State v. Noland

Justice Exum

dissenting as to sentence.

I believe the evidence here required the trial court to instruct the jury peremptorily that if they believed what all the evidence tended to show they should find as mitigating circumstances (1) the- capital felony was committed while defendant was under the influence of a mental or emotional disturbance, N.C. Gen. Stat. § 15A-2000(f)(2), and (2) defendant has no significant history of prior criminal activity, id. § (f)(1). I dissent from so much of the majority opinion as finds no error in the judge’s failure to so instruct. I also believe the death sentence under the circumstances of this case is excessive and disproportionate when compared to sentences in other similar cases. I dissent, therefore, from so much of the majority’s opinion which holds to the contrary. My vote in the case is to remand the matter for the imposition of life imprisonment and, failing that, to remand for a new sentencing hearing.

*26I.

With regard to peremptory instructions on mitigating factors in a capital case, our rule is that where “all of the evidence in the case, if believed, tends to show that a particular mitigating circumstance does exist, the defendant is entitled to a peremptory instruction on that circumstance.” State v. Johnson, 298 N.C. 47, 76, 257 S.E. 2d 597, 618 (1979). A peremptory instruction does not require the jury as a matter of law to find the existence of the circumstance. The jury is still left free to believe or disbelieve the evidence tending to show the existence of the circumstance. We said in State v. Johnson, id. at 75, 257 S.E. 2d at 617, with regard to the impaired capacity mitigating circumstance:

‘When all the evidence offered suffices, if true, to establish the controverted fact, the court may give a peremptory instruction — that is, if the jury find the facts to be as all the evidence tends to show, it will answer the inquiry in an indicated manner .... A peremptory instruction does not deprive the jury of its right to reject the evidence because of a lack of faith in its credibility.’ Chisolm v. Hall, 255 N.C. 374, 376, 121 S.E. 2d 726, 728 (1961).

A.

All evidence in the case, both from the state and defendant, demonstrates without contradiction that these tragic killings were the result of defendant’s mental illness exacerbated by the loss, through separation, of his wife and children.

Defendant met Susan Milton in 1970 while she was in high school and he, aged twenty-two, had been discharged under honorable conditions from the Navy. They were married in 1971 when Susan Milton was eighteen; and two daughters, aged nine and six at the time of the trial in 1982, were born of the marriage. They separated four or five times before the final separation on 3 March 1981.

According to the state’s evidence defendant had back surgery in December 1980 which caused him to be unemployed until the parties’ final separation. During this time Susan Milton was working full time and defendant tended to the house and children. After the March 1981 separation, “it was extremely difficult for [defendant] to cope with the girls’ being gone.” Defend*27ant called his estranged wife by telephone “on a number of occasions about the kids and about [her].” On 19 June 1981, the day after defendant’s birthday, Susan Milton and the children left to live with her sister in California without telling defendant. During the marriage defendant “didn’t really like to be around people that much, too often.” He preferred to remain home with his wife and children. Defendant also developed a particularly close relationship with his father-in-law, one of the victims, and “thought as much, if not more, of [his father-in-law] than he did his own.”

The state’s evidence further tended to show that after the March 1981 separation and before Susan Milton left with the children to go to California, defendant “had almost lost control of himself . . . .” When he was able to see the children “he would cry a lot in front of . . . them. I don’t know if it was from seeing them or that I would say that I was not going to go back with him to be a family again.” Defendant “was constantly begging [his wife] to come back home and bring the kids” and never gave up hope that his family would be together again. Defendant “was more or less a loner. He liked just for us [the family] to be there by ourselves; and, that was it.”

Defendant’s evidence tended to show as follows: After the March 1981 separation he stayed briefly at the YMCA and then moved in with his parents. At his parents’ home he “cried constantly [and] kept getting worse and worse. He really loved his kids.” His parents became concerned enough over defendant’s emotional condition and suicidal tendencies that they arranged for him to consult with the Mecklenburg Mental Health Center where, after being hospitalized for several weeks, he lost “about 40 pounds.” Defendant and his estranged wife continued, after she moved to California, to communicate frequently by telephone. The telephone conversations resulted in defendant’s further emotional upset.

Dr. Avelina Reback, a staff psychiatrist at the Mecklenburg Mental Health Center, testified concerning defendant’s course of treatment there. She saw defendant in April 1981 and recommended “partial hospitalization” at the Center. By 13 May 1981 she decided defendant needed full, in-patient hospitalization. Defendant was suffering from depression and anti-depressant medication was prescribed. As of 19 May 1981 defendant was *28“very depressed, despondent, withdrawn and hopeless. . . .” He was, in the opinion of Dr. Reback, “mentally ill and dangerous.” Dr. Reback described defendant’s behavior as follows:

At the time, he was oriented as to time, place, person and situation; but, he was very depressed. And, his whole affect, the way the patient looks when we look at them, was very flat or bland, you know, he has no expression on his face. And, very slow movement; his head was bowed down and continuously wringing his hands, which showed agitation and excited. He hardly spoke. He would not —he would not talk spontaneously unless we asked him; and, he would only answer in one syllables.
His thinking however was logical; but, he was so depressed that it took time for him to respond when asked questions. He was not confused; there was no looseness of thinking; and, he was well aware of what he was saying. And, his responses to the questions, they were not out of what we were asking him.
He talked about his depression, his hopelessness and his despondency.
There were no evidences of bizarre thinking; his thinking was very clear. However, he has no insight at all into his problems; at that time, his judgment was poor.

Dr. Reback’s final diagnosis was that defendant suffered from “borderline personality with narcissistic characteristics [and] crisis neurosis.” She said this diagnosis “is a mental illness because it makes him dysfunctional. He is unable to function; he is unable to form lasting personal relationships; he is unable to be flexible within his social and work atmosphere or situations.” She said, “The only . . . friend he had was probably his family and his wife.”

On 21 May 1981 the Mecklenburg County District Court after a hearing ordered defendant committed to Broughton Hospital for the mentally ill in Morganton after finding defendant “consents to commitment [and] by clear and convincing evidence, is mentally ill and dangerous to himself.”

*29Defendant was admitted to Dorothea Dix Hospital in Raleigh on 20 May 1982 where he was treated by Dr. Billy Royal, a psychiatrist at the hospital. After examination and testing, Dr. Royal found evidence in defendant “of depression, insecurity, anxiety and low self-esteem.” After obtaining a history from defendant’s family, Dr. Royal “learned that Mr. Noland had a history of mental illness” with in-patient and out-patient treatment at the Mecklenburg County Mental Health Center and in-patient treatment on one occasion at the Veterans’ Hospital in Salisbury. Dr. Royal learned “that there had been a history of some instability and different aspects of mental illness that extended back for quite a number of years.” Dr. Royal testified, in essence, that defendant had “very primitive [childlike] emotional needs” which were largely met by his wife, children, and his wife’s father. The separation cut off these relationships and defendant’s personality structure . . . was not such that he could deal with the loss. . . .” Dr. Royal said, “After the separation [defendant’s] ability to cope deteriorated.” Until a time shortly before the killings defendant “felt that he was getting some positive feedback from his separated wife, about the possibility of their getting back together on a permanent basis; and/or working out some continued involvement with his children ... so that he would have that kind of relationship and gratification.” Dr. Royal diagnosed defendant as suffering from “dysthymic disorder, which is a new word for depressive neurosis, which is the word we used to use” and “borderline personality problems, personality disorders.” Dr. Royal said, “All of these diagnoses are mental illnesses.” Dr. Royal did not think defendant “was psychotic” at the time of the killings and, although he was not able to say definitely about it, “I think . . . there is a suggestion that he may not have known the difference [between right and wrong] in terms of how he functioned.”

Shortly before the killings, Dr. Royal noted that defendant “had been in some continued distress. . . . Had had some recent contact with his wife with some suggestion or certainly interpretation on his part, that the resolution of their separation was not going to occur; and, that he was probably not going to have contact with his children ... on any basis that was established.”

There is no evidence which contradicts the testimony that defendant was suffering from a mental illness at the time of these *30killings. The majority alludes to the fact that defendant purchased the murder weapon two days before the shootings, assuring the seller that he did not plan to shoot anyone; killed his victims in the manner in which he predicted he would; and did not appear “peculiar” to law enforcement officers within an hour of the shootings. None of this is evidence tending to show that defendant was not suffering from a mental illness. Mental illnesses such as defendant’s are often not readily observable nor do they negate the ability to plan ahead and think logically. Dr. Royal testified that persons suffering from mental illnesses like defendant’s can function “so that someone in general would not see that they had any mental illness.” Dr. Reback pointed to defendant’s ability to think logically, saying “he was oriented as to time, place, person, and situation. . . . His thinking was logical. . . . He was not confused.”

Defendant’s mental illness does not, of course, excuse the crime. It was, however, substantiated by overwhelming, uncontradicted, evidence. Defendant was, therefore, entitled to have the jury peremptorily instructed that if they believed what all the evidence on the point tended to show, they would find the existence of the mitigating circumstance that the capital felonies were committed while defendant was under the influence of a mental or emotional disturbance.

B.

All the evidence in the case tended to show that defendant had no significant history of prior criminal activity and the jury should have been peremptorily instructed on this mitigating circumstance. The evidence was that defendant had “two or three times” communicated threats to his wife’s family by telephone. On one occasion a “peace warrant” was taken out against defendant, and as a result of court proceedings pursuant to the warrant defendant was fined $30 and ordered to pay the costs of court. The only other evidence of criminal activity was defendant’s wife’s testimony that in March 1981, “the night before I left him he hit me.” The jury should not have been permitted to speculate on whether these instances constituted a significant history of prior criminal activity. I am satisfied that, as a matter of law, they do not. The jury, consequently, should have been peremptorily instructed that if they believed as all the evidence tended to *31show on this point, they would find defendant had no significant history of prior criminal activity.

C.

An error is reversible if there is “a reasonable possibility that had the error . . . not been committed, a different result would have been reached” at trial. N.C. Gen. Stat. § 15A-1443(a).

Since the jury did not specify whether it found these mitigating circumstances to exist, we must assume on this aspect of the case that it did not find them. Had the jury found the existence of these circumstances, there is a reasonable possibility that their sentence recommendation would have been different. Had the jury been given a peremptory instruction on these circumstances, there is a reasonable possibility that it would have found them to exist. Therefore, failure to give the peremptory instructions amounts to reversible error which entitles defendant to a new sentencing hearing.

II.

Finally, this sentence of death, considering both the crime and defendant, is excessive and disproportionate. The record clearly shows defendant at the time of these crimes was suffering from a mental or emotional disturbance. Indeed, in conducting our proportionality review we must assume the jury so found. The jury indicated that it found one or more of the mitigating circumstances submitted to exist without specifying which one or ones. Consequently, we must assume on proportionality review that the jury found all mitigating circumstances submitted to exist. State v. Lawson, 310 N.C. 632, 314 S.E. 2d 493 (1984). Thus, we must assume that the jury found: defendant has no significant history of prior criminal activity; the murders were committed while defendant was under the influence of mental or emotional disturbance; defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired; defendant was a loving and kind father to his children; defendant voluntarily sought help for his mental illness; defendant did not resist arrest or try to escape when confronted by law enforcement officers; and defendant has expressed remorse for his crimes. Balanced against all of these mitigating circumstances, there is only one aggravating circumstance, i.e., the *32murders were a part of a course of conduct which included crimes of violence against other persons. The victims were persons with whom defendant had had a close personal relationship. One of the victims had been loved by defendant as a substitute father. The impetus for the killings was defendant’s estrangement from his wife and children.

Our job on proportionality review

is to compare the cases at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and defendant’s character, background, and physical and mental condition. If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.

State v. Lawson, supra, 310 N.C. at 648, 314 S.E. 2d at 503.

It is true, as the majority notes, that in State v. Boyd, 311 N.C. 408, — S.E. 2d — (1984), and State v. Martin, 303 N.C. 246, 278 S.E. 2d 214, cert. denied, 454 U.S. 933, reh. denied, 454 U.S. 1117 (1981), this Court sustained death sentences where the murder victim was an estranged lover in Boyd, and an estranged wife in Martin. Both Boyd and Martin are easily distinguishable from the instant case. In Boyd the victim died as a result of 37 stab wounds inflicted by defendant. The jury found as aggravating factors that the murder was especially heinous, atrocious or cruel and that defendant had previously been convicted of a violent felony. The Court in Boyd said at the close of its proportionality review that “scanty evidence of emotional or mental disorder, which, together with defendant’s significant history of criminal convictions and the heinous nature of the crime, including suffering of the victim, provide the basis for a penalty of death.” In Martin, likewise, the murder of defendant’s estranged wife was particularly brutal. Defendant shot her twice causing her to be disabled. He then dragged her across the room, *33held her up with one hand while he struck her four or five times with the pistol, slung her against the wall and hit her again several times with the pistol while she begged him not to hit her any more. Then in the presence of her small child and with the victim pleading for her life and asking for forgiveness, defendant fired three more shots, two of which, entering her head, were fatal. The jury found the murder to be especially heinous, atrocious or cruel and found no mitigating circumstances. The jury expressly found that defendant was not under the influence of a mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct was not impaired.

In every case so far, affirmed on appeal, where murders have arisen out of prior close relationships and estrangement of loved ones, absent the kind of brutality present in Boyd and Martin, our juries have returned sentences of life imprisonment. State v. Hinson, 310 N.C. 245, 311 S.E. 2d 256 (1984) (defendant killed husband); State v. Woods, 307 N.C. 213, 297 S.E. 2d 574 (1982) (wife killed husband); State v. Parton, 303 N.C. 55, 277 S.E. 2d 410 (1981) (defendant killed girlfriend with whom he had gone fishing); State v. Colvin, 297 N.C. 691, 256 S.E. 2d 689 (1979) (defendant killed wife after marital difficulties and after threatening to kill her “before he would allow her to take his children away from him”); State v. Myers, 299 N.C. 671, 263 S.E. 2d 768 (1980) (defendant killed estranged wife). This result holds true for every case in which there was substantial evidence of impaired capacity or mental or emotional disturbance. State v. Anderson, 303 N.C. 185, 278 S.E. 2d 238 (1981) (defendant killed woman with whom he had previously lived but from whom he was separated at the time of the murder; there was evidence that defendant suffered from a mental disorder); State v. Clark, 300 N.C. 116, 265 S.E. 2d 204 (1980) (defendant killed father; evidence on insanity plea that defendant was paranoid schizophrenic); State v. Franks, 300 N.C. 1, 265 S.E. 2d 177 (1980) (defendant killed girlfriend with whom he lived; evidence that defendant suffered from chronic undifferentiated schizophrenia).

In State v. Boyd, supra, in which this Court sustained a death penalty where the victim was an estranged lover, the Court justified its conclusion that the penalty was not disproportionate in light of other similar cases in which life imprisonment had been imposed on the ground that in these other cases “there was evi*34dence that the defendants were suffering from legitimate mental or emotional disorder.” Here there is substantial evidence that defendant was suffering from a mental or emotional disturbance. Indeed, as I have earlier pointed out, I think all the evidence tends to show this.

The sentence of death here, therefore, when compared with sentences rendered in other similar cases is excessive and disproportionate.

Justices MARTIN and Frye join part II of this dissent.