The Brief

[LACurry]

And buying a boat was so unnecessary -- he could have driven to one of the nearby lakes with a bridge and a water depth of 300-400 feet.

Very true! And, what murderer would want to dump a body into 3-6 ft. Depth Of water?

[LACurry]

I wondered as well if Delucchi possibly felt he was not long on this earth. But, he was rather young when he passed. I believe he was 76. Does anyone know what the cause of death of Alfred Delucchi was?

Article about Delucchi:

http://www.sfgate.com/bayarea/article/A ... 292889.php

Thanks, Jane...

[LACurry]

http://scocal.stanford.edu/opinion/peop ... ames-33857

Unfortunately, another California DP case in which numerous potential jurors were excused based on questionnaire answers alone.

To access the opinion, hit the link and then the "opinion" tab.

[marlene]

LACurry, I'm not reading the case you linked. Regarding dismissing on the questionnaire alone, there is one key difference between the linked case and Scott's:


As an initial matter, respondent contends defendant

has waived this claim because defendant‟s trial counsel himself urged the trial

court to excuse jurors solely on the basis of their written questionnaires. We

agree. The record indicates that trial counsel explicitly endorsed the procedure

defendant now challenges on appeal. Defendant has therefore waived this claim.

One other interesting point is addressed:

Under Wainwright v. Witt (1985) 469 U.S. 412, “ „[a] prospective juror who

would invariably vote either for or against the death penalty because of one or

more circumstances likely to be present in the case being tried, without regard to

the strength of aggravating and mitigating circumstances, is . . . subject to

challenge for cause . . . .‟ ” (People v. Ledesma (2006) 39 Cal.4th 641, 671.)

Do we have indication that some of the jurors would have voted invariably for death regardless of mitigating circumstances? I know Tom Moreno had a hard time voting for death, but I think Guinasso and a couple of the others, based on their post-sentencing interviews, seem to me to favor death whenever it's an option. I'd like to see the questionnaires filled out by all of the jurors and alternates. I assume none of the indicated such on the questionnaire, or surely Geragos would have used his remaining challenges to remove them.

Back to the opinion . . .

[marlene]

I strongly disagree with the Court on this -- I believe a person could prefer to give life and still be able to give death. What is the point of giving the option of LWOP if it's not a legitimate preference?

question No. 60, which stated

that no circumstance exists in which a jury must automatically return a judgment

of death, and that, irrespective of what the evidence might show, the jury always

retains the option in the penalty phase of choosing life imprisonment without the

possibility of parole. Question No. 60 then went on to ask, given that two options

would be available, “can you see yourself”: (A) voting for the death penalty or

(B) voting for life imprisonment. Defendant contends a prospective juror might

answer “no” to (A) simply because he or she could not “imagine” the situation,

rather than because he or she would be unable to consider the option of imposing

the death penalty. Defendant‟s reading of this question is unreasonable and thus

unpersuasive. Within the context of the questionnaire as a whole and the court‟s

explanations to the prospective jurors, the jurors would reasonably have

understood the question as referring to their willingness to consider the option of

imposing the death penalty.

However, reading the rest of the brief, there were a couple of questions that I think would adequately identify any person who a) could never impose death, or b) who would always impose death. And a couple that were ambiguous, had other reasons to be rejected based on the questionnaire.

So the essential differences, I think, are that Geragos DID object to Delucchi's dismissals, and I don't think Scott's questionnaire had the same questions as this case that would totally eliminate any ambiguity.

[LACurry]

Here is the blank questionnaire in Scott's case, I find the intro interesting on two points....that the answers given are a matter of public record and that the prospective jurors WILL be able to explain their answers further when questioned by attorneys. I am curious as to whether or not the filled questionnaires are on the PWI site ? I have not had a chance to look.

http://media.modbee.com/smedia/2007/12/ ... ate.11.pdf

I do know there are drastic differences in the two cases....but, I did find the opinion answers and explanation interesting regardless. This is namely for your previous post which I also agree with you on. Basically, I was simply looking into further information on the same issue that might have been given in an opinion in California.


OH!
I did read that Delucchi's reversal was because he had failed to give instruction as to 2nd degree murder on the Vance Holmes site, but I do not know how reliable that site is. I was hoping the reversal was for juror selection issues.

[LACurry]

In reading the questionnaire in the Peterson case, and due to the deference to the Trial Court on this issue, I really don't know if I am as certain that this would grant relief to Scott or not. I would have to say no at this time, depending on whether or not Geragos had any input into this questionnaire.

I am very relieved Geragos objected, however.

[marlene]

I'm sure Geragos had input in the questionnaire. I agree that the cover page on the questionnaire certainly suggests the questionnaires are the beginning of the process, and are not going to be used alone to make a decision. I'm sure that if Geragos gave any indication that he understood that the questionnaires could be used to eliminate jurors w/o any voir dire, that will be included in the State's response; however, given his frequent objections and Delucchi not reminding him that he agreed to use the questionnaires by themselves -- I'll be surprised if the State has anything to include.

[jane]

There are lists in Appendix A and Appendix B at the end of the brief after p. 427. Do you understand the significance of the lists?

Appendix A
Question 95 on the juror questionnaire asked prospective jurors if they had formed
any “opinions about the guilt or innocence of the defendant, Scott Peterson.” As of the
date of the second venue change motion, more than 400 jurors admitted to having formed
an opinion in the case.1 Of the jurors who had formed an opinion on guilt or innocence, only 1% believed Mr. Peterson was innocent while 99% (all but 5 prospective jurors)
believed he was guilty.2 Of the hundreds of prospective jurors who concluded Mr.
Peterson was guilty, 364 answered question 98, which asked whether they could set aside
the views they had already formed. Less than half of the jurors said they were willing to set aside their view that Mr. Peterson was guilty.3 More than half -- 51% -- refused to set aside their views.4

Appendix B
Question 95 on the juror questionnaire asked prospective jurors if they had formed
any “opinions about the guilt or innocence of the defendant, Scott Peterson.” After the
date of the second venue change motion, 259 jurors admitted to having formed an opinion
in the case.1 Of the jurors who had formed an opinion on guilt or innocence, only 1% believed Mr. Peterson was innocent while 99% (all but two prospective jurors) believed he was guilty.2 Of the 257 prospective jurors who concluded Mr. Peterson was guilty,
229 answered question 98, which asked whether they could set aside the views they had
already formed. Less than half of the jurors said they were willing to set aside their view that Mr. Peterson was guilty.3 More than half -- 50.2% -- refused to set aside their views.4

[LACurry]

Some detailed DP juror qualification issues and case law with cases and more at link:
http://www.ncids.org/Motions%20Bank/Gui ... STIONS.doc

 
IV.​GENERAL PRINCIPLES OF VOIR DIRE IN DEATH PENALTY CASES
 
Both the defendant and the state have the right to question prospective jurors about their views on capital punishment…The extent and manner of the inquiry by counsel lies within the trial court’s discretion and will not be overturned absent an abuse of discretion.  Brogden, 430 SE2d at 908.  
 
Not only must the defendant be allowed to offer all relevant mitigating circumstance, “the sentencer [must] listen- that is the sentencer must consider the mitigating circumstances when deciding the appropriate sentence.
*Eddings v Oklahoma, 455 U.S. 104, 115 n.10 (1982)
 
“Part of the Sixth Amendment’s guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors…Voir dire plays a critical function in assuring the criminal defendant that his constitutional right to an impartial jury will be honored.”  Voir dire must be available “to lay bare the foundation” of a challenge for cause against a prospective juror.
Morgan v Illinois, 504 U.S. 719, 729, 733 (1992)
 
We deal here with petitioner’s ability to exercise intelligently his complimentary challenge for cause against those biased persons on the venire who as jurors would unwaveringly impose death after a finding of guilt. Were voir dire not available to lay bare the foundation of petitioner’s challenge for cause against those prospective jurors who would always impose death following conviction, his right not to be tried by such jurors would be rendered as nugatory and meaningless as the State’s right, in the absence of questioning, to strike those who would never do so. Morgan, 504 U.S. at 733-34.
 
 defendant on trial for his life should be given great latitude in examining potential jurors.  State v Conner, 335 N.C. 618 (1995)
 
In voir dire, “what matters is how …[the questions regarding capital punishment] might be understood-or misunderstood-by prospective jurors.”  For example, “a general question as to the presence of reservations [against the death penalty] is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases.”  One cannot assume the position of a venireman regarding this issue absent own unambiguous statement of his beliefs.  Witherspoon, 391 U.S. at 515, n. 9.
 
 
Court must allow a defendant to go beyond the standard “fair and impartial” question:  “As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed...It may be that a juror could , in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception.” Morgan, 504 U.S. at 735-36.
 
 
It is not necessary for the trial court to explain or for a juror to understand the process of a capital sentencing proceeding before the juror can be successfully challenged for his answers to questions.  An understanding of the process should not affect one’s beliefs regarding the death penalty.   Simpson, 462 SE2d at 202, 206.
 
 
 
V. DEATH AND LIFE QUALIFICATION
 
Death Qualification: General Opposition to Death Penalty Not Enough
 
Under the “impartial jury” guarantee of the Sixth Amendment, death penalty jurors may not be excused “for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction”…, or “that there are some kinds of cases in which they would refuse to recommend capital punishment.  Witherspoon, 391 U.S. at 522, 512-13.  
 
The Supreme Court recognized that “A man who opposes the death penalty…can make the discretionary judgment entrusted to him by the state and can thus obey the oath he takes as a juror.” Id., 391 U.S. at 519.
 
“Not all [jurors] who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors…so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.”  Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137, 149 (1986).  (Nice quote of the above general principle but the Court reaffirmed its position that death-qualified juries are not conviction-prone, and it is constitutional for a death-qualified jury to decide the guilt/innocence phase.  The Court rejects the “fair-cross-section” argument against death-qualified juries deciding guilt.)  
 
General opposition to the death penalty will not support a challenge for cause for a potential juror who will “conscientiously apply the law to the facts adduced at trial.”  Such a juror may be properly excluded “if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge.”  State v. Brogden, 430 SE2d at 907-08 (citing Witt, Adams v. Texas, and Lockhart).
 
 
 
 
 
Death Qualification Rules/Standards
 
The state may excuse jurors who make it  "unmistakably clear” (1) that they would “automatically vote against the death penalty” no matter what the facts of the case were, or (2) that “their attitude about the death penalty would prevent them from making an impartial decision” regarding the defendant’s guilt.  Witherspoon, 391 U.S. at 522, n. 21.
 
... a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed against the penalty of death regardless of the facts and circumstances...” that might emerge during the trial.  Witherspoon v Illinois, 391 U.S. 510, 523 n.21 (1968).  
 
The state may excuse for cause a juror if he affirmatively answers the following question: “Is your conviction [against the death penalty] so strong that you cannot take an oath [to fairly try this case and follow the law], knowing that a possibility exists in regard to capital punishment.”  Lockett v. Ohio, 438 U.S. 586, 595-96 (1978).  This ruling was based on the impartiality prong of the Witherspoon standard (i.e., their attitudes toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.)
 
Prospective jurors may not be excused for cause simply because of the possibility “of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.”  The fact that the possible imposition of the death penalty would “affect” their deliberations by causing them to be more emotionally involved or would view their task with greater seriousness is not grounds for excusal.  The same rule against exclusion for cause applies to jurors who could not confirm or deny that their deliberations would be affected by their views about the death penalty or by the possible imposition of the death penalty.  Adams v. Texas, 448 U.S. 38, 49-50 (1980).  
 
The proper standard for excusing prospective jurors for cause because of his  views on capital punishment is: “Whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction or his oath.”  Wainwright v. Witt, 469 U.S. at 424.
 
The N.C. Supreme Court has upheld removal of potential jurors who equivocate or who state that although they believe generally in the death penalty, they indicate that they personally would be unable or would find it difficult to vote for the death penalty.  Simpson, 462 SE2d at 206; State v. Gibbs, 335 NC 1, 436 SE2d 321 (1993), cert. denied, 129 L.Ed.2d 881 (1994).
 
 
 
The following questions by the prosecutor were found to be proper:
1) Mr. Juror, how do you feel about the death penalty, sir, are you opposed to it or [do] you feel like it is a necessary law?
2) Do you feel that you could be part of the legal machinery which might bring it about in this particular case?   *State v Willis, 332 N.C. 151, 180-81 (1992)
 
 
Rehabilitation of Death Challenged Juror
 
It is not an abuse of discretion for the trial court to deny the defendant the chance to rehabilitate a juror who has expressed clear and unequivocal opposition to the death penalty in response to questions asked by the prosecutor and judge when further questioning by defendant would not have likely produced different answers.  Brogden, 430 SE2d at 908-09; see also State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992).  (In Brogden, a juror said that he could consider the evidence, was not predisposed either way, and could vote for death in an appropriate case.  The same juror also said his feelings about the death penalty would “partially” or “to some extent” affect his performance as a juror.  The trial court erroneously denied the defendant the opportunity to rehabilitate this juror.)  
 
 
Morgan/Life Qualifying Questions
 
“If you found [the defendant] guilty, would you automatically vote to impose the death penalty no matter what the facts were?”  Morgan, 504 U.S. at 723.  A juror who will automatically vote for the death penalty in every case will fail to follow the law about considering aggravating and mitigating evidence, and has already formed an opinion on the merits of the case.  Id. at 504 U.S. at 729, 738.
 
“Clearly, the extremes must be eliminated-i.e., those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence.”  Morgan, 504 U.S. at 734, n. 7.
 
“General fairness and follow the law questions” are not sufficient.  A capital defendant is entitled to inquire and ascertain a potential juror’s predeterminations regarding the imposition of the death penalty.  Morgan, 504 U.S. at 507; Conner, 440 S.E.2d. at 840 (NC).
 
“The fact that you may have reservations about, or conscientious or religious objections to, capital punishment does not automatically disqualify you as a juror in a capital case. Of primary importance is whether you can subordinate your personal philosophy to your duty to abide by your oath as a juror and to follow the law as I give it to you. If you are willing to render a verdict that speaks the truth as you find it to exist, even though such verdict may lead to (sentence), you are qualified to serve as a juror in this case.    Mr./Mrs. [prospective juror], are you opposed to or in favor of the death penalty ?”      Capital Cases Benchbook, National Judicial College
 
Proper Questions:
 
The gist of the following two questions was to determine whether the juror was willing to consider a life sentence in the appropriate circumstances or would automatically vote for death upon conviction.  Conner, 440 SE2d at 841.
 
1)  Is your support for the death penalty such that you would find it difficult to consider voting for life imprisonment for a person convicted of first-degree murder? Approved in State v Conner, 335 N.C. 618 (1994)
 
2)  Would your belief in the death penalty make it difficult for you to follow the law and consider life imprisonment for first-degree murder?  Approved in
State v Conner, 335 N.C. 618 (1994).
 
3)  If the State convinced you beyond a reasonable doubt that the defendant was guilty of premeditated murder and you had returned a verdict of guilty, do you think then that you would feel that the death penalty was the only appropriate punishment?​In State v Conner, 335 N.C. 618, 643-45 (1994), the Court recognized that questions (numbered here as 3-5) that were deemed inappropriate in State v Taylor, 304 N.C. at 265, would now be acceptable.
 
4)  If you had sat on the jury and had returned a verdict of guilty, would you then presume that the penalty should be death?  State v Conner, 335 N.C. 618, 643-45 (1994) (referring to questions used in State v Taylor, 304 N.C. at 265, would now be acceptable.
 
5)  If at the first stage of the trial you voted guilty for first-degree murder, do you think that you could at sentencing consider a life sentence or would your feelings about the death penalty be so strong that you could not consider a life sentence?
State v Conner, 335 N.C. 618, 643-45 (1994) (referring to State v Taylor)
 
 
Improper Questions
1) Due to “Form”  (according to Simpson):
a) Do you think that a sentence to life imprisonment is a sufficiently harsh punishment for someone who has committed cold-blooded, premeditated murder?  Simpson, 462 SE2d at 203.
 
b)  Do you think that before you would be willing to consider a death sentence for someone who has committed cold-blooded, premeditated murder, that they would have to show you something that justified that sentence?   Simpson, 462 SE2d at 203.
 
 
 
 
2) Examples of improper questions that were argumentative, incomplete statement of the law, and “stake-outs” are found in Simpson, 462 SE2d at 203-04 (Although “some of the questions” listed on pp. 203-04 were proper under Morgan and Conner, the Court found it harmless error.)
 
3)  The following question was properly disallowed under Morgan because it was overly broad and called for a legislative/policy decision:  Do you feel that the death penalty is the appropriate penalty for someone convicted of first-degree murder?  Conner, 335 NC at 643.
 
 
 
 
VI.  SPECIFIC AREAS OF QUESTIONING ABOUT DEATH PENALTY ISSUES
 
Accomplice Liability:
Proper for prosecutor to ask prospective juror if he would be able to recommend the death penalty for someone who did not actually pull the trigger. *State v Bond, 345 N.C. 1 (1996).  
a)  “The evidence will show [the defendant] did not actually pull the trigger. Would any of you feel like simply because he did not pull the trigger, you could not consider the death penalty and follow the law concerning the death penalty.”
 
b)  “Regardless of the facts and circumstances concerning the case, you could not recommend the death penalty for anyone unless it was the person who pulled the trigger.”
 
LWOP:
During jury selection, a prospective juror indicated that he did not feel that a life sentence actually meant life. (Prior to LWOP statute) The trial court then instructed the jury that they should consider a life sentence to mean that defendant would be imprisoned for life and that they should not take the possibility of parole into account in reaching a verdict. The juror indicated that he would have trouble following that instruction and was excused for cause. Defense counsel requested that he be allowed to ask the other prospective jurors whether they could follow the court’s instructions on parole. The court refused to allow the question. Held: Error -The defendant has a right to inquire as to whether a prospective juror will follow the court’s instruction.
*State v Jones, 336 N.C. 229, 239-40 (1994)
 
 
Personal Strength:
Prosecutor asked: “Are you strong enough to recommend the death penalty ?” *State v Smith, 328 N.C. 99, 128 (1991)
 
 
 
 
 
 
 
VII. CONSIDERATION OF MITIGATION EVIDENCE
 
General Principles about Mitigation Evidence
 
“Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty.”  Morgan, 504 U.S. at 738, 119 L.Ed.2d at 508.
 
[Jurors] may determine the weight to be given relevant mitigating evidence...[b]ut they may not give it no weight by excluding such evidence from their consideration.
*Eddings v Oklahoma, 455 U.S. 104,114 (1982)
 
Decision to impose the death penalty is a reasoned moral response to the defendant’s background , character and crime.​
Jurors make individualized assessments of the appropriateness of the death penalty.  *Penry v Lynaugh, 109 S.Ct. 2934, 2948-9 (1988)
 
Procedure must require the sentencing body to consider the character and record of the individual offender and the circumstances of the particular offense.
*Woodsen v North Carolina, 428 U.S. 280, 304 (1976)
 
In a capital sentencing proceeding before a jury, the jury is called upon to make a highly subjective, unique individualized judgment regarding the punishment that a particular person deserves.
*Turner v Murray, 476 U.S. 23, 33-34 (1985) (quoting Caldwell v Mississippi, 472 U.S. 320, 340 n.7 (1985)
 
 
Specific Questions or Areas of Inquiry
 
Forecast of Evidence About Aggravators (and Mitigators)
*State v Payne, 328 N.C. 377,391 (1991).  In Payne, the defendant argued it was improper for the prosecutor to forecast to the jury during voir dire that they might consider HAC as an aggravating factor. The Court found no error and stated: [I]t is permissible for a prosecutor during voir dire to state briefly what he or she anticipates the evidence may show, provided the statements are made in good faith and are reasonably grounded in the evidence available to the prosecutor.
 
The following question was allowed by the trial court: “Do you feel like whatever we propose to you as a potential mitigating factor that you can give that fair consideration and not already start out dismissing those and saying those don’t count because of the severity of the crime.”  *State v Jones, 336 N.C. 229, 241 (1994)
 
 
Mental/Emotional Disturbance:
If the court instructs you that you should consider whether or not a person is suffering from mental or emotional disturbance in deciding whether or not to give someone the death penalty, do you feel like you could follow the instruction.​
*State v Robinson, 339 N.C. 263 (1994) (using an example from State v Skipper, 337 N.C. 1, 23 (1994))
 
Impaired Capacity (f)(6):
Proper for Prosecutor to ask prospective jurors whether they would be sympathetic toward a defendant who was intoxicated at the time of the offense. (If it is shown to you from the evidence and beyond a reasonable doubt that the defendant was intoxicated at the time of the alleged shooting, would this cause you to have sympathy for him and allow that sympathy to affect your verdict.)
*State v McKoy, 323 N.C. 1 (1988)
 
Could the juror consider impaired capacity due to intoxication by drugs or alcohol as a mitigating circumstance and give the evidence such weight as you believe it is due ? Would your feelings about drugs or alcohol prevent you from considering the evidence ?
*State v Smith, 328 N.C. 99, 127 (1991)
 
Prosecuting attorney asked the jurors if they would consider that the defendant voluntarily consumed alcohol in determining whether the defendant was entitled to diminished capacity mitigating factor.  The Supreme Court stated: “This was a proper question.  He did not attempt to stake the jury out as to what their answer would be on a hypothetical question.”  *State v. Reeves, 337 N.C. 700 (1994)
 
 
​Age of Defendant:
The following question was asked by defense counsel: “[T]he defendant will introduce things that he contends are mitigating circumstances, things like his age at the time of the crime...Do you feel like you can consider the defendant’s age at the time the crime was committed ...and give it fair consideration?”  The Supreme Court assumed it was error for the trial court to sustain the State’s objection to this question. In finding it harmless, however, the Court stated, “[i]n the context that this question was propounded, the juror is bound to have known the circumstance to which the defendant referred was the age of the defendant.”  *State v Jones, 336 N.C. 229, 241 (1994)
 
​Course of Conduct Aggravator:
Prosecutor was not staking out juror when asking: “If the State satisfied you... that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty, then I take it you could give the defendant the death penalty for beating two humans to death with a hammer, is that correct?”  *State v Laws, 325 N.C. 81 (1989)
​
​Murder During Felony Aggravator:
Prosecutor informs jury about aggravating factors indicating that the State is relying upon...the capital felony was committed while the defendant was engaged, or was an aider and abettor in the commission of, or attempt to commit...any homicide, robbery, rape.... Supreme Court indicates that the prosecutor during jury voir dire should limit reference to aggravating factors, including the underlying felonies listed in G.S. 15A-2000(e)(5), to those of which there will be evidence and upon which the prosecutor intends to rely.  Payne, 328 N.C. 377 (?)
 
HAC Aggravator:
State v Payne, 328 N.C. 377,391 (1991).  In Payne, the defendant argued it was improper for the prosecutor to forecast to the jury during voir dire that they might consider HAC as an aggravating factor. The Court found no error and stated: [I]t is permissible for a prosecutor during voir dire to state briefly what he or she anticipates the evidence may show, provided the statements are made in good faith and are reasonably grounded in the evidence available to the prosecutor.
 
 
 
Miscellaneous Areas of Proper Inquiry:
1) Whether the jurors had any background or experience with mental problems in their families ?  Simpson, 462 SE2d at 205;
 
2) Whether the jurors have any bias against or problem with any mental health professionals ?  Simpson, 462 SE2d at 205;
 
3) Whether any jurors have had any experience wi 
IV.​GENERAL PRINCIPLES OF VOIR DIRE IN DEATH PENALTY CASES
 
Both the defendant and the state have the right to question prospective jurors about their views on capital punishment…The extent and manner of the inquiry by counsel lies within the trial court’s discretion and will not be overturned absent an abuse of discretion.  Brogden, 430 SE2d at 908.  
 
Not only must the defendant be allowed to offer all relevant mitigating circumstance, “the sentencer [must] listen- that is the sentencer must consider the mitigating circumstances when deciding the appropriate sentence.
*Eddings v Oklahoma, 455 U.S. 104, 115 n.10 (1982)
 
“Part of the Sixth Amendment’s guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors…Voir dire plays a critical function in assuring the criminal defendant that his constitutional right to an impartial jury will be honored.”  Voir dire must be available “to lay bare the foundation” of a challenge for cause against a prospective juror.
Morgan v Illinois, 504 U.S. 719, 729, 733 (1992)
 
We deal here with petitioner’s ability to exercise intelligently his complimentary challenge for cause against those biased persons on the venire who as jurors would unwaveringly impose death after a finding of guilt. Were voir dire not available to lay bare the foundation of petitioner’s challenge for cause against those prospective jurors who would always impose death following conviction, his right not to be tried by such jurors would be rendered as nugatory and meaningless as the State’s right, in the absence of questioning, to strike those who would never do so. Morgan, 504 U.S. at 733-34.
 
 defendant on trial for his life should be given great latitude in examining potential jurors.  State v Conner, 335 N.C. 618 (1995)
 
In voir dire, “what matters is how …[the questions regarding capital punishment] might be understood-or misunderstood-by prospective jurors.”  For example, “a general question as to the presence of reservations [against the death penalty] is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases.”  One cannot assume the position of a venireman regarding this issue absent own unambiguous statement of his beliefs.  Witherspoon, 391 U.S. at 515, n. 9.
 
 
Court must allow a defendant to go beyond the standard “fair and impartial” question:  “As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed...It may be that a juror could , in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception.” Morgan, 504 U.S. at 735-36.
 
 
It is not necessary for the trial court to explain or for a juror to understand the process of a capital sentencing proceeding before the juror can be successfully challenged for his answers to questions.  An understanding of the process should not affect one’s beliefs regarding the death penalty.   Simpson, 462 SE2d at 202, 206.
 
 
 
V. DEATH AND LIFE QUALIFICATION
 
Death Qualification: General Opposition to Death Penalty Not Enough
 
Under the “impartial jury” guarantee of the Sixth Amendment, death penalty jurors may not be excused “for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction”…, or “that there are some kinds of cases in which they would refuse to recommend capital punishment.  Witherspoon, 391 U.S. at 522, 512-13.  
 
The Supreme Court recognized that “A man who opposes the death penalty…can make the discretionary judgment entrusted to him by the state and can thus obey the oath he takes as a juror.” Id., 391 U.S. at 519.
 
“Not all [jurors] who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors…so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.”  Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137, 149 (1986).  (Nice quote of the above general principle but the Court reaffirmed its position that death-qualified juries are not conviction-prone, and it is constitutional for a death-qualified jury to decide the guilt/innocence phase.  The Court rejects the “fair-cross-section” argument against death-qualified juries deciding guilt.)  
 
General opposition to the death penalty will not support a challenge for cause for a potential juror who will “conscientiously apply the law to the facts adduced at trial.”  Such a juror may be properly excluded “if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge.”  State v. Brogden, 430 SE2d at 907-08 (citing Witt, Adams v. Texas, and Lockhart).
 
 
 
 
 
Death Qualification Rules/Standards
 
The state may excuse jurors who make it  "unmistakably clear” (1) that they would “automatically vote against the death penalty” no matter what the facts of the case were, or (2) that “their attitude about the death penalty would prevent them from making an impartial decision” regarding the defendant’s guilt.  Witherspoon, 391 U.S. at 522, n. 21.
 
... a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed against the penalty of death regardless of the facts and circumstances...” that might emerge during the trial.  Witherspoon v Illinois, 391 U.S. 510, 523 n.21 (1968).  
 
The state may excuse for cause a juror if he affirmatively answers the following question: “Is your conviction [against the death penalty] so strong that you cannot take an oath [to fairly try this case and follow the law], knowing that a possibility exists in regard to capital punishment.”  Lockett v. Ohio, 438 U.S. 586, 595-96 (1978).  This ruling was based on the impartiality prong of the Witherspoon standard (i.e., their attitudes toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.)
 
Prospective jurors may not be excused for cause simply because of the possibility “of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.”  The fact that the possible imposition of the death penalty would “affect” their deliberations by causing them to be more emotionally involved or would view their task with greater seriousness is not grounds for excusal.  The same rule against exclusion for cause applies to jurors who could not confirm or deny that their deliberations would be affected by their views about the death penalty or by the possible imposition of the death penalty.  Adams v. Texas, 448 U.S. 38, 49-50 (1980).  
 
The proper standard for excusing prospective jurors for cause because of his  views on capital punishment is: “Whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction or his oath.”  Wainwright v. Witt, 469 U.S. at 424.
 
The N.C. Supreme Court has upheld removal of potential jurors who equivocate or who state that although they believe generally in the death penalty, they indicate that they personally would be unable or would find it difficult to vote for the death penalty.  Simpson, 462 SE2d at 206; State v. Gibbs, 335 NC 1, 436 SE2d 321 (1993), cert. denied, 129 L.Ed.2d 881 (1994).
 
 
 
The following questions by the prosecutor were found to be proper:
1) Mr. Juror, how do you feel about the death penalty, sir, are you opposed to it or [do] you feel like it is a necessary law?
2) Do you feel that you could be part of the legal machinery which might bring it about in this particular case?   *State v Willis, 332 N.C. 151, 180-81 (1992)
 
 
Rehabilitation of Death Challenged Juror
 
It is not an abuse of discretion for the trial court to deny the defendant the chance to rehabilitate a juror who has expressed clear and unequivocal opposition to the death penalty in response to questions asked by the prosecutor and judge when further questioning by defendant would not have likely produced different answers.  Brogden, 430 SE2d at 908-09; see also State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992).  (In Brogden, a juror said that he could consider the evidence, was not predisposed either way, and could vote for death in an appropriate case.  The same juror also said his feelings about the death penalty would “partially” or “to some extent” affect his performance as a juror.  The trial court erroneously denied the defendant the opportunity to rehabilitate this juror.)  
 
 
Morgan/Life Qualifying Questions
 
“If you found [the defendant] guilty, would you automatically vote to impose the death penalty no matter what the facts were?”  Morgan, 504 U.S. at 723.  A juror who will automatically vote for the death penalty in every case will fail to follow the law about considering aggravating and mitigating evidence, and has already formed an opinion on the merits of the case.  Id. at 504 U.S. at 729, 738.
 
“Clearly, the extremes must be eliminated-i.e., those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence.”  Morgan, 504 U.S. at 734, n. 7.
 
“General fairness and follow the law questions” are not sufficient.  A capital defendant is entitled to inquire and ascertain a potential juror’s predeterminations regarding the imposition of the death penalty.  Morgan, 504 U.S. at 507; Conner, 440 S.E.2d. at 840 (NC).
 
“The fact that you may have reservations about, or conscientious or religious objections to, capital punishment does not automatically disqualify you as a juror in a capital case. Of primary importance is whether you can subordinate your personal philosophy to your duty to abide by your oath as a juror and to follow the law as I give it to you. If you are willing to render a verdict that speaks the truth as you find it to exist, even though such verdict may lead to (sentence), you are qualified to serve as a juror in this case.    Mr./Mrs. [prospective juror], are you opposed to or in favor of the death penalty ?”      Capital Cases Benchbook, National Judicial College
 
Proper Questions:
 
The gist of the following two questions was to determine whether the juror was willing to consider a life sentence in the appropriate circumstances or would automatically vote for death upon conviction.  Conner, 440 SE2d at 841.
 
1)  Is your support for the death penalty such that you would find it difficult to consider voting for life imprisonment for a person convicted of first-degree murder? Approved in State v Conner, 335 N.C. 618 (1994)
 
2)  Would your belief in the death penalty make it difficult for you to follow the law and consider life imprisonment for first-degree murder?  Approved in
State v Conner, 335 N.C. 618 (1994).
 
3)  If the State convinced you beyond a reasonable doubt that the defendant was guilty of premeditated murder and you had returned a verdict of guilty, do you think then that you would feel that the death penalty was the only appropriate punishment?​In State v Conner, 335 N.C. 618, 643-45 (1994), the Court recognized that questions (numbered here as 3-5) that were deemed inappropriate in State v Taylor, 304 N.C. at 265, would now be acceptable.
 
4)  If you had sat on the jury and had returned a verdict of guilty, would you then presume that the penalty should be death?  State v Conner, 335 N.C. 618, 643-45 (1994) (referring to questions used in State v Taylor, 304 N.C. at 265, would now be acceptable.
 
5)  If at the first stage of the trial you voted guilty for first-degree murder, do you think that you could at sentencing consider a life sentence or would your feelings about the death penalty be so strong that you could not consider a life sentence?
State v Conner, 335 N.C. 618, 643-45 (1994) (referring to State v Taylor)
 
 
Improper Questions
1) Due to “Form”  (according to Simpson):
a) Do you think that a sentence to life imprisonment is a sufficiently harsh punishment for someone who has committed cold-blooded, premeditated murder?  Simpson, 462 SE2d at 203.
 
b)  Do you think that before you would be willing to consider a death sentence for someone who has committed cold-blooded, premeditated murder, that they would have to show you something that justified that sentence?   Simpson, 462 SE2d at 203.
 
 
 
 
2) Examples of improper questions that were argumentative, incomplete statement of the law, and “stake-outs” are found in Simpson, 462 SE2d at 203-04 (Although “some of the questions” listed on pp. 203-04 were proper under Morgan and Conner, the Court found it harmless error.)
 
3)  The following question was properly disallowed under Morgan because it was overly broad and called for a legislative/policy decision:  Do you feel that the death penalty is the appropriate penalty for someone convicted of first-degree murder?  Conner, 335 NC at 643.
 
 
 
 
VI.  SPECIFIC AREAS OF QUESTIONING ABOUT DEATH PENALTY ISSUES
 
Accomplice Liability:
Proper for prosecutor to ask prospective juror if he would be able to recommend the death penalty for someone who did not actually pull the trigger. *State v Bond, 345 N.C. 1 (1996).  
a)  “The evidence will show [the defendant] did not actually pull the trigger. Would any of you feel like simply because he did not pull the trigger, you could not consider the death penalty and follow the law concerning the death penalty.”
 
b)  “Regardless of the facts and circumstances concerning the case, you could not recommend the death penalty for anyone unless it was the person who pulled the trigger.”
 
LWOP:
During jury selection, a prospective juror indicated that he did not feel that a life sentence actually meant life. (Prior to LWOP statute) The trial court then instructed the jury that they should consider a life sentence to mean that defendant would be imprisoned for life and that they should not take the possibility of parole into account in reaching a verdict. The juror indicated that he would have trouble following that instruction and was excused for cause. Defense counsel requested that he be allowed to ask the other prospective jurors whether they could follow the court’s instructions on parole. The court refused to allow the question. Held: Error -The defendant has a right to inquire as to whether a prospective juror will follow the court’s instruction.
*State v Jones, 336 N.C. 229, 239-40 (1994)
 
 
Personal Strength:
Prosecutor asked: “Are you strong enough to recommend the death penalty ?” *State v Smith, 328 N.C. 99, 128 (1991)
 
 
 
 
 
 
 
VII. CONSIDERATION OF MITIGATION EVIDENCE
 
General Principles about Mitigation Evidence
 
“Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty.”  Morgan, 504 U.S. at 738, 119 L.Ed.2d at 508.
 
[Jurors] may determine the weight to be given relevant mitigating evidence...[b]ut they may not give it no weight by excluding such evidence from their consideration.
*Eddings v Oklahoma, 455 U.S. 104,114 (1982)
 
Decision to impose the death penalty is a reasoned moral response to the defendant’s background , character and crime.​
Jurors make individualized assessments of the appropriateness of the death penalty.  *Penry v Lynaugh, 109 S.Ct. 2934, 2948-9 (1988)
 
Procedure must require the sentencing body to consider the character and record of the individual offender and the circumstances of the particular offense.
*Woodsen v North Carolina, 428 U.S. 280, 304 (1976)
 
In a capital sentencing proceeding before a jury, the jury is called upon to make a highly subjective, unique individualized judgment regarding the punishment that a particular person deserves.
*Turner v Murray, 476 U.S. 23, 33-34 (1985) (quoting Caldwell v Mississippi, 472 U.S. 320, 340 n.7 (1985)
 
 
Specific Questions or Areas of Inquiry
 
Forecast of Evidence About Aggravators (and Mitigators)
*State v Payne, 328 N.C. 377,391 (1991).  In Payne, the defendant argued it was improper for the prosecutor to forecast to the jury during voir dire that they might consider HAC as an aggravating factor. The Court found no error and stated: [I]t is permissible for a prosecutor during voir dire to state briefly what he or she anticipates the evidence may show, provided the statements are made in good faith and are reasonably grounded in the evidence available to the prosecutor.
 
The following question was allowed by the trial court: “Do you feel like whatever we propose to you as a potential mitigating factor that you can give that fair consideration and not already start out dismissing those and saying those don’t count because of the severity of the crime.”  *State v Jones, 336 N.C. 229, 241 (1994)
 
 
Mental/Emotional Disturbance:
If the court instructs you that you should consider whether or not a person is suffering from mental or emotional disturbance in deciding whether or not to give someone the death penalty, do you feel like you could follow the instruction.​
*State v Robinson, 339 N.C. 263 (1994) (using an example from State v Skipper, 337 N.C. 1, 23 (1994))
 
Impaired Capacity (f)(6):
Proper for Prosecutor to ask prospective jurors whether they would be sympathetic toward a defendant who was intoxicated at the time of the offense. (If it is shown to you from the evidence and beyond a reasonable doubt that the defendant was intoxicated at the time of the alleged shooting, would this cause you to have sympathy for him and allow that sympathy to affect your verdict.)
*State v McKoy, 323 N.C. 1 (1988)
 
Could the juror consider impaired capacity due to intoxication by drugs or alcohol as a mitigating circumstance and give the evidence such weight as you believe it is due ? Would your feelings about drugs or alcohol prevent you from considering the evidence ?
*State v Smith, 328 N.C. 99, 127 (1991)
 
Prosecuting attorney asked the jurors if they would consider that the defendant voluntarily consumed alcohol in determining whether the defendant was entitled to diminished capacity mitigating factor.  The Supreme Court stated: “This was a proper question.  He did not attempt to stake the jury out as to what their answer would be on a hypothetical question.”  *State v. Reeves, 337 N.C. 700 (1994)
 
 
​Age of Defendant:
The following question was asked by defense counsel: “[T]he defendant will introduce things that he contends are mitigating circumstances, things like his age at the time of the crime...Do you feel like you can consider the defendant’s age at the time the crime was committed ...and give it fair consideration?”  The Supreme Court assumed it was error for the trial court to sustain the State’s objection to this question. In finding it harmless, however, the Court stated, “[i]n the context that this question was propounded, the juror is bound to have known the circumstance to which the defendant referred was the age of the defendant.”  *State v Jones, 336 N.C. 229, 241 (1994)
 
​Course of Conduct Aggravator:
Prosecutor was not staking out juror when asking: “If the State satisfied you... that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty, then I take it you could give the defendant the death penalty for beating two humans to death with a hammer, is that correct?”  *State v Laws, 325 N.C. 81 (1989)
​
​Murder During Felony Aggravator:
Prosecutor informs jury about aggravating factors indicating that the State is relying upon...the capital felony was committed while the defendant was engaged, or was an aider and abettor in the commission of, or attempt to commit...any homicide, robbery, rape.... Supreme Court indicates that the prosecutor during jury voir dire should limit reference to aggravating factors, including the underlying felonies listed in G.S. 15A-2000(e)(5), to those of which there will be evidence and upon which the prosecutor intends to rely.  Payne, 328 N.C. 377 (?)
 
HAC Aggravator:
State v Payne, 328 N.C. 377,391 (1991).  In Payne, the defendant argued it was improper for the prosecutor to forecast to the jury during voir dire that they might consider HAC as an aggravating factor. The Court found no error and stated: [I]t is permissible for a prosecutor during voir dire to state briefly what he or she anticipates the evidence may show, provided the statements are made in good faith and are reasonably grounded in the evidence available to the prosecutor.
 
 
 
Miscellaneous Areas of Proper Inquiry:
1) Whether the jurors had any background or experience with mental problems in their families ?  Simpson, 462 SE2d at 205;
 
2) Whether the jurors have any bias against or problem with any mental health professionals ?  Simpson, 462 SE2d at 205;
 
3) Whether any jurors have had any experience with foster care ? Simpson, 462 SE2d at 205;