Mitigating Circumstances & Resentencing Hearings

1. Mitigating Circumstances & Resentencing Hearings Professor Robert Farb School of Government, UNC-Chapel Hill

2. Mitigating Circumstances Judge should resolve, in defendant’s favor, any reasonable doubt whether to submit M/C Judge must submit statutory M/Cs regardless of views of defense counsel or prosecutor Duty to submit M/Cs even if defense counsel opposes or does not request submission

3. Mitigating Circumstances Peremptory jury instructions: NCPI—Crim. 150.11 (Statutory M/C) NCPI—Crim. 150.12 (Non-Statutory M/C) Note difference in wording in two instructions Defendant must request peremptory jury instruction

4. M/C (f)(1): No Significant Prior Criminal History Consider only criminal acts committed before murder for which defendant being sentenced Must be submitted even if defendant objects or does not request submission

5. M/C (f)(1): No Significant Prior Criminal History If judge submits M/C over defendant’s objection Judge should instruct jury that: 1. Defendant did not request submission 2. Submission is required as matter of law based on the evidence Prosecutor may not argue defendant requested submission or sought to have jury find it

6. M/C (f)(1): No Significant Prior Criminal History Absent extraordinary facts, erroneous submission of M/C is harmless error Walker, 343 N.C. 216 Factors in deciding whether to submit this M/C: Were criminal acts recent or not recent? Were criminal acts violent or non-violent?

7. M/C (f)(1): No Significant Prior Criminal History State v. Hurst, ___ N.C. ___ (27 January 2006) Appellate review of decision not to submit this M/C Trial judge’s decision entitled to deference Court will review entire record Reminder that any reasonable doubt to be resolved in favor of submission

8. M/C (f)(1): No Significant Prior Criminal History State v. Hurst, ___ N.C. ___ (27 January 2006) Although doctrine of invited error is inapplicable to judge’s decision not to submit this statutory M/C “Whole record review will necessarily include consideration of the parties’ positions as to whether the instruction should be given”

9. M/Cs (f)(2) and (f)(6) (f)(2): Murder was committed while defendant under the influence of mental or emotional disturbance Generally, does not include voluntary intoxication by alcohol or drugs unless it exacerbated mental or emotional disturbance But may qualify under (f)(6) Disturbance must relate to time of murder

10. M/Cs (f)(2) and (f)(6) (f)(6): Defendant’s impaired capacity Two prongs: 1. Impaired capacity to appreciate criminality of conduct 2. Impaired capacity to conform conduct to requirements of law

11. M/Cs (f)(2) and (f)(6) (f)(6): Defendant’s impaired capacity If evidence supports both prongs, be sure that jury instruction includes both prongs (f)(6) usually requires expert testimony Impaired capacity must relate to time of murder

12. Miscellaneous M/C Issues Accomplice’s sentence is not mitigating circumstance Directed verdict is not appropriate for statutory M/C (but see below) Instead, use peremptory instruction when uncontradicted testimony about M/C Mandatory peremptory instruction required when state stipulates to existence of statutory M/C

13. Capital Resentencing Issues State is not bound by its stipulation at prior sentencing hearing that: Aggravating circumstance did not exist Mitigating circumstance did exist

14. Capital Resentencing Issues Aggravating circumstance may be submitted even if not submitted or not found at prior hearing

15. Capital Resentencing Issues Collateral estoppel does not require finding of mitigating circumstance at resentencing hearing that had been found at prior hearing