEFENDANT'S BURDEN OF
               PERSUASION TO PROVE MITIGATING CIRCUMSTANCES AS
               EVIDENCE THAT "SATISFIES" EACH JUROR, WERE PLAIN
               ERROR THAT VIOLATED DUE PROCESS AND THE EIGHTH
               AND FOURTEENTH; AMENDMENTS BECAUSE THAT
               DEFINITION DID NOT ADEQUATELY GUIDE THE JURY'S
               DISCRETION ABOUT THE REQUISITE DEGREE OF PROOF.

                       Assignment of Error No. 165 (Rp. 171)

       Defendant acknowledges that the Court ruled in State v. Payne, 337 N.C. 505, 448

S.E.2d 93 (1994), cert. denied, 131 L.Ed.2d 292 (1995), that the use of the term "satisfy" to

define a defendant's burden of persuasion for mitigating circumstances was not plain error.

However, defendant respectfully asks the court to revisit this issue in this case. The Court's

analysis in Payne demonstrates that the instruction makes the jury's determination of mitigation

completely subjective, thereby violating the Eighth Amendment's requirement of guided

discretion in capital sentencing. The trial court's use of the term "satisfy" was plain error.


       At the outset, it is important to understand the precise nature of defendant's contention.

As the Supreme Court of the United States has explained, there are two constitutionally relevant

functions of a capital sentencing decision: (1) the narrowing of the class of defendants convicted

of first-degree murder to identify the subset of defendants who are eligible for the death penalty;

and (2) the selection, from that class, of defendants for whom death is the appropriate

punishment. Tuilaepa v. California, 129 L.Ed.2d 750 (1994). The issue here involves the
                                                58

second function: the selection, from the class of death-eligible defendants, of those defendants

for whom capital punishment is appropriate.


       North Carolina has established a three-step procedure for the selection function. In North

Carolina, once the narrowing function is performed by the sentencing jury's finding of whether

one or more aggravating circumstances exist, the jury then begins the selection function by

making findings about the existence of mitigating circumstances. For this step, North Carolina

law imposes on a defendant the burden of persuasion to prove the existence of mitigating

circumstances. Then the jury makes a finding about the relative weight of aggravating and

mitigating circumstances. Finally, the jury makes a finding about whether the aggravating

circumstances are sufficiently substantial, in light of mitigating circumstances found, to call for

the death penalty.


       The trial court instructed the capital sentencing jury as follows concerning defendant's

burden of persuasion on mitigating circumstances:


       Now, the defendant has the burden of persuading you that a given mitigating

circumstance exists. The existence of any mitigating circumstance must be established by a

preponderance of the evidence; that is, the evidence taken as a whole must satisfy you -- not

beyond a reasonable doubt -- but simply satisfy you that any mitigating circumstance exists.


       If the evidence satisfies any one of you that a mitigating circumstance exists, you would

indicate that finding on the Issues and Recommendation form.


       (Tp. 2566; Rp. 97) Defendant did not object to this instruction.


       The court's use of the vague words "satisfy you" to explain the burden of proof on

mitigation violated due process and the Eighth and Fourteenth; Amendment requirements of
                                                 59

guided discretion for capital sentencing juries. "When a jury is the final sentencer, it is essential

that the jurors be properly instructed regarding all facets of the sentencing process." Walton v.

Arizona, 497 U.S. 639, 653, 111 L.Ed.2d 511, 528 (1990).              The propriety of such jury

instructions depends on whether the instructions adequately guide the jurors' discretion. That is,

jury instructions must provide a "meaningful basis for distinguishing the few cases in which [the

death penalty] is imposed from the many cases in which it is not." Furman v. Georgia, 408 U.S.

238, 313, 33 L.Ed.2d 346, 392 (1972) (White, J., concurring). Jury instructions that do not

provide adequate guidance violate due process and the Eighth and Fourteenth Amendments

because, as the Supreme Court explained in Furman, they create a genuine risk that the death

penalty will be imposed arbitrarily and capriciously. As the Court emphasized in Gregg v.

Georgia, 428 U.S. 153, 49 L.Ed.2d 859 (1976),


               [W]here discretion is afforded a sentencing body on a matter so
               grave as the determination of whether a human life should be taken
               or spared, that discretion must be suitably directed and limited so
               as to minimize the risk of wholly arbitrary and capricious action."

Id. at 189, 49 L.Ed.2d at 883 (opinion of Stewart, Powell, and Stevens, JJ.) accord Maynard v.

Cartwright, 486 U.S. 356, 362, 100 L.Ed.2d 372, 380 (1988); Godfrey v. Georgia, 446 U.S. 420,

427, 64 L.Ed.2d 406 (1980).


       Defendant acknowledges that under precedent established by the Supreme Court of the

United States, North Carolina may constitutionally place the burden of persuasion to prove

mitigating circumstances on a capital defendant.         Walton v. Arizona, supra.        Moreover,

defendant does not contest North Carolina's use of "preponderance of the evidence" as the degree

of proof required. The problem here is that the jury instructions used in this case (and the pattern

jury instructions regularly used in North Carolina capital cases) define "preponderance of the

evidence" as evidence that "satisfies" each juror that a given mitigating circumstance exists. It is

the use of the highly subjective term "satisfaction" to define the legal term "preponderance of the
                                                60

evidence" that made the burden of proof unconstitutionally vague, that made it a standardless

standard in this case.


       Defendant understands that North Carolina's three-step selection procedure, which

requires jury findings at each step, is not itself required by the Eighth and Fourteenth;

Amendments. See Gregg. v. Georgia, supra. However, due process and the Eighth Amendment

require that once a state law requires sentencing juries to make findings about mitigation and

about the weight of aggravation and mitigation, state law must provide adequate clear guidance

to juries about how to make those findings. Tuilaepa v. California, supra; Penry v. Lynaugh, 492

U.S. 302, 106 L.Ed.2d 256 (1989); Profitt v. Florida, 428 U.S. 242, 49 L.Ed.2d 913 (1976). As

the U.S. Supreme Court explained in Tuilaepa, "[w]e have held, under certain sentencing

schemes, that a vague propositional factor used in the sentencing decision creates an

unacceptable risk of randomness, the mark of the arbitrary and capricious sentencing process

prohibited by Furman v. Georgia (citation omitted)." 129 L.Ed.2d at 761.


       In State v. Payne, supra, this Court ruled that the term "satisfaction" is proper because the

term is "consistent with a preponderance of the evidence" and because "[i]t is for the jury to

determine what evidence satisfies it, and the jury is presumed to have understood the term

'satisfy,' which is plain English." 337 N.C. at 532-33, 448 S.E.2d at 109. However, defendant

respectfully submits that this analysis actually highlights the problem with the term "satisfy."

Defendant agrees that the jurors understood the word "satisfy" to mean, as it does in everyday

English, that the jurors would make a wholly subjective decision about whether the evidence

satisfied them. If, as this Court concluded in Payne, "[i]t is for the jury to determine what

evidence satisfies it," and "'the jury alone determines by what evidence it is satisfied," (id. at

532-33, 448 S.E.2d at 109), then the jury's determination about the existence of mitigation is

fully subjective, without any channeling or guidance by the trial court.
                                                 61

       The issue of what "satisfaction" means in North Carolina law is murky. Case law shows

that the term is vague and susceptible to highly subjective interpretation by lay jurors. In State v.

Franks, 300 N.C. 1, 18, 265 S.E.2d 177, 186-87 (1980), the North Carolina Supreme Court

stated, "[t]he jury knew that what satisfied it was for its own determination and, from the trial

judge's instructions, the standard is less than the reasonable doubt standard.          The jury is

presumed to have understood the plain English contained in Judge Smith's instructions." 300

N.C. at 18, 265 S.E.2d at 187 (emphasis added). This statement demonstrates this Court's

recognition of the subjective nature of the term "satisfaction."


       The vagueness of the term "satisfy" is further shown by this Court's decision in State v.

Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), reversed on other grounds, 432 U.S. 233

(1977). In Hankerson, the Court admitted that it had not previously defined the term precisely

and that court again declined to establish a precise definition. The court stated that it means

something other than "preponderance of the evidence," but then stated that it is "no greater and at

the same time not significantly less than persuasion by a preponderance of the evidence." 288

N.C. at 647-48, 220 S.E.2d at 587. The discussion of "satisfy" in Hankerson leaves the term so

vague as to provide no guidance, or at least inadequate guidance to comply with the requirements

of the Eighth and Fourteenth Amendments; and due process.               Moreover, the trial court's

instruction in this case, which expressly equated "satisfy" with "preponderance of the evidence,"

conflicts with this Court's express distinction between the two terms in Hankerson. Since this

Court has not defined "satisfy" precisely, then it cannot expect jurors to understand it clearly.


       The term "satisfy" is a standardless standard. It does not define the amount of evidence

needed to prove mitigation and it increases the possibility that a juror may wrongly reject a

mitigating circumstance because the juror harbors hostility toward mitigation generally or toward

a particular category of mitigation, without regard to the sufficiency of the evidence of
                                                 62

mitigation.   This problem is particularly serious for statutory mitigating circumstances.

Although North Carolina law deems such circumstances to have mitigating value as a matter of

law, no instruction informed the jurors of that rule in this case. The silence of the instructions on

that issue, combined with the use of the term "satisfy," could easily have led one or more jurors

to reject statutory mitigating factors here because of subjective and arbitrary hostility toward

such factors rather than for lack of evidentiary proof.


       Each juror in this case was permitted to determine the burden of proof he or she would

apply to the mitigating evidence, subject only to the restriction that the standard would be lower

than proof beyond a reasonable doubt.        Although the weight of mitigation is a matter for

individual jurors to determine, Eddings v. Oklahoma, 455 U.S. 104, 114, 71 L.Ed.2d 1, 11

(1982), the evidentiary standard jurors are to apply to the question of whether mitigation exists is

a matter of law concerning which the court must instruct. The court violated the defendant's

right to have a clear, objective standard applied.


       In summary, the use of the term "satisfy" to define the burden of persuasion for

mitigating circumstances turned the jury's determination of mitigation into a wholly subjective

process. The use of this vague, standardless standard violated due process and the Eight and

Fourteenth; Amendments. The Court should overrule its holding in Payne and order a new

sentencing hearing in this case.


       X.      THE TRIAL COURT COMMITTED PLAIN ERROR THAT
               VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS
               BY ALLOWING THE JURY TO REFUSE TO GIVE EFFECT TO
               MITIGATING EVIDENCE IF THE JURY DEEMED THE
               EVIDENCE NOT TO HAVE MITIGATING VALUE.

               Assignment of Error No. 166 (Rp. 171)

       The trial court instructed the sentencing jury that each juror could ignore nonstatutory

mitigating evidence that was factually established if the juror deemed the evidence not to have
                                                   63

mitigating value. The court applied this instruction to the 21 enumerated nonstatutory mitigating

circumstances submitted to the jury.        (Tpp. 128-31)   These circumstances were factually

supported by substantial evidence. Defendant did not object to this instruction. This instruction

was plain error that violated the Eighth and Fourteenth; Amendments to the United States

Constitution by permitting jurors to ignore mitigating evidence. Eddings v. Oklahoma, 455 U.S.

104, 71 L.Ed.2d 1 (1982); Penry v. Lynaugh, 492 U.S. 302, 319, 106 L.Ed.2d 256, 278 (1992).

The instruction also violated the Eighth and Fourteenth Amendments by denying defendant the

constitutionally required, individual consideration of his background and character and of the

crime. Lockett v. Ohio, 438 U.S. 586, 605, 57 L.Ed.2d 973 (1978).


       Defendant knows that the Court has rejected this argument in past cases. See, e.g., State

v. Payne, 337 N.C. 505, 533, 448 S.E.2d 93, 109-110 (1994), cert. denied, 131 L.Ed.2d 292

(1995); State v. Fullwood, 323 N.C. 371, 395-97, 373 S.E.2d 518, 533 (1988), sentence vacated

on other grounds, 494 U.S. 1022, 108 L.Ed.2d 602 (1990). However, defendant notes that in this

case, defendant filed two pretrial motions objecting to this instruction. (Rpp. 102-05, 109-112).

Accordingly, this issue is presented for appellate review in this case. More fundamentally,

defendant respectfully submits that the Court's past decisions on this issue are incorrect and that

the Court should revisit the issue in this case.


       The trial court submitted 22 nonstatutory mitigating circumstances to the sentencing jury.

Of these, 21 were individually enumerated; the twenty-second factor was the "catch-all" factor

provided by N.C. Gen. Stat. § 15A-2000(f)(9);. These factors have mitigating value and a

number of them are well-recognized in various judicial decisions and statutory compilations.

Indeed, the trial court's decision to submit them to the jury indicates that they have mitigating

value. Because of their inherent mitigating content, the sentencer is not free to reject them, if
                                                  64

factually proved, merely because the sentencer deemed them not to be mitigating as a matter of

law.


       The Supreme Court of the United States stated in Eddings,


       Just as the State may not by statute preclude the sentencer from considering any

mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant

mitigating evidence . . . . The sentencer . . . may determine the weight to be given relevant

mitigating evidence. But [it] may not give it no weight by excluding such evidence from [its]

consideration.


       Eddings, 455 U.S. at 113-14, 71 L.Ed.2d 10-11. In Eddings, the judge, who was the

sentencer, announced he was not going to consider the youthful capital defendant's "troubled

childhood" in deciding the appropriate sentence. He then imposed a sentence of death. The trial

judge's decision, as the sentencer in a capital case, violated existing constitutional doctrine. Id.


       In much the same fashion, the challenged jury instructions in this case permitted the jury

to reject inherently mitigating evidence because the jury deemed the evidence not to be

mitigating. These instructions led to the very result rejected in Eddings.


       The sentencer in a capital case must be permitted to consider any relevant mitigating

factor. See Lockett v. Ohio, supra. Eddings extended this principle to preclude a sentencer from

refusing to consider relevant mitigating evidence on the grounds that it did not deem the

evidence to have mitigating value. "Eddings makes clear that it is not enough simply to allow

the defendant to present mitigating evidence to the sentencer. The sentencer must be able to

consider and give an effect to that evidence in imposing sentence." Penry, 492 U.S. at 319, 106

L.Ed.2d at 278 (emphasis added); cf. Hitchcock v. Dugger, 481 U.S. 393, 95 L.Ed.2d 347

(1987). Only if the sentencer is allowed to consider this evidence and give it some effect can this
                                                65

Court confidently be assured that defendant was treated as a unique human being in light of his

individualized circumstances as required by the Eighth; Amendment. Penry, 492 U.S. at 319,

106 L.Ed.2d at 278-79. In North Carolina, the jury, as the capital sentencer, can only consider

and give effect to mitigating evidence if it has been found as a mitigating circumstance.

Permitting the sentencer not to find relevant mitigating evidence as a mitigating circumstance

solely on the basis that the jury does not unanimously find that it has mitigating value violates

Eddings. "The Constitution requires states to allow consideration of mitigating evidence in

capital cases. Any barrier to such consideration must therefore fall." McKoy v. North Carolina,

494 U.S. 433, 442, 108 L.Ed.2d 369, 380 (1990). Consideration of such evidence can take place

only in the two-step weighing process of Issues Three and Four in the North Carolina scheme.

"It is no answer, of course, that the jury is permitted to 'consider' mitigating evidence when it

decides collectively, under Issue Two, whether any mitigating circumstances exist." Id.


        The trial court made a preliminary determination that, as a matter of law, the submitted

nonstatutory mitigating circumstances had some mitigating value. Otherwise, it would not have

submitted them to the jury. The jury, as the sentencer should not then have been free to reject

them simply because it deemed the circumstances of no mitigating value. While the jury in

North Carolina remains free to give whatever weight it deems appropriate to any mitigating

factor it finds, it cannot constitutionally remain free to reject the circumstances and remove them

from the consideration of each individual juror. Otherwise, the penalty imposed does not "reflect

a reasoned moral response to defendant's character, background, and crime." See California v.

Brown, 479 U.S. 538, 545, 93 L.Ed.2d 934, 942 (1987) (O'Connor, J., concurring) (emphasis in

original).


        The Ninth Circuit has addressed this issue. Smith v. McCormick, 914 F.2d 1153, 1163-

69 (9th Cir. 1990). In Smith, the sentencer refused to consider evidence of good character and
                                               66

desire for rehabilitation. These factors were rejected, not for an absence of evidential support,

but for their lack of mitigating character since they "did not excuse defendant's conduct." Id. at

1164. The constitutional defect in this process involved the failure to give consideration to

relevant "mitigating evidence simply because it fell below a certain weight." Id. at 1165. The

sentencer simply cannot, consistent with the Eighth; Amendment, "exclud[e] from consideration

any relevant mitigating evidence." Id. at 1169. See also Jeffers v. Lewis, 974 F.2d 1075, 1078-

79 (9th Cir. 1992) (constitutional error for sentencing court to fail to consider and weigh

nonstatutory mitigating evidence of impairment that fell below the level of impairment to satisfy

statutory mitigating factor).


       The state cannot show that the trial court's error was harmless beyond a reasonable doubt.

Even as to nonstatutory factors for which the jury answered "yes," there is no way to determine

how many jurors found these factors and how many rejected them only because they decided the

factors did not have mitigating value.


       The trial court's erroneous instructions require a new sentencing hearing.


       XI.     THE TRIAL COURT COMMITTED PLAIN ERROR BY
               ALLOWING JURORS NOT TO GIVE EFFECT TO MITIGATING
               CIRCUMSTANCES FOUND BY THE JURORS.

               Assignment of Error No. 167 (Rpp. 171-72)

       In Penry v. Lynaugh, 492 U.S. 302, 106 L.Ed.2d 256 (1989), and Eddings v. Oklahoma,

455 U.S. 104, 71 L.Ed.2d 1 (1982), the Supreme Court of the United States held that the

sentences in a capital case "may not refuse to consider, any relevant mitigating evidence offered

by the defendant as the basis for a sentence less than death." Penry v. Lynaugh, supra, 492 U.S.

at 318, 106 L.Ed.2d at 277 (emphasis added); Eddings v. Oklahoma, supra, 455 U.S. at 114, 71

L.Ed.2d at 11 (plurality opinion) (capital sentencer may not refuse to consider, as a matter of

law, any relevant mitigating evidence). In North Carolina, constitutional consideration occurs
                                                67

during the two-step weighing process. In this case, the trial court's instructions on the jury's

consideration of mitigating circumstances provided that each juror "may" consider mitigating

circumstances that the juror had previously found to exist. By making optional the jurors'

consideration of mitigation they had previously found, the trial court violated the Eighth and

Fourteenth Amendments as explained in Penry and Eddings. That is, the trial court's instructions

allowed the jurors to refuse to consider and give effect in the weighing process to mitigating

circumstances they had found.


        Defendant knows that this Court has previously ruled against defendant's position on this

issue. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298, 321 (1994), cert. denied, 130 L.Ed.2d 895

(1995); State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied, 130 L.Ed.2d 162 (1994).

However, defendant respectfully asks the Court to reconsider this issue in this case.


        This issue arose in the sentencing phase jury instructions on both steps in the two-step

weighing process: Issues Three and Four. In pertinent part, the jury instructions on Issue Three

were:


        "Issue Three, do you unanimously find beyond a reasonable doubt that the mitigating

circumstance or circumstances found is, or are, insufficient to outweigh the aggravating

circumstance or circumstances found?"


        If you find from the evidence one or more mitigating circumstances, you must weigh the

aggravating circumstances against the mitigating circumstances. When deciding this issue, each

juror may consider any mitigating circumstance or circumstances that the juror determined to

exist by a preponderance of the evidence in Issue Two.


        (Tp. 2585; Rp. 116) (emphasis added).
                                                68

       In pertinent part, the jury instructions on Issue Four were:


       "Do you unanimously find beyond a reasonable doubt that the aggravating circumstance

you found is sufficiently substantial to call for the imposition of the death penalty when

considered with the mitigating circumstance or circumstances found by one or more of you?"


       In deciding this issue, you are not to consider the aggravating circumstance alone. You

must consider them in connection with any mitigating circumstances found by one or more of

you.


       When making this comparison, each juror may consider any mitigating circumstance or

circumstances that juror determined to exist by a preponderance of the evidence.


       (Tp. 2587; Rp. 118) (emphasis added).


       In its opinion, in State v. Daniels, supra, this Court implicitly but clearly agreed with the

premise of defendant's argument. Citing its previous decision in State v. Lee, supra, the Court

stated, "these pattern instructions would be interpreted by any reasonable juror to mean that all

mitigating circumstances found by that juror to exist and to have mitigating value must be

considered." State v. Daniels, 337 N.C. at 281, 446 S.E.2d at 321 (emphasis added). In other

words, the Court below tacitly agreed with defendant's position that the Eighth and Fourteenth

Amendments require that jurors must consider and give effect in the weighing process mitigating

factors the jurors have found. The Court below disagreed with defendant only in the next step of

defendant's argument:      whether the trial court's instructions satisfy that constitutional

requirement.


       In Lee, this Court held that the pattern instructions -- which were used in defendant's case

as well as in Lee -- were correct because they told jurors that they "must" weigh aggravating and
                                                 69

mitigating circumstances in the two-step weighing process used in North Carolina's capital

sentencing scheme. This Court is correct that the pattern instructions tell jurors they "must"

weigh aggravating factors. But that is not the issue here. The issue is which mitigating factors

they must weigh. The instructions given in this case (as in Lee) authorized jurors to choose to

ignore some mitigating factors in the weighing process. For example, consider the statutory

mitigating factor that defendant committed the crime while under the influence of mental or

emotional disturbance.      A juror might have found that the evidence supported the factual

existence of this factor and the juror might have obeyed the trial court's instruction that this

factor, as a statutory factor, is deemed by law to have mitigating value. However, the same juror

might then have interpreted the trial court's instruction about weighing to mean that he or she

was free to ignore that factor in the weighing process if the juror was skeptical about or hostile to

such mitigating evidence.


       Defendant respectfully submits, then, that the Court is wrong in its holding that "may"

equals "must." This issue is a simple but important issue of the definition of two words with

very different meanings. "May" means that the jurors have an option; it means that they can

freely choose either to consider mitigating factors they have found or not to consider them.

"Must" means that the jurors have no option; it means that they have to consider mitigating

factors they have found, without any freedom to choose not to consider them. With all due

respect to this Court, "may" does not mean "must." This Court is wrong in stating that "any

reasonable juror would" would interpret "may" to mean "must."            Even if, for the sake of

argument, "may" could be understood to mean "must" in these instructions, such equivalence

would hardly be obvious to any experienced speaker of the English language. There is a

reasonable likelihood that a rational juror would interpret "may" in the ordinary sense of giving

the juror an option to ignore mitigating factors to which a juror is hostile in the weighing process.

Thus, at a minimum, there is a reasonable likelihood that the jurors would have interpreted the
                                                70

term "may" in a way that would violate the Eighth and Fourteenth; Amendments requirements to

give effect to mitigating evidence. Boyde v. California, 494 U.S. 370, 108 L.Ed.2d 316 (1990);.


       XII.    THE TRIAL COURT ERRED BY SENTENCING DEFENDANT TO
               DEATH BECAUSE THE DEATH PENALTY IS INHERENTLY
               CRUEL AND UNUSUAL; THE NORTH CAROLINA CAPITAL
               SENTENCING SCHEME IS UNCONSTITUTIONALLY VAGUE
               AND OVERBROAD; AND THE DEATH SENTENCE IN THIS
               CASE WAS NOT SUPPORTED BY THE EVIDENCE, WAS
               DISPROPORTIONATE, AND WAS IMPOSED UNDER THE
               ARBITRARY INFLUENCE OF PASSION, PREJUDICE, AND
               OTHER ARBITRARY FACTORS.

               Assignment of Error No. 2 (Rp. 144)
               Assignment of Error No. 168 (Rp. 172)
               Assignment of Error No. 169 (Rp. 172)

       Defendant contends that the death penalty is inherently cruel and unusual and the North

Carolina capital sentencing scheme, N.C. Gen. Stat. § 15A-2000;, is vague and overbroad. The

statute also permits juries to make excessively subjective sentencing determinations. The statute

is applied arbitrarily and pursuant to a pattern of discrimination on the basis of race and sex of

defendants and victims and on the basis of defendants' poverty. In addition, the death penalty is

disproportionate in this case.


                                        CONCLUSION

       For reasons set forth above concerning guilt-innocence phase errors, defendant

respectfully submits that he is entitled to a new trial. For the reasons set forth above concerning

penalty phase errors, defendant respectfully submits that he is entitled to a new capital

sentencing hearing.


       This the 16th day of January, 1997.

                                             Respectfully submitted,


                                             _________________________________
                                               71

                                             Benjamin Sendor
                                             Assistant Appellate Defender

                                             Malcolm Ray Hunter, Jr.
                                             Appellate Defender
                                             Office of the Appellate Defender
                                             200 Meredith Drive, Suite 200
                                             Durham, North Carolina 27713
                                             (919) 560-3334

                                             ATTORNEYS FOR DEFENDANT


                               CERTIFICATE OF SERVICE

       I hereby certify that I have caused to be served a copy of the foregoing Defendant-
Appellant's Brief on [NAME OF AG LAWYER], Assistant Attorney General, North Carolina
Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, by depositing
an envelope containing the same in the United States Postal Service, first-class postage prepaid.

       This the 16th day of January, 1997.


                                             _________________________________
                                             Benjamin Sendor
                                             Assistant Appellate Defender

								
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