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 (Statutory M/C)
NCPI—Crim (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