State v. Stager , 329 N.C. 278 ( 1991 )

Justice MEYER

concurring in part, dissenting in part.

I concur in the majority’s opinion as to the guilt phase, but I dissent as to the majority’s conclusion that there was error in the sentencing phase requiring a new sentencing proceeding. While I concede the presence of McKoy error, I cannot agree with the majority’s conclusion that the record reveals substantial evidence from which a juror reasonably might have found the fifth or “catchall” statutory mitigating circumstance. I am convinced that the McKoy error in this case was harmless beyond a reasonable doubt.

The trial court submitted to the jury one aggravating and five mitigating circumstances. The jury unanimously found the aggravating circumstance that the murder was committed for pecuniary gain. It also unanimously found four of the five mitigating circumstances: (1) “defendant has raised two fine children,” (2) “defendant is an active and helpful church member,” (3) “defendant is and has been a good friend to many people,” and (4) “defendant has no significant criminal record.” The jury did not unanimously find the existence of the final mitigating circumstance submitted, the catchall: “[a]ny other circumstance or circumstances arising from the evidence which you the jury deem to have mitigating value.”

The majority finds that there was substantial evidence from which a juror might reasonably have found the “catchall” mitigating circumstance. I disagree. In order to find harmless error, this Court must find beyond a reasonable doubt that no different result would have been reached if the individual jurors had been permitted to consider mitigating circumstances not unanimously found. State v. Quesinberry, 328 N.C. 288, 294, 401 S.E.2d 632, 635 (1991) (Meyer, J., dissenting). The burden is on the State to prove beyond a reasonable doubt that the jury would nonetheless have recommended death even if each individual juror had been allowed to consider all of the mitigating circumstances which he or she individually found to be present. Id.

My review of the evidence in this case reveals that there was little or no evidence presented to the jury by which a reasonable juror could find the “catchall” mitigating circumstance.

Defendant cites the following as possible mitigating circumstances which the jury, if properly instructed, could have found: (a) she educated, encouraged, and worked with numerous young people and acted as a mother toward children besides her own; (b) she worked most of her life to contribute to the support of her family; (c) she cooperated with state officials in investigating the case and willingly complied with their requests; and (d) she participated in charitable and community activities outside her church.

A. Acted as a mother to other children.

The majority, in support of this circumstance, notes that a member of defendant’s church testified that defendant would often babysit for her and take her son to McDonald’s and buy him toys. Additionally, a student testified that defendant had written her letters and would give her advice. This testimony tended to support no other mitigating circumstance than one which the jury found to exist, i.e., that “defendant is and has been a good friend to many people.”

B. Worked most of her life to support her family.

A review of the record reveals that there is no evidence that defendant worked most of her life and contributed to her family’s support. The evidence, in fact, shows to the'contrary that defendant was continuously borrowing money.

C. Cooperation with state officials.

Here, the majority notes that defendant cooperated with law enforcement officials in their investigation and willingly complied by reenacting on videotape her account of what happened on the day she killed her husband. Although defendant did voluntarily speak with law enforcement officials and cooperated in the videotaped reenactment, the evidence strongly suggests that her purpose in doing so was to mislead them as to the facts surrounding the murder.

D. Charitable and community activities outside church.

The record does reveal that defendant was an “active and helpful church member,” a mitigating circumstance which the jury found to exist. There is no evidence in the record to suggest that defendant engaged in charitable and community activities outside of church.

Simply put, I find no evidence from which a juror reasonably might have found any of these four or any other mitigating circumstances to exist which might have been considered in the catchall. While I concede that McKoy error occurred during the sentencing proceeding, it was harmless beyond a reasonable doubt. I find no other error in the sentencing proceeding. The death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor and is not disproportionate to the sentence imposed in similar cases. I vote to affirm the sentence of death.