STATE of North Carolina v. John Thomas NOLAND, Jr.
*649 Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.
Grant Smithson and Jean B. Lawson, Charlotte, for defendant-appellant.
Defendant brings forward numerous assignments of error relating to the guilt determination phase of his trial and to the sentencing phase of his trial. After a careful consideration of these assignments, as well as the record before us, we find no error in any of these proceedings and affirm the judgments.
Defendant contends that prior to the guilt-innocence phase of the trial, the trial court erred in "death-qualifying" the jury because a "death-qualified" jury is allegedly prosecution prone, i.e., more likely to convict a defendant, and thus is constitutionally unacceptable. This Court has repeatedly held that North Carolina's jury selection process in first degree murder cases is constitutional. State v. Maynard, 311 N.C. 1, 316 S.E.2d 197 (1984). This assignment of error is overruled.
Defendant next assigns as error the trial court's denial of his pretrial motion to bar the imposition of the death penalty on the basis that the prosecutorial discretion to seek or not to seek the death penalty violates the defendant's right to due process. The defendant contends that the death penalty was unconstitutionally applied in the case sub judice due to the prosecutor's exercise of discretion in determining that his case would be tried as a capital case. The defendant relies on two cases, which arguably could have factors in aggravation, in which the prosecutor in the same judicial district in which the defendant was tried permitted the defendants to plead guilty to second degree murder. State v. Coy Devore (81CRS12679, Mecklenburg County) and State v. Larry Wilson (82CRS17018, Mecklenburg County).
Under the legal system of this State, the prosecutor has the authority and duty to use his best judgment in deciding which cases to pursue and which penalties to seek. Unless defendants show that the prosecutor's selectivity is systematically based on race, religion or some other arbitrary classification, Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962), the fact that one case possesses a strong fact situation which would justify seeking the death penalty, while another case does *650 not, does not constitute a constitutional violation.
The United States Supreme Court, in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) and Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), rejected the argument that prosecutorial discretion invalidated the death penalty statutes because it allowed impermissible discretion. The fact that discretionary stages in the legal process exist, does not, by itself, show that the death penalty is capriciously imposed. The arbitrary and capricious imposition of the death penalty with which we are concerned occurs only when the punishing authority operates without any guidance.
Thus, since the defendant has not shown that the prosecutor employed an arbitrary standard in selecting which cases are tried as capital cases, he has failed to prove that the exercise of prosecutorial discretion in any way undermines the constitutionality of our death penalty statute, N.C. Gen.Stat. § 15A-2000. This assignment is without merit.
The defendant contends that the trial court erred by failing to dismiss the charge of first degree burglary at the home of Cynthia Milton. At the close of the State's evidence, defendant moved to dismiss on the above charge. The trial court denied the motion. Defense counsel renewed the motion at the end of all the evidence, and the trial court again denied the motion. Although the defendant's counsel on appeal excepts only to the denial of the motion made at the close of the State's evidence, instead of on the denial of the motion made at the close of all the evidence as mandated by N.C.Gen.Stat. § 15-173, we shall nevertheless review the merits of this assignment of error. State v. Leonard, 300 N.C. 223, 266 S.E.2d 631 (1980).
First degree burglary is the breaking and entering during the nighttime of an occupied dwelling with the intent to commit a felony therein. State v. Simpson, 299 N.C. 377, 261 S.E.2d 661 (1980). The defendant contends that the evidence was not sufficient to support the element of a breaking, either actual or constructive. The defendant does not question the sufficiency of the evidence with regard to the remaining elements of first degree burglary. A breaking, as it pertains to the crime of burglary, "constitutes any act of force, however slight, `employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed.'" State v. Jolly, 297 N.C. 121, 127-128, 254 S.E.2d 1, 5-6 (1979); see State v. Myrick, 306 N.C. 110, 291 S.E.2d 577 (1982).
The evidence reveals that Cindy Milton walked to her back door in response to a knock on the window. There was no evidence that the victim invited the defendant inside. The witnesses testified that they heard a bang and saw Cindy running into the house, screaming. The glass pane in the back door was broken. The defendant followed Cindy into the house, cornered her in the laundry room, and shot her. There was substantial evidence from which the jury could infer that defendant entered the house with force and without consent.
When given the benefit of the reasonable inferences drawn from this evidence, we believe the State presented sufficient evidence of a breaking, as well as the other elements of first degree burglary. Thus, the defendant's motion to dismiss the charge of first degree burglary was properly denied.
In his next assignment of error, defendant argues that the district attorney during closing arguments improperly and prejudicially read to the jury the law concerning "amnesia" found in State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975). Defendant claims that this reading denigrated and downplayed his defense of insanity, by convincing the jury to totally disregard the evidence in support of his defense of not *651 guilty by reason of insanity. We find this assignment of error meritless.
Amnesia is rare. More frequently the accused, remembering full well what he's done, alleges amnesia in false defense. He is a malingerer ... Failure to remember later, when accused, is in itself no proof of the mental condition when the crime was performed.
"Amnesia, loss of memory, may lead to crimes entirely unknown to the culprit at a later date. That is rare. More frequently, the accused, remembering full well what he has done, alleges amnesia in false defense. He is a malingerer. To prove his innocence or guilt may be most difficult ... Failure to remember later, when accused, is in itself no proof of the mental condition when crime was performed."
Id. at 286, 215 S.E.2d at 361.
An exception to this rule is found in capital cases where, because of the severity of the death sentence, this court will review alleged improprieties in the prosecutor's jury argument despite defendant's failure to timely object. State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979). However, even in death cases the impropriety must be extreme for this court to find that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel failed to find prejudicial when he heard it.
Id. at 537, 290 S.E.2d at 570.
In the case sub judice the evidence revealed that the defendant claimed amnesia about the shootings. Yet, according to the testimony of certain law enforcement officers, shortly after the killings the defendant made comments which indicated that he was well aware of his criminal actions. The examining psychiatrist was unable to form an opinion as to Noland's ability to know the difference between right and wrong due to the claimed amnesia; nor was the doctor able to determine whether the amnesia was in all actuality real.
The crux of the defendant's complaint is that because his defense to the murder charges was insanity, the reading of the quoted material was irrelevant to the issues before the jury. We disagree. The defendant introduced evidence at trial concerning his alleged "amnesia." By so doing, the issue of amnesia became relevant, particularly in terms of its possible fabrication and its effect on the underlying insanity defense. Defendant concedes that the well established law in North Carolina allows counsel the right to argue to the jury the law and the facts in evidence and all reasonable inferences to be drawn therefrom. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), reh. denied, 459 U.S. 1189, 103 S. Ct. 839, 74 L. Ed. 2d 1031 (1983).
We believe the State was well within the bounds of proper argument in reading the law on amnesia to the jury since the issue was relevant and fairly presented by the evidence. Furthermore, the prosecutor's "misquoting" of Caddell did not constitute an impropriety so extreme as to require the trial judge to act ex mero motu. The assignment of error is overruled.
THE COURT: Mr. Mercer, is that the instruction now that you wanted? MR. MERCER: Yes, sir. THE COURT: All right.
If that time comes, you will receive separate sentencing instructions. However, at this time, your only concern is to determine whether the guilty [sic] of the defendantwhether the defendant is guilty of the crimes charged; or, any lesser included offenses, about which you were instructed.
The instruction, quoted almost verbatim from the Pattern Jury Instruction on first degree murder, N.C.P.I.Crim. 206.10 (Replacement May 1980), simply explains to the jury that their duty at this stage is to determine only the guilt or innocence of the defendant, and not the punishment. We do not believe that the instruction suggested to the jury that a finding of guilty of first degree murder was appropriate nor do we find that it intimates to the jury that the trial judge believed the defendant was guilty. The trial judge was merely explaining the legal process to the jurors, as it pertained to their duty. Accordingly, we reject defendant's contention and hold that the instruction was properly given.
The second question, "Does the aggravating factor warrant the death penalty"? As I've told you, under the statutory scheme, it's not necessary for the State to have more than one aggravating factor in order to be able to request the jury to return a verdict of the death penalty. The presence of any one or more of those aggravating factors, if in your mind, if you decide it is serious enough to warrant the imposition of the death penalty, is sufficient for you to find that. I would argue to you that this aggravating factor is perhaps the most serious of any of them. And, I would argue to you that the fact that this man killed two people and tried to kill another, seriously wounding her, is sufficiently serious to *653 warrant the imposition of the death penalty. I don't know of any other caseI can't imagine any other case that can be more serious. And, I would argue to you that the answer to that question is, "Yes."
Defendant argues that the district attorney improperly injected his personal beliefs concerning the applicable law, by asserting his opinion that greater weight should be given to this factor in aggravation. Defendant lodged no objection during this portion of the prosecutor's argument. Because we do not believe that these remarks constituted error, the trial judge correctly refrained from taking curative action ex mero motu.
Prosecutors may not misstate the law or inject personal opinion concerning a legal principle. State v. Maynard, 311 N.C. 1, 316 S.E.2d 197. N.C.Gen.Stat. § 15A-2000 does not apportion or assign any particular weight to be afforded the listed mitigating and aggravating factors for the sentencer's consideration. The law assigns no particular value or weight to any of the factors for the jury's consideration. State v. McDougall, 308 N.C. 1, 301 S.E.2d 308, cert. denied, ___ U.S. ___, 104 S. Ct. 197, 78 L. Ed. 2d 173 (1983).
Although the capital sentencing statute does not assign the relative value to be given to each circumstance, certainly attorneys should be allowed to discuss the merits of each of the factors presented and their seriousness or lack thereof. State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983) (jury argument regarding weight to be given mitigating factors); see State v. Craig, 308 N.C. 446, 302 S.E.2d 740, cert. denied, ___ U.S. ___, 104 S. Ct. 263, 78 L. Ed. 2d 247 (1983). Here, defense counsel in his jury argument emphasized to the jury that out of eleven statutory aggravating factors the evidence supported only one. He further attempted, as the law permits him, to diminish the seriousness of that one aggravating factor. The district attorney responded to what he called the defense counsel's indication that "the State intend[ed] to rely on ... a technical [aggravating factor]," and attempted to bolster the aggravating factor. We perceive the prosecutor's statement, "I would argue to you," not as an injection of personal opinion but as a contention to be considered by the jury. We hold that the district attorney's statement that "this aggravating factor is perhaps the most serious of any of them" was not improper, particularly when viewed in light of defense counsel's earlier argument.
The defendant combines two assignments of error, first contending that the district attorney improperly indicated to the jury that it could determine the existence of the mitigating factor, the lack of any prior criminal activity, and second that the trial judge erred in his instructions concerning that mitigating factor. Defendant did not object at trial to the prosecutor's remark or to the trial judge's instructions.
Subsequent to reminding the jury that the evidence indicated the defendant plead guilty to communicating threats, the district attorney stated to the jury, "you make your decision about whether you think his lack of any prior criminal history is a mitigating factor." Contrary to defendant's assertions, we do not believe this statement constitutes error. "[T]he weight a mitigating circumstance is assigned is entirely for the jury to decide. It follows that counsel is entitled to argue what weight circumstances should ultimately be assigned." State v. Craig, 308 N.C. 446, 460, 302 S.E.2d 740, 749. Here, the prosecutor's remark clearly goes to the weight the jury should attach to this mitigating factor.
Mitigating Circumstance No. 1, first you should consider whether or not the defendant, John Thomas Noland, had a *654 significant history of prior criminal activity. The mitigating circumstance listed is that, "The defendant had no significant history of prior criminal activity." You can consider this. Significant means important or notable. Whether any history of prior criminal activities is sufficient is for you to determine from all the facts and circumstances that you find from the evidence. However, you should not determine whether it is significant only on the basis of the number of convictions, if any, in the defendant's record. Rather, you should consider the nature and quality of the defendant's history, if any, in determining whether it is significant. You would find this mitigating circumstance if you find that any criminal activity presented to you during the course of this trial is not significant and that this is not a significant history of prior criminal activity that the defendantof the defendant's prior criminal history. Now Members of the jury, in this regard, Susan Milton offered evidence for the State, during the course of the trial and by way of cross-examination, testified that John Thomas Noland, Jr., had not been in any trouble with the law while they were married. He did plead guilty to communicating threats to her family in 1981 and paid the Court costs. Communicating threats is a violation of G.S. 14-277.1; and, it is a misedmeanor [sic]. In addition to that, John Thomas Noland's mother, Nanny Noland, testified that her son had never been in any trouble prior to these incidents.
Where all the evidence in a case, if believed, tends to show that a particular mitigating factor exists, a peremptory instruction is proper. State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979). However, a peremptory instruction is inappropriate when the evidence surrounding that issue is conflicting. State v. Smith, 305 N.C. 691, 292 S.E.2d 264, cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982).
The mitigating circumstance with which we are concerned, N.C.Gen. Stat. § 15A-2000(f)(1), does not speak in terms of "criminal convictions," but rather in terms of "criminal activity." Thus this subsection does not necessarily restrict the jury's consideration to only prior convictions. See State v. Stokes, 308 N.C. 634, 304 S.E.2d 184 (1983). The evidence reveals, as the trial court noted, that the defendant communicated threats and was convicted of that charge. The defendant's former wife testified that on several other occasions defendant communicated threats and at least once committed an assault on a female. Clearly this constituted some evidence of criminal activity. Whether this evidence was sufficient to constitute significant history of criminal activity, thereby precluding a finding of this factor, was for the jury to decide. The assignment of error is overruled.
You all are going to have to make a decision. We're trying to run a society. I think we all some times take our society for granted. We see the televisions and computers and the cars and all the wonderful things we have, and I think we tend to forget that society is a gunshot away, or the lack of society is a gunshot away and maybe three meals away. And I think we build a society every day in what we all do. And, if all the people in this room were starting out to build a society, tomorrow, and, we all depended on each other for the conduct of our society and our survival as a civilization, and, John Noland was among us, having killed his father-in-law and having killed his sister-in-law, two entirely innocent people. And we were trying to decide the rules or how we were going to conduct *655 our society, and whether we were going to be safe in our beds, I think the decision would be the death penalty.
Defendant failed to object at trial to this alleged improper argument. We do not, in any way, find these particular remarks improper, and they certainly do not amount to such gross impropriety as to require the trial judge to act ex mero motu. See State v. Boyd, 311 N.C. 408, 319 S.E.2d 189 (1984). This assignment of error is without merit.
Defendant's next contention is that the trial court's framing of the sentencing issues unconstitutionally precluded the jury from considering the mitigating circumstances at each appropriate issue stage of the sentencing determination process. Defendant did not object at trial to these issues. The issues in the case sub judice are substantially the same as those repeatedly approved by this Court. See e.g. State v. Oliver and Moore, 309 N.C. 326, 307 S.E.2d 304 (1983). The issues are constitutionally valid and free of prejudicial error. The assignment of error is overruled.
Defendant next contends that the trial court erred in its instructions to the jury during the sentencing phase by placing on the defendant the burden of persuasion by a preponderance of the evidence as to the existence of mitigating circumstances. Defendant did not object at trial. Furthermore, this Court has repeatedly ruled that the burden of persuasion as to the existence of mitigating circumstances is on the defendant. See State v. Maynard, 311 N.C. 1, 316 S.E.2d 197. We overrule this assignment of error.
In his next assignment of error the defendant argues that the trial court committed prejudicial error in its jury instructions concerning the mitigating circumstance set out in N.C.Gen.Stat. § 15A-2000(f)(2) that "the capital felony was committed while the defendant was under the influence of mental or emotional disturbance," because the trial court did not peremptorily charge the jury that this circumstance existed. Defendant made no request at trial for such an instruction.
As discussed earlier in this opinion, a peremptory instruction is proper only when all the evidence, if believed, tends to show that a particular mitigating factor exists. We disagree with the defendant's contention that all the evidence in this case tended to show that he was under the influence of a mental or emotional disturbance. The evidence was conflicting.
Evidence of defendant's emotional state subsequent to his separation from his wife was adequately presented through the testimony of witnesses for the defendant. The anguish and despair a marital separation may cause is not disputed. Furthermore the impact of such an event may vary according to the person. It appears from the medical testimony that the effect of marital separation would be more profound on a person diagnosed as suffering from a borderline personality disorder with narcissistic features. Defendant's evidence also revealed that he was involuntarily committed in May 1981, treated for his problems, and thereafter released.
The State offered evidence which tended to contradict the defendant's contention that he was under a mental disturbance during the occurrence of the criminal acts. The defendant bought the pistol, determined to be the murder weapon, from an acquaintance two days prior to the shootings. He assured the person from whom he purchased the gun that he did not plan to shoot anyone. The acquaintance's testimony disclosed no evidence of defendant's being in an emotional state at that time.
Additional evidence presented by the State tended to show that the defendant killed and wounded his victims in the exact order and manner in which he threatened. Nothing in the testimony of the witnesses to the killing suggested that the defendant *656 appeared to be acting under a mental disturbance. The emotion that he displayed was anger. The defendant was confronted by law enforcement officers within an hour of the shootings. The officers noticed nothing peculiar about his eyes, his speech, or his walk. He commented that he knew he had killed two people. Nothing in his actions led the officers to believe that he was not in control of his faculties.
The State argues that its evidence "showed the defendant going through a detailed series of steps.... The events before, during, and after the killing suggested deliberation, not the frenzied behavior of an emotionally disturbed person." In light of all the evidence presented, a peremptory instruction would have been improper in this instance. Defendant's mental state was appropriately considered and determined by the jury.
Defendant next argues that the trial court erred by not requiring the jury to list each mitigating factor it found on the issue sheet. We addressed this same issue in State v. Pinch, 306 N.C. 1, 292 S.E.2d 203 and State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), and found no merit in this contention. We reiterate that although we find no such requirement in our statutes, the better practice is to require the jury to specify mitigating factors found and not found to facilitate appellate review. This assignment of error is overruled.
In his final assignment of error, defendant contends that the trial court erred in instructing the jury that it was required to reach a unanimous decision in its determination of mitigating factors. Defendant maintains that required unanimity unconstitutionally restricts the jury from a full opportunity to consider mitigating circumstances. Defendant failed to object at trial. We have ruled on this precise question adversely to the defendant's position. In State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, we found this jury unanimity instruction to be constitutional and in accord with the requirements of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). We reaffirm our holding in Kirkley and, thus overrule defendant's assignment of error on this issue.
After a thorough review of the transcript, record on appeal and the briefs of the parties, we find that the record fully supports the jury's written finding in aggravation. We further find that defendant's death sentence was not imposed under the influence of passion, prejudice or any other arbitrary factor and that the transcript and record are devoid of any indication that such impermissible influences were a factor in sentencing.
Finally we have determined that the death sentence imposed is neither excessive nor disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. See State v. Williams, 308 N.C. 47, 301 S.E.2d 335.
We recently upheld the death penalty in State v. Boyd, 311 N.C. 408, 319 S.E.2d 189 (1984), a case not dissimilar from the case sub judice in that the murder evolved from the separation of the defendant from a woman he purportedly loved; the defendant was apparently unable to cope with the separation; prior to the murder, the defendant threatened to kill the victim; and the murder was carefully planned and executed and committed overtly. See State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240, reh. denied, 454 U.S. 1117, 102 S. Ct. 693, 70 L. Ed. 2d 655 (1981).
In addition, we have affirmed the death penalty in numerous cases involving death or serious injury to one or more people other than the murder victim. See State v. McDougall, 308 N.C. 1, 301 S.E.2d 308; State v. Pinch, 306 N.C. 1, 292 S.E.2d 203; State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Barfield, 298 N.C. 306, *657 259 S.E.2d 510 (1979), cert. denied, 488 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 reh. denied, 448 U.S. 918, 101 S. Ct. 41, 65 L. Ed. 2d 1181 (1980). State v. McDowell, 301 N.C. 279, 271 S.E.2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S. Ct. 1731, 68 L. Ed. 2d 865 reh. denied, 451 U.S. 1012, 101 S. Ct. 2350, 68 L. Ed. 2d 865 (1981); see also, State v. Gardner, 311 N.C. 489, 319 S.E.2d 591 (1984). Considering the circumstances surrounding the crimes in this case, together with those in similar cases, we hold that the penalty of death is neither excessive nor disproportionate.
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.
"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." Chisholm 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." Defendant called his estranged wife by telephone "on a number of occasions about the kids and about [her]." On 19 June 1981, *658 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.
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 ringing his hands, which showed agitation and excited. He hardly spoke. He would nothe 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 dispondency. 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."
*659 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."
Defendant 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 killings. 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 *660 influence of a mental or emotional disturbance.
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 show on this point, they would find defendant had no significant history of prior criminal activity.
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.
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 murders 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.
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 *661 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, 319 S.E.2d 189 (1984), and State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240, reh. denied, 454 U.S. 1117, 102 S. Ct. 693, 70 L. Ed. 2d 655 (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, held 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 *662 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 evidence 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.
MARTIN and FRYE, JJ., join in Part 2 of this dissent.
 Defendant's brief contains twenty-four assignments of error, four of which defendant acknowledged in his index as abandoned. Upon reading the brief we discovered, via inserted indications, that defendant had abandoned five additional assignments of error. We assume that defendant also abandoned two other assignments, specifically XV and XVI, since we cannot locate these numbered assignments anywhere in his brief.
The defendant further complicated our duty of addressing his assignments by addressing certain assignments out of numerical sequence and by giving in the index incorrect corresponding page numbers for some of the assignments. Such discrepancies and errors result in confusion and an inefficient use of Court time.
 Although defendant brought this motion prior to the empaneling of the jury, the trial court declined to rule on this motion until the close of the guilt-innocence phase. At that time, the trial judge denied defendant's motion, but agreed to allow the defendant to present evidence in support of the motion at the end of the sentencing phase of the trial.


text:
United States v. Am. Express Co.
UNITED STATES OF AMERICA, et al., Plaintiffs, v. AMERICAN EXPRESS COMPANY and AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., Defendants.
Having considered the submissions, including the specific remedies proposed by the Government and American Express, and on the basis of the well-developed factual record introduced during the trial, the Court issues this Memorandum to explain certain of the provisions contained in the Order Entering Permanent Injunction as to the American Express Defendants (the "Permanent Injunction") that the court enters concurrently with this Memorandum.
As the court has explained on numerous occasions, the court believes that given the complexity of the general purpose credit and charge card network services industry, "the parties themselves are likely best equipped to determine how American Express's merchant regulations might be rewritten so as to satisfy American Express's interests and yet comport with the Sherman Act." (Scheduling Order at 2.) The court therefore encouraged the parties to jointly propose a remedy. (See id. at 1-3.) Unfortunately, as demonstrated by the competing proposed orders, the parties have reached only limited common ground. Thus, the court must resolve numerous disputes, concerning both core and collateral issues. This Memorandum explains the reasoning behind the court's resolution of the parties' core disputes.
This Memorandum does not provide a detailed explanation for the court's resolution of less significant disputes between the parties. These include the court's adoption of the Government's proposed definition of "Merchant" (see Permanent Injunction § I.M), adoption of the Government's proposed provision authorizing exclusive-steering agreements between Amex and merchants under certain circumstances (see Permanent Injunction §§ III.B.3, IV.D), adoption (as modified by the court) of American Express's proposed provision confirming its right to steer cardholders toward particular merchants (see Permanent Injunction § III.B.6), adoption (as modified by the court) of the Government's proposed provisions governing notice to merchants of the court's Decision and Permanent Injunction (see Permanent Injunction § IV.C), rejection of American Express's proposed definition of "Rule" (see Defs.' Proposed J. § I.22), rejection of American Express's proposed provision regarding marketing benefits and other services (see Defs.' Proposed J. § III.B.6), and rejection of American Express's proposal that would have required merchants engaging in steering to provide notice to Amex (see Defs.' Proposed J. § III.B.9). Finally, the court notes that while it has drawn largely from the parties' proposals, it has also made its own additions and subtractions to the language, including adjustments to certain time periods.
[t]he District Court is not obliged to assume, contrary to common experience, that a violator of the antitrust laws will relinquish the fruits of his violation more completely than the court requires him to do. And advantages already in hand may be held by methods more subtle and informed, and more difficult to prove, than those which, in the first place, win a market. When the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed.
Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 698 (1978) (quoting Int'l Salt Co. v. United States, 332 U.S. 392, 400 (1947)).
The Permanent Injunction is designed to eliminate the consequences of Defendants' past violation of the Sherman Act and to encourage a functional and fair market in the future. It is structured to clarify which rights merchants now have, and confirms which powers American Express retains. The Permanent Injunction contains detailed notice provisions to ensure that Amex-accepting merchants receive notification of the changes to the NDPs and of their nascent ability to steer customers toward particular credit card brands. It also contains thorough compliance provisions to guarantee that American Express meets its obligations and changes its perception of and response to steering by merchants. The court does not seek to punish Defendants or to impose punitive terms upon them, and the court is cognizant of the fact that the implementation of the Permanent Injunction will require Defendants to expend significant efforts and to alter the ways in which they engage with merchants. This result flows from the findings contained in the court's Decision, and is a result that the Sherman Act is designed to provide.
In an antitrust case, "courts have an obligation, once a violation of the antitrust laws has been established, to protect the public from a continuation of the harmful and unlawful activities." United States v. Parke, Davis & Co., 362 U.S. 29, 48 (1960). An antitrust remedy should "pry open to competition a market that has been closed by defendants' illegal restraints." Int'l Salt Co. v. United States, 332 U.S. 392, 401 (1947), abrogated on other grounds by Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006). The remedy should seek "both to avoid a recurrence of the violation and to eliminate its consequences," Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 697 (1978), and to "cure the ill effects of the illegal conduct, and assure the public freedom from its continuance," United States v. U.S. Gypsum Co., 340 U.S. 76, 88 (1950). See also Ford Motor Co. v. United States, 405 U.S. 562, 573 (1972) ("The relief in an antitrust case must be 'effective to redress the violations' and 'to restore competition.'" (quoting United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 326 (1956))). The relief ordered should be based "on some clear 'indication of a significant causal connection between the conduct enjoined or mandated and the violation found directed toward the remedial goal intended.'" United States v. Microsoft Corp., 253 F.3d 34, 105 (D.C. Cir. 2001) (quoting 3 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 653(b) (1996)). The punishment of a defendant for its prior transgressions is not, however, a proper remedial purpose. See, e.g., Hartford-Empire Co. v. United States, 323 U.S. 386, 409 (1945) ("[W]e may not impose penalties in the guise of preventing future violations."). Thus, the remedy should not "adopt overly regulatory requirements which involve the judiciary in the intricacies of business management." New York v. Microsoft Corp., 224 F. Supp. 2d 76, 100 (D.D.C. 2002) (citing United States v. Paramount Pictures, 334 U.S. 131, 163 (1948)), aff'd sub. nom Massachusetts v. Microsoft Corp., 373 F.3d 1199 (D.C. Cir. 2004).
Absent an adequate remedy in an antitrust case, the Government may have "won a lawsuit [but] lost a cause." Int'l Salt, 332 U.S. at 491. Accordingly, district courts "are invested with large discretion to model their judgments to fit the exigencies of the particular case." Int'l Salt, 332 U.S. at 400-01. It "is entirely appropriate" for an antitrust remedy to "go beyond a simple proscription against the precise conduct previously pursued." Nat'l Soc'y of Prof'l Eng'rs, 435 U.S. at 698. A district court thus has "broad power to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future unless enjoined, may fairly be anticipated from the defendant's conduct in the past.'" Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 132 (1969) (quoting N.L.R.B. v. Express Publ'g Co., 312 U.S. 426, 435 (1941)). "[I]t is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor." F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 171 (2004) (quoting E.I. du Pont de Nemours, 366 U.S. at 334)).
More generally, as Defendants emphasize in their submissions, a court entering a permanent injunction in any case must not misuse its equitable powers under Rule 65 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 65(d); City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir. 2011) ("Although a district court has 'a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct,' it is nonetheless 'the essence of equity jurisdiction' that a court is only empowered 'to grant relief no broader than necessary to cure the effects of the harm caused by the violation.'" (quoting Forschner Grp., Inc. v. Arrow Trading Co., 124 F.3d 402, 206 (2d Cir. 1997))). While the Second Circuit has warned, generally, that "[i]njunctive relief should be narrowly tailored to fit specific legal violations" and "should not impose unnecessary burdens on lawful activity," Waldman Publ'g Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994) (citation omitted), in the antitrust context, the Supreme Court has made clear that a court issuing an antitrust remedy is authorized to constrain a defendant's otherwise protected conduct, see, e.g., Nat'l Soc'y of Prof'l Eng'rs, 435 U.S. at 697-98 ("In fashioning a remedy, the District Court may, of course, consider the fact that its injunction may impinge upon rights that would otherwise be constitutionally protected, but those protections do not prevent it from remedying the antitrust violations."); F.T.C. v. Nat'l Lead Co., 352 U.S. 419, 430 (1957) ("[D]ecrees often suppress a lawful device when it is used to carry out an unlawful purpose.").
The court now turns to the core disputes between the parties concerning the scope of the Permanent Injunction. Although the parties have agreed on certain definitions and provisions, the most significant aspects of the remedy require judicial resolution.
The court agrees in part with the Government and in part with Defendants. After years of litigation between the parties (in addition to ongoing litigation between American Express and non-party merchants), a remedy that does not identify specific contractual language that is no longer enforceable merely kicks the can down the proverbial road. The Permanent Injunction must, at a minimum, identify the language currently contained in the NDPs rendered unenforceable by the court's Decision. Thus, in § IV.B of the Permanent Injunction, the court identifies language, currently contained in the NDPs, that is no longer enforceable.
In one, limited context, the court does include specific language that American Express may include in its contracts with merchants without violating the terms of the Permanent Injunction. (See Permanent Injunction § IV.B.4.) Pursuant to § III.B.5 of the Permanent Injunction, American Express remains authorized to require a merchant engaged in steering to indicate, in a limited manner, its acceptance of American Express. See also infra Part III.D.1. Thus, where the NDPs before required all merchants communicating payment methods to customers to "display [Amex] Marks according to [its] guidelines and as prominently and in the same manner as any Other Payment Products," Amex's merchant contracts can still (if Amex chooses) require merchants that engage in steering to "post limited signage at the point of sale (including online or on mobile services) or store entry or communicate orally that the Merchants accept [Amex]." (See Permanent Injunction § IV.B.4.) As discussed in more detail below, this language strikes an appropriate balance between allowing merchants to effectively steer, and protecting Defendants' legitimate interest in requiring merchants who steer away from Amex to at least inform customers that they also accept American Express. As with other provisions of its merchant contracts, Amex is authorized to instead draft alternative language that comports with the Permanent Injunction, upon notice to the Government. (See Permanent Injunction § IV.H.) The court includes affirmative contractual language in § IV.B.4 to provide the parties a "safe harbor" of acceptable language concerning merchant signage and oral communications.
In addition, the court did not strike from the NDPs language that makes clear that American Express can require all merchants to indicate their acceptance of Amex whenever a customer affirmatively asks what forms of payment are accepted.
For the reasons discussed below, the court rejects American Express's proposals that steering be permitted only on a transaction-by-transaction basis and only to a "Less Expensive General Purpose Card." In addition, although the court agrees that the implementation of an effective remedy in this case must allow a merchant to steer, in certain circumstances, to brands of debit, the court rejects the Government's overly broad proposal that the remedy also protect steering to other forms of payment, such as cash and check.
Amex argues that the "Decision—and the Government's entire theory of competitive effects—is premised on the theory that merchants need the ability to steer to lower cost [general purpose credit and charge] cards to enhance competition among the [general purpose credit and charge] card networks for merchant business." (Defs.' Br. at 9.) While true that in most instances, rational merchants will want to steer customers toward credit cards that cost them less money to accept, it is not American Express's right to perform such a calculation, or to force merchants to make such a calculation on the basis of American Express's pre-defined terms. The trial record demonstrated that merchants are able to make price comparisons, and that certain merchants care about non-price features, such as speed of pay or treatment of refunds. In other words, as the court noted in its Decision, "the law does not permit American Express to decide on behalf of the entire market which legitimate forms of interbrand competition should be available and which should not." (Decision at 136.) Cf. F.T.C. v. Ind. Fed'n of Dentists, 476 U.S. 447, 482 (1986) ("The [defendant] is not entitled to pre-empt the working of the market by deciding for itself that its customers do not need that which they demand.").
If American Express believes that merchants and/or consumers do not understand the true relative costs of accepting Amex credit cards compared to other credit cards, it is of course permitted to educate merchants and consumers.
In tandem with its "Less Expensive General Purpose Card" proposal, Amex posits that "the only way to ensure that merchants are steering to lower cost cards, and thereby acting in a manner consistent with the Court's . . . Decision, is to require that the cost comparison be done at the transaction level." (Defs.' Br. at 11.) Again, Amex seeks to continue its control of merchant decision-making, rather than to allow merchants to decide what is best for themselves. It is the merchant's prerogative to determine whether to steer on a general, brand level (and increase its own costs for those transactions where it happens to steer to a particular Visa card that ultimately costs more to accept than the customer's Amex card), or whether to steer on a transactional basis. The trial record and the Decision include many examples of general, brand-specific steering, and a limitation on steering to the level of a specific, anticipated transaction would severely undermine the remedy.
As reflected in § III.A of the Permanent Injunction, the court has determined that in order to implement an effective remedy in this case—in other words, "to allow Merchants to attempt to influence the General Purpose Cards that a Customer uses by providing choices and information in a competitive market"—merchants must be allowed to steer toward particular brands of debit cards, in addition to steering between brands of credit cards. (Permanent Injunction § III.A.) The Permanent Injunction does not, however, expressly protect steering to other forms of payment, such as cash and check, although other sources of law provide such protection in certain circumstances.
The court acknowledges, as Amex emphasizes, that it determined in its Decision that debit and credit network services comprise separate markets. (See Decision at 37-61.) However, the mere fact that debit cards are not part of the general purpose credit and charge card network services market does not mean that the court lacks the power to include brands of debit cards within the scope of the Permanent Injunction. In tailoring the terms of the remedy to this particular case, a pragmatic approach is necessary. The fact of the matter is that the major brands of credit cards (such as Visa and MasterCard) also sponsor debit cards—it is therefore impossible for merchants to effectively steer between brands of credit without the authority to, in certain cases, in effect steer a customer toward a debit card. Under American Express's proposal, a merchant would be constrained to state that it "prefers Visa credit cards," or that customers who use "MasterCard credit cards" receive an upgrade. But a merchant may want to steer by stating simply that it "prefers Visa," or that customers who use a "MasterCard" receive an upgrade, or even by prominently displaying just the Discover logo. Excluding brands of debit cards from the scope of the permitted steering would chill merchant steering and could render illusory the rights provided by the Permanent Injunction. Thus, Amex cannot prohibit a merchant from posting a sign stating that it prefers a particular brand, where that brand name encompasses both credit and debit cards.
This is not the first case in which an antitrust injunction has covered a product not within the relevant market. See, e.g., Int'l Boxing Club of N.Y. v. United States, 358 U.S. 242, 262 (1959) (upholding injunction that "went beyond the relevant market which has been considered for purposes of determining the Sherman Act violations," because "the relief  must be broader than the [relevant market] because the evil to be remedied is broader." (internal quotation marks and alterations omitted)). Indeed, debit was included within the terms of the injunction in the Visa litigation, even though the court, like this one, determined that credit and debit comprised separate markets. See United States v. Visa U.S.A., Inc., 163 F. Supp. 2d 322, 408 (S.D.N.Y. 2001) ("Moreover, including debit as a necessary part of the remedy does not put it in the same product market with general purpose cards.").
Defendants seek an express provision in the Permanent Injunction that would "confirm . . . that American Express is entitled to exercise its right not to do or continue to do business with a merchant that chooses to steer Card Members away from its Cards." (Defs.' Br. at 26; see also Defs.' Proposed J. § III.B.8.) American Express relies on United States v. Colgate & Co., in which the Supreme Court stated that the Sherman Act "does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal." 250 U.S. 300, 307 (1910); see also, e.g., Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984) ("A manufacturer of course generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently." (citing Colgate, 250 U.S. at 307)); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 728-29 (1944) ("But in no instance has [Congress] indicated an intention to interfere with ordinary commercial practices. In a business, such as [defendant's], which deals in a specialty of a luxury or near-luxury character, the right to select its customers may well be the most essential factor in the maintenance of the highest standards of service.").
The Government responds that allowing American Express to terminate a merchant who opts to lawfully steer would amount to "explicit Court authorization" for Amex "to achieve the same anticompetitive objective that the Court condemned in its Decision." (Gov't's Br. at 14.) Even where the Supreme Court has recognized the Colgate doctrine, the Government argues, it has also described the breadth of the district court's equitable power and the authority of the district court to take "action [that] reasonably tends to dissipate the restraints and prevent evasions." Bausch & Lomb, 321 U.S. at 726.
The court recognizes that, in the abstract, Defendants' argument is appealing. But it would be an absurd result if the Colgate doctrine completely suppressed the district court's authority under the Sherman Act to issue appropriate relief, and thereby authorized Amex to continue, through its market power and a non-contractual "refusal to deal," the very practice deemed unlawful in the court's Decision.
The law violator who would oppose a remedy imposed against him as itself a violation of the law does not stand in the same position as an innocent party; those whom the court has found in the wrong may not oppose a remedy on the ground that it would constitute a wrong if leveled at a non-participant in the litigation. "In fashioning a remedy, the District Court may, of course, consider the fact that its injunction may impinge upon rights that would otherwise be constitutionally protected, but those protections do not prevent it from remedying" the violations.
United States v. Paradise, 480 U.S. 149, 193 n.3 (1987) (quoting Nat'l Soc'y of Prof'l Eng'rs, 435 U.S. at 697-98). Thus, a district court has discretion under the Sherman Act "to decree relief effective to redress the violations, whatever the adverse effect of such a decree on private interests." E.I. du Pont de Nemours, 366 U.S. at 326; see also Nat'l Lead, 352 U.S. at 430 ("[D]ecrees often suppress a lawful device when it is used to carry out an unlawful purpose."). Indeed, the Supreme Court has previously approved of antitrust remedies that restricted a violator's rights, including First Amendment rights, see Nat'l Soc'y of Prof'l Eng'rs, 435 U.S. at 698, and patent rights, see United States v. Glaxo Grp. Ltd., 410 U.S. 52, 58-60 (1973) (holding that district court properly limited defendant's patent rights in antitrust injunction).
The court also finds persuasive the reasoning of Toys "R" Us, Inc. v. FTC, 221 F.3d 928 (7th Cir. 2000), although, as Defendants note, there are differences between that case and this one. Like this case, which the court has previously described as "not fit[ting] neatly into the standard taxonomy of federal antitrust law" (Decision at 34), Toys "R" Us involved a complicated series of vertical and horizontal agreements, in which Toys "R" Us (a traditional retailer) attempted to influence the business activities of toy manufacturers and the relationships between toy manufacturers and discount retailers. 221 F.3d at 930-35. An administrative law judge entered a remedy that, inter alia, prohibited Toys "R" Us from "refusing to purchase toys and related products from a supplier because, in whole or in part, that supplier offered to sell or sold toys and related products to any toy discounter." See id. at 939. Toys "R" Us argued to the administrative law judge (and again on appeal to the Seventh Circuit) that the remedy "trampled on its ability to exercise its rights under Colgate to choose unilaterally the companies with which it wanted to deal." Id. at 934. The Seventh Circuit rejected this argument, explaining that "unilateral actions of the sort protected by Monsanto and Colgate are not the same thing as a retailer's request to the manufacturer to change the latter's business practice." Id. at 939. In other words, the remedial order barred Toys "R" Us from "tell[ing] the manufacturer what to do," but still permitted Toys "R" Us "to decide which toys it want[ed] to carry and which ones to drop, based on business considerations such as the expected popularity of the item." Id. at 939-40. In addition, the Seventh Circuit explained that a remedial provision barring Toys "R" Us from refusing to deal with suppliers that also sold their products to discounters was proper under Colgate, since "[t]hese refusals to deal were the means [Toys "R" Us] used to accomplish the unlawful result, and as such, they are subject to regulation." Id. at 939, 940 (citing Nat'l Lead, 352 U.S. at 425).
Here, given Amex's market power, cardholder insistence, and Amex's prior enforcement of the NDPs, and given the court's "obligation, once a violation of the antitrust laws has been established, to protect the public from a continuation of the harmful and unlawful activities," Parke, Davis & Co., 362 U.S. at 48, the court agrees with the Seventh Circuit's reasoning in Toys "R" Us that a remedial order can, in this particular circumstance, limit a violator's right to refuse to deal without running afoul of Colgate. Of course, like Toys "R" Us, American Express remains free to terminate a merchant for reasons other than merchant steering; but, consistent with the court's findings that Amex has violated the Sherman Act, it is not free to dictate merchants' business practices (and perpetuate the status quo of merchants not engaging in steering) by threatening to refuse to deal with merchants who exercise their rights pursuant to the Permanent Injunction. Accordingly, the Permanent Injunction does not contain the provision American Express seeks.
The parties dispute the significance of the Visa and MasterCard Consent Decree previously entered in this case. (See Final J. as to Defs. MasterCard Int'l Inc. and Visa Inc. ("Consent Decree") (Dkt. 143).) Amex argues that because a court has greater flexibility in approving a proposed consent decree, "while withholding rights from American Express that were granted to Visa and MasterCard in the Consent Decree in this case would be inappropriately punitive, the fact that the decree with Visa and MasterCard includes certain restrictions on their activity cannot, on its own, form the basis for imposing those same restrictions on American Express." (Defs.' Br. at 7.) The Government, on the other hand, argues that "[a] settlement is often a compromise, and thus may encompass less relief than a litigated judgment." (Gov't's Reply at 4 (emphasis in original).) In other words, "when a consent decree is brought to a district judge, because it is a settlement, there are no findings that the defendant has actually engaged in illegal practices. It is therefore inappropriate for the judge to measure the remedies in the decree as if they were fashioned after trial." United States v. Microsoft Corp., 56 F.3d 1448, 1460-61 (D.C. Cir. 1995) (emphasis in original).
The court appreciates that in their submissions, both parties noted where their proposals parallel or differ from the Consent Decree, and the justifications for those parallels or differences. (See, e.g., Gov't's Br., Ex. 2 (table comparing each provision of the parties' proposed judgments to the Consent Decree); Defs.' Br. at 41 (arguing that compliance provisions from the Consent Decree are sufficient).) While the court recognizes the interplay between the Permanent Injunction and the Consent Decree, it also recognizes that the Permanent Injunction must be based on the evidence submitted at trial. The court further recognizes that American Express's business model differs in important ways from that of Visa and MasterCard. Thus, the Permanent Injunction parallels the Consent Decree in some respects, and deviates from the Consent Decree in other respects. The fact that the Permanent Injunction contains a provision that Amex opposes because it does not appear in the Consent Decree does not render such a provision "punitive" (see Defs.' Br. at 37); the fact that the Permanent Injunction contains a provision not in the Consent Decree that the Government opposes does not mean that Amex is inequitably granted rights not available to Visa and MasterCard (see, e.g., Gov't's Br. at 5 ("Thus, the judgment should not provide Amex with opportunities to restrict steering in ways Visa and MasterCard cannot and thus perpetuate the market impediments that this Court found unlawful.")).
As discussed above, see supra Part III.A, American Express has a legitimate interest in requiring that merchants who steer customers away from Amex cards also communicate to those customers that they accept American Express. The Government argues that Amex should only be allowed to require such a communication where the merchant otherwise communicates to customers which brands it accepts (for example, on a small display at the point of sale indicating all brands accepted). Where a merchant only communicates its preference for certain brands (for example, a sign at the point of sale stating that a merchant prefers Visa, or a sign at the point of sale offering a discount to customers who use a MasterCard, but nothing more), the Government appears to argue that Amex cannot compel a merchant to communicate, in some way, that it also accepts American Express.
Under § III.B.5 of the Permanent Injunction, American Express has authority to impose signage requirements, but this authority is limited, and in no event is Amex authorized to use rules concerning signage or other merchant communications regarding Amex acceptance to deter or undermine the efficacy of merchant steering. (Permanent Injunction § III.B.5.) Accordingly, at most, Defendants can require that merchants post signage at the point of sale (including online or on mobile services) or store entry or communicate orally that they accept American Express. For example, Amex cannot compel a merchant to do more than post a sticker at the point of sale or store entry indicating all accepted brands, including the preferred brand(s). The power to require anything greater would chill efforts by merchants to steer, and would dilute the effectiveness of steering (for example, it would go too far if a rule required merchants engaging in steering to place an Amex logo on the actual sign attempting to influence customer choice). With respect to online or mobile transactions, the court rejects American Express's proposal that it "shall be entitled to require that the signage indicating American Express acceptance must appear at the earliest point within the payment path at which any such practice occurs." (Defs.' Proposed J. § III.B.6.) Like traditional merchants (who, under the Permanent Injunction, can indicate their acceptance of Amex at the point of sale or store entry), online and mobile merchants that choose to steer are entitled to determine the appropriate way of reasonably communicating their acceptance of American Express, so long as they communicate to customers at some point in the process that they, in fact, accept American Express.
Finally, as discussed above, under § IV.H of the Permanent Injunction, American Express must give notice to the Government of any changes to its rules governing merchants' acceptance of other credit card brands or debit cards before implementation of those rules. Thus, the Government will be on notice should American Express take a position regarding signage that is contrary to the terms of the Permanent Injunction and this Memorandum, and will be able to seek relief from this court should the Government believe American Express has done so.
Similarly, the court does not adopt the Non-Party Merchants' proposal to define the concept of "surcharges." The court is confident that merchants will understand the difference between a discount and a surcharge, and the definition of surcharging was not part of the trial in this case.
Considering that this is a permanent injunction entered after a full trial, the court rejects American Express's proposal that it have the later of (a) 90 days from the date of entry of the Permanent Injunction, or (b) 90 days following the expiration of any stay of the Permanent Injunction entered by this court or an appellate court, to implement the required changes to its business. (See Defs.' Proposed J. § I.9.) Rather, in the Permanent Injunction, the court orders that within the later of 30 days from the date of entry of the Permanent Injunction, or 30 following the expiration of a stay, Amex (a) cease to engage in the Prohibited Conduct and (b) commence the Required Conduct and notice/compliance requirements. (See, e.g., Permanent Injunction §§ I.G, III.A, IV.A.) The 30-day period of implementation gives Defendants ample time to seek an additional stay of the Permanent Injunction, while also providing that, absent a stay, the process of remedying the instant antitrust violation will begin in earnest.
Finally, the Government proposes significant compliance provisions, arguing that "Amex should be required to devote as least as much attention to monitoring compliance with the Final Judgment as it did to monitoring merchants' compliance with its anticompetitive restraints." (Gov't's Br. at 33.) Defendants respond that the "onerous, unnecessary, and unreasonable" compliance provisions are punitive and premised on the Government's "baseless" assumption that "American Express cannot be trusted to comply with the Court's Final Judgment." (Defs.' Br. at 41, 42.) Defendants propose compliance provisions that parallel those in the Consent Decree, but nothing more.
The court agrees with the Government; considering American Express's previous, aggressive enforcement of the NDPs, and certain of the positions that it took at trial, robust compliance provisions are necessary to ensure that Amex complies with the Permanent Injunction. It is not yet clear to the court whether American Express has a positive compliance attitude, particularly in light of its unwillingness to agree to some of the Government's more modest proposals. Contrary to Defendants' argument, compliance provisions are not reserved only for antitrust violators who engaged in criminal, intentional, or malfeasant conduct. (See Defs.' Br. at 45; Gov't's Reply at 18 & n.12.) For a company of the size of American Express, the compliance provisions included in the Permanent Injunction are not overly costly or burdensome—for example, the court has not appointed an independent, external monitor, although it certainly has the authority to do so. In addition, should Defendants (or the Government, for that matter) believe that the compliance provisions are unworkable, or require adjustments once implemented, they are permitted under the Permanent Injunction to seek modifications from the court.
As set forth above, and as embodied in the court's separate Order Entering Permanent Injunction as to the American Express Defendants, the court adopts many of the proposals made by the Government with respect to the proper scope of injunctive relief in this case, with some exceptions, and with certain modifications.

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AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 93, AFL-CIO vs. SCHOOL DEPARTMENT OF BURLINGTON.
Present: LENK, KAFKER, & MILLS, JJ.
School and School Committee, Arbitration. Arbitration, School committee, Award, Authority of arbitrator, Vacating award. Practice, Civil, Review respecting civil service.
CIVIL ACTION commenced in the Superior Court Department on June 22, 2007.
The case was heard by S. Jane Haggerty, J.
Erin L. DeBonzis for the plaintiff.
Brian M. Maser for the defendant.
MILLS, J. The plaintiff, American Federation of State, County, and Municipal Employees, Council 93, AFL-CIO (union), appeals from a Superior Court judgment following the denial of the union's motion to vacate an arbitrator's award under G. L. c. 150C, § 11, and the allowance of the motion of the defendant, the school department of Burlington (department), for judgment on the pleadings confirming the award. We reverse the judgment and remand for further proceedings.
agreement (CBA) between the union and the department (effective between July 1, 2002, and June 30, 2005) contained a grievance and arbitration procedure for "[a]ny grievance or dispute which may arise between the parties concerning the meaning or interpretation of this Agreement." The matter proceeded to arbitration.
The arbitrator determined that the dispute was not arbitrable, reasoning that the grievance and arbitration procedure contained in article IV did not apply to civil service employees who, she ruled, by article V, had recourse only to their statutory and common-law remedies. [Note 1] The arbitrator did not reach the merits of the grievance.
The linchpin of the decision was the grievant's civil service status. The arbitrator found that the grievant was a civil service employee based on the failure of the union to contest such status during the proceedings. [Note 2] The arbitrator had no evidence to support this finding. Both the union and the department presented evidence in the Superior Court that had not been presented to the arbitrator. This evidence creates a substantial question as to the grievant's civil service status.
The union filed the complaint pursuant to G. L. c. 150C, § 11, seeking to vacate the arbitrator's award. The union argued that (1) the arbitrator exceeded her authority by ruling on the issue of arbitrability, and (2) the arbitrator exceeded her authority by finding that the grievant was a civil service employee.
After the union moved to vacate the award, the department cross-moved for judgment on the pleadings to confirm the award. The judge allowed the department's motion and denied the union's. Judgment subsequently entered, and this appeal followed.
2. Standard of review. We review de novo a grant of judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 758 (1974). Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594 , 600 (2010). See Jarosz v. Palmer, 436 Mass. 526 , 529 (2002). We review arbitration awards "only to determine if the arbitrator has exceeded the scope of [her] authority, or decided the matter based on 'fraud, arbitrary conduct, or procedural irregularity in the hearings.' " Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006 , 1007 (1990), quoting from Marino v. Tagaris, 395 Mass. 397 , 400 (1985).
3. Discussion. The union argues that the arbitrator exceeded her authority by determining, on the basis of no evidence, that the grievant was a civil service employee. We agree.
A judge shall vacate an arbitration award rendered in excess of the arbitrator's powers. G. L. c. 150C, § 11(a)(3). An arbitrator exceeds her powers by, inter alia, awarding relief which does not "draw its essence from the collective bargaining agreement." School Dist. of Beverly v. Geller, 435 Mass. 223 , 228-229 (2001) (Cordy, J., concurring), quoting from United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960).
an arbitrator's decision is concededly a non-fact . . . the award cannot stand"). Because a finding with no evidence to support it cannot draw its essence from a collective bargaining agreement designed to resolve disputes fairly through arbitration, such an award exceeds the arbitrator's powers. [Note 4] See School Dist. of Beverly v. Geller, 435 Mass. at 228-229 (Cordy, J., concurring).
Here, there was no evidence to support the arbitrator's finding. At argument in the Superior Court, the department conceded that the only evidence before the arbitrator relating to civil service status was the CBA, a document which provides no such evidence. The department's posthearing brief before the arbitrator cites as evidence only the termination letter, a document also without any evidence of the grievant's civil service status.
In contrast, the parties presented considerable contradictory evidence in the Superior Court raising a substantial question about the grievant's civil service status. Because the grievant was entitled to the presumption of arbitrability, see note 3, supra, it was incumbent upon the department to present at least some of this evidence to the arbitrator to overcome the presumption. The department failed to do so.
The arbitrator therefore determined the critical issue in this dispute -- the grievant's civil service status -- without any support in the record for her finding. Accordingly, she exceeded her powers, creating grounds to vacate the award under G. L. c. 150C, § 11(a)(3). See Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. at 190.
4. Conclusion. The judgment is reversed, and a new judgment shall enter vacating the arbitrator's award and recommitting the case to the arbitrator for further consideration consistent with this opinion.
"The employer and the union shall recognize and adhere to all Civil Service and State Labor Laws, rules and regulations relative to seniority, promotions, transfers, discharges, removals and suspensions.
"The union further reserves the right to represent members under any such established procedure. Any employee not covered by any statute relative to the above matters shall have recourse through the grievance procedure contained [in article IV] beginning at the first step" (emphasis added).
[Note 2] The union disputed civil service status in the Superior Court and represented that it had contested such status before the arbitrator as well.
[Note 3] Although this principle applies to arbitration awards generally, it applies a fortiori to questions of arbitrability because of the strong background presumption favoring arbitration. See, e.g., Local Union No. 1017, Intl. Assn. of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417 , 421 (1999), quoting from AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 649 (1986) ("[W]here the contract contains an arbitration clause, there is a presumption of arbitrability . . . . Doubts should be resolved in favor of coverage" [emphasis added]).
[Note 4] The CBA between these parties, for example, lists as one of its purposes "the establishment of an equitable and peaceful procedure for the resolution of differences."