Opinion
No. 313A86
Filed 7 November 1991
Criminal Law 1314 (NCI4th)- murder — aggravating circumstance — not submitted — error A new trial was ordered in a homicide prosecution where defendant was tried for first degree murder; a plea bargain was entered during jury selection in which the State agreed to let defendant plead guilty to felony murder and to present evidence of only one aggravating factor, that the murder was especially heinous, atrocious or cruel. North Carolina's death penalty scheme would be arbitrary, and therefore unconstitutional, if the district attorney was permitted to exercise discretion as to when an aggravating circumstance supported by the evidence would or would not be submitted. Where there is no evidence of an aggravating circumstance, the prosecutor may so announce, but this announcement must be based upon a genuine lack of evidence of any aggravating circumstance.
Am Jur 2d, Criminal Law 481, 487, 489; Homicide 552, 554, 598, 599.
APPEAL of right pursuant to N.C.G.S. 7A-27 (a) from a judgment imposing the sentence of death entered by Burroughs, J., at the 29 March 1986 Criminal Session of Superior Court, GASTON County. Heard in the Supreme Court 15 February 1990.
Lacy H. Thornburg, Attorney General, by Joan H. Byers, Special Deputy Attorney General, for the State.
Louis D. Bilionis for defendant appellant.
Justice MEYER concurring.
Justice MARTIN concurring.
The defendant was tried for his life for first degree murder. While the jury was being selected, the defendant and his co-defendant Telina Harris Clontz, who was being tried with him, changed their pleas as a result of a plea bargain. As part of the plea bargain the defendant Clontz was allowed to plead guilty to second degree murder. The State agreed to let the defendant plead guilty to felony murder and agreed to present evidence of only one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel. N.C.G.S. 15A-2000(e)(9) (1988).
The jury was then impaneled to determine whether the defendant would be punished by life in prison or by death. The evidence showed the defendant and Ms. Clontz kidnapped Franklin D. Gourlay, a taxi driver in Knoxville, Tennessee, and kept him a prisoner while they drove his taxicab to Gastonia, North Carolina. They rented a motel room in Gastonia and when Mr. Gourlay attempted to escape from the room the defendant hogtied Mr. Gourlay and stabbed him to death.
The jury found one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel. It found eleven mitigating circumstances. The jury did not find four mitigating circumstances which were submitted to it. The jury found that the aggravating circumstance was sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances which it found. The court, upon the jury's recommendation, imposed the death penalty.
The defendant appealed.
The defendant has made twenty-seven assignments of error. We shall discuss one of them.
The defendant argues under his first assignment of error that his guilty plea should be set aside and that he should be tried de novo on the guilt phase as well as the penalty phase of his trial. He says this is so because there was error in reaching the plea bargain by which he pled guilty. In this case, the prosecuting attorney agreed as part of a plea bargain in which the defendant agreed to plead guilty to first degree murder, that the State would present evidence of only one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel. There was also evidence of the aggravating circumstances that the defendant committed the murder while engaged in the commission of a kidnapping and that the defendant committed the murder for pecuniary gain. N.C.G.S. 15A-2000(e)(5) and (6) (1988).
It was error for the State to agree not to submit aggravating circumstances which could be supported by the evidence. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981); State v. Jones, 299 N.C. 298, 261 S.E.2d 860 (1980); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979). The decision as to whether a case of murder in the first degree should be tried as a capital case is not within the district attorney's discretion. State v. Britt, 320 N.C. 705, 360 S.E.2d 660 (1987). This is so in order to prevent capital sentencing from being irregular, inconsistent and arbitrary. If our law permitted the district attorney to exercise discretion as to when an aggravating circumstance supported by the evidence would or would not be submitted, our death penalty scheme would be arbitrary and, therefore, unconstitutional. Where there is no evidence of an aggravating circumstance, the prosecutor may so announce, but this announcement must be based upon a genuine lack of evidence of any aggravating circumstance. See State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, vacated and remanded on other grounds, 488 U.S. 807, 102 L.Ed.2d 18 (1988).
In order to protect the constitutionality of our capital sentencing system, we must order a new trial. At such a trial neither the State nor the defendant will be bound by the plea bargain previously made. Santobello v. New York, 404 U.S. 257, 30 L.Ed.2d 427 (1971).
We do not discuss other assignments of error because the questions raised under them may not recur at a new trial.
New trial.