Before Judge Collier at the 20 March 1978 Special Criminal Session of Cleveland Superior Court, defendant entered a plea of guilty to first degree murder. He was sentenced to death. He appeals pursuant to G.S. 7A-27(a). This case was docketed and argued as No. 55 at the Fall Term 1978.
Exum, Justice. Justice Brock did not participate in the consideration or decision of this case. Justice Huskins concurring and joins the concurring opinion of Justice Carlton. Justice Carlton concurring.
This appeal presents a number of questions arising under our death penalty statute, G.S. 15A-2000, et seq. Of principal importance is the meaning and application here of the impaired
capacity mitigating circumstance.*fn1 For error in the trial court's instructions concerning it, defendant is entitled to a new sentencing hearing. Other questions raised and decided relate to (1) procedural requirements for submitting to the jury mitigating circumstances under G.S. 15A-2000(f); (2) the power of the state and defendant to enter into sentence negotiations in a capital case; (3) adequacy of the evidence and the instructions on whether this capital felony was "especially heinous, atrocious, or cruel";*fn2 and (4) whether the trial court should have appointed an associate counsel.
On 20 October 1977 Mabel Bowman Sherrill, the 65-year old wife of Bruce Sherrill, left their home to go to a familiar fishing area on a lake in Caldwell County approximately one mile away. Sometime in the early afternoon of that day she was found near the lake apparently murdered. An investigation ensued involving both the Caldwell County Sheriff's Department and the State Bureau of Investigation.
By 31 October 1977 defendant had become a suspect in the investigation.*fn3 On that date at approximately 9:00 p.m. defendant was located by Captain Robert Webster and Detective Roger Hutchings, both of the Caldwell County Sheriff's Department, at "The Snack Bar" in Hickory. At their request he agreed to accompany them to Lenoir in Caldwell County. Captain Webster testified that defendant at this point was not under arrest "but he was being detained for questioning regarding the homicide of Mabel Bowman Sherrill."*fn4
During the ride from Hickory to Lenoir defendant was questioned by Captain Webster regarding various firearms which defendant owned. Defendant admitted owning four firearms, one of which was a .38 caliber Smith & Wesson revolver which defendant said he had recently acquired. Defendant told Captain Webster that he had sold this pistol to his brother, Robert Johnson, who lived in Icard. After Captain Webster and defendant arrived in Lenoir defendant agreed to take Captain Webster and Detective Hutchings to his brother's home. The three went there and retrieved the .38 caliber pistol. This pistol was later identified as being in the possession of the deceased when she left home on 20 October 1977.
After the pistol was retrieved, defendant was returned to the Caldwell County Sheriff's Department where, after questioning, he confessed in the early morning hours of 1 November 1977 to the murder of Mabel Bowman Sherrill. He was immediately charged formally with the murder and ultimately indicted by the Caldwell County Grand Jury during the November, 1977, Session of Caldwell Superior Court. On 2 November 1977 Mr. Houston Groome was appointed counsel for defendant.
In November, 1977, defendant moved in writing for the appointment of an associate counsel, change of venue, and the appointment of an expert medical witness. He also moved to be found lacking in the capacity to proceed and gave notice that his defense would be insanity. In response to these motions Judge Ervin ordered a change of venue to Cleveland County. Judge Ervin also ordered that defendant be medically examined at Dorothea Dix Hospital for the purpose of determining his capacity to proceed and his mental capacity at the time of the alleged offense. In February, 1978, Judge Ervin appointed Dr. Richard J. Proctor, Chairman of the Department of Psychiatry at Bowman Gray School of Medicine, Winston-Salem, for the purpose of examining the defendant "to determine his mental capacity and competence to understand . . . the nature and consequences of his actions and the allegations . . . which gave rise to the charges pending against him and to understand, know and appreciate any
pretrial constitutional rights which he may have . . . and to determine his ability to assist his counsel in the defense of this case."
Defendant came to trial before Judge Collier. Defendant moved for a finding that he was incapable of proceeding by reason of insanity and lack of mental capacity to proceed. At that point, Judge Collier conducted a hearing, as required by G.S. 15A-1002(b)(3), to determine defendant's capacity to proceed. The only witness at this hearing was Dr. James Groce, a physician at Dorothea Dix Hospital who was qualified as an expert in forensic psychiatry. Dr. Groce had examined defendant to determine his mental capacity to stand trial. In his opinion defendant suffered from "latent schizophrenia" and had "trouble controlling his thoughts and emotions"; however, he considered defendant competent to understand the nature and consequences of the proceedings against him, to assist his counsel and, therefore, to stand trial. Judge Collier so found and the case proceeded.
Defendant was then arraigned and entered a plea of guilty to first degree murder*fn5 which was accepted by the trial court.*fn6 A jury of twelve and two alternates was selected and empaneled for the purpose of determining, pursuant to G.S. 15A-2000, whether defendant should be sentenced to death or life imprisonment.
The state's evidence on the sentencing phase tended to show that Mabel Bowman Sherrill was found dead in the early afternoon of 20 October 1977 near a lake in Caldwell County where she had been fishing. An autopsy revealed two stab wounds in her chest which, in the opinion of the forensic pathologist performing the autopsy, caused death. "Ligature marks . . . typically produced
by a constricting band or ligature cord, applied with pressure around an area of skin, so as to compress the skin" were found around her neck. Cuts were found on her labia. There was, however, no evidence of internal trauma to her vagina; and upon examination of vaginal smears for spermatozoa, none was discovered.
A .38 caliber pistol was offered in evidence as State's Exhibit No. 2. It was identified by Mr. Bruce Sherrill as being a pistol which his wife had taken with her when she left to go fishing on the day of her death. This pistol was also identified by investigating officers as being that which they recovered from the possession of defendant's brother to whom defendant admitted he sold it. Other witnesses for the state also testified that they had observed a pistol similar to State's Exhibit No. 2 in defendant's possession.
The state relied primarily at the sentencing hearing upon defendant's confession made in the early morning hours of 1 November 1977 after he had been detained for questioning. According to investigators defendant stated to them that he had gone to the "Gunpowder Boat Access Area" sometime around 11:00 a.m. on 20 October 1977 to fish after having fished at three other locations in the area. He recognized Mrs. Sherrill whom he had seen there before. She was leaving the area, and he helped her put her boat motor in the back of her car. As she began to tie up her boat he came at her from behind, wrapped a fish stringer around her neck and began to strangle her. She apparently lost consciousness; and he pulled her up on the bank, tore open her blouse and fondled her breasts. Being unable to loosen her underclothing, he took out a knife with which he "cut the tip portion of the corset open and pulled back the panty hose and panties and cut those open. Then he raped her. He stated that he did not get an erection, but he did manage to penetrate slightly. He also stated that he did not have an orgasm . . . ." Realizing that she was not dead and being afraid that she would scream, he stabbed her in the heart with the knife.
Evidence for defendant at the sentencing hearing tended to show as follows: He was, according to investigators, "fully cooperative" with them. He had written a letter while in jail to Mrs. Ed Foster, the operator of Bethlehem Marina on Lake
Hickory, where defendant had purchased the fish stringer which he apparently used to strangle Mrs. Sherrill. The letter apologized "for any inconvenience or embarrassment which [Mrs. Foster] might have suffered" arising from his involvement in Mrs. Sherrill's death. Defendant had been active at Grace Baptist Church and, after the murder, expressed "sorrow, remorse and grief" to the pastor of that church. Defendant had a reputation for good character in his community. He was a dependable employee, thought of by his employer as honest, punctual, and hard working. His fellow workers considered him to be "a good fellow and a good worker" who "got along well with all of the others." They had never known him to harm, embarrass, be offensive or abusive to anyone. He was considered by a number of witnesses to be "an easy going, friendly normal individual." His jailer testified that, as a prisoner, he was "quiet . . . and never caused any trouble" and that he "was a model prisoner." He told the jail chaplain that he had attempted to write a letter to Mr. Sherrill apologizing for the death of Mrs. Sherrill "but could not put his words on paper."
Dr. Richard Proctor, who on order of the court had examined defendant, testified that he suffered from schizophrenia, "a disorder where there is an extremely strong genetic component, and it is the opinion of most experts that the disorder is the result of certain chemical changes that take place in the central nervous system or in the brain." Defendant's childhood showed a history of suicide attempts at ages 12, 14 "and again in the 11th Grade." As a child defendant had few friends, tended to "bottle up" his feelings, particularly his feelings of "hostility, anger, frustration." His siblings and his schoolmates made fun of him. In Dr. Proctor's opinion defendant was in the throes of a "mental or emotional disturbance at the time of the murder of Mabel Bowman Sherrill" and "the capacity of [defendant] to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired at the time he killed Mabel Bowman Sherrill." Dr. Proctor did feel, however, that defendant understood the position he was in and its legal consequences and that he knew the difference between right and wrong at the time of the incident "even though he was suffering from a mental defect or disease."
The state and defendant stipulated that defendant had no prior criminal record with the exception of one occasion where he received a ticket for fishing without a license.
After arguments of counsel the court instructed the jurors generally upon their duties and specifically with regard to the application of G.S. 15A-2000. The court submitted the following written "Issues and Recommendation as to Punishment," which issues and recommendation the jury ultimately returned as follows (Defendant's exceptions thereto are also noted.):
"1. Do you find beyond a reasonable doubt the presence of one or more -- aggravating circumstances from the following list?
Check those aggravating circumstances that you have found beyond a reasonable doubt:
X The capital felony was committed while the defendant was engaged in the commission of, or attempt to commit, rape. Rape is forcible sexual intercourse with a woman against her will.
X The capital felony was especially heinous, atrocious or cruel.
2. Do you find that one or more of the following mitigating circumstances existed?
X (a) The defendant has no significant history of prior criminal activity.
X (b) The capital felony was committed while the defendant was under the influence of mental or emotional disturbance.
(c) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.
(d) Any other circumstance arising from the evidence which the jury deems to have mitigating value.
3. Do you find that the mitigating circumstances are insufficient to outweigh the aggravating circumstances?
4. Do you find beyond a reasonable doubt that the aggravating circumstance or circumstances are sufficiently substantial to call for the imposition of the death penalty?
Upon the jury's recommendation that defendant be sentenced to death, the court entered judgment accordingly.
In order to deal with defendant's contentions regarding the application to him of specific provisions of our death penalty statute it is necessary to consider it from the perspective of the legal history leading to its enactment. This is so notwithstanding that because of the result we reach we need not decide whether defendant could be constitutionally sentenced to death under our statute. State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979). We must construe important provisions of the statute. The first maxim of statutory construction is to ascertain the intent of the legislature. To do this this Court should consider the statute as a whole, the spirit of the statute, the evils it was designed to remedy, and what the statute seeks to accomplish. See generally In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977); State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975); Domestic Electric Service, Inc. v. Rocky Mount, 20 N.C. App. 347, 201 S.E.2d 508, aff'd 285 N.C. 135, 203 S.E.2d 838 (1974). In the context of this statute, proper weight can be given these factors only after an understanding of the legal milieu in which it was enacted.
The legal history which ultimately gave birth to the statute began with Furman v. Georgia, 408 U.S. 238 (1972) in which five
justices of the United States Supreme Court concurred in a per curiam opinion holding that the imposition of the death penalty in cases arising from Georgia and Texas constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Each of the five majority justices wrote a separate concurring opinion, two (Justices Brennan and Marshall) on the ground that the death penalty was cruel and unusual per se and could not be carried out under any circumstances. The glue which seemed to hold two others (Justices Stewart and White) to the majority position was that the statutes under which petitioners were sentenced delegated "to judges or juries the decision as to those [capital] cases, if any, in which the penalty will be utilized" in such a way as to provide "no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not," id. at 311, 313 (White, J., concurring), thereby permitting "this unique penalty to be . . . wantonly and . . . freakishly imposed." Id. at 310 (Stewart, J., concurring). Justice Douglas felt that the statutes in question were "pregnant with discrimination." Id. at 257.
Four members of the Court later acknowledged in Lockett v. Ohio, 438 U.S. 586, 599-600 (1978):
"Predictably, the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the death penalty in accord with the Eighth Amendment. Some states responded to what was thought to be the command of Furman by adopting mandatory death penalties for a limited category of specific crimes thus eliminating all discretion from the sentencing process in capital cases. Other states attempted to continue the practice of individually assessing the culpability of each individual defendant convicted of a capital offense and, at the same time, to comply with Furman, by providing standards to guide the sentencing decision."
North Carolina followed the former course. A majority of this Court in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), interpreted Furman to mean not the abolition of capital punishment per se but rather the prohibition of its infliction "if either judge or jury is permitted to impose that sentence as a matter of discretion." Id. at 439, 194 S.E.2d at 25. The majority in Waddell concluded
that our death penalty statutes, all of which contained a proviso that a jury by its recommendation could fix the punishment at life imprisonment*fn7 were severable. This Court read Furman, then, only to invalidate the discretionary provisos leaving death as the mandatory punishment for capital crimes in this state. On 8 April 1974 the legislature, by enactment of Chapter 1201 of 1973 Session Laws, rewrote G.S. 14-17 and G.S. 14-21 to make death the mandatory sentence for first degree murder and the newly created crime of first degree rape. By this same enactment it rewrote G.S. 14-52 and G.S. 14-58 to provide that life imprisonment would be the mandatory penalty for first degree burglary and arson, respectively. See State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975). Woodson was the first case reaching this Court in which a defendant was sentenced to death under the new death penalty enactment. We unanimously affirmed both the convictions and the sentences of death imposed in that case.
The Woodson case reached the United States Supreme Court at about the same time as capital cases arising from Georgia, Florida, Texas and Louisiana. Decision in all cases was rendered on 2 July 1976. The mandatory death penalty statutes in North Carolina, Woodson v. North Carolina, 428 U.S. 280, and Louisiana, Roberts v. Louisiana, 428 U.S. 325, were nullified as being violative of the prohibition against cruel and unusual punishment under the Eighth and Fourteenth Amendments. Death sentences imposed under the statutes of Georgia, Gregg v. Georgia, 428 U.S. 153, Florida, Proffitt v. Florida, 428 U.S. 242, and Texas, Jurek v. Texas, 428 U.S. 262, were sustained. This quintet of cases, Gregg, Proffitt, Jurek, Woodson, and Roberts, made clear that neither unbridled, unguided discretion nor the absence of all discretion in the imposition of the death penalty is constitutionally permissible. The plurality opinion in Woodson stated that North Carolina had failed "to provide a constitutionally tolerable response to Furman's rejection of unbridled jury discretion in the imposition of capital sentences" and that North Carolina had failed "to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." 428 U.S. at 302-03.
Page 59} Furman was read in the controlling opinions of these cases as mandating "that where 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." Gregg v. Georgia, supra, 428 U.S. at 189. The statutes of Georgia, Florida, and Texas were found to provide both this necessary direction and sufficient limitation on the sentencing authorities' discretion in death cases.
In Gregg, Proffitt and Jurek petitioners argued that the standards designed to guide the sentencer were so vague, overbroad, and inconclusive as to permit, in practice if not in theory, the same kind of unbridled discretion found impermissible in Furman. Petitioners argued that the legislation was "no more than cosmetic in nature and [had] in fact not eliminated the arbitrariness and caprice of the system" condemned in Furman. Jurek v. Texas, supra, 428 U.S. at 274. The Supreme Court, in meeting this argument and sustaining the challenged statutes, relied heavily on several factors. One was that the state courts from which the cases arose had, themselves, carefully considered and construed specific provisions so as to bring the statutes ...